LAW REPORTS.

Dominion, Volume 3, Issue 821, 21 May 1910, Page 14

LAW REPORTS.

"i RESERVED JUDGMENTS. •aUILDINC CONTRACTORS' CLAIM. "A HARD CASE." Mr. Justice Cooper delivered judgment on Thursday morning in. the case of Alexander Bell and John Bell pellants) v. G. H. Sample (respondent). This was an appeal on law and faot from the judgment of Dr. M'Arthur, S.M., Wellington. \ The appellants •brought an action ,in the Magistrate's 'Court, Wellington, against the reispondent, claiming to recover tho sum lof £197 10s. Bd., the balance alleged ?to be due by the respondent for work 'done in connection with a contract for :the building of a house at Kilbirnie. /The magistrate held that the work lhad not been completed; in particular &e held that the house had been erected upon the wrong site, and ho gave judgjment for the defendant (the present ''respondent). .■ His Honour, in tho' course of his (judgment, after discussing the' question as to what was, in fact, the agreement entered into between the parties —the document - having been lost— etated that in his opinion the agreement between the Darties- incorporated and included' certain conditions, which were", in fact, conditions well known ;to the trade, and settled and adopted iin 1905 by the Institute of Architects "'and the New Zealand Builders' Association as the general conditions of fbuilders' contracts. The appellants, (therefore, having contracted to, do an entire work for a specific sum, could not recover unless they had done the work, or it could be shown that it was 'the respondent's fault that the work was incomplete, or there was something to justify the conclusion that the parties had entered into a fresh contract, or unless there was' something in the terms of the agreement which pre-, vented the. operation of the general rule of law. Where the contract also contained a condition that the work . was to be done to the approval of Some . third person, his approval was necessary before, ordinarily, an action could he maintained for the price. By the agreement of tie parties Brightiwell, the respondent's father-in-law, was as the person who under tho' conditions was the person to approve of and pass tho work. The work had not, in fact, been 'approved of and passed by him, nor had any certificate been given. His Honour considered that there was not sufficient satisfactory evidence to justify in holding that this condition had been dispensed with; and the onus of proving that the contract had been varied in. this respect rested upon the appellants. No written certificates appeared, to have been ■given by Brightwell. If there had .teen clear and satisfactory evidence) that he had, in fact, passed the work,' his Honour would have .been .inclined to conclude that the production;! of a written certificate to that effect-would lot have been essential, the respondent having taken possession of the house, and having made various progress payments upon the verbal recommendation of Brightwell. Sometime in the second .week of December, the appellants noti,ned both Brightwell and the respondent .that the work was finished. On. December 18, the respondent, took pos-, session of the house, and on the same day -Brightwell inspected it, and sent to the appellants a written notice claiming that, the work was unfinished and "defective. He- stated what, was r£ : nuired under 41 different heads. On January 18, 1909, and again on February 1, 1909, he pointed out in writing other matters which would require Ito be done before he was prepared to mass the work; and although at the trial before the magistrate, in' his cross-examination, he stated: If I •were asked for a final certificate for completion, I would say I was satisfied with the work, and would recommend Sample to pay," his evidence in chief showed clearly that he had not passed the work, and that in his opinion there were many matters in which the contractor had not complied with the Specifications. Taking his evidence as a whole/ the substantial effect of, it was that the work.had not yet been approved of or passed hy him; and there was other evidence which established that in some matters,, some of them of importance, tho specifications had not been complied with. • By the consent of the parties, the magistrate requested a Mr. Parsons a builder, to examine the house\ and outbuildings and to report to him his opinion upon'tho various matters which the respondent and Brightwell said were still incomploted or not in ac,'cordance with the specifications, and i'le had reported that several matters .were still incomplete. Some of, these .matters were of no great importance, ■but some indicated that the appellants had not complied with the specifica-. tioris. Even, assuming that the approval of Brightwell was unnecessary,, the evidence, before the.magistrate did not establish such a completion of tho entire work as would take the case for the appellants out of tho settled rule of law. His Honour was of opin'ion that the appellants had not in the present action established that they lad completed the work, or that its non-completion was duo to any fault of the respondent, or that any new contract had been-made preventing the application of the rule of law to which ihe had referred. ,

His Honour concluded: '"I do not agree with the magistrate's finding, •that the respondent is entitled to take advantage of the alteration of the site. In my opinion, the proper inference .to draw from tho evidence on this point is that if the alteration of the site was not originally with tho consent of the Tespondcnt (and there is evidence that it was) yet he has ratified it, and that he allowed the appellants to proceed ■with the erection of the house and las made progress payments on tho work under circumstances which satisfy mo tliat he and Brightwoll both led the appellants to believe that the! building was correctly sot out. But in my opinion, for tho reasons I have already stated, the appellants were not in a position to maintain this action when it camo before tho Court, and they ought to have been nonsuited. I vary tho magistrate's judgment by directing that a nonsnit shall be entered in lieu of the judgment for defendant. I reserve tho question of costs, as I desire to hear counsel thereon."

His Honour added tnat he looked ypon the case ae a very liard one, and if the. parties agreed that he should do so, ho would be willing to, go through the details, and fix tho amount that should bo sot off against tho plaintiffs' claim. He was the more willing to do so Bincole understood that tho plaintiff had sold tho house since the case was hoard. The course ho suggested would save the expense of arbitration. Ho would then consider the general question of coste. It would bo for counsel to consult their clients as to whether his offer should bo accepted. Mr. Johnston appeared for tlio appellants, and Mr. Blair for the respondent. A BANKRUPTCY MATTER. ■:> MOTION DISMISSED. Judgment was delivered by Mr. Justice Chapman on Thursday, in a fcankraptcy matter affecting the rela-

tives of Henry William Trotman, of Wellington, confectioner, ■ a bankrupt; and A. S. Paterson and Co., of Wellington, ■' merchants. The matter wos contained in an application to set aside as a fraudulent preference a transaction, which, in effect, amounted to payment of a debt owing by the debtor Trotman to tho creditors ,A. S. Patorson and Co., by giving them a sot off or establishing nratual credit to the amount of £154 12s. Gd. against a debt of almost equal amount.

It appeared in the course of the evidence tliat the bankrupt, previous to his failure, was carried on by Messrs. Cadbury and Co., through their agent, Mr. Mcadowcroft. At length Mr. Meadowcroft refused Mr. Trotman any further financial assistance. Trotman at this time had a considerable debt owing to A. S. Paterson and Co., for Christmas stock. Mr. Shirtcliffe, representing A. S. Fatereon and Co.. pressed for payment of the debt, and bought Iα settlement a quantity of Trotiuan's surplus stock. After further negotiations, Mr. Meadowcroft refused Trotman any further accommodation. A meeting of Trotman's creditors was then called. There was no dispute, as to two facts —Trotman was not able to pay bis debts as they came duo, and A. S. Paterson and Co. bought to secure themselves. Tho question for determination was whether the debtor sold these goods with a. view of giving this creditor preference over the other creditors. On this point, in reference to the first meeting of Trotman'3 creditors, there was no suggestion of bankruptcy., Trotman was to carry on the business as manager.

"I fcol satisfied," said his Honour, "that he really regarded Mr. Shirtcliffe's offer as adding to his means of ultimately paving his creditors in .full, rather than as a step to defeat them. If a man enters into a transaction at a moment when bankruptcy does not appear to him to be inevitable, with n view of strengthening himself in his struggle ,to carry on, there is an clement of benefit to himself- as well as of possible benefit to his other creditors in his motire. Numberless' traders must have 'righted ...themselves by means of such transactions.'. .

After quoting several cases in point, his Honour said ho had come to the conclusion that tho transaction ought not'to have been avoided. The motion was dismissed, with costs £10 10s.

Mr. Von Haast appeared for the Official Assignee in the bankrupt estate of H. W. Trotmaiv, and Mr.- F. G. Dal,ziell for A. S. Paterson and Co.

SMEU FROM A STABLE. DEPRECIATING A PROPERTY. Mr. Justice Chapman gave judgment on. Thursday in the case of Treadwell v. Wellington Dairy Company. This was a motion for a new trial on several grounds. The original trial had resulted in damages to tho extent of £104 being awarded to the plaintiff for depreciation of house property caused by smells emanating from a stable belonging to tho defendant company. . His' Honour said he had disposed of most;'of-the objections to the verdict at the hearing of the motion, but there remained one to bo considered. Plaintiffs counsel had shaped his case as if tho .fact of the defendant's committing a nuisance extending over a period entitled her to damages based oil permanent loss of so much of. the capital value of her property. He had made it clear that this was not the proper way to consider the question of damages m the case of. a remediablo nuisance, Jmt it wae still-complained that the damages wore excessive. Tho nuisance consisted of smells proceeding from a stable, and the conduct complained of lasted about a year, and there was evidence that-the. rent of .plaintiff's houses depreciated' to tho extent of £1 per week' during that period. Tho defendants then parted with the.stable, but there was evidence that it emitted smells at later dates. Tho verdict was for £104,- and it was urged for,defendant that the figure showed that tho jury had awarded plaintiff a sum equal to the whole year's value of the property without deducting tho rent actually received. This was not, however; the necessary conclusion. Tho rulo was. that such damages should be awarded, as appeared to naturally result from a wrong which had been allowed to continue in an intermittent form for a year. Where the. committing of a nuisance over a prolonged period had given a divellinghonso a bad reputation, damage was caused which was. not\at once stopped by stopping the nuisance, and it would bo natural to attribute to the wrongdoer some of the subsequent depreciation, even though lie had ceased to do wrong. Ihe damages awarded wero, in his Honour s opinion, somewhat large, but it was very undesirable that a new trial should bo granted to assess damages, unless they were manifestly excessive. Ho could not say that the damages in this case were such as to Bhow that the jury had acted improperly. The motion would, therefore, bo dismissed with costs. Judgment would bo entered for the plaintiff for the amount assessed Costs of the motion, £5 55., were allowed to the plaintiff. Mr. P. J. O'Regan appeared for tho plaintiff, and Mri A. Blair for the respondents. ...

A PATENT HAY-PRESS. PATENTEE: FORESTALLED. Mr. Justice Cooper heard argument on Thursday. in ..the.cas'S" of William Dalziell v. William ;Beuoni Parker, which he had adjourned from Blenheim. The plaintiff wa-s the proprietor' of letters patent for. , an invention for pressing hay, tho letters patent bearing date March 19, 1909; Tho defendant, in February or, March, 1909, constructed a machine for the same purpose, and on the same" lines, and, as found by his Honour,'; at Blenheim, used it publicly'on March" 17, in the way of his trade in pressing hay on a farm at Blenheim.' The', defendant! claimed that. the. patent -was invalid, because of the: prior user'by himself. After hearing argument,'..his Honour decided that tho prior" user by the/ defendant invalidated; .-the • plaintiff's patent. Ho therefore : gave judgment for the defendant; ■.\wjtn; , costs on the) lowest scale,;. witnesses'; expenses, and disbursements. Mr. M'Callum appeared-for the plaintiff, and Mr.H. H.: OstlorUnd Mr. G., P. Rogers for the defendant. ABOUT AN OIL LAUNCH. CLAIM AND COUNTERCLAIM. The caso of Lano v. Nicholls,. which was adjourned from Blenheim by Mr. Justice Cooper, for argument on law points, was beforo ' his Honour on Thursday morning. The plaintiff Lano is a boaWmildcr at Picton, and tho defendant near Blenheim. The parties entered into a contract for the sale by plaintiff to defendant of an oil launch, containing a certain make of engine, at a price of £948. The launch was completed, and delivered on March 12, 1909, but tho defendant alleged that tho engino was, so defective in material and workmanship that it was inefficient for the purposo of driving the launch. The defendant tried to use'the launch for four mouths, and then laid it up. He refused to complete payment fori it until the engino was put in order. The plaintiff therefore sued him on a promissory note for £100, which.had.been givon in part payment. The defendant counter-claimed for £748, and' after three days' hearing in Blenheim, the jury answered eight of tile nine isstios submitted to them in defendant's favour, but }■ 'S one issuo, as to the

amonnt of damages, to be decided by his Honour.

Mr. Ostlor and Mr. G. P. Rogers appeared for tho defendant, and moved for judgment, and Mr. Gray represented tho plaintiff. His Honour, after hearing argument, reserved judgment.