CIVIL SITTINGS.

Dominion, Volume 4, Issue 1070, 8 March 1911, Page 7

CIVIL SITTINGS.

THE BAKER AND THE LANDLORD. A BUILDING CASE.Mr.. Justice Chapman- heard yesterday a-'casa on which William Taylor and Son, bakers, Wellington, claimed £lb(l from Martin Kennedy; of Wellington, and Felix Campbell, of Greymouth, as damages for non-tnlnlment of portions of a contract relating to the erection and leasing of a business building in Adelaide Road. n i •/•« Ll appeared for the plaintiffs, and Mr. M. Chapman, K.C., ants Fell,-for the defendMr --Herdman said that in April, 1909, the plaintiffs, who had been carrying on separately as bakers, desired to and approached Martin Kcri-α-tinlrl 9 TTang 2' ang 2 fol ' him to erect yffi-H *s cr» T ,»L,K S?r -p l - J . vc n, ne <ly and his partner, Mr lehx Campbel, agreed to erect a two tor a bakery biwiness, in accordance with a- sketch plan and particulars as to meis I liremonts attached to the agreement ™TMm plaintiffs claimed that the bSng dicl not conform to the sketch plan and 1 e J agreed Measurements, and nl nn? L 3 posed of the substantial materiab b"" gained for. . Rooms were smaller (H 1 agreed upon, end the ovens, par fclarl" were too small so that it was in p i)fc v to carry on the business effectively ™i 3 efficiently. It would be shown that th a timber of the building had sCk ho roof, had. sagged, and that the bui ,1 n" 1 :ontrnct which had been entered infn c h" 5«» »nd th. I claimed damages. ( Plaintiffs' Evidence. \ Evidence was given for the plaintiffs by 0 William Taylor, who said that thc build- C ing was very damp, and the floor the C timber of which was rotten, had gone J Tho roof was always leaking. Tho oven' 3 being too small, would not allow all the s bread they required for customers to be t got out. J Cross-examined by" Mr. Chapman, wit- I ness said tho floor seemed to have .been c built over a swamp, and the boards were C quite rotten. ] To-Mr. Herdman: The lease was for ' ten ypiirs, nnd witness estimatp<l his loss because of tho diminished size of tho shop at .£l2 10s.; because of the diminish- ' cd size of the yard at £Yl 10s.; by the ] faulty workmanship of the building he ] would lose J!50; and £Vo would not cover ' tho loss in business in tho ten years of the lease. Kolwrt Taylor, son nnd. partner of the previous witness, said his father had left for England in April of 1909, beforo the - erection of the building had been stnrtcil. ! AV'itness had not been consulted about any J variation of tho plans of (he building. His father had complained about the size ' «f tho oven sooii after his return. They ' were reduced a sack of dour n day in ' their output, and the profit on that would £ l>j 12s. Gd. net. By the diminished size .if the shop they were one table short in i their tea-rooms, and had had to turn ' people away. Ho estimated tho daily loss I in this respect at about 2s. Gd. Business Lost. c Eepiying to Mr. Chapman, witness said * the giving up of the Melrose "round" was not due to bad business. They had had to give up serving three localities altogether because of the disabilities imposed on. them. If tho daily loss of 15s. a day totalled .£273, ho could not say whether this represented their total loss. They c had, however, intended undertaking bi:; n contracts, such, for instance, as shipping, lint had had to give them up, C

William J. Proiise (of Iho firm of Hoggnrd nud Proiisp, architects) showed by a plan that tho actual dimensions of the building did not conio up to those given on the original sketch plan. The timber used was second-class; it was also possible, to sco through Iho lloors. The roof had sagged, which had allowed water to enter between tho joints of the iron. The lining inside had shrunk and it was also very uneven timber. The wall-paper was baggy in many parts. The doors were of the cheapest description, I', inches thick, and they were fitted with rim locks. Hβ did not consider the building had been put up in tho best manner or that Iho best materials had been used. Cross-examined by Mr. Chapman: ]n ten years' time the house would be worse off in n small degree than if it were built of first-class timber. Its greenness had accounted for the shrinkage. Walter A. Kellow, president of the Master Bakers' Association, who had seen tho ovens built Cor the plaintiff, said Ihe difference in their actual size from what they should have been would make a diminution in tho number of loaves baked at a baking of from 90 to 100. This would mean a net loss of between ss. and Gs. John J. Dutch, who was foreman carpenter on the job. said that the timber used was of the ordinary class. Andrew Collins, baker, said the smallness of the ovens would mean considerably more labour and expense, as thev would not bake batches as large as thev were designed for. He had iuspected the floor complained of, and had found that the plaintiffs had had to nail down tin to cover the holes. John Ward, builder, declared that the building had been erected of verv unsuitable timber. He described the building as very shoddy. The floor was rotten enough to be pulled up with his anger. The Defendant's Case. In opening the case for the defence, Mr. Uiapmau said that the plan attached to tno agreement was only a rough one, and was not to be taken in nny sense as an accurate one. He submitted that the measurements in the plan attached to the agreement could not sossibly bo made to at the available land except after some modifications. The agreement as it stood contained inconsistencies, which could be overcome only by taking the measurements as being "outside" ones. The rooms were as large as could bo put on the section, and it was the same with the ovens. The second point raised by the defence was that tne plaintiff had waived all patent delects by taking possession, it was admitted that there were certain regrettable defects, but Mr. Kennedy was quite ready to remedy them as they appeared. Ao complaints had been ma'do at all for eight months after tho plaintiff had taken possession. Martin Kennedy, one of the defendants, after describing the negotiations leading o tho agreement, said he had instructed his biiildfr to use a good ordinary class oi material. It was not suggested an inferior timber had been used. He had >een anxious to make a good job of the building in every way, and had willingly agreed to modifications in the nlan to meet what he understood to be tile wishes of the lessees. To Mr. Herdman: Witness owned land at tho back and side of the property. He would not admit that nlaintiff had" been entitled to get n building of the dimensions of the sketch plan, because it was subject to alterations. He could not recall tho sketch plan attached to tho agreement. Ho admitted that his signature was attached to alterations upon it. It had been sprung upon him as a complete surprise. A Surprise Plan. His Honour suggested that someone must have sprung over his head with it then. Replying to Mr. Herdman, witness said ho would not say his signatures on the plan were a forgery. ,He did not know where the plan had been prepared. ■Mr. Herdman: I suppose you will accept my assnranco that the plan was not prepared in my office?" Witness said ho would. Continuing, he said 'o had not employed an architect for he building; he had trusted to his milder, who had done several jobs for urn. He-did not.agree that the building .was a jerry-built one, as described by a witness. Evidence was often conflicting. . ■ •. . ~' T - , S -.,^ van > architect, who examined he building last Saturday, seid the trouble with the floor was "due to want •ot ventilation between the'floor and the ground. A good class of o.b. rimu'timber iad been used. The buildin? had conformed to the City Council by-laws. Io Mr. Herdman: In one or two respects the building did not conform to th» plans deposited with the City Corincih The building was a workman-like job, except for the want of-air-gratings under the iloor, which was'responsible for tho rotting of the floor timber. Ho ] m d not nspected the roof, and he had not been through the building for some time John T. Waterhouse, Clerk of-Works, employed by tho last witness; Owen Dalv ■ bricklayer and A Bcdlinpall, in charge' of Stewart and Co.'s timber vard a£o gave evidence. " This finished the evidence, and the concluding stages of the case wero adjourned till 9.45 this morning. TO BE HEARD TO-DAY. At the Supremo Court this mornin? Ins Honour. Mr. Justice Chapman, at 10 o clock, will hear the divorce suit, Margaret Mitchell y. William B. Mitchell -th« wife s application for dissolution of iharriatre.' Subsequently he will take the civil action, Herbert Carter v. James W Body v. John W. Chapman, a claim for declaration of rescision of tin agreement His Honour, Mr. Justice Cooper, will preside over a sitting in. banco," at 10 SI) p clock, when the castw set \down for learmg are Reed v. Cowio and Niccol v Flyger.