LAW REPORTS.

Dominion, Volume 4, Issue 1075, 14 March 1911, Page 3

LAW REPORTS.

SUPREME COURT.

ABOUT A BUILDING CONTRACT. OWNER SUED. Two civil cases arising out of an abandoned contract for the erection of two houses at Hataitai camp before the Chief Justice, Sir Robert Stout, yesterday. Tile contractors had abandoned their contract beforo completion, and the work had been finished by certain of the sub-contractors. Tho cases (which wore taken together) arose out of claims made by sub-contrac-tors upon tho owner of the houses. Caio Number One. In the first case tho plaintiffs were Easson, Limited, timber merchants, of Kilbirnie, and Charles W. Martin, plimiber, William Nicol, painter, and William Benson, bricklayer, all of Wellington. The defendants were William Heber Brightwell, settler, Mary Ann Brightwell, married woman, and Orniond H. Brightwell, settler, all of Wellington. The Hon. T. W. Hislop appeared for the plaintiffs, and Mr. A. W. Blair fur the defendant.".

The above, plaintiffs were four of the sub-contractors employed by Johann and Jorgensen, of. Wellington, builders, in the erection of two dwelling-bouses in Matai Road, Hataitai. They asserted in thoir statement of claim that Johann and Jorgensen contracted for the erection of the building with the defendants, or some of them, for the sum of £1167. On July 1, 1910, the plaintiffs received from H. T. Johns, the defendants' architect, a letter stating that on Juno 22, 1910, Johann and Jorgensen had abandoned their contract, on which they had already received .£325, in progress payments, and had done work exceeding thnt value. The writer pronosed "to allow the creduors to stand-in the shoes of the contractors and finish the job, when the balance of the contract moneys less penalties, would he payable." Following on this letter, a meeting of the sub-contractors was held, Mc«rs Ea<son, Martin, Nicol, and MoyTick" being nresent. Johann and Jorgensen agreed "to leave the contract to the sub-contractors to deal with. A tender bj Johann, Jorgensen, and Jleynck to complete the job for .ETC was then entered into by tho subcontractors, the p aintiffs consenting in writing. The plaintiffs had since completed the two dwell-ing-houses in accordance with the plans and specifications, and the timo had elapsed to entitle thorn to receive tho .balance of the contract moneys. Tho defendants had refused to pay it, and the plaintiffs therefore claimed judgment lor J3GIO 45., and interest at G per cenc. from September 30 to daie of judgment. The defendants stated in their pleadings that William Heber Brightwell entered into the contract and that the other defendants had no responsibility in the matter. They averred that the notice to the creditors of Johann and Jqrgensen was sent also to Jl'Lsod, Weir, and Hopkirk, timber merchants, and that that firm was not a party to.the resolution passed by the sub-contractors, llie defendants said that the plaintlfts. agreed to complete Hie contract and expected to make a nrofit on it after paying all accounts. The defendant, W. H. Brightwell, was willing to pay tho balance of the contract moneys to whomsoever it was due, but denied that the plaintiffs were entitled to all the balance. He submitted an account and brought the balance of the money into Court. , For a further defence, W. H. Brightwell stated that Jl'Leod, Weir, and Hopkirk claimed JE2IS arising out of the contract, and that the defendant understood that their account was explained to the meeting of sub-contractors and was one of those to be paid on the completion oi the contract. The defendant claimed no interest- on the JE2IS claimed by M'Leod, Weir, and Hoitkirk -arid'-was willing- to abide by the order of the Conrt as to whom it was payable. The amount paid into Court iu this and the other action included tho sum claimed by M Leod, Weir,, and Hopkirk. The defendant also claimed' penalties under the contract tor delay. Case .Number Two. In the-other case the plaintiffs were Archibald M'Leod, William Weir and William Hopkirk, trading as M Leod, Weir and Hopkirk, timber merchants, Wellington; and the .defendant was William ileber Brightwell. Mr. Ilerdmau appeared for the plaintifls, while tho defendant w;;s represented, as in the other action, by Mr. Blair. _ ~,,., f The statement of claim set forth that in January or February, 1910, defendant let to George Johann and V. J. Jorgensen a contract to erect buildings on his land at Matai Road, Hataitai. The plaintiffs contracted to supply Johann and Jorgensen with timber and materials to the value of .£4OO, and the latter, on February 17, 1910, equitably assigned to the plaintiffs the sum of .€soo out of monevs coming to them under their contract "with Brightweli, and gave a .written assignment thereof. On June 22. 1910, Johann and Jorgensen abandoned tne contract and subsequently another contract was nu-ide with other coutractors for tho completion of the buildings. Moneys exccediii" X4OO had become due to Johann and Jorgensen from the defendant before the contract was abandoned. _ Ihe defendant had paid to the plaintiffs on account .£lB5, and■ ths plaintiffs'now sued The" defendant, denied that, the order which plaintiffs had received from Johann and Jorgensen was an equitable assignment in law of the sum of JMOO for timber and material supplied for the contract Ho also denied that any money became due to Johann. and Jorgensen under the contract in respect of work done by them before they abandoned it, and he further said thnt by reason of the abandonment they had iorfeited. all right to the payment' of any further moneys under the contract, and that the plaintiffs were in no better position in law than Johann and Jorgensen. lhe contract provided for payment only on architect's certificates, and such- certificates were given as follow-.—April 8, 1910, JCI2S; May 31, 1910, £200; total, «E325." The defendant said that the first of these payments was made by him with tho knowledge and consent of tho plaintiffs, and that the contractors paid some portion of it to the plaintiffs. In regard to the second certificate, the defendant said he paid .CIOO to the plaintiffs and the balance to tho contractors with tho knowledge and consent of the plaintiffs. ' ' As a further defence, he said that on receiving notice of tho abandonment of the contract, he sent to the plaintiffs and all other sub-contractors, notice of the abandonment and offered to allow them to stand in 'the -shoes of Johann and Jorgensen .to finish the contract. The plaintiffs did not' accept the offer, but the other sub-contractors agreed to finish tho contract, and did so. Thereupon tho sum of ,£124 12s. 7d. became payable by the defendant .in respect of-the contract. The defendant was willing to pny that sum to whomsoever was entitled to it, but he understood that the sub-con-tractors who took over the work undertook'to pay all account? in respect of the buildiiig payable by Johamr ai\t\ Joi'gensoii. including tho plaintiff's nccoiint. The said sub-contractors had by the. action.Ensson and others v. Brighlivell, claimed frim tho defendant the whole of tiio balance of the contract moneys. The defendant brought into court in both actions tha -urn of JM!M 12s. 7d., ami said that.thnt sum wns iiir. whole liability in respect of the two actions.. It whs mentioned by Mr. Hisiop that all the sub-contractors for trie building did not appear in the case. Briscoc and Co. were sub-contractors for roofing material. Mr. Hislop called C. W. Martin. J. W. Eaasnn, George Johann, William Nicol, Hugh L. Maeholl. Some of the witnesses said that when a meeting was held they were not aware that there were other sub-contractors be. sides themselves. They were assured thnt they could easily finish the job, and ge,t their money, nnd thnt there would be about XGO profit after paying everybody in full. The only witness called by Mr. Herdman was William Hopkirk.' of the firm of M'Leod, AVcir, nnd Hopkirk. The case for tho defence whs not completed when the. case was adjourned until 10 a.m. to day,-