PROFIT ON CONTRACT

Dominion, Volume 23, Issue 150, 21 March 1930, Page 15

PROFIT ON CONTRACT

A HUTT VALLEY JOB CLAIM AGAINST OFFICIAL ASSIGNEE The Chief Justice (Sir Michael Myers) delivered judgment yesterday in the ease between William C. Hewitt and the Official Assignee of the propety of Edward John Barnes and Ernest Keeble. Reviewing the facts, His Honour, in a written judgment, explained that Barnes and Alfred Ernest Keeble, at the end of April, 1927, as partners, entered into a contract with the Government for the construction of the foundations of a new locomotive shop in the Hutt Valley, the contract price being £7BOB or thereabouts. On June 8, 1927, Barnes gave in the plaintiff’s favour an • order authorising Keeble to pay all his profits up to the sum of £5OO, plus 10 per cent, interest per annum that might accrue to him on the contract, in consideration of Hewitt, advancing Barnes the sum of ioOvin connection with his sawmill at J e Hoio. On. June 17, 1927, the judgment continued, Barnes comitted an available act of bankruptcy, though neither the plaintiff nor Hebert Hewitt had notice of it. “The contract work, which had commenced about the end of April, was then far from finished. “Indeed, the judgment proceeds, “according to Barnes, anti his was the only evidence on the point, up to June 17, only preparatory work had been done. The work is said to have been completed, except for a few extras, on oi about .September 1. Eventually the pront on the contract was ascertained to be about £1832, half of which but for his bankruptcy, would have belonged to Barnes. The plaintiff now brings his action agajnst the Official Assignee and Keeble to recove the sum of £oW and interest. “The question arises in these circumstances as to whether the plaintiff is entitled to recover the £5OO or any part of it from'either of the defendants. If the Official Assignee is entitled to claim the whole of Barnes’s share of the profit from the contract, and tbe plaintiff therefore cannot recover against tbe Official Assignee, I do not see how he can recover against Keeble, who was bound by law to pay the Official Assignee, the result then being that the money, had not become available’ to enable Keeble to comply with the order and his undertaking. “In this case the bankruptcy related back to June 17.' At that time it seems to mo to be clear that no profit, had been earned by Barnes. The profit was not earned until the contract was completed. I think therefore that there was no mqney to which the assignment could attach on June 17, and therefore ... I must hold that the plaintiff cannot succeed. “In all the circumstances, it may be that the plaintiff could not recover, apart altogether from the main ground on which I have held against him. But I have not thought it necessary to consider the legal effect of the facts that I have found on the second branch of the case because, if I am right in my conclusion on the first and main ground, that conclusion is fatal to the plaintiff’s claim. I have, however, thought it desirable to state all the facts so that they may j; bc on record if the case proceeds further.