ANN AND V. WARDELL.

Evening Star, Issue 14036, 17 April 1909, Page 5

ANN AND V. WARDELL.

THE SUSSEX BUILDINGS CASE. JUDGMENT DELIVERED. This morning Mr W. A. Hankins, registrar, read the judgment of Mr Justice Williams in the case ef James Annand v. Wardell Brothers and (X-., a claim of £167 13s 6d for work done »o the Sussex Building and £7OO damages. The trial commenced on the 12th February, Mr Solomon. K..C, and Mr Moore appearing for the plaintiff, and Mr‘Adams for the defendants, who paid £350 into court. The judgment is as follows :

The main question to be decided in the present action is what is the meaning of the contract contained in the letters of the 18th August between the parties. These letters are as follow:

August 18, 1908. Messrs Wardell Bros", and Co,, Dunedin. Dear sirs,—ln confirmation of our conversation re alterations to Sussex Hotel, I agree to furnish you with the schedule of prices Tor the different parts of the work on which I am now engaged, and to furnish you with further schedules c! ether work you may wish to have done. In making out these schedules of prices in no case will I add 1 more than 10 per cent, on actual cost. You to have the right to cut out any items on the schedubs. Or I will agree to do all or any of the work, charging you actual net cost for material and wages plus 10 per cent, for my

management and oversight. In which case I will put on to the job the best men I have and see that they do good and quick work.—Yours 'faithfully, James Annand.

Dunedin, N.Z., August 18. 1928. Mr Jas. Annand, Dunedin. Dear sir,— Yours of even date to hand. We hereby agree to take over and pay for the work you have done for ‘Mrs Green at Sussex Hotel, and to continue the work on the terms of your letter.—Yours faithfully, Wardell Bros, and Co.

Before these letters were written the defendants had contracted to buy from a Mrs Greer, a property known as the Sussex Hotel Buildings. Prior to this contract Mrs Green had contracted with the plaintiff that he should execute certain repairs and alterations to these buildings, and the plaintiff had begun the work in question, and was occupied upon it when Mrs contracted to sell to the defendants. By the contract of sale by Mrs Green to the defendants they undertook to release her from all liability in respect of her contract with the plaintiff for the alteration and repairs of the buildings. The defendants themselves contemplated making very extensive alterations and additions to the building, and on the 17th August Mr John Wardell had an interview' with Mr Annand. The parties are not quite in accord as to what took place at that interview, but there can be no doubt that Mr Wardell’s object in coming to see the plaintiff was to make some arrangement with him in order to avoid having to pay anything under the contract of the defendants to release Mrs Green from her liability to theplaintiff. The greater part of the work that wis being done for Mrs Green was suitable to the defendants’ requirements. There was a schedule showing the prices and particulars of this work, which was shown at this interview to Mr John Wardell. As, however, there would be some difference in detail it would be natural that Mr Wardell, if the work was to he continued according to the schedule, should have the right to cut out items. There can be no doubt that there was a discussion as to further alterations, and that the plaintiff undertook to furnish schedules if asked for them, and to do the work according to the schedule prices; but it is certainly not made out that the conversation amounted to a parol agreement that all future work on the premises was to be carried out by the plaintff, or, if a schedule was asked for and furnished, that the defendants were bound to accept the schedules and allow' the work to be continued according to the schedule prices. In any case, where a letter is written purporting to be in confirmation of a conversation, the meaning from a business point of view is that the terms of the letter express the arrangement arrived at in the course of the conversation, and the conversation itself certainly could not be referred to to add to or vary the terms expressed in the letter, although it might possibly be made use of to explain doubtful expressions in the letter. I am satisfied that the letters do not bear the construction that the plaintiff seeks to place on them. His contention really amounts to this v that they constitute a bargain that the plaintiff is to carry out for the defendants not only the work then in hand under Mrs Green’s contract, but also that the defendants are hound to employ the plaintiff to carry out any alterations or additions to the building that they may decide upon in the future, according to schedules of prices to be prepared by the plaintiff. The defendants, if they contemplate any additions or alterations, are, according to this contention, bound to go to the plaintiff for a schedule of the work contemplated, and when the schedule is furnished, are bound to allow the plaintiff to proceed with the work at the prices mentioned in the schedule, subject to their right of cutting out items they may consider unnecessary. The letters certainly do not say this, nor can it be inferred from the terms of the letters that this was the intention of the parties. The agreement by the defendants to continue the work, in my opinion, means the work which the plaintiff had then in hand, and cannot extend to future work, which, though contemplated, had not yet been decided upon, for which no plan or specification had been prepared, the details of which were wholly unsettled, and the cost of which had not been estimated. The meaning of the plaintiff’s letter is that if the defendants wished him to do all or any future work on their premises he was prepared to do it on the terms of his letter. That appears clearly enough from the third paragraph. The letter, however, does not suggest any obligation on the part of the defendants to employ the plaintiff, although both parties, no doubt, contemplated that he would be employed. There is nothing in the agreement to prevent the defendants after thev had asked the plaintiff to furnish a schedule, and he had furnished it, to decline to proceed with the work, nor is there any contract, express or implied, on the part of the defendants to pay the plaintiff for the preparation of the schedule, whether they proceeded with the work or not. The schedule of prices furnished is in effect an offer of the plaintiff to do the work aceordipg to the schedule, and the defendants had tho right to accept or reject it, like any other offer. This happened with respect to the schedule, which totalled £1,514. Jt was asked for on the 18th August, after the letters had been written, and was made out and forwarded to Mr John Wardell at Christchurch, where he had gone to consult Ids brother. Then Mr Wardell telegraphed to Dunedin to stop the work, and nothing further was done. The offer was never accepted. Some preliminary wort had no doubt been authorised by Mr Wardell before the plan and specification were prepared, and a small amount of work had been done under this authorisation, for which the plaintiff is entitled to be paid. .The authorisation of this work, however was before the plan and schedule of prices had been prepared, and certainly did not commit the defendants to the acceptance of the offer. In addition to this Wim the plaintiff is, o'f course, entitled to recover the value of the work he had already dona under Mrs Green’s contract. He is aim entitled to recover in respect of the injury he has sustained by the breach by tha defendants of their contract to continue the work he then had under his contract with Mrs Green. Beyond this no contract between the parties has been established, and the plaintiff can have no further remodv In assessing these damages I am not inclined to look at them microscopically. Although tho plaintiff is only entitled to recover as I have indicated above, yet it seems to me from the evidence that ha was throughout made use of and finally dropped bv tlwj defendants in a manner which would give, him a ju*r. cause of complaint against them, although he may have no legal remeds; la addition io tie voack JaS

profit' on the job, and has become liable to sub-contractors. I assess the total amount. he is entitled to recover at £370. The plaintiff is entitled to judgment for £370. costs as per scale, £5 S» for eacotsd counsel' for two days, and £6 5s lor second day, disbnrsameots and witnessed expenses to be fixed by the registrar. I allow nothing further for the- extra days, because the additional length of the trial beyond a day and a-hall was very rood doe to the plaintiff having claimed more than bo was entitled to recover