WEBB AND SONS v. WILLIAMS AND SHERRATT.

Gisborne Times, Volume XXV, Issue 2221, 26 October 1907, Page 2

WEBB AND SONS v. WILLIAMS AND SHERRATT.

SUPREME COURT JUDGMENT, At AG ISTRATE TO RE-TRY CASE. At the Magistrate’s Court yesterday morning the Registrar of the Supremo Court read the judgment in the case of Webb and Sons v. ‘Williams and Slicrratt, heard at the last Gisborne sitting of tlio Court. Tho judgment is as follows: “The appellants, who aro builders and contractors, in reply to an advertisement by tlio respondents calling for iendeis for ths erection i.l a brick building, sent tile fallowing do-cument:—-‘Gisborne, Juno 3ro, .DO". —AV. Webb and Sons, bri Tu yere, builders, and contractors, to Air Graham, architect.—Dear Sir.—We, the undersigned proffer to erect building in brick in Lowe street for Alessrs Williams and Shorratt in accordance to plans and specifications for tlie sum of six thousand one hundred and seventy-six pounds (£6176 0s Od). “The amount therein mentioned was lowest of six tenders. The general conditions for tenderers contained a provision that in the event of the respondents not accepting any tender within thirty-one days they should pay as compensation to the lowest tenderer the sum of one-quar-ter per cent on tho amount of the tender, such amount not to exceed £ls 15s, nor to be less than £1 Is. The appellants, claiming to be the lowest tenderers, sued in the Alagistrate’s Court for £lss 8s 6d, being one-quarter per cent on the amount of their tender.

“The Alagistrate nonsuited the appellants on the ground that, as they had not signed the document they sent in, they were not bound by it, and consequently it was not a tender. “An agreement for the erection of a building is not a contract for the sale of the materials. It can only come within the Statute of Frauds on these grounds: If it give an interest in land, if it contain a promise to answer for the debt or default of another (as where it contains a guarantee), or when it is not to be performed within a year. The present is clearly not within either of the last two cases. Nor is it concerned with any interest in land. Lord Coleridge, C.J., in AVells v. Tlio Alayor, etc., of Ivingston-upon-Hull (L.R. 10 C.P. 402, at p. 408), citing Hill, J., in the case of Wright v. Stavert, says: ‘The defendant’s position here is directly analagous to that of a domestic servant or a governess, or a person employed to build a house upon another's land; all of whom have a right incidental to their respective contracts to go upon the land to carry out their contracts, but none of whom take under their contracts any interest in the land upon which they are entitled to go.’ His Lordship then says: ‘These words seem exactly to hit the distinction between the case within and those not within tho statute.’

“It would have been easy to show that the tender of the appellants, which was on their business form, v as written by one of them or by tho’r authority. It was an offer which, if accepted by the respondents, would have become, a valid agreement. “Tlie Alagistrate was therefore not justified in nonsuiting on this point. There is some evidence to suggestwhat was stated to be the real defence to the action (the non-signature of tho appellants having been noticed only at tlie hearing)—that is, that the respondents had ip fact accepted one of the other contracts. It would. I think, ho well for a Alagistrate to adopt the practice usually acted on in the Supreme Court-—not to nonsuit in a point of law unless it is absolutely' clear. “The appeal will be allowed: The case to go to the Alagistrate for hearing. Costs, £7 75.” Air. H J. Finn appeared for appellants, and Air. G. Stock for respondents.