CLAIM FOR DAMAGES

Grey River Argus, 5 February 1930, Page 6

CLAIM FOR DAMAGES

for indent stock. Witness travelled ; all round the Coast with goods. He ' was going to erect the place at Hector to do taway with travelling. To Air Hannan: AlcDougall informed him that Mr D. Tennent had ask ed him to inquire into his financial position. Witness offered him access to both accounts but McDougall declined to avail himself of the .offer. This closed the ease for plaintiff. Air Joyce outlined the case for the defence, and then proceeded to call evidence. William AlcDougall, defendant, admitted that the contract was signed by him. Plaintiff wanted a shop and residence erected at Hector for £5OO or £550, stating that he could arrange for an overdraft for that amount. Witness stated to Dwyer that it was rather a “big order” and would cost about £9OO. They then visited Douglas’s store, and later witness drew up the plans and specifications, and advised Dwyer to call tenders. Early in February last year, plaintiff came .••long, and said he would call tenders. Tenders were advertised in the “Grey River Argus” and a Westport paper to close on 9th March. Witness tendered for £BB5. Plaintiff asked witness to reduce this price by £3O, and he did. In July Dwyer came along and spoke about the freehold section he was negotiating for. Witness said h e would much prefer to see it erected on the freehold section, and plaintiff stated that, hc would let him know at a ’inter date which section he would build on. Tn the meantime witness had been the successful tenderer for two other jobs, Smail’s and the Ngahere Hall. Plaintiff then approached witness and stated that he had to put material on the leasehold section to the extent of £5O so a* he could hold the section. Witness asked him. about his finance, and plaintiff told him the money was in the Post Office, in Mrs Dwver’s name. This was about the middle of June. About a fortnight after the earthquake Dwyer came along to witness’s house, and said he still intended to go on with erecting the building at Hector. Witness asked him for a fortnight’s grace before starting as Airs AlcDougall and family were upset by the ’quake. Dwyer agreed to this. The next time he met plaintiff, Dwyer asked him if he was going on with the work and witness replied that he was not. Dwyer then sai<l he would have to obtain legal advice. He asked plaintiff after the contract was signed to go to Hector and show him the section on which the building was to bo erected but Dwyer did not go. When the contract was let plaintiff did not know which section he was going to build on.

CONTRACT NOT STARTED. At the Greymouth Magistrate’s Court yesterday, Michael Lawrence Dwyer, of Coal Creek, proceeded against William McDougall, of Greymouth, claiming £ll3 5s damages, alleging that McDougall had failed to carry out his contract Io erect a drapery store and dwelling house at Hector, in the Westport district. The statement), of claim was made up as follows: — (1) Difference in the price of the contract signed, by defendant and the contract subsequently let to another builder, £2O; (-2) loss of use of shop and dwelling for 29 weeks at £3 per week, £B7; (3) advertising for lenders £5 10s and typing copies of specifications, 15s. Plaintiff was represented by Mr J. W. Hannan and defendant by Mr W. .1. Joyce. Plaintiff stated that some time ago '•<> procured a section of land with the intention of building a shop and dwelling house, on it. He called for tenders on March Ist, 1929, and. |e femhmt tendered, hiij price being £BB5. Between March 9th and April sth he saw McDougall and it was arranged to reduce the price to £855. The plans and' specifications were drawn up by McDougal). Ho informed McDougall thar he was going into business at Hector, that the matter was argons. and he desired completion within nine weeks from the signing of the contract. McDougall asked for a week’s grace to do a job at. Ngahere. Witness .stated it did not make any difference, and McDougall said he could do the iob in the time. Witness came hack to Greymouth about. 12t-h July. six weeks after the lotting of the contract., and met McDougall who said he would start, straight away. As a matter of fact h c did not start at all. He led’witness tn believe that he was going to start, but two months <" McDougall informed him hc was not going on with the work. Anethi : man now had the work in hand, the contract juice being £2O higher than McDougall's. Witness was ready w go into business if it had been finished within the specified timo* Throngii not being able to got possession he estimated his loss at £3 per w-ek. Witness paid 15s for the typing of the specifications and £5 10s for advertising in the “Argus” and “Westport News.” McDougall gave him no reasen for not starting.

To Mr Joyce: The building was now being erected on an adjacent section (o the one originally decided on. H< was not negotiating for the freehold of the adjacent property when the contract was signed. He had not told McDougall tliat. lie was going to Christchurch to see the Public Trusts' about obtaining, the freehold section. The title to the section be was to build on was a. “resident site.' He did tell McDougall that if the work was not gone on with he would lose the site He asked McDougall to put material on the ground to the extent of £5O. McDougall raised no objection about the building. There was mention about putting the garage on sleighs, so that it would be convenient to shift, it. McDougall raised only one objection: that was to the state rf witness’s finances. H e kept McDougall ’s plans and specifications and let the contract to a man named Patterson, at a price of £875, £2O more 111 an AlcDougal I’s pric e. Air Joyce produced a list o f “ extras” amounting to £24 10s which was included in the total of £875, and hold that actually plaintiff had let the ccntr.net fioa - £5 loss than AleDougnll’s price.

To Air Hannan: The plan produced was given to witness by Dwyer in

June. The reason why lie desired the building to be erected on freehold was because if he had erected a house on a property not belonging to Dwyer he would, have no lien on it, as Dwyer could state that it was not his. He bad said in June, “We will bung in and do our best,” but that was subject tto- the finances being in order, and Dwyer knowing which section he was goig to have the building on. He did not ask Dwyer about his financial pogoing to have the building on. He did ask for a further fortnight before commencing the job, but the reason why he <iid not. start was that h<> was not satisfied about the finances. The S.M.: .Did you notify him about that?—No. To Mr Hannan: On 18th September ho told Dwyer that he would not go an with the job. He did not make any enquiries about plaintiff’s finances before the contract was signed, but the firms who were supplying the material said they did not think Dwyer had sufficient finance.

Continuing under cross-examination, plaintiff said he remembered going to have a look at Douglas’s store in Marsden, Road, along with AleDougaV, and it was then arranged for AleDoug'all to draw up plans and spc-c'fi-cations, and defendant said he would rather that witness called for tenders. McDougall did prepare them, and witness told him that if his estimate was within £5O of the lowest tender he could have the contract. He did not call for tenders till April 1929. “Still you wore in a hurry for the job all the time,” said Air Joyce. He did not remember AlcDougall

sav ng he hoped it would be erected on Ihe freehold instead of the leasehold. He did not tell him on the night nf the signing of the contract that hc had to go to Christchurch to S' e about the freehold, and did not speak to Airs McDougall about the “residence site.” During the conversation with Mrs MeLoiigall there was no mention of making arrangements for finance —he had never had to make any financial arrangements in his life.

“You are a very lucky individual then,” said Air Joyce. “1 am. I have always had more than £lOOO, and there can be no objection raised on that point,” replied plaintiff. AfcDougall had asked him. how his finances were. He said the money was in the Post Office, and he offered to take him over and allow him access to his account. He had sufficient money in the bank to finance the position. The Post Office account w». in the joint names of his wife and

1 imsolf. lie would swear that his aceennt was in credit for more than £5O or £6O that time. It was in credit for several hundreds. He was continuaßy at McDougall to go on with the job and would not have been (••(.intent to allow the contract to go by, but intended to hold defendant down to it. After the earthquake, McDougall asked him if he was prepared to build on the section and he said, “Yes.” He agreed to wait a week of Hr the earthquake, as McDougall said his wife would ”go mad” if he vfpnt away from home then. Patterson commenced on the contract about last Monday week. He arrived at his damages through board for his wife mid self, had lost all th,e Christmas trade, and had to make arrangements

Elizabeth Pearl McDougall, wife of defendant, remembered Dwyer calling about the middle of June, 1928, and stating that hc desired a building, but the bank would not advance him more than £550, and consequently he did not want great expenditure. Dwyer and then visited Douglas’s store and plans and specifications were drawn up. Airs Dwyer and plain tiff called some two months later and arranged for some alteration in the specifications. Towards the end of January, 1929, Dwyer called again and said he intended to call tenders in the “Argus” and another paper, and said that, if McDougall’s tender was withing £5O of the lowest, ho could have it. On the next occasion he called, he spoke of going to> Christchurch to arrange for the freehold of a section. When he returned three weeks after,

he told witness to tell McDougall that the building was to go on the leasehold section. Dwyer then told her that the lease had run out the night before the contract “was signed. Witness replied. “I am sure Air McDougall did not know that.” He said he was afraid of another man jumping bis claim. Witness asked Dwyer how he was getting on with the bank. He replied, “As a matter of fact I am not bothering with them, I am arranging it privately.” About the end of May or the beginning of June, Dwyer again called and asked to see McDougall. He came -after the earthquake and he remarked that he would still go on with the plans for building. H e said, “I will give you another fortnight, and come back then and see if things are morp settled.”

To Air Hannan: Dwyer had definitely said after his return fnom Christchurch that he desired the building to be put on the leasehold. She was not sure as to who suggested the fortnight ’s extension of time before starting. To the S.M.: She inferred fro m the conversation that Dwyer would go away believing that McDougall would go on with the job. McDougall had not been satisfied all along with the financial position. In delivering his decision the Magistrate stated that the contract had been somewhnt loosely arranged. The contract was signed on Afay 6th, 1929, and it was agreed that th e date of’

completion would be within nine weeks; the penalty for non-comple-tion being £2 per w<'ek. The evidence was conflicting as to what happened after the contract. Later on the earthquake came and it appeared to have shaken defendant and his family a good deal, thereby causing delay, but Dwyer had agreed to give another fortnight. Mrs McDougall in evidence had said that she quite understood there wag to be no further delay after that. The question as to whether defendant was in doubt as to which section to put the building on was never definitely made known to Dwyer. He never made it known that if satisfactory money was available he would not go on. Plaintiff apparently did not know that that was defendant’s ground for not carrying out the contract. The question was whether there had geen a breach of contract. The Magistrate held that there had been a breach. Defendant had not taken definite steps in the miatter but simply allowed things to drift along. The first claim, that of £2O, would not be allowed, because it had been shown that Patterson’s tender was £5 less than McDougall’s, the extra £24 10s being for work not included in thg, original specifications. The second claim was for »oss of use of shop and dwelling. That did not

appear to be an accurate way of ar- reprising and typing would bp allowriving at the actual loss, but it was cd. Judgment was entered for plainfair to assume that some loss had been tiff for £3l 5s with witness expenses sustained and £25 would be allowed 15s, solicitor’s fee £2 12s. an d under that heading. The claim for ad- costs to be fixed.