CLAIM FOR DAMAGES.

Manawatu Standard, Volume LVII, Issue 155, 2 June 1937, Page 10

CLAIM FOR DAMAGES.

CASE FROM DANNEVIRKE. Throughout yesterday afternoon, and continuing this morning, the hearing was proceeded with in the Supreme Court of the case .in which Leo Stein, draper, of Dannevirke, claimed £574 8s 5d from James Joseph Anderson, builder, also of Dannevirke, as damages and costs alleged to have been incurred through an allegedly smaller guttering than necessary being placed on plaintiff’s building, water thereby escaping. His Honour Sir John Reed presided and Mr A. M. Ongley appeared for plaintiff; Mr M. H. Oram, with him Mr E. Gibbard (Dannevirke), for defendant. On the resumption after luncheon, and before opening the case for. the defence, Mr Oram intimated that he desired to move for a non-suit and was given leave to do so at a later stage. He referred to authorities and advanced the argument that plaintiff was entitled only to reasonable skill and experience. If he had wanted the expert skill of ah architect, he should have paid for that skill. Defendant was not to know that practically tlie whole drainage of the original building came into one “hopper” at the top of a drain-pipe at the rear. Actually, he had constructed an addition sufficient unto itself. Evidently the water from the main roof had previously spilled from the gutter on to the ground at the rear. It was plaintiff’s place to have known that. In evidence, defendant stated he had been employed in the building trade for 36 years, for 25 of these on his own account. Witness outlined how he had first tendered for the job and how the plans prepared by other persons had tailed to pass the building inspector. Witness had then altered the plans, hut the amended plans had bean rejected. Witness had then told plaintiff lie did not wish to proceed, but on being asked by plaintiff, agreed to do so, a further plan having been passed. At no’ time had he been told that he would have to provide for the drainage of the whole building. The gutter had been constructed to give a depth of three inches. , Under cross-examination, said that when he had commenced work he had found that the roof and the gutter he was to build would have to carry water from the other roof. Witness had thought it was only a small amount.

N. MacDonald, a builder, said a gutter of the size and shape originally installed by defendant would be quite ample to serve the roof defendant had built. The provision of escapes for water from the main building would not be a matter within the contract for the construction of the addition.

W. J. Fisher, register -Vi plumber, gave evidence that in his opinion the original guttering on the new roof had been of sufficient size to carry the water from that roof and tlie discharge from a three-inch pipe in addition.

This closed the evidence for the defence and the case was adjourned till this morning for argument. To-day Mr Oram moved for a nonsuit, and after legal argument had been heard decision was reserved. Mr Oram’s submissions for a non-suit were that plaintiff had failed to prove that it had . been part of the contract that defendant should make provision for carrying away the water coming from the roof of the main building; further, that if that hau been part of the contract, then notice had been given in October, 1934, that the construction- of the gutter on tne new building was defective in that it would not carry off the water from tlio main building, and that plaintiff should have taken all steps to mitigate against his loss and could not claim against defendant for his failure to do so. Thirdly, counsel submitted that the damages were too remote, in that they had been caused by the negligent action of plaintiff in intervening; and, fourthly, that in any case the utmost that could bo said against defendant was that he had been guilty of an error of judg-l ment. I