TENDERED TOO LOW.

New Zealand Herald, Volume LI, Issue 15769, 18 November 1914, Page 4

TENDERED TOO LOW.

CONTRACTOR'S MISTAKE

JUDGE SUGGESTS A BONUS

A claim for £300, money .'.ltemed to be due over a building contract, with * other sum that the Court mi u ht civ ; u^ 7 ment for, occupied the- attention of Honor Mr. Justice Cooper i:; iheSupreml Court yesterday. The pla::;!;;; was .John David Jones (Mr. J. P. M;n>. n >. and the defendant Thomas Darby -M. Hp Richmond).

The circumstan e? oi the <-<0. as outlined by Mr. Martin ;v. <} b:;;i... -..- L y, v the plaintiff's evidence, were that ; l-rs were called for in Oct'.her, ]QOB. r . Prec tion of a block of building. m. w known as Darby's Build. in Q . Mreet a not being disclosed, at the tin. ;. r whom the work was to be done 1;,,. plaintiff sent in his ter.der for £75L3. before it or any other tender to •• j■' ed he discovered that he had mr,!? : . intake the amount of his tender )>• i-:_ : £',% too low. The plaintiff having .vc.'tahH, as he thought, that the building v. to' be erected for the defendant, v.vr.l •<> see Darby, and told him is.it he to withdraw his tender owing U: the vi,:stake in it. Ihe defendant, it v. t? ; oc7 e( j asked the plaintiff not to withdraw his tender, as he would b? requin-d <„ ramout the contract, his tender i-'-iag £600 lower than the next lowest, un-i 'at""the same time promised to pay si,..- Pllra £300. The plaintiff only can-,, d c.;it the contract according to the plans and specifications. His repeated re'jue.-t.- to the defendant for the extra £3CO aiwavs met with evasive replies, the defend saving that he was agreeable to pay. fc:.-. that his brothers, who were also cvgrthmhuk• .n.« < : n^-!. were not. An agent appointed u';j ing the plaintiff's absence in Sydr-y aifo received similar evasive replies. Pr;.rni;,\, that the matter would be considered had :\sui:cd in delay in bringing the a. ti.-:.. Statement of Defence. For the defence it was dci:>d that the defendant was solely respond! for the calling of tenders, it b ing submitted that J. C. Darby, P. B. Darby, and the defendant, as joint attorney? it r Patrick Darby, naw deceased, caused tenders to be called for. The defendant denied that the plaintiff ever told him about the mistake in the tender, or that he or the other attorneys ewer promised the plaintiff the extra £300 over and above the amount of his accepted tender. It was admitted that the plaintiff's tender was accepted, and that he carried oat the work in accordance with the plans and specifications. The defendant's version of the alleged promi^- 0 of the extra £300 was that the plaintiff said that he wanted £300 before proceeding with the contract. The defendant made no promise, but said that he would confer with his fellow-attcrnevs. They, however, were not agreeable to the advance of £300. He personally was willing to pay the plaintiff the £300, out he could not do so without his fellow-attorneys' consent.

Difference in Evidence. In giving judgment, His Honor said that it was a pity the case had not been brought before the Court six years ago. As it was, such a long time had elapsed since the occurrence that the plaintiff and the defendant gave diametrically opposed accounts of what was supposed to have transpired. In balancing the probabilities of their stories, each side seemed to weigh about equal. It seemed to him that the plaintiff went on -with the contract, the defendant having made some sort of promise with rt>garcl to the £500, but subject |to the co-attorneys' consent. Under the circumstances he could not say that the plaintiff had established his case, neither could he give judgment for the defendant. The plaintiff would therefore be nonsuited. His Honor suggested that it was a case in which the trustees of the Darby estate might very well meet the plaintiff in the I matter, and effect a compromise. The plaintiff had erected the building according to plans and specifications at a cost to the trustees of £600 less than the next lowest tender, all the time expecting to receive £300 more than he actually did. Under the circumstances the trustees, who had the power to do- so, would be doing the right thing in giving the plaintiff something in the way of a bonus. Application for Costs. Counsel for the defence asked for costs, explaining that his client had not availed himself of the statute of limitations as a 'defence, as he wished to contest the case on its merits. The plaintiff, counsel pointed out, should have proceeded against all the trustees of the estate, and not against the defendant alone. ' His Honor granted the defendant costs on the middle scale.