CONTRACTOR AND ARCHITECT.

New Zealand Times, Volume LXVII, Issue 3436, 18 May 1898, Page 3

CONTRACTOR AND ARCHITECT.

PENALTY CLAUSES AND EXTRAS. An important judgment was given by Mr Kenny, S.M., sitting in civil jurisdiction yesterday, having special interest to builders. W. and C. Johnston, contractors, brought an action against T. G. Maoarthy for recovery of JJIO. money deducted by defendant from the amount of plaintiffs’ contract price by way of penalty under the conditions, plaintiffs not having, it was alleged, completed the work of erecting two houses in Cuba street for the defendant until 40 days after the specified time. The contract set out that XI per day should be charged by defendant as a penalty for overtime for non-completion. A claim for Xl7, which had been admitted, was put in for extras ordered to the work. Mr Ollivier, who appeared for the defence, contended that as the extras were not ordered in writing under the hand of the architect (Mr O’Dea), they could not bo claimed,- and, further, that as the conditions set out that a penalty of £1 per day was chargeable, the defendant was within hia rights in keeping tho money back. Mr Wilford, for plaintiffs, cited the case of Murdoch v. Lookie (a judgment of His Honor the Chief Justice), and urged that as the extras were not ordered in writing they could not be regarded as having any relation to tho contract. Tho authorities seemed to agree that if a contract requires that extras shall be ordered in writing, and such extras are not ordered in writing, though the builder cannot recover payment for such extras, yet the bmldingowner by that interference and departure from the contract prevented the operation of the penalty danse. The fact of ordering these extras was a release from the penalty altogether, though the time occupied was entirely spent in the execution of extras, the principle being that in interfering by an ordi-r for ex'ns not specified before the condition of time was released. His Worship, after hearing evidence and looking into authorities, upheld Mr Wilford’s "contention, and gave judgment for the amount claimed, with costs X 3 13s,