CLAIMS FOR EXTRAS.

Oamaru Mail, Volume III, Issue 725, 6 August 1878, Page 2

CLAIMS FOR EXTRAS.

A civil case of some importance— Bennett &■ Clegg c. Sutton—has occupied the attention of the Resident Magistrate for the greater portion of two sittings. Jt was commenced on Friday last, and the plaintiff's' case occupied the greater part .). 'hat day and of Monday. Mr. Mislop ap.jared for the plaintiffs," and Mr. Newton for the defendant. The action was for 1.,70 Ss. 2d. extra work done by the plaintiffs about the defendant's house, for the budding of which the plaintiffs were the contractors. The evidence for the ! plaintiffs went to show that the work had been done, and the prices charged fair and reasonable. The plaintiffs also put in the contract, plan and specifications, and a certificate by the architect that LoO was due in respect of some of the items claimed for, after allowing for certain deductions. The contract contained the usual clauses with regard to alterations and additions not invalidating the contract, and provided that no moneys were to be paid except upon, the architect's certificate. Upon the close of the plaintiff's ease Mr. Newton moved for a non- ': suit upon the following grounds: —!. That the action was misconceived : there was no separate contract for the items claimed, which formed part of the original contract. The action therefore should have been either spe.oiiically upon the contract, or iii cMinbihitit-s assumpsit far tiie full nittount of the contract and e:xtra£., giving credit for payments made n-'.n claiming balance due. As the action was framed defendant could not pay the LoO certified for hit.) Court without admitting a contract for the extras independent of tha original contract, and thus shutting himself out from the beivlit of its provisions as to certiljoate, deductions, penalties, etc. 2, The architect's certificate was by th« contract a condition precedent hi the recovery of any amount. •'!. Ast-j all beyond LoO there could be no : doubt but that, plaintiffs could not recover, j and as to that amount, the certificate was j of no avail, because the certificate was | never (-.resented to defendant ; the certifi-< I'.ahs was not for the items claimed, but for general balance of contract, after : allowing certain deductions ; the form of . action was such that defendant could not | safely pay the LSO inio Court : tin; plaintiffs wevi} not injured, as they could obtain j the LSO. at any time by presenting the ' certificate to delendan'. After hearing : Mr. Hislop in reply, the Court took time j to consider its judgment. [