SUPREME COURT.

Otago Daily Times, Issue 14447, 13 February 1909, Page 14

SUPREME COURT.

CIVIL SITTINGS. Friday, Kkbhuauy 12.

(Before his Honor Mr justice Williams.) AN.N'AND V. WAKUELL UHOS. Claim £167 13s 6d, for work done, and £700 damages. Mr Solomon, K.C., with him Mr W. L. Moore, appeared for the plaintiff, Janies Anuand, of Duncdin, builder. Mr A. S. Adams for the defendants, Wardcll Bros., of Duuedin, grocers. The plaintiff, in his statement of claim, set out that about July 23, 1903, it was agreed between plaintiff and Jessie Barbara Green that he should repair and alter the Sussex Building in George street, Duncdin, and that Mrs Green, the owner, should pay £1604 5s Gd. Plaintiff executed part of this work. On August 13 the defendants and Mrs Green negotiated for the purchase of tho building by the defendants, and in consequence Mrs Green stopped tho work. On August 15 Mrs Green sold the place to the defendants, who agreed to release Mrs Green from aJI liability to the plaintiff, in respect of the contract. In consequence the defendants agreed to take over and pay tho plaintiff for all the work already executed and that the plaintiff should do all the specified part, of the unexecuted work and other work for £1514 19s. It was also agreed that the defendants should employ the plaintiff to do other work necessary to make the premises suitable fur the occupation of the defendants and their tenants, the arrangement being that if a price was not agreed upon the plaintiff should receive 10 per cent, on tho actual cost of tho work. Under that contract the plaintiff performed certain work, but on August 19 the defendants stopped him from proceeding further. On October 1 the plaintiff agreed lo release Mrs Green from all liability, the defendants agreeing to pay to plaintiff all moneys in connection with the contract. Plaintiff claimed to recover £167 13s 6d for work and labour actually executed.

The defendants, in their statement of defence, admitted the agreement between the plaintiff and Mrs Green, but said it was part of such agreement that Mrs Green might cut out any items and pay only for what, was actually done. The defendants also said that on August 18 they agreed that the plaintiff should proceed with certain unexecuted portions of the work on condition that, they might stop the work at any time and pay only for what was actually done. The defendants denied that the plaintiff performed any worlc in pursuance of any arrangement with them. Mr Solomon stated that under the contract of sale the defendants undertook to purchase the property for £3000, subject to a mortgage of £2000. Mr Adams and himself had vainly endeavoured to bring the parties to an understanding. The question at issue was as to the meaning of a bargain made between Annand and Wardell Bros, on August 18. The fact was that Annand submitted an offer in writing, and that Wardell accepted that offer. According to the defendants' pleadings, they wished the court to believe that in the face of the new contract they could cut out any items and stop the work at any time. That was unreasonable. As a. fact Annand gave up his contract with Mrs Green to take a better job under Wardell Bros. What defendants virtually alleged was that ho was to lose the £167 which he would have made out of Mrs Green's contract, and get nothing in return. Later on Mr Luttrell was brought in, and the work given to Messrs Crawford and Watson, and defendants wanted to get rid of Annand after getting the benefit of his plans and his advice and getting rid of their indirect liability to Mrs Green. What lie (Mr Solomon) said was that on August 18 Annand had a right to recover about £375 from Mrs Green He was entitled to receive about £150 for work done, £160 tor profit, about £60 for damages that he would be liable for to the sub-contractors, and £16 for work dono directly under the authority of Wardell Bros. All that had been done away with, and a new contract entered into whereby Annand was only to be paid for work already done, and was to be employed by Wardoll Bros, on the same terms as he was employed by Mrs Green—that, was to say, on a 10 per cent, basis. Tiie work to be done was the work of altering the Sussex Building to suit Wardells' purposes. This work was in breach of the contract given to Messrs Crawford and Watson, and its value was between £6000 and £7000. The damages claimed represented 10 por cent, on this. Evidence was given by James Annand, the plaintiff, and cross-examination by Mr Adams was in progress when the court rose. The sitting will be resumed at 10.30 this morning.