SUPREME CdURT.

Poverty Bay Herald, Volume XXXIV, Issue 11109, 25 October 1907, Page 5

SUPREME CdURT.

♦ WEBB AND SONS V. WILLIAMS A.ND SHERRATT. CASE SENT BACK TO MAGISTRATE. Judgment m the ca6e of Webb and Sons, appellants, v. Williams and Sherratt, respondents, heard at the last local sitting of the Supreme Court, was read by the Registrar, Mr W. A. Barton, S.M., this morning at the Magistrate's Court. "Tlie appellants, who are builders and contractors, m reply to an advertisement by tlie respondents calling for tenders for the erection of a brick building, sent the following 1 document: — 'Gisborne, June 3rd, / 1907.— W. Webb and Sons, bricklayers, builders, and contractors, to Mr Graham, architect. — Dear Six-. — We, the undersigned, proffer to erect building m brick m Lowe street for Messrs Williams and Sherratt m accordance to plans and specifications for the sum of six thousand one hundred and seventy-six pounds (£56176 Q& od).' "The amount therein mentioned was lowest of six tenders. The general conditions for tenderers contained a provision that m the event of tlie respondents not accepting any tender within thirtyone'days they should pay as compensation to the lowest tenderer the sum of one-quarter per cent on the amount of the tender, such amount not to exceed £15 15s, nor to' be less than £1 Is. The appellants, claiming to be the lowest tenderers , sued m the Magistrate's Court for £iS 8s 6d, being one-quarter per cent on the amount, of their tender. "The Magistrate nonsuited the appellants on the ground that, as they had. not signed the document they isent m, they were not bound by it, and consequently it was not a tender. i "An agreement for the erection of a building is not a contract for the sale of the materials. It can only come within the Statue of Frauds on these grounds : If it give an interest m land, if it contain a' promise to answer for the debt or default of another (as where it contains a guarantee), or when it is not to be performed within a year. The present is clearly not within either of the last two cases. Nor is it concerned 1 with any interest m land. Lord Coleridge, C.J., m Wells v. The Mayor, etc. of Kingston-upon-Hull (L.R. 10, C.P. 402, at p. 408), citing Hill, J., m the case of Wright v. Stavert, 6aysj' 'The defendant's position here is directly analagous to that of a domestic servant or a governess, or a person employed to build a house upon another's land ; all of whom have a right incidental to their respective contracts to go upon the land to carry out their contracts, but none of whom take under their contracts any interest m the land upon which they are entitled to go.' His Lordship then, says.: 'These words seem exactly to hit -the distinction between the case within and those not within the statute.' "It would have been easy to show that the tender of the appellants, which was on their business form, was written by them or by their authority. It was an offer "which, if accepted by the respondents, would have become a valid agreement. ' "Tlie Magistrate was therefore not justified m non-suiting on this point. There is some • evidence to suggest what was Btated to be the real: defence to the action (the non-signature by the appellants liaving been noticed only at the liearing)— that is, that the respondents had m fact accepted one of tne other contracts. It would; I think, be well for a Magistrate to adopt the practice usually acted on m- the Supreme Court — not to non-suit m a point of law unless it is absolutely clear. "The appeal will be allowed : The case to go back to the Magistrate for hearing. Costa, £7 75." Mr H. J. Finn appeared for appellantsi and' Mr G. Stock for respondents.