REPUDIATION ALLEGED

Poverty Bay Herald, Volume LXIII, Issue 19125, 21 September 1936, Page 4

REPUDIATION ALLEGED

BUILDING CONTRACT COSMOPOLITAN CLUB PARTNERS CLAIM. £299 Repudiation of a building contract was alleged by Arthur Turtley Webb and Richard Magdnnes, building contractors, when claiming £299 damages from the Cosmopolitan Club in the Magistrate’s Court to-day before Mr. E. L. Walton, S.M. The claim comprised £239 as loss of profits and £6O general damages. The plaintiffs alleged that on April 21 the defendant club accepted the plaintiffs’ tender of £1377 for alterations and additions to the club’s premises, and that on May 1 tho defendant club repudiated the contract. Mr. J. W. Illathwayt appeared for the plaintiffs, while the deieiulant club was represented by Mr. G. Bradley Smith, with him Mr. VV. Koltn. Mr. Blathwayt, outlining the case, said that the tenders were to close at noon on Monday, April 20, and were advertised by Messrs. Burr and Mil-field on behalf of the club. On the evening the tenders closed, they were considered at a meeting of the club’s executive, and the tender of the plaintiffs was accepted. The club’s minute book showed an unconditional acceptance. On the following day, Tuesday, April 21, a paragraph appeared in the Poverty Bay Herald stating that the tender of Messrs. Webb and Maginnis was successful and giving certain other details. On the same day the club was informed by the secretary of the dub, Percival St. -Gatien Bailey, that the tender had been accepted, and by that time it was common knowledge in the club that the plaintiffs-’ tender had been successful. On the evening of Wednesday, April 22, James Jurvie Macdonald, the vice-president of the club and the officer dealing with the matter as chairman of the building committee, congratulated plaintiffs on the acceptance of the tender, and stated that they would now hear from the architects and gave the contents of his letter to the architects that the tender had been accepted. This letter contained the bare statement that the club had decided to accept the plaintiffs’ tender. On Friday, April 24, in response to a letter from the architects asking the plaintiffs to call, the plaintiffs interviewed the architects at about 10.30 a.m. The architects asked for an assurance that the plaintiffs would give no orders on tile job. At this stage, Mr. Blathwayt asked that all witnesses should be ordered from the court.

Continuing, Mr. Blathwayt said that plaintiffs gave the architect a letter undertaking- to give no orders on the job. There was no suggestion that the newspaper paragraph was incorrect, and no disclaimer had been made. The plaintiffs submitted that they were dealing on the basis that the render had been accepted. The plaintiffs then left the architects, but received a telephone .call at 12.30 p.m. on the same day, as a result of which the plaintiffs attended the architect’s office, and a request was made by the architects that the plaintiffs should give a bond for £SOO. The plaintiff Webb stated that the .amount mentioned was ridiculous and the architects haffi no power, in any case, to ask for a bond. Joseph Harold Burr, one of the partners of Burr and Mil-field; the architects, then read to the plaintiffs a portion of clause 3 of the general conditions of the contract.

Mr. Blathwayt stated that when an architect called for public tenders, the basis was the plans and specifications, while also the general conditions ot contract applied. Continuing, Mr. Blathwayt said that Burr read a portion of clause 3 that a bond could be insisted upon, but, plaintiffs maintained that Burr omitted the first six words of the clause, these first six words being, “if so provided in the specifications . . .’’ and the clause going on to state “. . . the contractors may require to find a bond.” The plaintiffs left the office, and then telephoned the architects declining to give a bond because it was not provided for in the specifications. On Monday, April 27, the architects wrote to the plaintiffs stating that unless approved guarantees or securities were fortcoming, they could not proceed further with the matter. On April 28, the plaintiffs wrote to the architects offering a form of security. On May 1, the architects wrote to the plaintiffs stating that the tender had been finally declined. That letter was received by the plaintiffs on Monday, May 4, whereupon the plaintiffs wrote to the club complaining of the treatment and stating that they were taking tho matter further, but no reply was received.

His Worship: You did not expect one.

Mr. Blathwayt: No.

He added that on July 28 the plaintiffs through their solicitor wrote to the club claiming £339 damages. Tho job had been completed subsequently by another contractor for £1691. Mr. Blathwayt continued. As a result, the plaintiffs had suffered the loss of an estimated net profit of £ll7 7s 6d, loss of discounts on materials £49, and loss of wages for themselves £92. General damages totalling £6O also were claimed.

His Worship: Do you say that the other contractor made £6OO on the job? Mr. Blathwayt: Mo, but unless ho did the job more expensively than my clients they should have made a handsome profit Mr. Smith said that the successful contractor would have figures of the actual cost of tho work.

Mr. Blathwayt, submitting points of law, contended that a building contract need not be in writing in such an instance, and 1 when a contract need not be in .writing the acceptance depended on all the relevant facts. He submitted also that a formal contract agreed to bo entered into did not affect the verbal acceptance, and if there was a completed contract, either party could object to any new term 'being introduced. The facts on which the plaintiff relied for acceptance of the contract were the minute in the cl*ffi’s minute book, which showed an im&onditional acceptance, and the publication of a paragraph in the newspaper. His Worship said that he could not accept that unless plaintiffs could show any source. Mr. Blathwayt said that all he could do was to disclaim authorship. His Worship said that unless plaintiffs could show any direct line of connection betlveen the defendant club and the newspaper his argument must fail. Dir. Blathwayt said 1 lie could not get on to the source of who supplied the information.

Ilis Worship said that he could not accept the contention. Blathwayt added that further points of acceptance included! verbal advice from the vice-president, and the tenor of the discussions between the architects and the plaintiffs. (Profieediifg)