LAW REPORTS.

Dominion, Volume 2, Issue 478, 10 April 1909, Page 11

LAW REPORTS.

SUPREME COURT, RE-ERECTION OP A SCHOOL. CLAIM UNDER A CONTRACT. Sovoral points of considerable importance to builders and others were discussed by Mr. Justice Cooper in his judgment in tho case of Staunton and King, contractors, versus tho Wellington Board of Education, which was dolivored on Thursday. This was a claim in connection with a contract for the removal of an old school in tho Upper Hutt district. The .contract price foi the work was £286 Bs. It was provided in the specifications that defective timbers should bo replaced by heart pieces. According to plaintiffs, when they commenced work they found that practically the whole of. tho building was worm-eaten... A permit to roercct tlio building was refused by the Town Board, as it contained unsound timbers! Ultimately tho board entered into possession of tho work, together with timbers belonging to plaintiffs. Tho amount of the claim was £411 15s. lid. Tho dofonco to the action was that plaintiffs had not done • anything like tho amount of work which they claimed to havo performed, it was found after a gale had blown down' a portion of the' building that plaintiffs were in - difficulties, and would not be able to complete the work, lho proportion of decayed timber in the building was not more than 8} per cent. If plaintiffs wore entitled to a quantum meruit, it would not bo a question'of'the-money'they' had foolishly expended;'hut of tho value of the work they had dono; His Honour said that a considerable body of evidence was adduced by both parties as to the moaning in the' building trade of tlio .term "decayed timber."' Witnesses for tho plaintiffs stated that it did not include worm-eaten timber, while the witnesses for defendants were equally, positiyc that it did. It was his opinion that there was no definite understanding in the trade as to what tho term meant. One had to look to each'particular contract, to the'nature' of "tho work to bo done, and the circumstances under which, it was to be dono in order to decide tho point. Ho had como to the- conclusion that the general provision requiring the contractors to replaco all "decayed" timber did not extend to "worm-eaten" timber, which was not rendered really useless by reason of .tlic presonco of the worm 'or beetle:" Such'timber was defective timber, within the meaning ot tho particular clause, and unsound timber within the meaning of the by-law, but was not decayed timber within "tho meaning, of tho general clauso in .the .agreement. If plaintiffs were held to bo under an obligation to remove all unsound'timber,'"the- result would be that practically. they would have been under an obligation to build a now schoolhouse, and they had only contracted to remove and re-erect the old building. He must ■'hold that the contract did. not,impose upon plaintiffs the obligation to replace with sound timber tho unsound material condemned by the Town Board.-. ■ There could be no doubt, continued his Honour, that when a builder entered into a contract to erect or repair, or remove and re-erect a building; he.had to apply for-a permit. The allegation . that .tho clerk of works to tho defendants had represented that no permit was necessary had not been proved. It had been pleaded by the defendants that tho by-law was invalid. Although the point was not taken at tho trial, it was quite clear that the by-law was intra vires, and was not unreasonable. No obligation was cast upon plaintiffs to comply with the demand of tho local authority that all unsound ..timber should be replaced. Further, there was no implied obligation upon tho board to assist plaintiffs to Te-erect the building in compliance with the by-law. The performance of tho contract had been rendered impossible by operation of law, and. tho result was that plaintiffs could not recover anything for the work they have done. For-tho-same reason, the defendants wore not entitled to retain the deposit or the timber belonging to plaintiffs which had not been actually ■ worked into tho building. There was another ground also upon which tho contract had been rendered impossible of performance, even if a permit had been granted.--The weight of evidence was" that the effect of the gale substantially destroyed tho subject matter of tho contract. It so injured the building that it could not bo re-erected. It would havo had to have been practically rebuilt, and it nat'm fact been abandoned by defendants, and a completely now schoolhouse. erected, ■ Plaintiffs were entitled to judgment; for... tho amount of the deposit £10, and the value of the timber retained by defendants, but for no other amount. Ho would certify that the case was a proper one to bring 'in tho Supremo Court, and allow plaintiffs costs on the lower scale, with £15 15s. for one extra day. Mr. Levi appeared for plaintiffs and Mr. Johnston for defendants.