SUPREME COURT.

Dominion, Volume 2, Issue 529, 9 June 1909, Page 11

SUPREME COURT.

, ' THE TROUBLES OF HOUSE-BUILDING. . , A HATAITAI CONTRACT DISPUTE. Baforo Mr. Justice Sim yesterday, Harold J. E. Duttou, builder and contractor, Wellington, brought an' action against Mrs. Annie Breen and'nor husband, E. P. Breen, for £288 6.«. Id., balance, alleged to bo duo on a-'houso built by contract fori the defen dants at Hataitai. • ; Tho case, contained the unusual featuro that, after the house was finished, but not occupied by. the defendants, tho builder hiinsolf lived in it as protection to his own interests in connection with the balanco of money claimed. After ho had vacated, tho - house, and whilo it was still unoccupied, it was burned down. Mr. A. Dunn appeared for plaintiff, and Mr. A. Blair,for the defendants. The facts, as set out by tho plaintiff's counsel, were that Mrs. Breen, the owner of a section of land at Hataitai', employed a Mr. Dwyer to prepare plans and specihea- ' tioiiß for a six-roomed house. Tenders were called on these, and a joint tender for £835 , ' was,put in by Dutton and Dwyer. This idea of & joint contract was, howover, dropped, and a contract with plaintiff alone was entered into for tho amount stated. Dutton signed the plans' and specifications, but no - forma] agreement was entered into. The budding was begun in-'September, but, at the end of October, when about £200 worth of timber had been used, and no progress . payments had been received from defendants, putton became apprehensive, especially us be had heard that a cheque given by Breen to one. of the excavators had been dishonoured. Att *r some negotiations, and the obtaining of £100 to clear off -an encumbrance on tho : land, a formal contract was signed. The \ iouso was finished in January. Plaiutiff did not-admit the defendants' contention that, , in spito of the contract, the actual arrangement was for plaintiff to be paid only the cost of material and labour, and his wage's as a carpenter. After tho completion of ■ the building, the timber merchant, whose l" n W / c 3 n for £4U i raisod » mortgage of. .£550, on. the 4 land, plaintiff receiving a portion of this Some of the money was paid away in "wages and to ' removo a lien of a sub-contractor. When the present action was begun, £351 6s. 8d was duo to Dutton,' but certain recoveries ' '? y sub-.pontractors had reduced tho amount to £288 6s. Id." 1 Bfeen-had never claimed possession, but had inspected tho ho\iso and expressed satisfaction with it. Dutton occupied tho building by virtue of a lien till February, and it was then unoccupied til! tho middlo of March, when it was burned down. It had been insured by tho owner for £600 in the name of tho mortgagee. Dcfond- ■ ants did not dispute that tho house was practically finished, except some small items, but they said that ,the builder had wrongfully remained 'in possession' and the owner had nover taken possession of tho houso at tho timo the fire rendered it impossible for plaintiff to recover. ' Plaintiff, however, proposed to show that tho building \va3 completed in January, and, even if it wero not an entire contract,, defendants had waived their rights because thoy had made an offer, not without prejudice, of £100, and they were estopped from alleging that no money 'was payable under tho contract. Plaintiff, in evidenco, corroborated counsel's statement of tho case, and said that he paid ovor £200 in wages' and over £100 for material; , , -- His Honour: Who passed the building? Plaintiff.! Dwyer. Mr. Blair: But Dwyer was working for you' on wages as a carpenter, • Plaintiff: Yes. His Honour:' Then ho had no authority to pass anything. < ■ Cross-examined, plaintiff said he had been twelve years a builder. Mr. Blair: And how long a tight-rope fralker?. '..... . . . ■ | Plaintiff: .That's-my business. ,: \ Mr. Blair: 'That's 1 : what';!: that's your business.' 1 Haven't you been a tight-rope walker? v :••'■:.:■.■• Plaintiff; Never.:.;:;'' .' Nor a circus performer time?— No.' Isn't it a .fact that you never knew, .any- : thing about building till'you took on this • contract?— Plaintiff denied this. You came from Sydney to build this house, did you not?—-Yes...'■..- '\- ;■ Did the Breens show'ydn on'arrival the other tenders from'£s9s upwards"?— No. Did they not say tha^Mr.'.Smith,-of Kilbirnie, had tendered; to build, the house, at £240 less, and'you replied,'."Smith is no good as a builder. ;If ho can build.it for£s9s so can I, on'day labour?"— That never took place. , ' : - v : ;v.,v:-,-,;. r ;:'-, .'.' '■.;'■••'>' --,'i .Did you not say to Dwyer that your idea was tod raw £200'and.cloar"out?—No. Continuing, witness said that after the fire tho police called on him. Dwyer did not leave for Sydney immediately'after the fire, and he' 1 wont away because he was; out of work. Witness had never given, up possession of the house. Ho Tiad offered- it to -Mr. and Mrs. Breon. , :■'.-, ■•■}■..■■:■■ ,'.y~.'\. Alfred Henry Bajiett,- solicitor, said he aoted for Dutton 'in: January, ' and- remembered defendantofferingplaihtiff £100 in set- ■ tlement of his claim.; The offer was refused.Alexander. A. Gellatly,-land valuer,-stated 'that ho had inspected' the on three oc-. casions between October and January. In witness opinion tho building as it stood completed would bo ,worth about £800. If hewere told that the contract price was £835 it would not surprise him. The house.was quite ready for occupation when witness last flaw it in January;-:'->..'.-"*'"'■■ ;■•:.,-.-',-.• Joseph H. .Knight,'-builder arid : contractor, who had a sub-contract for the erection of the chimneys, also gave evidence'. Ohas. C. Odlin,,,timbers merchant, that ho supplied tho; timber for the' building.' Jrlo had inspected the building, and for that class of cottage it; was good fair work. - To Mr. Blair: This'was.the first dealing • he had had with Dutton,' and it would be tho last. It did not pay, a merchant to-be mixed up in a case of tins' sort.'' ..' ■■:.'■• *i>°^ S -i?- ird » . build <>r, : considered the work in «,L. - s . ™^estwn .was.equal.to the ordinary contract worlc., : ..,j; . At this stage the case was adjourned until this morning, .. : ,. v ~.>:'. . ■ •"'