LAW REPORTS.

Dominion, Volume 5, Issue 1399, 27 March 1912, Page 3

LAW REPORTS.

COURT OF APPEAL

THE DOCKACTION INVOLVING £20,000. PITCAITHIT AXD CO. \. J. M 'LEA\ AND SOX, I/I'D. The Court of Anneal wa, occupied all <!»> vestenla.v in hearing (ho case of PitciHUy and Co. v. John M-tean and Son .?" 'M'peal iron, a Supreme Court deciMon in a special case heard in Welling. on in .November last. On the Bench yesmail! L<lWnl ' (lS ' aml Mr ' J "stice ChapIn the original action Pitcaithlv and oein agreed thai, before hear nc this nw Klin^'r-I^^f 0 Cnnvf V s VT™ 1 , 1 Msc fw f « Supreme. r'VJ' 11 ' 1 , V ,lle Chief Justice (S r Bobert Stout) in November lost. ( Jlu- inlloivini; facts were at that time admit ed hut t M( that tme $L™ /nf S" , 1 r,,0 , ~P l!0im1 ' a «<-Pt"< Hon if h ° US toll < "'•>'• Hi* coiHtriicnl o, V mVm - S lloek in Wellington. and, on J/cbruaij- G, IWI7, M'J.enn mid Son for the' wnrt i" Pply ol > raVel aml s^' l ' "' ' l 1« ntcordance with the te ms of this agreement, Pitcaithlv and U. were called upon to supply ~|l lhe ?i'!3 , :„ nn,l f s ( a , lul fol ', the <lo 4" until the nl=T f n .- of , h ° worlcs - T ' ] °y «»nlv supplied it. tor (ho ccncieto work tin September 28, 1910, a deed of refe„ W H e f ec,lte s the Wei. »»ston Harbour Board ami Jf'Lean and n "•,«,, 1S Y'Y deli «red about .T (I;lmi vy 12, 11)11, ami became elioctunl, in conseouence of the passing of the Wellington Harbour Board L'mpoiveriug Act J9lO which came into force on December 3, lllio' litcai hl.y and Co. contended that it was an implied condition of tho asieement of lebruary 6 1007, that M'Lean and Son should proceed will, the erection of the dock and complete it, and ll.at they should not enter into any an-aiiife-nent whereby the contracl should be deform!,.0(1. In the alternative, thev (Pit-ufhly and Co.) contemleil that, if „o such condition was implied, and if M'J.enn and Son had a right to elect (and did elect) to determine, the contract with th» Harbour Hoard. M-Lean and Sou were/neverijwlcss, liable to pay to Pitcaithlv aud Co., as damage?, the whole of the profit which would have, accrued lo (he latter if the contract with the Harbour Board had been completed. \

Defendants (M'l.ean and Son) made answer to the above conditions, and denied liability. J hey advanced various Te»«ons as to why they had been prevented from completing the works and compelled them to abandon the contract against their wishes. They contended that the contract had not boon "voluntarily" abandoned by them.

In the special case, eight questions had been submitted to the Court for answers, but after hearing'a portion of Mr. Bell's opening argument, his Honour said:— "The question appears to bo simply this: Whether it was a contract to purchase a certain amount of gravel or to purchase according to requirements:-" In the. course of his reserved decision, lhe Chief Justice stated that tho promise of M'Leaii and Son soemed definite enough. They were (0 order all gravel and sand required in tho construction of tho dock. If tho contract were stopped, must M'Lean and Son still order sand and gravel? And, if they did not do so, wero they guilty of a breach of contract?

. . . There was no implied warranty in tho contract between the Harbour Board and M'Lean and Sou that the work could bo completed in the way shown in tho plans and specifications, and (unless Ihera were such 11 warranty) it could not be held that defendants bad entered into any undertaking other than to order from plaintiffs such sand and gravel as thev might, actually require. Tho questions submitted to the Court were accordingly answered in favour of M'Leaii and Son.' His Honour, after delivering his decision, agreed to defer judgment, and adjourned the case until a subsequent date, so that counsel for Pitcaithlv and Co. would have an opportunity" to state specific grounds as to why judgment should not be entered. On this subsequent (late Mr. C. C. Morison formally moved for judgment for defendants. lie understood tho other side did not consent to judgment, but would not oppose it. Tho question of costs remained to be settled Mr. 11. J). Hell, K.C. (for Pitcaithlv and Co.) stated that he did not agree that defendants were entitled to judgment. They were going to appeal, but if his Honour thought that there was sufficient in the special case to warrant him in giving judgment no doubt he would do so. Counsel opposed the application for special costs. His Honour entered up judgment for defendants as asked for, with costs specified, second counsel not being allowed. Pitcaithly and Co. now appealed from the decision of tho Chief Justice on the ground that it was erroneous in point of law. Mr HI). Bell, K.C, and Sir John Findlay, k.C, with them D. S. Smith, appeared for the appellants (Pitcaithly and Co.), and Mr. C. B. Morison, with him Mr. A. W. Blair, for tho respondents (John M'Lean and Son). Mr. Bell, in his opening, submitted that in iliero wns a general principle governing; all sub-contracts, which "contemplated the continuance and completion of the main contract. (2) The terms of this particular subcontract were such as to mean that while the contractors (Pitcaithlv and Co A were bound to supply all (ho sand and grovel required in the construction of the dock so the employers (M'Lean and Son) were hound on tneir nart to lake all the sand and gravel required for the completion of the doc*-, whether the dock were completed or not. Sir John Findlay also addressed the Court. Mr. Morison said that .Mr. Bell's argument was based upon the assumption tliat the agreement between the parties was a sub-con tract, but he (Mr. Morison) proposed to show that it was a main contract to supply sand and gravel as required up to a specified maximum. That was a reasonable and efficacious commercial arrangement, such as was regnlarlv entered into by business-like men Mr. .ilonson's argument was still in progress at 4.30 p.m., when the <-„,, • moraff hfllf '" nSt 1 ° °' clock ' ""'*