WARDEN’S COURT, CLYDE.

Dunstan Times, Issue 378, 16 July 1869, Page 3

WARDEN’S COURT, CLYDE.

Tuesday, July 13. Doherty and another v. Atkins.—Adjourn ud heaving—Mr. Brough, who again appeared for the plaintiffs, stated that he would endeavour to po'nt out: 1. That the contract was not withiu eitner the statute of Frauds, 20 Car. ii., cap. 3, sec. 17, nor Lord Tenterdm’s Act, 9 George iv. cap. 14, sec. 7, and that, consequently, the contract need not be in writing. 2, That proof of a tender of the money, (whieh point was insisted on by Mr. Bailey, os agent for the Defendant.ouTuesday last,) is unnecessary. 3. That the plaintiffs are clearly entitled to the damages claimed by them, provided he (Mr. Broudi) succeeded in establishing the two former propositions. As to this contract not being within the Statute of Frauds Mr. Brough remarked that the evidence before the Court showed that the arrangement between the parties was to the following effect, viz., that the defendant should, within a specified time, construct a cradle for the plaintiffs, whieh cradle was to he constructed of wood supplied by the defendant, and also of iron which he was to obtain (and did obtain) from another tradesman in the town. In support of this state, ment Mr. Brough called the attention of the Court to he evidence given by the defendant himself, from which it appeared that his sole reason for not completing the contract was that the party who supplied the irou-work had charged him (defendant) more for it than he had anticipated, and that he was consequently unable to supply the cradle at the stipulated price. It is laid down in several works on contracts that a contract for work and materials—e.g., a contract by a printer to print so many copies of a work at a fixed price, in. eluding paper—is not within the statute. The case referred to is Clay v. Yates, 1, H. andN, 73. That case is precisely analogous to the one now before the Court, which, as already pointed out, was to do certain work for a certain sum, including materials viz., iron which was to be obtained from another party.

With regard to the second point, viz. the necessity for proof of a legal tender of the money, Mr. Brough proceeded to show that it was not requisite to prove such tender at all. It will be remembered that it is in evidence that the plaintiffs were ready and willing to accept the cradle and to pay for it. The fact of their having repeatedly applied to the Defendant for it, is sufficient evidence that they were ready and willing to pay for it, and this although the demand might have been made by defendant’s servant. Squier v. Hunt 3, Price 68. As to the damages to which the plaintiffs are entitled in consequence of the breach of this contract, Mr. Brough observed that where a person makes a contract and breaks it, he must pay [the whole damage naturally resulting—i.e., likely to result from such a breach in a great majority of cases. (In this particular instance the state of the river, the uncertaiusy of the time when it might suddenly rise, and the fact that the plaintiffs were on payable ground, which they were hindered from working for several days through the defendants default, must all be taken into consideration.

Moreover, if a party by bis contract lay a charge upon himself he is bound to perform the stipulated act, or to pay damages for non-completion, unless the subject matter of the contract were at the time manifestly and essentially impracticable, for the improbability of the performance does not render the promise void because the contracting party is presumed to know whether the completion of the duty he undertakes be within his power, and therefore an engagement upon a sufficient consideration for the performance of an act, even by a third person, is binding, although the performance of such act depends entirely on the will of the latter : neither will the promiser be excused if the performance of his promise be rendered impossible by the act of a third party. By section 68 of the Goldfields Act, 18C6, power was conferred on Warden’sto awarddamages and costs, without regard to any rule of Law, or the practice of any court of law or equity, and under that act the plaintiffs are unquestionably entitled to a verdict in their favor, even if it were decided that the contract in question were within the Statute of frauds. Section 8 of the Amendment Act of 1867, to a certain extent, restricts that large discretionary power. But even were it admit ted to be the duty of the Warden to determine every case brought before him in accordance with the strict rules'of law, and that he has no discretionary power at all then, since it has been shown that the contract not being within the Statute of Frauds need not be in writing, and that no proof of a legal tender of the money is requisite, then the plaintiffs are manifestly legally entitled to a verdict, and keeping in view the whole facts of the case as proved, and the actual loss which the plaintiffs have sustained thnough the deliberate and wilful breach of contract by the defendant, the damages laid, appear perfectly reasonable, and such as the Court in its discretion will unhesitatingly award. After some further discussion Mr. Pyke expressed his intention of dismissing the case on the grounds that no contract in accordance with the Statute of Frauds had been proved, and that the'fact of the contract being for work and materials did not exempt it from the operation of the Statute in question. Mr. Brough then asked the Warden to state a case for the opinion of the District Court which be agreed to do.