RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3260, 1 August 1873, Page 2

RESIDENT MAGISTRATE’S COURT.

Friday, August 1. (Before I. N. Watt, Esq., R.M.) Lundy v. Wain.—Claim L3O 7s, balance of account for work and labor done, and moneys paid on account of defendant. Mr Stout for plaintiff; Mr Haggitt for defendant, who pleaded not indebted Plaintiff stated that he agreed to erect a house for defendant for the sum of LIBO. After commencing work it was agreed to alter the plan, and plaintiff therefore considered that the contract was broken, and that he would be paid according to the work done. Considerable additions and alterations had been made from the original plan, involving extra labor and material. At the time of contracting, there were no specifications, except in his head.--Robert Martin, of Roach and Martin, had inspected the building in question. The work was fairly done. He considered the alterations would bring the value of the building to L2lo.—Job Wain, sen., defendant, said that there were specifications in the first instance.—His Honor said that the plaintiff had made an exhorbitant demand, and judgment would be given for defendant. with cost.

Judgment was given by default in tbe following castsßrown, Ewing, and Co,, v. Flynn : claim. L 39 5s sd, for drapery ; Lear v. Glover : claim. LI, for boots

Nettleton v. Wood.—Claim L 92 12s lOd, for 38 60 ( bricks, manufactured bv the plaintiff for the ' bain Hills tunnel, under q,q agreement dated 4th March, 1873. Hia Worship gave judgment in this case as follows ; The agreement is difficult to construe, being so irregularly drawn up, but after much consideration, I have arrived at the following interpretation : —The plaintiff agrees to make all the bricks required for the tunnel, “to the satisfaction of Mr Blair,” the Government District Engineer. The defendant agrees to pay for the said bricks at the rate of L2 8s per 1,000, in the manner following, namely : On the “monthly Government pay days;” to make “progress payments” of SO per cent, of the value of the labor expended, and of the firewood on the ground, and on the completion of every one hundred thousand to pay for them in full at the above rate, deducting, of course, the amount of the progress payments already made, and subject to the bricks being made to the satisfaction of Mr Blair. Ido not think the evidence establishes any rescision of the contract, therefore the plaintiff—the number of bricks made being less than 100,000 —is not at present entitled to more than 80 per cent, of their value, and I have now to inquire how far this right is restricted by the stipulation that the bricks shall be made to the satisfaction of Mr Blair. I gather from the evidence that the defendant is a sub contractor to a sub-con-tractor. that Mr Blair is not required by the original contract to, and will not pass the bricks until they are built in, and that consequently the plaintiff might, through qo fault of his, be kept but of his money for aq indefinite period, instead of receiving the monthly pay? ments contemplated by both parties. This condition, as far as it would affect the right of plaintiff to progress payments, and perhaps to the full payment for every one hundred thousand, woula be inconsistent with the other conditions of the contract; and regard being had to the circumstances, would be practicably impossible of performance, as neither the plaintiff nor the defendant could give effect lo it at the times the payments would become due. I think therefore, no effect can be given to it, unless and until some portion of the bricks shall be condemned, when possibly its action may be retrospective. Judgment will therefore be for the plaintiff, L 74 2s 3d, being 80 per cent of the value of the bricks made, the progress payment now due.