MAGISTRATE’S COURT.

Gisborne Times, Volume XXV, Issue 2118, 28 June 1907, Page 4

MAGISTRATE’S COURT.

Boforo Mr. W. A. Barton, S.M

A PAIR OF BOOTS

A difference of opinion about a pair of boats was vontilntod at the Magistrate’s Court yesterday morning, when W. Stewart sued \\. Ingjmin for 6s, cost of repairing a pair of boots. , „ , . ~... Mr. Blair appoarod for plaintiff, and Mr. H. Bright for defendant. Mr. Blair stated that the claim was for Os, oost of repairing boots m June last year. Both parties were very positive as to their cases, no /.IMS od~ . T Plaintiff, who deposed that m June last two pairs of boots were delivered to him by a telegraph boy, who told him they would bo called lor on tlio following Saturday. Two young men entered his shop on that duy, Juno 10th, and inquired if their boots were done. Witness asked for the name; ono gave the name of Hitt and the other Ingham. Asked which boots wore theirs. Hitt said Ins wero heeled and patched; Ingham said his were lialf-solod and heeled. Both asked him to allow payment to stand over till tlio end of tli 0 month. -Vnrced to this, and delivered a pair of boots to each. Identified Ingham

in Court. , , Bv Mr. Bright: Sent tlio account to (iiigham, post office, and it was not returned, and later witness threatened to placo the matter in his solicitor’s hands Ingham entered his shop one day, aiul deniocl having left the boots with witness, and said there must bo some mistake Mr. Bright stated that defendant did not arrivo in Gisborne till the 18th of the following month, i Defendant: deposed that lie had never had any boots repaired by the plaintiff. Arrivod in Gisborne on *lßth July last year ; had not been here beforo that. The first conversation ho had with Stewart was in reference to board and lodging, as ho was a strangor in town, and on that occasion was in the shop with H Judgment was given for defendant

without costs. COMPENSATION ON A CONTRACT A debatable point camo up for argument in tile case between ebb and Sons versus Williams and Sherratt, claim for compensation. Mr. 11. J. Finn appeared for the plaintiff, and Mr. T. Alston Coleman for the defendant. . c Mr. Finn, in opening the case tor plaintiff, said that it was sought to recover £ls 8s 6d, being 1 per cent of the lowest tender ill a building contract, which was not accepted. In consequence of an advertisement defendant tendered before the day fixeth There was a condition that it no tender were accepted within 31 days, 1 per cent shoultl bo paid as compensation to the lowest tenderer, the sum not to exceed 15 guineas. \\ ebb and Sons tendered for £6176, and it was contended that no tender was accepted. About seven or eight days after tenders closed the work was let .for £6750 to Mackrell and Colley. They thus made a fresh arrangement outside the tenderers. If the original £6999 tender was accepted, the action could not be brought. He called — William Webb, plaintiff, deposed to being a member'of the Gisborne Builders and Contractors Union. Inspected the plans and specifications and tendered with the time limit. Counsel for plaintiff was about to put in the tender, when Mr Coleman submitted that it could not go ill as a tender as the document was unsigned. Ho would quote authority. Witness, continuing, said that enclosed was a cheque for £IOO, and handed it to Mr, P. H. Graham, the lajrcliitect. Was present when the tenders were opened. Mr, Tlios. A. Coleman and the architect and others wero also present. Witness’ name was read out with the other tenderers, and nothing was said about the tender not being signed. Was not aware that it was unsigned. Thero was no conversation about the amount of the tender. Mr. Thos. A. Coleman said that Mr. Williams was not down from the coast, and they would get the decision later on. Called several times at Mr. Coleman’s office in regard to the tender, and he knew nothing more until Mr. Colley said he was going to sign for the job. By Mr. Finn: The deposit was returned on 7th inst by Mr. Graham, who said they were not going to accept. the tender. Under clause 33 of the specifications he claimed i per cent of his (the lowest) tender; By Mr. Coleman : The value of the necessary material for tile building would be about £SBOO, including labor, etc., material alone would exceed £2OOO. Had a conversation with Graham when he returned the deposit. Said something in refernecc to ( Uhe per cent, and ho was referred to Mr. Thos. A. Coleman. Might have said to Mr. Graham that he only asked for it as a fair thing between man and man, although he knew he was not entitled to it. Went to Mr. Coleman’s office, and he was offered 5 guineas, saying that it was to prevent any further claim, It was not for the sake of pace. He declined to accept it, and recommended that it be given to charity. Thought all the tenders were opened on 3rd June.

Henry Williams, one of defendants, a sheepfarmer, admitted entering into the contract on 11th June to erect the buildings in Lowe Street. Francis Stafford was called to give evidence as to the custom usually adopted, but the Bench decided that the evidence was unnecessary. At this stage the Court adjourned till 3 p.m., there being an inquest at 2 o’clock. Upon resuming, Thomas Alexander Coleman, accountant, deposed to receiving the tenders, including Webb’s so-called tender. He opened the tenders and handed them to Mr. Graham for examination; he represented the architects and witness the owners. Wrote Turnbull and Co., enclosing copies of all the tenders that had been received, including

Webb’s. Also telephoned his principals. Mackrell and Colley’s tender was accepted, with the modifications of an extension of time, to enable them to obtain the bricks and a reduction in price. Called the attention of the lawyers to the fact that the document was not signed, but not- before Webb made a claim for compensation. By Mr. Coleman: On 4th June the contractors present in the room were told that nothing would be done meantime, as both Mr. Sherratt and Mr. Williams were up country, but he expected to communicate with them in the course of a day, and some arrangement woidd be arrived at for dealing with the tenders. Mr. Williams rang up on the telephone shortly afterwards, and said lie would be in town on the following Friday. 7th instant,, when he would

meet- Mr. Sherratt and decide what was to be done. Williams and Sherratt thought that some tenders were too high and some too low, having in view the architect’s estimate. Two tenders were singled out for reconsideration, Mackrell and Colley and J. T. Julian, of Auckland. The lat-

ter was wired to, to reconsider his tender, and Mackrell and Colley were atfked verbally. Saw Mr. Colley, who said they 'could not do the work in the time at a lower price, but if two months’ extension was granted they could do it. for £6750, as it would be impossible to procure bricks in town, except at a high cost. Could not say if Mr. Williams verbally accepted Mackrell and Colley’s original offer. On Thursday, 13th, Webb called at his (witness’s) office with Mr. Anderson, bis partner, and said that. Mr. Graham had sent him round for a cheque. Witness asked what for, and was told that it was

for compensation under the general conditions, which, of course, he knew about, Replied that the matter was left in Mr. Graham’s hands, and he could say nothing until he saw Mr. Graham. AA'obb was to return later

in the day. AA’itness saw Graham, and later in the afternoon saw Anderson, who asked if he had arranged with AVebb about the compensation. AA’itness replied in the negative, as they did not call back. Said to Anderson that AA’illiams and Sherratt denied all liability from a strictly legal standpoint, but AA’ebb was not putting it on those grounds, and asked that a fair thing should Jie done as between man and man, and that therefore and without- prejudice he was prepared to give him a cheque for five guineas for any trouble he had been to in the matter. Anderson said he would probably see AVebb that, evening. The following morning AA’ebb called and stated that he had seen Anderson, and witness repeated what he had told AVebb. AA’ebb remarked t hat it was more like an act. of charity, and he did not want it. By Mr. Finn: Never told AA’ebb that his tender was informal. For the defence, Mr. Coleman asked for a nonsuit, firstly, because the plaintiffs never tendered, and therefore there was no ground for action, secondly, if it could be liekl that plaintiffs had tendered, there was still no contract between the parties, as the contract was for the sale of goods should therefore have been in writing and signed by plaintiff or their a-ent, thirdly as a subsidiary point, that under the general conditions there was no obligation for the defendants to accept any of the tenders put iu oil 3rd instant-, on the

ground that under olnuso 33, any tender might liav.e been uccopotd within 31 days of that date. Plain-

tiff novor tendered the document in ovidonco, was simply a doeumont with a stumped heading of Webb and Sons and they claim it was a tender. “We the undersigned,” but it was not signed, and this was tlftl only evidence bo roliod upon.; .Tlio test of the “tender” was: Could the defendants have compelled, the plaintiffs to have gone on under that document and completed the building. I’hore was no offer and thus there could have been no acceptance by defendant. It may bo argued that this was not a sale of goods, but Webb stated that the cost of the material would bo over £2OOO. Counsel quoted authority to show that the transaction would come under the heading of a snlo of goods. Defendants would have had the right under the wording of the advertisement to decline any tender and call, for others. Mr. Finn hold that the loading point was, did the plaintiff tender and did defendant recognise it as such at the time. He submitted that no tondor lias been accepted. Webb offered in waiting to dp the work and his was the lowest price. This offer was considered a tender by Mr. Thos. A. Coleman. It was never pointed out to Webb that his tender was irregular, it was accepted all the time. Ho urged that there was nothing to show that a signature was necessary. Defondant’6 was clearly the lowest bender and the specifications showed that lie should have I per eont. He contended that without' being signed tho plaintiff could be compelled to complete a contract. .Defendants having acted upon Webb’s tender they must now accopt it as a bona fido one. No mention of irregularity was made until application for compensation was made. His Worship docided to nonsuit, the plaintiff on the ground that the document purporting to be a tender was not legal for t'ho reason that it was not signed. Costs amounting to £1 13s wore allowed.