CLAIM BY BUILDERS.

Gisborne Times, Volume XXVI, Issue 2363, 2 December 1908, Page 4

CLAIM BY BUILDERS.

JUDGMENT DELIVERED.

Yesterday morning Mr. W. A. Barton S.M., delivered the following judgment in the case of W. Webb and 'Son, builders and contractors /Mr W. D. Rees) r. Hallenstein Bros, and H. J. Brownlee (Air. J. W. Nolan): ■

The plaintiffs claim to recover from defendants the sum of £lO5, upon the following statement of claim :~

. The plaintiffs say: 1. That on or about the 10th day of February last they tendered to build and erect certain brick buildings in Gladstone Read, Gisborne, 'for the above Hallenstien Bros., for the sum of £A574 10s. 2. That they caused such tender to be given to the above defendant, Herbert Janies 'Brownlee, on or about the said 10th day of February, such tender enclosing the cheque of the plaintiffs for the sum of £IOO in accordance with the specifications prepared, by the said Herbert James Brownlee. 3. That on or about the 12th day of February the plaintiffs having discovered that a serious omission had been made in the quantities of material necessary for such contract waited upon the said defendant Herbert Janies Brownlee and informed, him that they were not prepared to pursue such'tender, and gave him notice that such tender was withdrawn. 4. 'That after plaintiffs had so given notice of such withdrawal of their tender, the said defendant Herbert James Brownlee handed to James Webb, one of the plaintiffs, an acceptance of the said tender, which had been so recalled. 5. 'That shortly afterwards the plaintiffs applied to the said Herbert James Brownlee for the return of their deposit of £IOO. 6. That the defendants with full knowledge of the withdrawal of the tender above mentioned cashed the said cheque of the plaintiffs for £IOO on the 13th day of February last and retained and still do retain the said sum of £IOO the property of the plaintiffs.

Wherefore the plaintiffs claim to recover the sum of £IOO, and also recover the sum of £5 as damages for the detention of the said principal sum of £IOO. The short facts of the case are as follows: .Defendants, Hallenstein Bros.. T/td., called for tenders for the erection of a- certain building at Gisborne, the defendant Brownlee being the architect. The plaintiffs tendered according to the plans and specifications. Clause 17 of the specifications contained a clause providing that a deposit should accompany the tender. The clause referred to is as follows: Each tender shall he accompanied by a deposit of £IOO, which shall be 'returned to the_ contractor at the tune of his receiving his first payment under the contract, land shall be absolutely forfeited as and for liquidated damages if the tenderer fails to sign (within seven days after notice in writing of the -.acceptance of This tender) the contract for the due performance of his work, in terms of these conditions and the plans and suecificat ions.

In my opinion the real question at issue is. Was there a withdrawal of the tender before acceptance ? There is a conflict of evidence. It appears that the tenders closed oil the Stli July, 1908, the two lowest being Webb and Sons £5574 10s, and. Anderson £5499 10s. It was ascertained by defendants that the two Tenderers named had been working together and assisting each other in connection "with making up tlieir estimate for the job, and it was suggested by Mr de Beer, one of the directors of Hallenstein Bros., Ltd., that Webb and .Sons and Anderson should join in a contract for the 'job, and after some discussion they agreed to consider "the proposalwhich, they did. Plaintiffs say that having ’discovered a mistake in the amount of the vender, they; not Living taken, into consideration certain iron work required for the building, which would cost *-something like £SOO, that they decided to withdraw the offer. Mr. de Bear admits that plaintiff's tender was very -low, and it is obvious from Lis efidence thnt .lie never expected plaintiff to go on with- it at the price they .had put in, and ' must- therefore ted retraction of the offer. The law is clear that an offer may be revoked at any time before!-Acceptance; The question for me, therefore, is. Did the plaintiffs withdraw tlieir offer .before acceptance? I am of opinion that they did. I think that when James Webb went with Anderson to Brownlee's office on the 12th July and said

“We have decided to have nothing more to do with the mutter.lS he intended it- to apply to Webb and Sons’, tender as well as the proposed amalgamation of Webb and Sons with Anderson's offer. The evidence of James Webb is, “I told Messrs de Beer and Brownlee that we had decided to withdraw from the iob in any shape or form,” and-that is corroborated by Anderson. Immediatelv Webb stated that they had decided not to have anything more to do with the matter, notice of acceptance of Webb and Sons’ tender was handed to him by Mr. .Brownlee by direction of Mr. de Beer. This notice had evidently been prepared by defendants an anticipation of the refusal of plaintiffs and Anderson to join in a contract. Confusion was undoubtedly. caused through the suggestion’that W ebb and Sons and Anderson should enter into -a- contract jointly. M-r. de Beer admits that James Webb said at the time the letter of accepwits handed to him that Webb and Sons desired to withdraw from the offer. I am of opinion, in all the circumstances, that the notification Janies Webb to flic defendants, that they had decided to have nothing more to do with the matter, KSi reference to both tenders, and that being so, there was a withdrawal of *-he otter before acceptance. It is evident to me, from the action of Mr. de Beer that lie had made up his mind mi the event of Webb and Sons nnd Anderson refusing to jointly enter into a contract that he would endeavor to retain the deposit lodged* tyitli plaintiffs’ tender. In reference to defendant Brownlee, ; am or opinion that he should not have -been joined in the action, lie being simply ai * for the defendant. Plnintxffs will therefore be nonsuited as against Brownlee, and judgment will he for plaintiffs as against defendants Hal.enstein Brothers, Ltd., for the cl limed, with costs of Court £2 13s, solicitor’s fee entering plaint £l, solicitor’s fee £5 ss,