PROFIT OF CONTRACT

Hutt News, Volume 2, Issue 43, 3 April 1930, Page 10

PROFIT OF CONTRACT

v».

CLAIM AGAINST OFFICIAL

ASSIGNEE

The Chief Justice (Sir Michael JMyers) delivered judgment last -week in the case between William C. Hewitt and the Official: Assignee of the pro* party of Edward John Barnes and Era» eat Keeble.

Reviewing the f acts, His Honour, in « written judgment, explained that Barnes and Alfred Ernest Keeble, at the end of April, 1927, as partners, ear tered into a contract with the Govern* xnent for the construction of the f oun&a* tions of a new locomotive shop in thg >Hutt Valley, the contract price being £7808 or thereabouts. On June 8, 1927, Barnes gave in the plaintiff }s favour aa order authorising Keeble to pay all hig> profits up to the sum of £SDO plus 10 per cent interest per annum that might accrue to him on the contract, in consideration of Hewitt, advancing Barnes the sum of £500 in connection with hi© sawmill at Te Horo.

On June 17 r 1927, the judgment continued, Barnes committed an availably «ct of bankruptcy, though neither th# plaintiff nor Herbert Hewitt had noticfl of it.

"The contract work, which had con> menced about the end pf April was then far from finished. "Indeed" the judgment proceeds '' according to Barne* and his was the only evidence on tha point, up to June 17, only preparatory work had been done. The work is sai<J ♦o- have been completed, except for % few extras on or about September 1. Eventually the profit on the contract was ascertained to be about £1832 half •f which but for his bunkruptcy would liave belonged to Barnes. The plaintiff now brings his action against the oißeial Assignee and Keeble to recover the nun of £500 and interest.

"The question, arises in these circumstances as to whether the plaintiff is entitled to recover the" £500 or any part of it from either of the defendants. If the Official Assignee is entitled to claim th« whole of Barnes's share of the profit from the contract, and the plaintiff therefore cannot recover against the Official Assignee the result then being that the money had s not 'become available' to enable Keeble to comply with the order and Ms undertaking.

"In this case the bankruptcy related back to June 17. At that time it seems to me to be clear that no profit had beea earned by Barnes. The profit was not «arned until the contract was completed. I think therefore, that there was no money to which the assignment could attach on June 17, and therefore »■ . .1 must hold that the plaintiff cannot sue* eeed.

"In all the circumstances it may be that the plaintiff could not recover,' apart altogether from the main ground on which I have held against him. But I have not thought it necessary to coa» cider the legal effect of the facts that I lave found on the second branch of the ease because, if I am right in my conclusion on the first and main ground, that conclusion is fatal to the plaintiff '• claim. I have, however, thought it. desirable to state all the facts so that they nay be on record if the case proceedf farther.' ' '""n^Tl"]^-