DAMAGES CASE

Hokitika Guardian, 16 March 1932, Page 6

DAMAGES CASE

APPEAL AGAINST JUDGMENT. DECISION RESERVED. WELLINGTON, March 14. The Court of Appeal was occupied to-day in hearing an appeal against the judgment of Mr Justice Blair in awarding damages against Samuel T. Silver, structural engineer, of Wellington, in an action brought against him for alleged deceit and breach of ■duty by Alexander Stewart Mitchell, of Wellington, architect.

I In July, 1930, proceedings were taken by the New Zealand Trawling ! and Fish Supply Company, Ltd., j against Mitchell, alleging that the latter, by providing in a specification of a building to be erected for the company the sum of £1164 for retnforcing steel, when the same could r have been purchased for £682, had j been guilty of negligence and a breach r J of duty arising out of his contract of employment as an architect. Mitchell j confessed judgment for the sum of j £526, inclusive of costs, and sued 1 Silver for this sum and £250 general damages on the grounds that he employed Silver as an export in steel conJ struetion work, and Silver, in recom- , | mending him to direct the purchase of j steel from, a named supplier for £1164, , j had been guilty of deceit as well as a | breach of duty. Judgment for £323 . I damages, being the sum of £526 I claimed, -less a reasonable fee for professional services, was given in favour

of the plaintiff, Mitchell. The defend ant, Silver, appealed from his judg meat. APPELLANT’S CASE. Tn opening the case of appellant counsel submitted that Silver had noi acted dishonestly in directing the purj chase of the steel reinforcing required j from merchants who were in fact only his agents. Respondent well knew that appellant would receive a pront on the sale of the steel, and should have disclosed this fact to his principals. Respondent now complained that j appellant’s profit was excessive, and asked on that- ground to be indemnified in respect for the amount of the profit. , Presuming, however, that the Judge in the Court .below had been right in bolding that both parties had acted dishonestly, respondent’s own breach of duty was the effective cause of his loss,' and be could not succeed. Alternatively, it was contended that the contract was an illegal one, and neither party could recover. Counsel for the appellant contended that Silver was entitled to retain tho £330 profit made by him, a,s part gain and the balance of expert’s fee of £‘>oo. which was not unreasonable considering the risk of not getting paid

SUBMISSIONS BY RESPONDENT. Tn opening the ease for respondent, counsel submitted that the original contract l>v which Mitchell was to obtain the benefit of Silver’s expert advice and services was not an illegal one, hut that the method of obtaining payment by overloading the cost of steel, though illegal, was subsequent to- the main contract of service and did not a fleet the relationship between the parties, lie contended oven if the whole of the contract between Silver and Mjtchell should be considered an illegal one, Silver, by rendering Mitchell liable on an independent wrong ol bis own, was separately liable to ! him lor the amount, of the extra profit Silver bad illegally made on the transaction. Finally it was sub-, mitted that a fiduciary arrangement