Scott v. Anderson.

Manawatu Standard, Volume IV, Issue 264, 4 October 1884, Page 3

Scott v. Anderson.

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In this case I conclude as fqlliwa :—- •,, Ist. That Mr John Gamman. iv whose bankrupt estate the plaintiff is the Doputjr. Assignee,' contracted: with the def endani to supply him with all the timber geqftjted for the construction of two bridges, at the rate of 13s per 100 ft. It was contemplated that the quantity to be supplied would be 18,000 or 20,000 feet, all the timber was to be delivered within 3 weeks, from the 3rd of March, 1884. ■•■■■' ' ■■■•■;•'.■■ ; •" ' v . '■"■'■ ' 2nd. lam not satisfied that the delivery of the whole vt the timber '' was made a condition precedent to any pay--1 nient thereof. . ■-.-. 3rd. I ; think the consideration of the contract was of a divisible nature. 4th. That after the supply of 3,778 feet Gamman notified to the defendant that ho could not complete his contract.; that after such notification, the defendant, at tha request or the consent of Mr , Gamman, ;dejllvery " of 3 ,377 feet \ k more timber, which had beou cut for m the bridges, bringing the total quantity ' of timber «o supplied, up to 7jt55 feet, payment for which, the _ plaiutiff as Deputy [Assignee,'- now claims from the.t defendant. .. , .. : , 5. Tlie last delivery of the timber was ort the 1 4th of Ap'ril,and Gainman's bankruptcy petition was filed on the 10th of that mcmth. 1 : 6. 16 is not disputed that Gamman has been adjudicated a bankrupt, or that the plaintiff, is the Deputy of the Assignee of this district^ .y -a I cojnclude thjat Gamman'o bankruptcy put it "out of his power to ultimately complete tlie contract. 6. I think tHcrfacf of the defendant retaining the timber, just before received, when inotified that the contract could not be;completed r and his accepting the delivery of and using the. timber supplied after such notification, precludes him fVoin now successfully pleading non-f ififilinent of the contract, as a defence *{o this action. I conclude, he thereby implied ly promised to pay for the timber as retained. ', 9. Wherefore I conclude that the plaintiff is entitled to succeed on a quantum meruit for the amount claimed, with co ts. ( , *-.''.) Robert Wjibd, R. M.