CLAIM FAILS

Manawatu Standard, Volume LVII, Issue 179, 30 June 1937, Page 2

CLAIM FAILS

CASE FROM DANNEVIRKE. '< LANDLORD AND BUILDER. In a written decision issued in tho Supreme Court at Palmerston North yesterday, His Honour .Mr Justice Heed gave judgment tor defendant in an action in which Leo Stein, a draper, of Dannevirke, claimed from James Joseph Anderson, a builder, of Dan- _ nevirke, the sum of £474 8s 5d as damage allegedly done through rainwater leaking into plaintiff’s premises. The case was an aftermath of quo decided by Mr Justice Ostler some time ago in which one, Alexander, recovered from Stein (his landlord) damages for the loss caused to his stock and business by reason of the entry of rainwater through tlie roof of part of tho shop. The part affected had been recently erected and was an enlargement of ail existing lean-to of the main shop. “The present action is brought,” stated the judgment, “by the then defendant Stein, against the builder, Anderson, who constructed the work and who had been joined as a third party in the action. Plaintiff claims to recover the amount of damages awarded against him together with the costs and expenses to which lie has been put. The statement of claim alleges that defendant undertook to prepare plans and specifications for. and to carry out, certain alterations and additions to the said buildings for the sum of £lB2 10s. Jt further alleges that the work was completed in October, 1934. and that defendant was paid .... The reason for tho water entering the shop, it was alleged, was that the alterations and additions were incompetently designed by defendant and were of bad.workmanship in that some of the guttering? were too fiat and shallow and of insufficient capacity to carry the water falling on tho new roof, whereby the water overflowed from the guttering. The sum of £474 8s 5d is claimed to cover alleged damage done.” The judgment went on to review the evidence, stating that the original plans for the alterations to the building had been twice changed to comply with the, demands of the Dannevirke building inspector. “The contract was duly completed and paid for,” added the judgment. “and there is no suggestion that the plaintiff did not approve of the work or that it was not faithfully performed in accordance with the terms of the contract.”

The question of whether the gutterjug was or was not large enough, it added, was not very material as it was clearly established that the damage was done during an exceptionally heavy rain-storm by water from the main roof which flowed on to the new roof, the glittering of which was insufficient to carry it away. “7 have no hesitation in saying that, in the circumstances surrounding the carrying out of this small contract for £lB2 10s, no possible inference can ho drawn that defendant, by what lie did in the matter, held himself out as competent to fulfil the duties of an architect. But even if I am wrong in this respect plaintiff was aware of tlie position, for ho knew that on to the old lean-to which the new building covered, the water from the old roof, in breach of the borough by-laws, was discharged. It was clearlv his duty to draw tho attention of defendant to this and warn him to make exceptional provision for the discharge of that water. No evidence was called to support the allegation in tlie statement of claim that it was a term of the contract that the guttering and downpipe should carry all the water from the roof of the existing building and the written contract contains no provision of that nature. If it was a term it can only he an implication. I am of the opinion, therefore, that it has not been proved that the alterations and additions were incompetently designed by defendant or that they were bad workmanship. Defendant is entitled to judgment.” That really concluded the matter, said His Honour, but it was necessary to discuss another phase of the question. “The damages allowed in the prior action.” he said, “were awarded on the grounds that the present plaintiff, after the new building had been constructed, had his attention drawn to the danger of flooding from the main building and promised to have it attended to, but he did not >o so. After damage had been done to Alexander’s stock for which damages had been awardtd, as previously stated, plaintiff then acted, and at a cost of £lB 14s 6d increased the size of the guttering on the new building and otherwise provided against the entry of water into the building. If it had been proved that the contract had been negligently or improperly performed the most that could have been recovered would have been the sum of £lB 14s 6d, the cost of rectifying defendant’s work, and this sum( with a denial of liability, has been paid into Court. But I do not think, for the reasons stated, that he is entitled to recover anything.” Judgment was given for defendant, with costs according to scale, disbursements and witnesses’ expenses to lie ascertained by the Registrar. At tho hearing Mr A. JT. Onglc.v appeared for plaintiff and Mr M. H. Oram for defendant.