HOUSE BUILDING TROUBLE

Pukekohe & Waiuku Times, Volume 4, Issue 82, 13 September 1915, Page 1

HOUSE BUILDING TROUBLE

Adjourned Hearing.

Magistrate's Decision.

The building dispute case in which F. W. Mountjoy, architect, Pukekohe, sued A. W. Lakeman, draper, of Pukekohe, again came before Mr F. V. Frazer, S.M., in his room at the Auckland S.M. Court on Friday last, After taking lengthy evidence in the PuKekohe S.M. Court on Thursday, 2nd inst., the case was adjourned to come up for hearing at Auckland and judgment was in the end given for plaintiff for the amuunt claimed, £27 12s, in respect of professional fees, advertising expenses, etc., and costs, while defendant was non-suited in his counter-claim of £54 ]2s for alleged negligence and work done without instructions.

Mr Edmund Mahony appeared for plaintiff and Mr J. G. Haddow for defendant.

Called by Mr Mahony, Charles Farrell, representative of the Auckland Rimu Timber Co., stated that £62 4s worth of timber was supplied by his company to Kimber, the contractor who built Mr Lakeman's house. The account still stood at that amount. Kimter made promises to bay but failed to keep to his word and his credit was Btopped.

By Mr Haddow: The last lot of timber was supplied to the builder on June 7th. Had he paid £3O off his account the company would not have stopped his credit. He was written to in connection with the account, but tfce letters were not acknowledged. The company might nave considered further business with him had it been tound that he was in a financial position- and prepared to pay £2O off the account a fortnight or a month before the building waa completed. Alexagder Abercrombie Troap said that until recently he was employed by Hardley's, Ltd., which firm supplied Kimber with goods to the value of £66 14s sd. He was sent to interview Kimber as a result ot the account being overdue, and received a cheque for £2O. Further attempts made for payments were futile. Kimber's credit was Btopped by the firm on July 7th, the date on which arbitration proceedings were held at Pukekohe. The company decided that in the event of the architect being shifted off the job that Kimber's credit should cease. He Was only once on the job and the contractor informed him that he was hampered for the want of material.

By Mr Haddow: Witness did not know when his company delivered the last order to Kimber. No decision was arrived at to stop Kimber's account until the arbitration proceedings were held, and on that date it was stopped.

By Mr Mahony: He was told by a member of the firm that Kimber's financial position was not liked by the company. Jospeh Searle Kimber, contractor, was called by Mr Haddow and deposed that he took the coutract in November, 1914, and before signing the same ordered the timber for the building from the Rangitikei Sawmillers' Association, on the architect's recommendation. The timber was to be on the job within eight days from the date of ordering, but ft did not arrive until the 24th December. Consequently he was delayed. After starting to sink the holes for the blocks the plaintiff ordered hun to put them further back, as he considered they were tou close to the road. Further trouble arose in setting out the building. Witness could not get it to square, and informed Mr Mountjoy, who put the tape measure over it. Certain alterations were made as a result, but then he could not get the building to square accurately. He considered the scale was wrong. - It showed 47 feet for the front wall, whereas the wall had to be made 48 feet to be correct. If the scale was rigbt the building must be wrong. Witness and his brother scaled the angles of the building three or tour times, and satisfied themselves that they were correct. The moving of the blocks made extra work for bini. He continually asked for details but could not get them. Mr Richardson, of the Papakura Joinery Factory, was also delayed, waiting lor joinery details from the Bame source, so witness asked the architect for them and was. informed that he would have to wait until the joinery arrived in Pukekohe. After a month's delay it came to hand. Further delav in connection with the details for ceilings happened. All this necessitated him putting the men on other jobs on the building. Three gables were also altered under instructions from the architect. Grates ordered by the architect were late in coming to hand, and tiles tf:at he also ordered were put on after witness left the building they were taken down. All the materials were never at any time while he was on the job on the ground. He put the rcofing and the spouting on the building, and the rest of the plumbing work was to be done by Mr Skinner, for £l2, but owing to a fire in Skinner's business premises Skinner had to leave for Auckland and was delayed there. In the meantime the architect (Mr Mountjoy) put Mr Russell on to finish the job. It was completed, the charge made by Mr Russell being £lB. A lot of plumbing work was done which was not included in the sDecifications. The architect ordered it. The first plumbing contract wss let to a Mr Munro, hut he did not go on with it as he had to go back to Auckland. lie let a painting contract, labour only, for £2l, and the contractor remained on the job until a week after witness left. At the architect's request witness,

in company with the three other men on the job, worked for four and ahalf days on another job which the architect wanted to finish before the 7th February last. Later, he found out that Mr Lakeman was rot aware of the transfer. He asked the plaintiff for a certificate but could not get it. Shortly afterwards the plaintiff left for Onewhero and Whakatane, and on his return witness again asked for b certificate but without result, although during his absence a lien had been put on the building. There was at this time between £7O and £BO due t'i him, with which hej could have paid the suppliers had he received it. By the Magistrate r There was £2O owing for wages. Continuing his evidence, Kimber aaid that had the money been paid to him he would have been able to continue with the contract. With the exclusion of his own and his brother's wages and the cost of the balance of the joinery he considered that at the lime of the arbitration the work could have been completed fur £22. Although it was mentioned in the specifiutions that the architect had to select the grates, tiles, papers and the lead lights, with the exception of some of the latter they were not on the job when he left it. Cross-examined by Mr Mahony: The first delay could not be accounted for by the suggestion that he was unfinancial at that time. The delay was caused through the late arrival of the timber. He could prove by scaling the building that the plaintiff's plan which was stated to be correct by Mr Wade was not so. The architect should have pegged out the site. Details usually accompanied plans. He was not aware that the plaintiff went over the building with a steel square, but he did remember being offered the luan of a steel Equare by the plaintiff. The eaves were not altered because the length* of timber he had were too short. At plaintiff's request a piece of unsound timber was removed from the building and some second-class joists were also ordered off the job by an inspector. On one occasion te plaintiff informed witness that if he did not hurry on the work he would enforce a clause whereby witness would have to leave the job. He was not aware that Lakeman had complained to the plaintiff that the work was not progressing quickly. Katherine Lakeman, wife of defendant, said that she interviewed the plaintiff before the plans and specifications were made out and gave him go on with a house to cost £SOO, Before the specifications were signed she noticed that they were not complete, things, including a' concrete floor in the wash-house, being omitted. She arranged to have them included in the specifications, but as the work progressed she noticed that some of them remained unfinished and reminded the plaintiff of the floor in the wash-house, and he said that he had only allowed for a square of concrete and not for a whole floor. A further conversation took placo between witness and the plaintiff over the proposed alterations, the plaintiff saying that he had put a silp with the particulars of same in the specifications, but later said that if they were not in the specifications he had told the builder of them. On a later occasion the plaintiff said that he did not include the alterations in the specifications, so as to keep down the sxpenses. When she objected to the men being put off the job the plaintiff said that the building could be completed tor the contract price and that he would rather lose all his fees than allow them to continue. Her reason for wanting the men to remain on the job was to avoid delay. After Kimber left the job men were sent to paper the house, and there was only one room fit for papering. Cross-examined by Mr r.y: The property was in her hubband's name and he gave orders lor it to be built. The men told her that it was the plaintiff's fault that the building was delayed. The plaintiff seemed to take a dislike to the men.

Defendant, Alfred Lakeman, confirmed his wife's evidence, and said that the plaintiff understood that he was to look to, Mrs Lakeman for particulars as to what was required in connection with the painting and paperhanging. An assurance was given by the plaintiff that the job would not take more than £514 to complete even if plaintiff had to finish it himself which he Baid he was determined to do. When witness asked the plaintiff to let the men continue the contract the plaintiff said that he would not, even if it cost him more than his fees. At the time when the other men were being put on witness complained to the plaintiff who said he was determined to put them on. At one period witness wrote to the plaintiff stating that he would hold him responsible for the delay in the ■erection of the building, and that he was paying two rents. He asked the plaintiff before he left for Whakatane, and also after bis return, to issue a certificate for progress payment, but he would not act in the matter, 'lh house laid idle for seven weeks previous to the arbitration proceedings. He gave the men permission to reside on the buiidmg as they were living in tents and the weather was damp. The plaintiff asked him to cancel the arrangement, but he would not. There was never any ill-feeling between the men and the plaintiff, with the exception of a little difference that arose at the time ot the recent Pukekohe Borough Elections, when the plaintiff was a candidate for a seat on the Council.

By Mr Mahoney: He admitted asking the plaintiff to push the job on. On the 15th April witness

complained of the delay, and the plaintiff said, that Kimber would finish in 14 days. He never told the plaintiff when he (plaintiff) mentioned the clause to put the iren off that he would leave the matter in his hands. It was not correct that he sided with Kimber and went to town with him. If the plaintiff had given the builder the certificates be asked for it would have been possible to have stopped the.liena coming in on the job. All the buinsess people got to hear of the liens.

John Koulty, an architect, in his evidence, Baid that he acted as arbitrator at the proceedings held in Pukekche at the request of the plaintiff, who waited on him in connection with the matter at his Auckland office. The plans submitted by the architect were not properly dimensioned and were not suitable to be placed in a builder's bands. Consequently, trouble arose as a result He sumbitted three plans, one of which was drawn by the Government architect. It was for a worker's dwelling, and he considered the architect's plan should have been similar.

Mr Mahony handed in a plan of Mrs McGovern's boardinghouse, Pukekohe, drawn by witness and nut dimensioned.

A further plan in a book submitted by witness in support of his contention that the architect's plans were not correctly dimensioned was re-submitted by Mr Mahony, who pointed out a plan therein which was not dimensioned.

Continuing, Mr Routly said that when the builder left the job progress payments totalling £BO were due to hm. At the Arbitration proceedings the plaintiff stated that he had intended to give the builder a certificate before leaving for Whakatane but did not and found a lien had bten put in oq, the job when he arrived back.

By Mr Mahony: He always made a practice of showing the dimensions on bis plans. The architect was to blame for the whole delay owing to the Jack ot dimensions on his plans. 'lhe plaintiff, re-called, said that he handed the plans and specifications ot the building to Lakeman at the end of July, 1914, and Lakeman called tenders for the contract. The plans and specifications were in the owner's hands lor four months. At the owners's residence one evening he said to witness: "God help you if you put in all she askß ycu to" (reteiring to Mrs Lakeman).

By Mr Haddow: He was not registered. He could become registered by application, but be wished to pass an architect's examination in preference. The Magistrate aaid that registration was no qualification and that there was nothing in the point. JUDGMENT.

His Worßhip said be would deal with the counter claim first and proceeded to say that the counter claim consisted of a number of items about which there waa a considerable conflict of evidence. He was satisfied that no unnecessary variations were ordered by the architect without the consent ot Mr Lakeman, and that the conduct of the builder and the attitude of Mr Lakeman to the architect were sufficient to have justified the latter in terminating the contract and discharging the contractor, although possibly the contractor might, as against Mr Lakeman, have some cause of complaint in respect of the cumulative action of owner and architect The finding of the arbitrator was based necessarily on this cumulative action, and could not possibly be held, apart from any questions ot law, to govern the position as between the architect and the owner. The arbitrator had found that one of the main points on which the counter-claim was based was unskilfulness and inaccuracy on the part of the architect in preparing the plans. lbs evidence of Mr Wade, who was recognised as a leading city architect of great experience, had not only satisfied him (the Magistrate) that the charpe of unskilfulness was disproved, but that the plana were of more than ordinary merit, and particularly accurate, and such as a competent builder should have bad no difficulty in building to. The other point on which reliance was placed was that there had been delay on the part of the architect in issuing certificates for progress payments and in preparing detail drawings. The delay in the former case was due to caution and a desire not to prejudice the owner's position in view of the fact that liens had been lodged, while in the latter case the evidence of the contractor himself and another witness showed that no loss of time had resulted from the delay, though at the same time he thought the architect appeared to k have been at times somewhat dilatory in supplying the necessary drawings. The ounter-claim, however, would [fail. Even nad the counter-claim succeeded on the facts, it would have been impossible as a matter of law to have assessed the damages, as the final payment under the contract had not yet been arrived at. Coming to Mr Mountjoy's claim for £27 12s, the Magistrate said that Mr Mountjoy had established his right to recover the amount, whether for work done and damages for wrong dismissal, or for work done, as to part, and on a quantum meriut as to the balance. As it was clear that he had been wrongfully dismissed judgment would be in bis favour on the claim for the full amount claimed with costs, whila Mr Lakeman would be non-suited in respect of bis counter-claim.