A BUILDING CONTRACT

Taranaki Daily News, Volume LIII, Issue 191, 22 November 1910, Page 2

A BUILDING CONTRACT

SETTLED BY THE SUPREME COURT.

At the sittings of the Supreme Court held in New Plymouth in September, Robert Coleman and Fred Archer Coleman (Mr. C. 11. Weston) sought for a writ of prohibition against H. S. Fitzherbert, S.M., and Louis Patterson (Mr. Roy). Some weeks previously, Coleman and Son, who are builders carrying on .business in New Plymouth, sued Louis Patterson for £2O, balance due on a building contract. Defendant admitted the claim, but counter-claimed for £2O for ascertained and liquidative damages, under the contract, for non-completion of the work within the contract time, ilr. Fitzherbert entered up judgment for plaint's on the claim, and on the coun-ter-claim awarded defendant Patterson the £2O asked for, and ordered each side to pay its own costs. Coleman and Son now asked Mr. Justice Edwards for a writ of prohibition prohibiting the Magistrate from giving judgment for Patterson for the damages referred to, and prohibiting Patterson from proceeding further in his judgment, thus leaving | the question of damages open to arbitration, which Mr. Weston contended, should have been done under the contract. Mr. Justice Edwards has now delivered his reserved decision on the case. After reviewing at length the contract between the parties, and the many legal cases quoted by counsel, his Honor held that a reference to arbitration was not a condition precedent to the defendant Patterson's right to recover upon his counterclaim. But even were it otherwise, prohibition would not lie. The defendant would then fail in his claim, not for want of jurisdiction in the Magistrate, but "because his cause of action would be incomplete; in other words, he would fail upon the merits. After indicating that the applications must fail, his Honor added that he had not the merits of the case before him, but he had no reason to think that this would result in an injustice being done. Judgment was given for the defendant Patterson, with costs £lO 10s and necessary disbursements, to be paid by plaintiffs to Patterson, the Magistrate, of course, having taken no part in the proceedings before the Supreme Court.