Box Timber Contract.

Progress, Volume XVI, Issue 6, 1 February 1921, Page 138

Box Timber Contract.

Judgment was delivered recently by Mr. Justice Schutt in a claim lodged by James Ormond and Randal James Alcock, of Collins Street (who carry on business as the Robur Tea Company), against Thorold Wilhelm Gunnerson, of William Street, timber merchant and importer. Plaintiffs claimed damages for breach of contract to sell and deliver 750,000 superficial feet of white pine, required for boxes to contain packets of tea. It was alleged by the plaintiffs that they purchased the timber at the wharf at a price of ns. per roo super, feet; but that the defendant delivered only 455,000 feet, and refused and neglected to deliver the balance, although repeatedly requested to do so. Plaintiffs claimed that they thereby suffered damage to the extent of £4,300.

The defence was that any contract made by defendant with the plaintiffs was with R. and P. Gibbons, Ltd., timber millers, New Zealand, and that the contract was frustrated by various circumstances, such as influenza, floods, and fire, and the absence of transport from New Zealand. The hearing of the case lasted 14 days.

In his judgment Mr. Justice Schutt said that the plaintiffs had quite failed to satisfy him that there was any breach of the defendant’s obligation under the contract to do his utmost, or to use every endeavour to meet the plaintiffs’ wishes in the sense which those words should be understood. On the contrary, the evidence for the defendant led him to the conclusion that there was no such breach. It followed, therefore, that in his (Mr. Justice Schutt’s) opinion there was no foundation for the claim made in the action. As to other defences raised, having regard to the view he had taken, it became unnecessary to decide whether the defendant contracted in such circumstances as to exclude personal liability, or whether such personal liability, if originally existing, was afterwards excluded by the subsequent election of the plaintiffs to treat Gibbons and Company as the party liable or whether the contract was “frustrated.” Proceeding, Mr. Justice Schutt said that in order to save expense, if possible, should the matter go any further, he understood that the parties desired that he should fix the amount of damages which he would have awarded had he come to the conclusion that the plaintiffs were entitled to succeed. Upon consideration he fixed the amount at £2,715. As the plaintiffs, however, were not in his opinion entitled to recover, judgment must be entered for the defendant, and he ordered that the plaintiffs pay to the defendant three-fourths of the total taxed costs, including the costs of the pleadings, discovery, and interrogatories. Mr. Latham and Mr. Eager (instructed by Messrs. Davies and Campbell) appeared for the nlaintiffs, and Mr. Owen Dixon and Mr. Clyne (instructed by Messrs. Akehurst and Lawrence) for the defendant,