A CONTRACTOR'S CLAIM.

Gisborne Times, Volume XXVI, Issue 2358, 26 November 1908, Page 6

A CONTRACTOR'S CLAIM.

A DETAINED BEPOSM

J ÜBGMENT REtSERVEB

A oise which has aroused considerable interest locally, and which has been adjourned from time to time, was called on at the -Magistrate >s Court yesterday morning before Mr \V. A." BartonS.M. The case was that in which Wm. Webb and Sons proceeded against Hallenstein Bros, and H. J. Brownlee to recover £.lt!o being £IOO deposited bv plaintiffs with, a tender for the erection of premises for defendants, and £-5 damages for detention of same. Mr W. L. Rees appeared 'for the plaintiffs and defendants were represented by Mr J. W . Nolan. Mr Bees outlined the ease for the plaintiffs and called— William Webb, who said that his firm tendered for the erection of Hallenstcin’s buildings, and Mr Hurry Anderson was to have a subcontract for eirpentering, plumbing nnd painting. The tenders closed on February Bth, and Anderson’s tender was lower than that of witness’ firm. On February 10th witness went to Mr Brownlee’s office, as Anderson said th.it Mr Brownlee asked to see them all together. He saw Messrs Brownlee and He Beer >at the office, and the latter asked' witness if his firm and Anderson would join together in the contract. This witness refused to do and offered to go over th e pirns again to see if Anderson’s carpentering estimate was correct. The plans were handed over by Mr Brownlee and witness took them away and examined them. Later in the day the three of them went back to Mr. Brownlee’s office and took the plans back. Mr Brownlee said there had been some alterations and additions to the original plan and witness’ son nsked if their tender was going to be accepted, Mr Brownlee replying that he did not know. On the following morning the three of them again went to Mr Brownlee’s office and saw both Messrs He Beer and 1 Brownlee, who agreed to the prices tendered for the additions and alterations. A further appointment was made for S o’clock the* same night, Mr. Brownlee saying that then they would be prepared to talk business. They kept the appointment and lie thought they were asked to sign some paper. ‘Witness suggested that Anderson should sign first, but ihe declined to do, and witness also refused to sign. Mr He Beer them asked' them to go outside and discuss the matter, and they did so. After discussion they returned to the room and asked to have the matter left over for a day. On the next morning, on going over the figures, they found that Anderson had omitted the ironwork, an item of £525. Witness authorised his son and Anderson to see Brownlee and He Beer, which they did. He saw Brownlee himself the same .afternoon, and he said that they were going to go no farther with the job. Brownlee said that Anderson and witness’ son had been to see him, and he (Brownlee) had expected something of the sort. Next morning (13th iiist.) witness’ son said he bad received a written acceptance of their tender. No contract for the fulfilment of the tender was ever presented t-o them for signature. To Mr. Nolan : Webb and Sons’ tender was £75 higher than that of • Anderson. Anderson made am the amount of the carpentering in VVebb and Sons tender and he (witness) made, up the brickwork and plaster for Anderson’s tender. Nothing was ever mentioned about the acceptance of the tender. He thought that the document he was asked to sign was an agreement of some sort, but he did not think it was re.ul over. Their reason for not signing the document was that they had not settled 1 the question of finance between the two firms. The only matter discussed at the interviews was that ol Anderson's tender. He may have said to Brownlee that he would give him £3O or £4O for his trouble, but would not let Haliensteins have -anything as they had been 100 sharp. The reason he made this offer to Brownlee was that Brownlee had said he had got into a row and tlie job had given him a lot of trouble. . . Harry Anderson, joiner and blinder, give similar evidence regarding the tenders and the conversations in Brownlee’s office. He (witness) was told by Brownlee that no tender had been accepted and He Beer said, in reply to J. Webb, that they could not accept any tender as there were ooiim to be several alterations and additions. Webb said that if they wanted him and witness to go in together it should bo at the higher price. Later on, in the office, an agreement was drawn up, but they refused to sign, owing to not knowing the financial position. After discovering the omission: of the iron'll oik Jim Webb told Brownlee that they were not going on with the job. To Mr Nolan : They refused to sign the agreement because they had not settled their finance. James Webb gave evidence corrowJiorative of the two previous witnesses. ■Wilienbke went with Anderson to Browni'eeiS office they clearly told the latter and Mr Be Beer that they were going tof-lwithdraw from the job. He Beer tasked. Anderson to leave the room, .and when he had done so he (Be Beer) handed witness an envelope, remarking that he was expecting something of the sort to happen. Witness later found that, enclosed m the . envelope, was an acceptance of Webb and iSons’ tender. No contract was tendered to him for signature nor was he ever asked to sign such a contract. To Mr Nolan: When he received the-letter he did not open it, as Be Beer told him that it was an acceptance of his contract. This closed the evidence for the plaintiffs, and' Mr Nolan 'briefly opened the case for the defendants. Rudolf (Samuel De Beer said that he was a director of the firm of Hallenstein Bros, and was in charge of tlie erection of the firm’s new hurt ing. Anderson was the lowest tender received and Webb’s was next. He was not satisfied with Anderson’s financial position for a contract of the size. He had been led to believe that Webb’s and Anderson’s tender would be a joint one, and when separate tenders came in he met both parties bv arrangement. Ho was anxious to contract, and In conversation with tliem told them there were some .additions to the original plan and he wanted the price settled before he ■accepted any tender. , The Webbs j-fttljer d'm'nrml at joining Andercon

and asked witness to take a joint bender at the price Webb hail put in. This witness declined to do and asked the parties to verify their figures- and thegpAbey could agree to tlie. price tbivgfno alterations. Again on Tilth Febjpry he saw’the,-parties and went ipt-o the matter of the a iterations Ifid both of them -appeared to agree to the price agreed upon. Then Mr. Brownlee prepared the plans and specifications for signature ancl ho (witness) filled in- the figures into the agreement. They then refused to sign, saying that their financial arrangements were not complete, and would not be until the morning. W itness decided that if he could mot get the joint tender completed he would accept Webb and Sons’ tender, and instructed Air. Brownlee to w lite an acceptance to them. Later, on he saw Mr. Webb, junr., who said that they were not prepared to- go on with the contract. Anderson and Webb junr. were together, and Anderson at witness’ request left'the-room. Mr. Brownlee thou handed the letter ot acceptance to Mr. "Webb, who took it out of the envelope and looked at it, and said, "We are not- going on with 'it either, ’ or words to that effect. He was quite clear that the Webbs had given no intimation of having witliclrnwn l roin i>ho toncloi. Brownlee .asked Webb to put his icfusil in writing, and Webb said lie would have to see his father. The defendants were put to very considerable inconvenience and locs owing to tho plaintiffs’ action, but he would not have accepted the tender ot any man who had wished to withdraw it. Neither of the Webbs nor Anderson at any time told him that they 'had made a mistake about the ironwork. To Mr. Rees :At the time, the acceptance w.as handed to J. "Webb the papers that were rpady for signature were for tho joint contract between Webb and Anderson, and not for the Webbs alone. The price of the next tender to the "Webbs’ was £BOO dearer, and be thought that the latter might have made a mistake- in their estimate. He did not ask the men, when they refused' to go on with the contract, * for the reason for doing so. After the lapse of a week Smith’s tender was accepted l , but he did not instruct Brownlee by wire to do so within tho week. . Herbert John Brownlee, architect, also gave evidence, stating that the Webbs and Anderson bad agreed to enter into a joint contract. Ho further gave similar evidence of the interview's that had taken place. At one of these interviews he read out the figures that had been agreed upon and Beßeer filled them -into the memorandum of agreement and asked the parties to sign, but they would not do so uaatil they ascertained what support the Bank would give them. Later on Webb and Anderson came back, and Webb said that they had decided to have nothing more to do with the contract. Witness then gave him the acceptance of Webb and Son’s tender, and Webb said that they were not going on with it either. Witness asked 'for a- refusal to proceed in vriting. but Webb, junr.. after consulting his father, refused to do so, and said that in making lip the estimate they had omitted to put anything down for profit; just charging the actual cost. Later witness met Webb, ■ cur., who told him that the ironwork had been omitted from the estimate. Mr. Webb also offered to allow witness £3O or £4O for the'trouble he had been put to, but witness declined to accept the offer. To Mr. Rees: At -the time he wrote the accepting letter tlie co-ntracts were, not ready for signature by Webb .ind Son. When he said he had the document ready h© nieant that fie had some printed forms in the office, but not filled in. This concluded the case for the defence.

Counsel then addressed the" Court at length, Mr. Nolan raising the point that- Mr. Brownlee was not in reality a defendant, and that the claim against him should be disallowed.

After further.. argument. His Worship reserved his decision.