Warner v Johnson

• Jurisdiction: Trinidad & Tobago
• Judge: Malone, J.
• Judgment Date: 01 July 1966
• Neutral Citation: TT 1966 HC 7
• Docket Number: No. 420 of 1962
• Court: High Court (Trinidad and Tobago)
• Date: 01 July 1966

High Court of Justice

Malone, J.

No. 420 of 1962

Warner

and

Johnson

Appearances:

Mr. Dhanny for the plaintiff;

Mr. Hudson-Phillips for the defendant.

Contract - Breach — Damages — On 3 August 1961, plaintiff, a building contractor signed an agreement. Agreement was accepted by defendant. Common ground that agreement did not express the entire contract. Written agreement provided that plaintiff was to construct a combined dwelling house and business place for the defendant for $20,800. $2,000 was to be advanced to plaintiff and thereafter weekly sums were to be paid to him to cover the cost of material and labour. Any balance of the $20,800 remaining on completion of the building was to be paid in full to the plaintiff. 14 October 1961 letter was written to plaintiff by defendant. In it defendant alleged breaches of contract by the plaintiff. Plaintiff now alleges that defendant acted in breach of the contract by terminating his work on the building. Claimed the balance of the contract price of $2,904.82 on a quantum meruit in respect of the work done. In addition to the claim expressed in the alternative plaintiff further claimed $300 which it was alleged was due upon a verbal agreement made between the parties subsequent in time to the written agreement on 3 August 1961. — Evidence clearly shows that plaintiff was liable to the defendant for his breach of the contract. The correct way to assess the defendant's damages would be to determine the difference between the sum paid to the plaintiff for his work and the value of that work. Value of that work is assessed at $15,127.91. Plaintiff was paid $16,553.18. The difference of $1,425.27 should therefore be awarded to the defendant as damages together with interest at the rate of 6% from 14 October, 1961.

Malone, J.

1 On the 3rd of August 1961 the agreement (Ex. B.W.1) was signed by the plaintiff, a building contractor.

2 The agreement, although not signed by the defendant, was accepted by her in so far as it reduced into writing some of the terms agreed upon by the parties. It was common ground between the parties that the agreement did not express the entire contract though they differed as regards the terms not included.

3 The written agreement provided that the plaintiff was to construct a combined dwelling house and place of business for the defendant at St. Francois Valley Road, Port of Spin, for the sum of $20,800. The building to be a two storey structure containing on the first floor one open lobby, three bedrooms, a gallery, living room, kitchen and a toilet and bathroom whilst on the ground floor there was to be a lunch and dining room and a lobby. The written agreement specified to a limited extent the dimensions of the various rooms, the materials of which they were to be constructed and declared that the wiring and pointing of the building was to be included in the sum of $20,800. Of this sum it was provided that $2000 was to be advanced to the plaintiff and thereafter weekly sums were to be paid to him to cover the cost of material and labour. Any balance of the $2,000 remaining on the completion of the building was then to be paid in full to the plaintiff.

4 This agreement transpired from the evidence, arose out of an earlier arrangement made between the parties when the services of the plaintiff were retained by the defendant to erect for her an extension to an existing building. Within a matter of days of making this arrangements the defendant decided to abandon that plan and instead to pull down the existing building and have erected on its site the building described in the written agreement the 3rd August, 1961.

5 Exactly on what day work began on the building did not emerge clearly from the evidence. The plaintiff was of the view that it began the day before e written agreement was signed by him whilst the defendant maintained that it began about two days after the 3rd of August 1961. Nothing of importance turns upon this. Such confusion as surrounds the date of commencement of the work doubtless arises from the change in plan from an extension to the existing building to the erection of a new building. What is certain is that the plaintiff did commence the erection of the new building and worked on it for some two and half months when on the 14th October 1961 he was instructed by letter from the Solicitors of the defendant to cease further work. The building at that date was uncompleted and the plaintiff had by then received from the defendant $16,553.18 of the contract price of $20,800.

6 The letter of the 14th October 1961 alleged as breaches of the contract by the plaintiff:

• (a) the used old materials in the construction of the building;

• (b) failure to perform the work in a good workmanlike manner; and,

• (c) appropriation of materials taken from the existing building.

7 The defendant's Defence and Counterclaim pleaded only the first two of the above grounds. It alleged that it was an implied term of the contract that the plaintiff would carry out the construction in a workmanlike manner with new materials and that the plaintiff was in breach thereof as he had executed the work defectively with second hand materials and despite frequent requests by the defendant had failed to remedy the said breaches.

8 Work having ceased on the building, the plaintiff on the 17th October 1961 employed Mr. William Webster — an architect and builder — to survey the unfinished building and assess the value of the work remaining to be done. Whilst on the 25th October 1961 the services of Mr. Ellis Blades a building contractor were retained by the defendant to estimate the cost of completing the building and to do such work as might be necessary to complete it. He also assessed the value of work already put into the building and satisfied me that he was paid $4,425.75 by the defendant for his work on the building. This sum was less by $1,286.83 than his original estimate of $5,712.58 for that work. The reduction was attributed by the defendant and Mr. Blades, to lack of funds on the part of the defendant. In consequence of which they claimed that certain aspects of the work of completion of the building had to be omitted or carried out in a cheaper manner than was required by the contract specification.

9 The plaintiff alleged that the defendant acted in breach of the contract price by terminating his work on the building and claimed the balance of the contract price of $20,800 or in the alternative the sum of $2,904.82 on a quantum meruit in respect of the work done. In addition to the claim expressed in the alternative, the plaintiff further claimed a sum of $300 which it was alleged was due upon a verbal agreement made between parties subsequent in time to the written agreement of the 3rd August 1961. The latter agreement, it was said, fixed the price to be paid to the plaintiff for the demolition of the existing building.

10 In her Defence and Counterclaim the defendant denied there was any separate agreement relating to the existing building. She alleged that the sum paid to the plaintiff in the course of the construction of the new building exceeded the value of the work done by $2,192.20, and claimed that she had been obliged to pay $1,456.76 in excess of the agreed contract price for the completion of the building.

11 As it goes to the root of the matter it will be convenient to determine first whether or not the plaintiff was in the breach of his contract as alleged by the defendant. No where in the written agreement of the 3rd August 1961 is there to be found any undertaking to use only new materials nor is any reference made to the standard of workmanship. In his reply to the Defence and Counterclaim the plaintiff denied it was an implied term of the contract that new materials were to be used and further denied that he had used secondhand materials to carry out the work in a workmanlike manner. That it was an implied term of the contract arrived at by a verbal, agreement that only new materials were to be used in the construction of the building is to my mind not in doubt, for not only did the defendant assert that the plaintiff had issued that he would use new materials but in addition the plaintiff himself stated in cross-examination that: “I told her” (the defendant) “I would use 1st hand materials. That is not mentioned in the agreement. That was said when the agreement was being negotiated”. Then in answer to the Court he stated that “It was the intention to use new materials” and in cross-examination replied in the affirmative to the question: “If secondhand materials had been used would the defendant have been entitled to stop the work?” The use of new materials being a term of the contract, the question: Were old materials in fact...