Reply.

The plaintiffs join issue upon statement of defence, except in Reply. so far as the same admits the allegations in the statement of claim.

Breach of Warranty on Sale of an Engine.

1. The plaintiff is an iron agent carrying on business in L. 2. The defendant is a manufacturer carrying on business at C.

3. In the latter part of the month of November or beginning of December, 1874, an agreement was made between the plaintiff and the defendant, partly by letters dated the 9th, 10th, 12th, 14th, 16th, 27th and 29th November respectively, and partly by conversations, for sale to the plaintiff by the defendant of an engine at the price of £300.

4. The defendant by the said agreement warranted the engine to be then in good working order, and to have been thoroughly overhauled and repaired within the preceding six months, and to have its tubes made of brass or copper.

5. The said engine was duly received by the plaintiff and the price was paid by him.

6. The said engine had not in fact been thoroughly overhauled or repaired within the said six months, and if overhauled or repaired at all within that time had only been so partially.

7. The said engine was not then in good working order.

8. The tubes of the said engine were in fact not made of brass or copper, but were made of iron; and were of much less value.

The plaintiff claims :

(1.) Damages to the amount of £50.

(2.) Such further and other relief as the nature of the case may require.

Statement of Defence.

Claim for breach of

warranty on sale of engine.

1. The letters dated the 9th, 10th, 14th and 16th days Defence. of November, 1874, mentioned in the 3rd paragraph of the statement of claim form no part of the agreement therein mentioned, which was partly made by the letters of the 27th and

T T

Defence to 29th November, 1874, and partly by conversations subsequently

action on

breach of warranty.

Accord and satisfac

tion.

Defence of
breach of
warranty
and fraud
to action
for price of
barge, &c.

thereto.

2. The defendant did not by the said agreement warrant the engine as in the 4th paragraph of the statement of claim alleged. The plaintiff bought the said engine without any warranty from the defendant after and on the strength of an inspection and report upon the said engine by his own agents, the H. E. Company.

3. The said engine had in fact been thoroughly overhauled and repaired within the preceding six months, and was then in good working order; and the tubes of the said engine were partly made of brass or copper.

4. The defendant further says that before the commencement of this action it was agreed between the plaintiff and the defendant that the defendant should deliver to, and the plaintiff should accept from, the defendant another engine in lieu of the one referred to in the statement of claim, and in full satisfaction of any right of action arising out of the sale of the said. engine which the plaintiff might have against the defendant.

5. Thereupon the defendant delivered to and the plaintiff accepted and has since retained the said engine upon the terms aforesaid.

Defence setting up Breach of Warranty and Fraud to Claim on
specially indorsed Writ for £80, Price of Barge and Timber.
1. The defendant denies that he is indebted to the plaintiff
in the sum of £80 as indorsed on the plaintiff's writ of sum-
mons, or in any other sum.

2. The defendant says that on or about the 12th May, 1877, the plaintiff offered to sell to the defendant a barge seventy tons burden, named the "U.," with certain timber thereon; and after some negotiation the defendant agreed with the plaintiff to purchase the said barge for £100, £50 to be paid on delivery and the balance as the said barge earned the money.

3. At the time of the said agreement the plaintiff warranted the said barge to the defendant to be a good barge in good working condition, and on the faith of such warranty the defendant paid to the plaintiff the sum of £20, part of the said £50; and subsequent to such payment the plaintiff delivered the barge with the timber thereon to the defendant.

4. The said barge at the time of the warranty mentioned in the last paragraph was not a good barge in good working

condition.

5. The plaintiff at the time he warranted the said barge as aforesaid well knew the premises, and that the said barge was old, leaky, rotten throughout, and of no value or use whatever. 6. The said barge has since her delivery to the defendant earned no money.

And by way of set-off and counter-claim—

1. The defendant repeats the allegations contained in the 2nd, 3rd, 4th and 5th paragraphs of the statement of defence, and says that by reason of the plaintiff's breach of warranty mentioned in the 4th paragraph, and the misrepresentation mentioned in the 5th paragraph, he has sustained heavy losses by being unable to carry out certain beneficial contracts for the conveyance of goods into which he had entered.

The defendant claims :

(1.) £50 damages.

(2.) The return of the £20 paid by him as mentioned in the 3rd paragraph of the defence.

(3.) Such further and other relief, &c.

Claim for work done under

building contract.

Contract
for work,
&c., need
not be
in writing.
Aliter if
not to be

within a year.

contracts architect's certificate a condition precedent

Work and Labour («).

Claim on a Building Contract.

1. The plaintiff is a contractor and builder.

2. On or about the 13th day of June, 1873, by an agreement in writing, it was amongst other things agreed by and between

(a) A contract for work and labour or work and materials does not as a rule require to be evidenced by writing. It is not within the Statute of Frauds, unless, indeed, as sometimes happens, it comes within the clause of the 4th section with reference to contracts which are not to be performed within a year. Then, of course, writing is requisite; but only when the contract will necessarily continue beyond the year. In Souch v. Strawbridge, 2 C. B. 808, the plaintiff undertook to board a child at the defendant's request at so much a month," as long as the defendant performed thought proper," and although this contract in fact continued for more than a year, inasmuch as, at the time it was made, by its terms, it would not necessarily continue so long, it was held that writing was not necessary. In an action for work done, the plaintiff must aver in his claim and prove the performance of all conditions precedent on his part; and in In building the case of building contracts it is almost always a condition precedent to the right of payment that the architect should give his certificate as to the amount, &c., of work done; and until the architect gives this certificate no payment can be enforced. It is no dispensation of the condition that the certificate was withheld by fraud and collusion with the defendant (Milner v. Field, 5 Exch. 829), although it is true that on such a state of facts an action of tort for fraud might lie against the architect and defendant, one or other or both. (Batterbury v. Vyse, 2 H. & C. 432; L. J. 32 Ex. 177; Ladbroke v. Barrett, 46 L. J. 708.) The architect or surveyor need not certify in writing, unless expressly required by the contract to do so. In Morgan v. Birnie, 9 Bing. 672, a letter from the architect to the plaintiff inclosing the bills with an approval of the charges was held not to be equivalent to a certificate of approval of the work done. In building contracts time is not usually of the essence of the contract. (Lamprell v. Billericay Union, 3 Exch. 283.) Where there is a written contract and the plaintiff claims for extras in addition to the charges under the contract, the written contract must be produced. for it is only the written contract which can show what really are extras. (Vincent v. Cole, M. & M. 257; Burton v. Cornish, 12 M. & W. 426.) And it has been held that even a distinct promise by the defendant to pay for the work done would not do away with the necessity of producing the contract. (Vincent v. Cole, supra.) But where a man is employed to do work under a written contract, and a separate order for other work is afterwards given by parol during the continuance of the first employment, the written contract need not be produced in an action for the second work. (Reid v. Batte, M. & M. 413.)

to payment.

Where a written contract

and also a claim for

66

"9 extras the former

must be produced.

Where

thing being

made is destroyed

before completion.

If the defendant has received no benefit from the work on account of the improper and unskilful way in which the plaintiff did it, the latter cannot recover anything for his labour. (Farnsworth v. Garrard, 1 Camp. 38; Denew v. Daverell, 3 Camp. 451.) Questions sometimes arise whether, where a particular thing is destroyed or injured while being made to the order of another, the workman or the person for whom the thing is being made will have to bear the loss; and on this point the following distinction exists :-If the contract is entire for the performance of a specific work for a specified sum, so that the performance of the whole

work done

the plaintiff and the defendant, that the plaintiff should to the Claim for satisfaction of J. L., to be certified in writing, do certain under work therein specified in the erecting for the defendant of building certain warehouses and offices in P. Street, M., and that the defendant should pay the plaintiff for the same the sum of £3699.

3. It was also subsequently agreed by the plaintiff and the defendant that the plaintiff should do certain other work for the defendant, and that the defendant should pay to the plaintiff such amount therefor as should be certified by the said J. L., who then was and acted as architect for and on behalf of the defendant.

4. The plaintiff did and completed the whole of the said work to the satisfaction of the said J. L. certified by him in writing, and from time to time the plaintiff received payments from the defendant amounting in the whole to the sum of £3,200.

5. On or about the 15th day of January, 1875, the said J. L. duly certified in writing that the further sum of £739 48. 104d. was due to the plaintiff for and in respect of the said work, and all conditions were performed and all things happened and all times elapsed necessary to entitle the plaintiff to have the said sum of £739 4s. 104d. paid to him by the defendant, yet the defendant has not paid the same, but has only paid the sum of £552 188. 94d. on account thereof, leaving a balance of £186 6s. 1d. owing to the plaintiff.

The plaintiff claims the sum of £186 68. 1d., and interest thereon from the 15th March, 1875, until judgment.

contract.

Claim for Work done under a Contract, and also for Extras. 1. The plaintiff is a painter and house decorator, carrying on Claim for business at

in the county of

2. In or about the month of June, 1877, the plaintiff entered into a contract with the defendant, and was employed by him

work done under a

contract

and for

"extras."

of the work bargained for and agreed to be done is a condition precedent Who bears to the right of payment for any part of it, the workman will be deprived the lossof all legal right to remuneration if the work is destroyed by accident employer or before it has been completed (Appleby v. Myers, L. R. 2 C. P. 651; 36 workman. L. J. C. P. 331); but if the workman is entitled to payment from time to time as the work proceeds, the destruction of the work before its completion will not deprive the workman of his hire. (Menetone v. Athares, Burr. 1592; Tripp v. Armitage, 4 M. & W. 699.)