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4. The said barge at the time of the warranty mentioned Defence of in the last paragraph was not a good barge in good working warranty to condition.
price of 5. The plaintiff at the time he warranted the said barge as barge sold aforesaid well knew the premises, and that the said barge was to defen
dant. 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.
Work and Labour (a).
Claim for work done under building contract.
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
Contract (a) A contract for work and labour or work and materials does not as a for work,
rule require to be evidenced by writing. It is not within the Statute of &c., need Frauds, unless, indeed, as sometimes happens, it comes within the clause of not be
the 4th section with reference to contracts which are not to be performed in writing. within a year. Then, of course, writing is requisite; but only when Aliter if
In Souch v. the contract will necessarily continue beyond the year.
Strawbridge, 2 C. B. 808, the plaintiff undertook to board a child at the not to be
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 within a
a year, inasmuch as, at the time it was made, by its terms, it would not year. 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 contracts to the right of payment that the architect should give his certificate as architect's to the amount, &c., of work done ; and until the architect gives this certificate certificate no payment can be enforced. It is no dispensation of the a condition condition that the certificate was withheld by fraud and collusion with precedent
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 ment.
architect and defendant, one or other or both. (Batterbury v. V'yee, 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 Where a the contract. (Lamprell v. Billericay Union, 3 Exch. 283.) Where written there is a written contract and the plaintiff claims for extras in addition contract to the charges under the contract, the written contract must be produced, and also a for it is only the written contract which can show what really are extras. claim for (Vincent v. Cole, M. & M. 257; Buxton v. Cornish, 12 M. & W. 426.) "extras' And it has been held that even a distinct promise by the defendant to the former pay for the work done would not do away with the necessity of producing must be the contract. (Vincent v. Cole, supra.) But where a man is employer! produced 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.)
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 Where Camp. 38; Denew v. Darerell, 3 Camp. 451.) Questions sometimes arise thing being whether, where a particular thing is destroyed or injured while being made is made to the order of another, the workman or the person for whom the destroyed thing is being made will have to bear the loss; and on this point the followbefore com. ing distinction exists :-If the contract is entire for the performance of a pletion. specific work for a specified sum, so that the performance of the whole
the plaintiff and the defendant, that the plaintiff should to the Claim for satisfaction of J. L.
, to be certified in writing, do certain worlardone work therein specified in the erecting for the defendant of building
contract. 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. 101d. 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. 101d. paid to him by the defendant, yet the defendant has not paid the same, but has only paid the sum of £552 18s. 93d. on account thereof, leaving a balance of £186 6s. ld. owing to the plaintiff. The plaintiff claims the sum of £186 6s. ld., and interest
thereon from the 15th March, 1875, until judgment.
Claim for Work done under a Contract, and also for Extras. 1. The plaintiff is a painter and house decorator, carrying on Claim for
work done business at in the county of
under a 2. In or about the month of June, 1877, the plaintiff entered contract into a contract with the defendant, and was employed by him and for
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 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. (Venetone v. Athares, 3 Burr. 1592 ; Tripp v. Armitage, 4 M. & W. 699.)
Claim for in the way of his (the plaintiff's) said business to do certain work done under a
work, consisting for the most part of painting and decorating contract in a certain house situate and being No.-, in the county of and for " extras.” M., at and for the sum of £80.
3. The plaintiff duly performed the said work, and did all things necessary to entitle him to receive the said sum of £80, but the defendant has not paid the same.
4. The plaintiff was also employed by the defendant to do certain extra painting to the basement, and certain decoration to the drawing-room walls, besides that comprised in the said contract, and the plaintiff did the same accordingly, and there is now due to the plaintiff in respect thereof £20.
5. All the prices and charges are either in accordance with contract, or are fair and reasonable.
The plaintiff claims £100.
Claim for salary.
Claim by a Commercial Traveller for his Salary. 1. The plaintiff is a commercial traveller. The defendants are wholesale drapers at M.
2. On the 1st of February, 1876, the defendants engaged the plaintiff as their traveller for the M. and Y. district, at a salary of £150 a year, payable half-yearly.
3. The plaintiff, in accordance with this agreement, entered into the service of the defendants, and continued therein until the 6th of August, 1876, and all conditions precedent have been performed to entitle the plaintiff to receive payment of his said salary
4. On the said 6th of August, 1876, one half year's salary was due and in arrear, yet the defendants have not paid the same or any part thereof.
The plaintiff claims £75.
Claim for Remuneration for Literary Work. Claim for 1. The defendant P. is the chairman and treasurer of the remunera Council of the Association for the -, an association having tion for literary objects as are denoted by its title. The defendant N. is a work,
gentleman of private means.
2. By an agreement made in the month of April, 1873, between the plaintiff and the defendant N., who was duly authorized by the defendant P. to act as his agent in that Claim for
remunerabehalf, it was agreed that the plaintiff should be employed by tion for the defendant P., at an agreed rate of remuneration, to assist literary
work. the defendant P. by his literary labour in the advocacy of the views and in the accomplishment of the objects of the said Association.
3. Thenceforth until or about the month of December, 1875, the plaintiff, in accordance with the said agreement, composed many speeches to be made use of by, and they in fact were made use of by the defendant P. and other members of the said council, and also wrote many spamphlets which were published by the defendant P., and the plaintiff devoted much time and labour in assisting the defendant P. to further the objects of the said Association.
4. Up to the month of December, 1875, there accrued due to the plaintiff, by virtue of the agreement mentioned in the 2nd paragraph in respect of the said work and labour, the sum of £210. Particulars have been delivered to the defendant P.
5. All things have happened and times have elapsed necessary to entitle the plaintiff to a performance by the defendant of his part of the said agreement, and to payment of the said agreed rate of remuneration, yet the defendant P. has not paid the same, nor any part thereof.
6. In the alternative, the plaintiff says, that in consideration Alternative that the plaintiff would enter into the agreement in the 2nd claim
against paragraph above mentioned, the defendant N. promised the second de
fendant plaintiff that he was authorized by the defendant P. to act as his agent in that behalf, and the plaintiff, relying upon the promise of the defendant N., did enter into the agreement as above mentioned, and did the work and rendered the services under it, as above stated.
7. The defendant N. was not authorized by the defendant P. to make the said agreement, or to act as his agent in that behalf, by reason whereof the plaintiff has not been able to enforce the performance of the said agreement by the defendant P., or to obtain from him remuneration for the work and services which he has done and rendered.
The plaintiff claims :-