Forrest and Sons v Carte

• Jurisdiction: Ireland
• Judgment Date: 10 November 1896
• Date: 10 November 1896
• Court: Queen's Bench Division (Ireland)

Forrest and Sons

and

Carte (1).

Q. B. Div.

(1896. No. 625.)

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1897.

Practice — Claim and counterclaim — Judgment, entry of — Action for goods sold and delivered — Defence alleging inferiority in diminution of contract price — Counterclaim for damages for breach of contract in respect of that in feriority — “Event” — Costs — R. S. C., Order XXI., Rule 17.

The plaintiffs sued the defendant for £150 for goods sold and delivered (a boat); the defendant traversed the sale and delivery, and pleaded that the boat was not in accordance with specification, nor reasonably fit for the purposes for which she was ordered, and counterclaimed for damages for breach of contract by reason of such inferiority and unfitness. The jury found that the boat was in accordance with specification, but not “reasonably fit” for the purpose for which the defendant required her, and when delivered was inferior to contract by £30. Judgment was entered thereupon on the claim for the plaintiffs for £120, and on the counterclaim for the defendant, with 1s. damages. On motion to review taxation:—

Held, that the plaintiffs were entitled to the general costs of the action, including all costs applicable to any question or matter in controversy on which the plaintiffs succeeded entirely or in part; that the defendant was entitled to all costs exclusively applicable to any question or matter in controversy on his statement of defence; and that neither plaintiffs nor defendant were entitled to any costs in respect of the counterclaim.

The following authorities were cited during the argument:—

Leclerc v. Greene (1); Myers v. Defries (2); Stumore v. Campbell (3); Forster v. Farquharson (4); Hewitt v. Blumer (5); The Finska, &c. v. Brown & Co. (6); Shrapnel v. Laing (7); Griffiths v. Patterson (8); Re Brown (9); Cole v. Forth (10); Potter v. Chambers (11); Smith v. Campbell (12); Mackey v. Bannister (13); Davies v. Hedges (14); Hawke v. Brear (15); Baines v. Bromley (16); Ellis v. Desilva (17).

Cur. adv. vult.

Motion, on behalf of the defendant, to review the taxation of the costs in the action and counterclaim, (a) in regard to items in the plaintiffs' bill, which Master Matthews, over-ruling the defendant's objections, had allowed, and (b) in regard to items in the defendant's bill which the Master had disallowed.

The action was for goods sold and delivered—£150, balance of the price of a boat built for the defendant. The defendant put in a defence and counterclaim, traversing in his defence the sale and delivery, and pleading that the boat was not in accordance with specification, nor reasonably fit for the purpose for which she was ordered, and counterclaiming for damages for breach of contract in respect of the same matters as pleaded in the defence. The

action was tried in Dublin, on the 6th, 7th, 10th, and 12th June, 1895, before Mr. Justice Andrews and a special jury, to whom the learned Judge left the following questions:—1, Was the Leila constructed in accordance with the specification dated, &c.? (Answer, Yes.) 2, Was she, when delivered to the defendant, reasonably fit for the purpose for which he required her, viz. racing? (Answer, No.) 3, Did the defendant accept her as his own boat? (Answer, Yes). 4, Was she, when delivered, inferior to contract? (Answer, Yes.) 5, If on the evidence you find she was, what sum of money do you assess as fairly representing the extent of such inferiority? (Answer, £30.) The Registrar's certificate set out these findings as above given and stated, “Whereupon the jury found for the plaintiffs, Forrest and Sons, in the original action for the sum of £120, and for the defendant, William Carte, on the counterclaim with 1s. damages. The £30 above-mentioned was deducted from £150, the unpaid balance of the contract price of the yacht Leila. The Judge gave judgment for the plaintiffs in the original action for £120 with costs, and also gave judgment for the defendant William Carte, on the counterclaim with 1s. damages, and such costs as the judgment entitled him to, which last-mentioned costs when taxed are to be deducted from the plaintiffs' taxed costs of the action.”

No judgment was formally entered, but by consent, the plaintiffs furnished their bill of costs, at £376, and the defendant his, at about £203. On these being submitted to the Taxing Master, a conflict arose between the parties as to the issues upon which the evidence of certain witnesses was adduced at the trial, i.e. the witnesses called on one side or the other in reference to the capabilities of the boat over and above her general accordance with specification, the plaintiffs contending that the £30 was wholly assignable to the defence, and awarded in diminution of the contract price, and that the defendant was only entitled to such costs as the finding of 1s. on the counterclaim would carry, while for the defendant it was argued that as well the £30 as the 1s. was recovered by force of the counterclaim, and that no damage or diminution of price could have been awarded to him without the aid of the counterclaim.

Under these circumstances the Taxing Master (in pursuance of the resolution of the Judges, dated 18th January, 1893), applied through the Registrar of the Exchequer Division for further information in regard to the trial and the issues submitted to the jury. He pointed out that the plaintiffs charged for some ten witnesses, alleging that their evidence was exclusively applicable to the claim and defence, and the defendant for six, alleging that their evidence was applicable to the counterclaim. He pointed out further that the award of 1s. on the counterclaim would in his opinion entitle the defendant, in any event, to an apportionment in respect of the costs, both of plaintiffs and defendant, but that this apportionment would be more favourable to the defendant both in respect of witnesses' expenses and of other charges in case he was entitled to treat the deduction of the £30 as having been recovered by force of his counterclaim only. The learned Judge, in a memorandum in reply, stated:—“In addition to a defence to the entire claim which the defendant made and failed in making, it was competent for him to show how much less than the contract price the yacht was worth, by reason of its being inferior to contract, and this was open to the defendant on his defence without any counterclaim, which would only be necessary in case damages were sought by the defendant outside the reduction of the contract price by reason of the plaintiffs' breach of contract. Inferiority to contract was relied on and proved by the defendant, and, although by the acceptance of the yacht as his own boat, he became liable to the plaintiffs for its value, he was entitled to reduce the plaintiffs' claim for the contract price, by showing, as he did, the inferiority to contract, which the jury measured at £30, and which was deducted from the plaintiffs' claim for £150, judgment being given for the plaintiffs for the balance, viz. £130. No further damages were proved by the defendant, and he therefore was only entitled to nominal damages on his counterclaim, on which, being for breach of contract, he was entitled to a verdict, which he got with judgment accordingly for one shilling. The plaintiffs' counsel, when the jury brought in their findings, asked that no judgment should be given on the counterclaim: I ruled against this, and gave the judgment as stated in the registrar's certificate.… These rulings and judgment remain undisturbed, and as...