Maguire v Rowan


1986 WJSC-CC 1220


Record No.244/85









Damages - Building contract - Completion delayed for 14 months - Recovery of interest paid by employer on additional bridging loan - Recovery of rent paid by employer for alternative accommodation - Damages for employer's inconvenience disallowed - Contractor not entitled to withhold possession of dwelling until balance of contract price paid by employer - Implied terms governing standards of work to be done, and of materials to be supplied, by contractor - Action by contractor for balance of contract price - Counterclaim by employer for damages for defective work and materials - (Ct. App. - Blayney J. - 5/5/86)

|Maguire v. Rowan|



Building contract - Breach - Completion delayed for 14 months - Recovery of interest paid by employer on bridging loan - Recovery of rent paid by employer for alternative dwelling - Damages for employer's inconvenience disallowed - Contractor not entitled to withhold possession of dwelling until balance of contract price was paid by employer - (Ct. App. - Blayney J. - 5/5/86)

|Maguire v. Rowan|

Mr. Justice Blayney

This is an Appeal by the Defendant, together with a cross-appeal by the Plaintiff, against a Judgment of His Hon. Judge John G. Esmond S.C given at Trim on the 31st day of July 1985. The learned Circuit Court Judge awarded the Plaintiff damages on his claim in the sum of £16,010, and awarded the Defendant damages on his counterclaim in the sum of £7,150, and having set one decree off against the other gave judgment for the Plaintiff for the sum of £8,860. The Plaintiff was awarded his costs of the proceedings and the Defendant was awarded costs of injunction proceedings which he had brought in the High Court.


The Plaintiff's claim and the Defendant's counterclaim involve separate issues, so I will deal with them separately starting with the Plaintiff's claim and I will deal at the end with the question of the costs of the injunction proceedings.


The Plaintiff claims a sum of £16,851.41 as the balance due to him for work done and services rendered in building a house for the Defendant at Bellewstown in the County of Meath. The case is different from the ordinary building contract case in that there was no formal contract and there is a dispute both as to the price which the Plaintiff was to receive and as to what work was included in the price. Because of there not being clear agreement as to what work was included in the price, there is the further problem as to what work constitutes an extra and as to how much the Plaintiff is to be paid for any such work. There is also the question of what credits the Defendant is entitled to in regard to work omitted from the contract, whether by agreement or otherwise, and in regard to materials provided by the Defendant. So in order to come to a conclusion on the Plaintiff's claim the following issues have to be determined:


1. What was the agreed price for the work?


2. What work was included in the agreed price?


3. What work done by the Plaintiff comes within the category of "extras"?


4. What is the Plaintiff entitled to be paid for such work as constitutes an "extra"?


5. To what credits is the Defendant entitled?


I propose to deal with each of these issues separately.


1. The Plaintiff claims that the agreed price was £45,648. This is the price set out in writing on the Plaintiff's billhead dated the 18th April 1983 and it is agreed that this billhead was given to the Defendant on that date. What was stated on the billhead was very brief and was as follows:

"Price for the erection of dwelling at Bellewstown County Meath £45,648."

P.C. sums included in above price:-

Painting £2,300.


Kitchen units £2,500.

Sanitary fittings £1,000
Wail,floor tiling £700

This estimate is subject to variations of labour and material over time of contract".


While the Defendant in his evidence admitted receiving this billhead, he said it was the subject of a discussion and that the Plaintiff agreed to knock off the £648, leaving the price at £45,000. He also said it was agreed that he could do the painting himself, which would reduce the figure by a further £2,300 and that it was agreed that the type of brick to be used would be Tyrone brick instead of Butterly brick and that this would further reduce the price by £1,500. So he claims that the actual price agreed on the 18th April 1983 was £41,200.


I do not accept that any such figure; was ever agreed between the parties. The Defendant may have considered that this is what the price would work out as. That such a price was actually agreed would be inconsistant with what the Defendant stated in his affidavit sworn on the 28th January 1985 and also in his defence filed in the Circuit Court. In paragraph 3 of his affidavit he stated that he "agreed with the Plaintiff to pay him a sum of £45,000, £648 less than appears on his quotation of said date, if he would build for me a dwelling house on a site owned by me at Hilltown Great Bellewstown in the County of Meath". He then goes on to say that the price agreed was subject to a condition that he could do the painting himself and so not have to pay the P.C. sum of £2,300 for this, and also that he would be entitled to have the price reduced by £1,500 if the Plaintiff used Tyrone bricks instead of Butterly bricks. But he does not aver that the price agreed was£41,200. And the agreement is pleaded in similar terms in paragraph 1 of the Defendant's defence. So I find that a price of £41,200 was never agreed though the Plaintiff may have believed that the ultimate cost to him could be reduced to this figure.


But this does not dispose of this issue. There is still the question of whether the Plaintiff agreed to a discount of £648, and also agreed that there would be a reduction of £1,500 if he used Tyrone bricks instead of Butterly bricks. There is no real dispute as to the P.C. sum for painting so the only issue in regard to that is the extent of the credit to which the Defendant is entitled having regard to the fact that the Plaintiff did some of the painting.


In coming to a conclusion on the other two items, I have been considerably influenced by the account dated the 1st November 1984 prepared by the Defendant's Quantity Surveyor. The Defendant said in evidence that this account was prepared with his authority. The account starts with the Plaintiff's quotation (excluding VAT) - £43,474.89. This is the equivalent of £45,648, including VAT, which the Plaintiff claims was the agreed price. The account makes no reference to any agreed discount of £648, or to the Defendant being entitled to any credit of £1,500 because Tyrone bricks were used instead of Butterly bricks. If there had been a clear agreement on both these items, I do not see how the Defendant could have authorised his Quantity Surveyor to prepare an account which made no reference to them, which account, leaving out the question of extras, showed a sum of £1,617.30 due to the Plaintiff. Furthermore, this account was sent in reply to an account received from the Plaintiff the first entry in which was

"Original price of house £45,648".

If that was not correct, one would have expected that at this time, when the parties were already in dispute, issue would have been taken with the Plaintiff on the price that had been agreed. This was not done and in these circumstances it seems to me that the Defendant has not discharged the onus of proving that the price stated on the Plaintiff's billhead of the 18th April 1983 had been varied by agreement. Accordingly, I hold that the agreed price was £45,648.


2. What work was included in the agreed price? There are two main items in dispute. Firstly, the front porch, and secondly, the driveway. The Defendant claims that both were included in the work to be done, and the Plaintiff claims that they were not.


Insofar as the front porch is concerned, on the evening of the 18th April 1983, when the final agreement was come to, the Defendant claims that it was part of the agreement that the porch or lobby at the back of the house, which was shown on the plans, should be omitted and that in its place the Plaintiff should build a small front porch at no extra cost. In other words, the cost of the front porch, which was an addition, since it was not on the plans, should be met by omitting the back porch or lobby, which was on the plans. The Plaintiff's answer to this is that his price did not include anything for the back porch or lobby as it had been agreed sometime previously between himself and the Defendant that this would be omitted. In view of this there could be no question of his having agreed to erect the front porch as part of the work covered by the agreed price.


I accept the evidence of the Defendant and his wife on this issue. Having regard to the funds available to them for the building of the house, I do not believe that they would have had a front porch built if it meant increasing the price. They had already got sanction for a loan of £35,000 from their Building Society, and they had been told that the most they could get on top of this was a...

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