Timothy Gallivan v Killarney Urban District Council

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 23 November 1911
• Court: King's Bench Division (Ireland)
• Docket Number: (1911. No. 3130.)
• Date: 23 November 1911

Timothy Gallivan

and

Killarney Urban District Council (1).

K. B. Div.

(1911. No. 3130.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1912.

Building contract — Penalty for non-completion within contract time — Delay — caused by extra works — Final certificate of engineer — Jurisdiction of engineer to determine the exclusion of penalties.

Held, by Gibson, Madden, and Boyd, JJ., that the jurisdiction conferred upon the Council's engineer by the contract did not extend to his determining whether the penalty clause in the contract was or was not excluded by the order for, and execution of, the extras.

Held, by Gibson and Madden, JJ. (Boyd, J., dissentiente), that as it appeared from the report of the learned Judge at the trial, and from the course of the trial, that the plaintiff had been prevented from completing within the contract time by the extra works ordered, the penalty clause of the contract was extinguished, and the plaintiff was entitled to judgment on his claim.

Held, by Boyd, J., that upon its true construction the contract was one whereby the plaintiff contracted to complete not only the original works contracted for, but also the extra works ordered, within the contract time, and that the defendants were entitled to deduct the penalties, which amounted to £75.

Motion to set aside the judgment entered for the defendants at the trial, and in lieu thereof to enter judgment for the plaintiff, or, in the alternative, for a new trial.

The action was tried before Lord Justice Cherry and a common jury of the county of Kerry at the Summer Assizes, 1911. The plaintiff, a builder and contractor, by his statement of claim claimed the sum of £309 4s. 5d. for materials supplied, work done, services rendered to, and money paid to the use of the defendants at their request. In paragraph 1 of his statement of claim the plaintiff claimed as to £301 10s. of the amount claimed that that sum was due for work done, materials supplied, and services rendered at the defendants' request in erecting artisans' dwellings, and was due on foot of a contract between him and the defendants dated the 4th February, 1909, and that £7 14s. 5d. was due as interest upon money due by the defendants to him, and forborne at their request, and by way of damages. In paragraph 2, the plaintiff in the alternative claimed that £70, portion of the above sum of £301 10s., was due on foot of a paying order for £70, dated 29th July, 1910, given by the defendants to him in substitution for a paying order for £300, and that the said order for £70 had been dishonoured on presentation, and notice of the dishonour of the same had been given to the defendants, and that the above-mentioned sum of £7 14s. 5d. was due as interest, by reason of such dishonour, and was charged by way of damages. The residue of the amount claimed, namely, £231 10s., was claimed as due on foot of the final certificate of the defendants' engineer, dated the 25th August, 1910.

The defendants by their defence, in addition to traversing the statements in the plaintiff's claim, pleaded that in so far as their engineer had certified, his certificate was no bar to their claim for deductions, set-off, or damages, and that in so far as the certificate purported to be such bar, it was beyond the scope of the authority of the engineer. The defendants further pleaded that under the contract of the 4th February, 1909, the plaintiff was subjected to the following conditions, i.e. to commence the contract work within one week of the 24th February, 1909, to complete the work within nine months from that date, and upon default of such completion to forfeit for every week after the expiration of the contract time the sum of £5 per week out of the moneys that might be due to him; and that the contract works were not completed until the 24th of March, 1910. The defendants counterclaimed to have the contract rectified, as being obscure, so as to read as follows:— “The contractor hereby covenants and agrees with the Council that he shall and will within one week from the signing hereof begin the work for the erection of the said houses, and shall and will complete the works within nine months from that date”; and pleaded that by reason of the non-completion of the works within the contract time, they were entitled to deduct the sum of £5 for every week elapsing after the end of the period of nine months, and in the alternative that they were entitled to damages for the non-completion of the work by the plaintiff within a reasonable time. They lodged £235 in Court.

The plaintiff by his reply pleaded that so far as the contract was not completed within the contract time the delay in completion was caused by the ordering of extra works, and by the interference of the defendants' engineer; that by reason of the alleged matters the delay in completion was not unreasonable, and that the defendants were estopped by their conduct from relying on the same and enforcing the penalties or setting off or deducting the same from or against the plaintiff's claim; and further, that in so far as, if at all, any delay occurred the same and the penalties therefor were condoned by the defendants.

The following is the text of the material portions of Lord Justice Cherry's notes:—

“There was no substantial dispute on any question of fact, and the questions at issue mainly turned upon the construction of the contract…. Plaintiff, examined by Mr. Lynch, K.C., proved the contract for the erection of thirteen artisans' cottages for the sum of £2345 0s. 6d. ‘The building actually began before the contract was signed. Hickson, the defendants' engineer, issued certificates from time to time as follows:—1st certificate, 5th March, 1909, £270; 2nd, 8th April, 1909, £270; 3rd, 7th May, 1909, £270; 4th, 11th June, 1909, £270; 5th, 7th September, 1909, £270; 6th, 26th November, 1909, £270; 7th, 4th March, 1910, £300; 8th and final, 25th August, 1910, £231 10s. The paying order for the £300 was issued under the certificate of the 4th March, 1910; this was afterwards changed to two orders for £230 and £70, the first of which was cashed, but the second was not. This latter order for £70, dated the 29th July, was never paid.—Cross-examined by Serjeant Moriarty, K.C.: No complaints were made to me personally, but they were made to my foreman and communicated to me. There was a resolution passed by the Council complaining of the progress of the work.' [Resolution of the 5th November, 1909, read.] ‘I was written to about that on the 18th of March, 1910; I attended with my solicitor, Mr. Macartie, before the Council. Mr. Macartie pressed the Council to take over the cottages.' [Resolution of the 18th of March, 1910, read.] ‘I was detained by the extra work ordered; that is why I late in completing the contract. £20 11s. was allowed by the final certificate for extras. I thought that there was an allowance of extra time for bad weather in the contract, and I was prevented from finishing the work in time by bad weather—snow and frost. The extras also delayed me. I said nothing about the weather or the extras at the meeting of the Council on 18th March.

“James Gallivan, second witness for the plaintiff—‘I am the son of the plaintiff, and acted as paymaster for my father in erecting the cottages. I also carried on correspondence for him. During the progress of the work Mr. Hickson altered the specifications in several particulars. Concrete was substituted for cut stone in the curbing of the footpaths; the water-table was to be paved; trap-doors were required in the ceilings, and concrete steps to the houses, which were not in the original specifications, and the gables were required to be cemented. He gave my father verbal orders for these alterations; I am not aware that there were written orders. In one case, for iron gates instead of wooden ones, he did give a written order. [Order not produced.]

“The plaintiff's case closed. Serjeant Moriarty stated the defendants' case. He admitted the plaintiff's claim for £301, i.e., £231 balance due on contract, and £70 on paying order dishonoured. He disputed the claim for interest. He claimed as a set-off or deduction £75 for fifteen weeks delay in the completion of the contract at £5 per week. He asked for a direction for the defendants, relying upon Jones v. St. John's College, Oxford (1), Law v. Local Board of Redditch (2). I refused a direction at that stage, and he then addressed the jury.

“George Hickson, first witness for the defendants—‘I am engineer of the defendants. There was no strike during the progress of the work, and no extension of time was given by me. I made frequent complaints of delay, both written and verbal. I spoke to the plaintiff about the penalties, and told him that the Council was in no mood to let him off. Then I was trying to hurry him up. I was present at the meeting of the Council on

the 18th March; plaintiff was there with his solicitor, also Hillyard, the Chairman of the Council.' [Letters of witness to Healy, Clerk of the defendants, dated 27th August, produced and entered by the plaintiff without objection.] Question:‘Did you at all determine the question of penalties?'[Objected to by plaintiff's counsel, but allowed by me subject to objection.] Answer:‘No. I was aware of the resolution of the Council of November 5th, 1909. I did not speak to the plaintiff about that resolution. I was aware also of the resolution of 7th May, 1909.' [Read.]

“Cross-examined by Sullivan, K.C.— ‘I never wrote to Gallivan threatening him with penalties…. I issued my final certificate, intending it to be for a net sum, upon payment of which there was to be an end of the whole contract so far as I was concerned. I am almost sure that there would have been an end of the transaction if there had been money to meet the orders.'

“Michael Healy...