Home The Builder 26 April 1902

The Builder Heritage Journal   | 26 April 1902

Legal News & Announcements

legal news and judgements - April 1902

Contents

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Action against an Architect for excessive traffic

The case of "The Egham Rural District Council v. Gordon" came before a Divisional Court of King's Bench, composed of the Lord Chief Justice and Justices Darling and Channel, on the 16th inst., on the appeal of the plaintiffs from a judgment given for the defendant by the Chertsey County Court Judge. The action was brought by the plaintiffs to recover 107l.. for extraordinary expenses incurred in repairing damage to a road caused by extraordinary traffic.

It appeared that the defendant ordered 250,000 bricks for a house he was building, and during his absence abroad they were sent by steam haulage, the traction engines weighing 14 tons, and these caused the damage. The case turned on the construction to be put on the Highways and Locomotives (Amendment) Act, 1878, as amended by the Locomotives Act, 1898, which enacted that the expense caused by traffic of excessive weight could be recovered from the person by whose order the traffic was conducted.

The County Court Judge, while finding that the weight of the traffic was excessive, held that it did not take place in consequence of the defendant's orders, and gave judgment for the defendant. Hence the present appeal.

At the conclusion of the arguments the appeal was dismissed with costs.

Mr. Macmorran, K.C., Mr. Pritchard, and Mr. M'Calmont Hill appeared for the appellants, and Mr. Danckwerts, K.C., and Mr, RK, Cunningham Glen tor the respondent.

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Important Action By Builders Against The Army And Navy Co-Operative Society

Mr. Justice Wright in the King's Bench Divi- sion, on the toth inst, delivered a considered judgment in the case of " Martin Wells & Co. r, The Army and Navy Co-operative Society, Ltd.," which was heard by his lordship recently.

Mr. English Harrison, K.C, and Mr. Hudson appeared for the plaintiffs; and Mr. Reginald Bray, K.C., Mr. Mclatyre, and Mr. Turner for the defendants,

Mr. Bray said that as the onus was on the defendants, he had to open thecase. The plaintiffs, who were builders, claimed in the action the balance of a final instalment, viz, 2,.900/. The defendants claimed to set off against that an equal amount for penalties or liquidated damages. "The contract between the parties was dated October 2, 1897. It provided for the pulling down of certain premises which had been acquired by the defend- ants, and for the re-erection of buildings upon the site. The contract price was 47,17o/, and the omissions as eventually settled were 4,301/., and the extras 2,298/. So there would be a net deduction of just over 2,coo/. The contract provided that the contractors should execute the works according to the plans and specifications, the specification being deemed to form part of the contract. The contract provided that the new buildings should be com- pleted within twelve months, and if there was delay plaintiffs shouk! be liable to a penalty of rol, a day. The contractors had to provide everything of every sort. As the contract was dated October 29, 1497, the works in the ordinary course ought to have been completed by October 29, 1848. Three months' extension, however, was allowed under Clause 16, which would bring it to January 29, 1%). The works were not, in fact, completed until January 2, 1900, nearly a year afterwards; but the defendants had only claimed penalties for 290 days, which would be up to about the middie of November. The contract contained an arbitration clause which provided that there should be the right of appealing trom the arbitrator's decision to a referee. The ‘elendants' contention was that the board of directors, under Ciause 16, finally decided that three months was the extension to which the piaintitis were entitled to complete the work, and that plaintifis could not go behind it. The learned countel then read to his lordship a great number of letters which had passed between the plain- tiffs and the defendant society's directors, the plaintifis and the defendants' architect, Mr. Ball, and the solicitors for the parties. On March 17, 1495, the plaintitis wrote to the directors asking tot an extension of time in which to complete the contract, as they had been delayed in getting on with the work in consequence of sub-contractors failing to deliver certain ironwork ordered from them. There was no obligation on the plaintiffs to employ these particular sub-contractors.

On March 25, 1898, the defendant society's directors decided that there was no reason to give the plaintiffs further time in which to complete the contract. The next letter of importance was dated July 15, 1898, from the plaintiffs to the secretary of the defendants, stating that they had been greatly delayed in the work in consequence of Messrs. that Messrs. Dorman, Long, & Co, failing to deliver the girders and joists ordered from them. The defend solicitor replied to that letter, asking for acon nn contract between the plaintitis and Messrs, |), ne Long, & Co, and an explanation why t},. should still continue to employ that plajntifis answered that letter on July English makers and manafacturers of these sect and that they had done all they could t) the work in all its branches.

On July 28, the defendants' solicitor wrote to the plaintifs asking what extension of time they wished allowed to them for delay them for delay in non-delivery of iron wor) and { - particulars of how the claim was made 4: ... August § the plaintiffs replied that they were una to give thé time they wished allowed then unty ther received the ironwork. Other letters pissed betwess the parties, but nothing further was dine oy April 30, 1899, when the plaintiifs wrote to We pon the defendants' architect, that the job was at plete standstill owing to the noadelive: steel joists, and asking Mr. Bull to lay these a before the directors. it was then arranved thy the directors should meet Mr. Martin W cil and his manager, and accordingly thove yentlemen on May 25, went before the board, and th. board, having beard their explanation, adja. acyad cated on the matter, and decided to allow a three months' extension. On June 9 the plaintiis haying received notice of the adjudication, wrote that thes had been advised that it was sot competent for the directors to exercise as they bad purported ¢ their powers under the clause of the contract gt that stage, and that they were prepared to show | any oy bes tribunal good reasons for the delay which had occurred, and that the causes 04 delay were such as to exempt them trom injury or damages.

On June 15 the secretary of the Society wrote to the plaintiiis asking them t forward to the directors particulars of the causes of delay, and then they would consider them The plaintiffs, however, replied, adhering to what the had said in their previows letter. They then came to the period when the contract had bees com- pleted, when the directors proposed again t go into the question of another extension of time, and at their instance a letter was written by Mr. Ball on February 8 to the plaintiifs asking as to the cause of delay in the completion of the busdings from and after May 25. 1809, to January 2, 1, On February 13 the plaintitis rephed that it was solely due to the non-completion of work by special contractors, over which they had no control. They added : " No delay was caused over work of which we had control." Ona February 20 the secretary wrote to the plaintifis asking them again to appear before the Board, but this the plaintiffs declined to do, saying they saw no useful purpose to be gained by doing so, as they denied the right of the directors to adjudicate on the question of the penalties, being interested parties. The plaintitis also denied that any penalties were duc from them atall Mr. bray said that if the plaintifis had come before the directors, possibly some arrangement could have been made. The directors did mot wish to take any advantage of the plaintiffs, and they were prepared to allow any further time that the plaints might substantiate before them. But short of that, be sud mitted that the defendants' legal rights had been leit open by Clause 16. What the plaintits said io their pleadings was that if the board of directors had adjudicated they had no power to so adjudicate on their own wrongful acts. He (counse!) did not admit any wrongful acts. :

His Lordship: We must see what the wrongful acts are.

Mr. Bray said that the wrongful acts alleged were that the defendants in breach of their contract pre vented the plaintiffs from completing the works within the time specified by the contract by taiung to give the plaintiffs possession of certain parts ot the site. There was no ground whatever tor that charge. That was a mere afterthought. [he nex thing he had to deal with was as tu suspension ot work on the part of the builder.

His Lordship said it did not appear to him that it was for the learned counsel to labour these points. It was for Mr. English Harrison to prove his case.

Mr. Bray said the only other question was as to the date of completion.

His Lordship: I suppose the architect is the proper person to say when the building is completed is he not? I have now got a general idea of your case, and I should like to know how Mr English Harrison puts it.

Mr. English Harrison said that in substance there were two matters he had to deal with. The defence to this claim to penalties was twofold. Use Ww that by the conduct pursued by the parties during the execution of these works they had in cic waived any question of penalties altoget'er. and next that by the way in which those parties © ducted themselves during the execution ot the works defendants failed to adjudicate at the right time of in the right way in the meaning of Clause 1/5 the defendants, by having given the plarnty! pyres after the time had elapsed for the complet: -9 of the contract—after October 29, 1898; and also having given the plaintiffs orders after the extended (me viz., January 29, 1849; and also having broken the contract themselves in various particulars; they had by their acts and conduct prevented the plaintiff completing the contract within the specified time ogy ps time up to January, 15), and consequently that the claim for penalties ceased The learned counsel submitted that the defendants had not given the plaintiffs the possession of the site as they should have done, and that the architect had completely altered the order in which the plaintiffs had intended to do the work, This was one of the chief causes of delay. When the plain- tiffs remonstrated, the architect told them that he had the control of the works, and that the plaintitfs must do as he told them. Great delay had been caused by acts of default by the sub-contractors He contended that the defendants' claim for penal- ties had gone by reason of the defendants not giving them possession of the site in the manner and at the times provided for. He submitted that both parties had mutually departed from the contract, and that the penalties had gone independently of Clause 16 altogether. The learned counsel also further con- tended that the directors had no power to adjudicate under Clause 16 upon defaults of their own.

His Lordship said he was most struck with the learned counsel's argument on that point. He did not think that he would make much of the point of the general waiver of the claim to penalties.

Mr. English Harrison pointed out that several of the sub-contractors who had failed in delivering their goods were firms which the plaintiffs were compelled to employ.

His Lordship: Supposing I should be right in holding that the directors under clause 10 had no jurisdiction to deal with their own defaults, then what follows?

Mr. Bray: Then it will rest in this way : that plaintiffs will have to prove that in fact there was default on our part which prevented them going on with the building. I say there was no default on our part; and, consequently, that we did not prevent them building.

Evidence was then given-on both sides touching on the matters in dispute, at the conclusion of which his Lordship said he would consider his judgment.

Accordingly on the 16th inst. his Lordship delivered judgment, holding that the plaintiffs had made out their case, and that the defendants were not in the circumstances entitled to claim penalties. Judgement was accordingly entered for the plaintiffs for the amount claimed, with costs, and interest at the rate of 4 per cent.

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Builders' Action Against Decorators

The hearing was concluded on the 17th inst. of the case of Davidson »v Hooydonk & Co., Limited, before Mr, Justice Wright, sitting without a jury in the King's Bench Division.

In this case the plaintiff, a builder, of Dimsdale- toad, Newcastle, claimed to recover from the defen- dants, a firm of decorators, of London, 2oof. for certain scaffolding. It appeared that in December. 1898, a company called London and Lancashire, Limited, of Bradford, proposed to build a theatre in Blackburn, and for that purpose employed the plaintiti to do the general building. The plaintifi's case was that an arrangement was made by which he was to leave his scatividing for the use of other trades, and that for this be was to receive the sum of 2001, The London and Lancashire Company con tracted with thedefendants todothe decorating of the theatre, and at the conclusion of their work they were entitled to sell the scaffolding. The plaintitf alleged that the defendants did seli the scaffolding tor 434, but refused to pay plaintiff the 200/. under the agreement. The defendants denied that any such agreement as alleged existed, but alternatively paid 43l. into court in satisfaction of the plaintiff's claim.

In the result his lordship. after hearing evidence, came to the conclusion that the plaintitf was not entitled to more than the 43/. paid into court, and gave judgment for the defendants with costs

Mr. Witt, KC , and Mr. Pollock appeared for the Plaintiff, and Mr. Arthur Powell for the defendants.

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Important Point Under The Workmen's Compensation Act, 1897

The case of Elliott v. Liggins came before a Divisional Court of King's Bench, composed of the Lord Chief Justice and Justices Darling and Chan- nell, last week, for judgment on the appeal of the defendant from the decision of the Judge ot the Coventry County Court.

It appeared that the plaintiff Elliott was employed by the defendant from November 5, 1900, at a salary of 35%. a week. Elliott worked under that agree- ment until July 11, 1901, when he was disabled by an accident. On August 13 he served defendant with notice of the accident and of a claim for com- Pensation under the Workmen's Compensation Act, ‘S97. The defendant agreed that Elliott should be awarded the full amount allowed by the Act, namely, half his weekly wages during incapacity, of 178. 6d. a week. The defendant on November 2, 1901, gave Elliott a week's notice to leave. Elliott, sued the defendant in the Coventry County Court of 15l., 3d. 4d. for wages he alleged to be due to him between July 11 and November 9, namely, for the other of his weekly wage of 35s. The County Court Judge, notwithstanding that Elliott had not, in fact, worked between July 11 and | diffused light to the windows on the ground, first November 6, gave judgment for him for this|/and second doors of the plaintiff's premises. The amount. A claim by Elliott for wages between | chimney stacks and the sloping roof end wall November 9 and December 25 was disallowed by | affected the plaintifi's windows on the fret and the County Court Judge. Elliott also claimed a/ second floors. He did not think that the chimeey quarter's wages in lieu of notice, and under this! stack did materially interfere with the light to the head the County Court judge awarded him a| windows on the first and second floors. but it did month's wages. The defendant appealed from the | affect it decision of the County Court Judge on the pe int} In reply to his Lordship, the witness stated that only that Elliott was not entitled to the 1 s. 44, | the defendant's new gangway was 7 it in. higher the balance of his wages between july 1: and/ than the old gangwa : November 9, on the ground that, as he had chosen Mr. J. Douglass Mathew: ve evidence in his own method of « mpensation, he could not, | support of the plaint i cate He said that in ft having had the benefit of it, make the defendant ! opinion the letting and teliirg vaiae of the plaint liable for the other half of his wages. For Elliott | premises had been affected «me per cent. by the it was contended that the contract of service lasted | defendant's new building . till November 4, and that if the Workmens Com-/ At this part of the case his lord ested ti pensation Act had never been passed, he would, | the parties might come to ter as there was notwithstanding that he was prevented by illness | obviously some obstruction of jaint ff's light from working, have been entitled to his full wage: | After the mid day adjour t, Mr. Rowdes and there wa' nothing in the Act which took away | intimated that he was prepared to reftle the case his rights under the contract | on the following termy, v 1, to remove the mova

The Lord Chief Justice in giving judgment said the court bad to look to the broad intent of the Act in applying its provisions. Several sections of the Act provided that the parties might agree the compensation, and therefore proceeding did not cease to be proceedings under the Act because they had resulted in a bargain contemplated by the Act. The first schedule to the Act provided that when incapacity for work resulted, the compensation should be a weekly payment not exceeding half the weekly earnings. These provisions and the giving of notice, and the receipt of compensation under those provisions were inconsistent with the view that the original wages were to go on during the time of incapacity. The workman who was taking the benefit of the Act on the ground of incapacity, and had had that amount assessed, could not accept his compensation and then claim also to have his wages during all that time. He thought the judgement in favour of Elliott for 15l. 3s. 4d. ought not to stand and that the appeal ought to be allowed.

Mr. Justice Darling agreed. If the argument on behalf of Elliott was right, he would logically be entitled to his full wages, and compensation in addition, because he could not earn them. It was impossible to suppose that the legislature ever intended to suppose that the legislature ever intended any such consequence. This decision was not opposed to the interest of workmen as a class, because if the decision had been otherwise employers would always discharge a workman at once after an accident.

Mr. Justice Channell also concurred.

The appeal was accordingly allowed, with costs.

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City Ancient Light Dispute

The case of Wriford Patrick came before Mr Justice Byrne in the Chancery Jpivision on the 22nd inst. An action by the plaintiti for an injunc tion to restrain the defendant trom erecting any | . buildings on the site of his old premises Nos steps. The ~ span-board" was r2it loag, but the and 41, Wood-street, E.C, in such manner as to| only board they could had to place upon it asa darken, injure, or obstruct the ancient lights of the | " Jining-board " was only S$ ft. long. After they had plaintiff's premises Nos.; and 4, Little Love-lane, | Worked upon this scaffold for a sh ct time the opan- There was also an alternative claim for damages. | board broke, and they fell a considerable distance It appeared that the plaintiff is the lessee of Nos, | ¢ach sustaining bad injuries. Subse juently it was : and 4, Little Love-lane, the premises being | found that there was a large knot near where the situated on the northern side of the lane, the back part | board cave way. , : ofye ‘ being lighted as follows :- The ground rbyaj} Cross examined | When erec ing the meng ne sloping or Jeanto sky-light, and the first and second | Saw nothing in the board to indicate that it was floors by three windows facing north and one | likely to break, . Ee window facing west, all these windows being} Counsel for be Geet bon ee aed 2s Ge ancient lights. The plaintiff's case was that in|‘ ft. board to ° = = » rd daipti December, 1900, or at the beginning of 01, the | Because that was the only one a defendant proceeded to demolish the old build- | hey nae been a longer one you would bave ings erected on the site of \ and | Used it' 5 eS.; : on, Wood-street, and erected thereon new | Did you complain = the foreman that the plank premises, which substantially interfered with | Wa3 5 at long ate MD. not a jucge as t a) hee te qeaition, =the potion ot oe Pee sein 4—He understood that it was cus defendant's building which it was alleged would| ¢-€xamine tor builders to employ a man t interfere with the plaintitt's light*. were (:) the | tomary in the trade f 4 — * pape a aenteaiiie gangway connecting the front and back parts of | periodically examine the boar' ae enor but the Nos. 30 and 41, Wood-street, in so far as it had | to see that ail was in a proper Sonu" paced ws been raised above the level of the old gang- | defendants as far as he was aware, did not empios way as it previousiy existed; a chimoey- | 4 Man for this i a stack erected on the defendant's premises, in so} Arthur Radge, the other plaintiff, gave similar far as it rose above the level of the oki parapet | evidence at ; | c t.a scaffolder, who had worked on the level at the end of the front portion of Nos. yg andj Jobn Pryant.as ey per teers ove at : | ob, said that the board in question would not have 41, Wood-street; and (3) the buttress supporting | veg beh gene , such chimney-stack, and the portion of the wall oa | broken but for the - - = bis hen gs Marr line and above running north of the chimney-stack, | employed by another 7 oid odin and the plant and the roof and sloping part of such wail. [ae as * sbethe "all was saie for use or

The main defence was that the defendant's building caused no substantial or material interference with the plaintiff's lights.

Mr. Levett, K.C., and Mr. F.H. Manghan,, appeared for the plaintiff; and Mr. Rowden, K.C., and Mr. H. Wace for the defendant.

Mr. M. B. Adams, F.R.I.B.A., called and examined on behalf of the plaintiff, said he had been in practice as an architect and surveyor for twenty-five years, and was acquainted with the premises of the plaintiff and defendant. He had seen the plaintiff's building before the demolition of the defendant's new building materially interfered with the light previously enjoyed by the plaintiff's windows.

Cross-examined;

The defendant's new gangway interfered with the diffused light to the windows on the ground, first and second floors of the plaintiff’s premises. The chimney stacks and the sloping roof and wall affected the plaintiff’s windows on the first and second floors. He did not think that the chimney stack did materially interfere with the light to the windows on the first and second floors. but it did affect it.

In reply to his Lordship, the witness stated that the defendant's new gangway was 7 ft. 3½in. higher than the old gangway.

Mr. J. Douglas Mathews also gave evidence in support of the plaintiff's case. He said that in his opinion the letting and selling value of the plaintiff’s case. He said that in his opinion the letting and selling value of the plaintiff's premises has been affected some 20 per cent. By the defendant's new building.

At this part of the case his Lordship suggested that the parties might come to terms, as there was obviously some obstruction of the plaintiff's lights.

After the mid-day adjournment, Mr. Rowden intimated that he was prepared to settle the case on the following terms, viz., to remove the movable portion, as far as the new portions went, of the gangway; to lower the wall of the parapet to the eaves of the roof, and to pay the plaintiff's taxed costs of the action.

His Lordship said that he thought the proposal sounded reasonable. It would have been difficult to have persuaded him that the gangway did not interfere with the plaintiff&aspos;s lights.

Mr. Maugham, on behalf of the plaintiff, said he was prepared to accept the terms stated.

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Employers' Liability Act

Question as to the "Lining" Scaffold Boards—What is "The Rule of the Shop?"

At the Marylebone County Court on Tuesdau, before Judge Stone, William Howcroft, a builder's labourer, Ladbroke-grove, Notting Hill, We., brought an action, under the Employers' Liability Act, agains Messrs. Burdette & Son, builders and contractors, Spring-street, Hyde Park, We., claiming damages in respect of personal injuries said to have been sustained owing to negligence on the part of the defendants or their servants.

A similar action against the same defendants was brought by Arthur Rudge, a painter, Wharton-road, West Kensington Park, W.

Mr. B. B. Morle, councel, appeared for the plaintiff Howcroft; Mr. W. Sanderson, counsel, for the plaintiff Rudge; and Mr. J. Shakespear, counsel, defended.

William Howcroft stated he and Rudge were in the defendants’ employment on August 7 last, s isting in some building operations at Gloucester-gardens, W. The defendants’ foreman on the job told them to work upon a wall upstairs, adding, "You will find scaffolding there." In accordance with these directions they formed a small scatiold by placing two boards upon a couple of pairs of steps. The "span-board" was 12ft. long, but the only board they could had to place upon it as a "lining-board" was only 8 ft. long. After they had worked upon this scaffold for a short time the span-board broke, and they fell a considerable distance, each sustaining bad injuries. Subsequently it was found that there was a large knot near where the board gave way.

Cross-examined: When erecting the scaffold he saw nothing in the board to indicate that it was likely to break.

Counsel for the defendant: Why would you put the 8 ft. board to "line" a 12 ft. board?

Plaintiff: Because that was the only one there.

If there had been a longer one you would have used it? Yes.

Did you complain to the foreman that the plank was not long enough? I am not a judge as to planks. No, I didn' complain.

Re-examined.—He understood that it was customary in the trade for builders to employ a man to periodically examine the boards and plant generally to see that all was in proper condition, but the defendants, as far as he was aware, did not employ a man for this purpose.

Arthur Rudge, the other plaintiff, gave similar evidence.

John Bryant, a scaffolder, who had worked on the job, said that the board in question would not have broken but for the large knot. He was now employed by another firm, and his work included the examining of scaffold-boards and the plant generally to see whether all was safe for use or not.

Medical evidence having been given, the case for the defence was opened.

Arthur Needs, the foreman on the job referred to above, admitted telling then men to erect their own scaffold, and maintained that it was customary in such cases for the men to exercise their own discretion as to whether the scaffold was safe or not. He could not swear that there were over 12 ft. boards on the job, but if the men had not all they wanted for the work it was their duty to inform him of the fact.

The Judge: An important question is whether there was anything wrong in the men using the 8 ft. lining-board with the 12 ft. span-board.

Witness: I should not have done so.

In answer to further questions, the witness added that he did not examine the boards when they first came on the job.

Cross-examined : The defendants did keep a man to look after the scaffold plant and see that it was it a proper condition, but he (witness) could not say when the board in question was last examined.

George Wilson, the defendants' general foreman, considered that the 12-ft. span-board should be lined by another of the same length, or thereabout. This was "the rule of the shop."

Henry Loby aod Richard Andrews, painters, agreed that a lining board should be about the same length as the span-board.

Counsel for the defence submitted that the plank which broke was not defective, for, he pointed out, it did not break exactly where the knot was. It was, of course, impossible to get a scaffold board without a knot, and as it was customary for the men to erect such small scaffolds themselves the responsibility was upon them to see that they did not use anything that might be unsafe. He further submitted that in the present case there was evidence of contributory negligence on the part of the plaintiffs.

The judge: I come to the conclusion that the causa causans of the accident was in the men using a 12-ft. span-board with an 8-ft. lining-board, and on the ground of contributory negligence I find for the defendant.

Counsel then agreed to Howcroft receiving, under the provisions of the Workmen's Compensation Act, 1l. per week from the date of the accident to a date thirteen weeks subsequent to the present trial. It was also agreed that the plaintiff Rudge should receive compensation equal to 1l. a week from the date of the accident to February 4 last, when he resumed work.

His Honour allowed no costs.

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