C.A. 1900-1.

SLOWEY

v.

LODDER.

this finding, and I think he is entitled to judgment for the £1,015 5s. which the jury have found to be the value of the work, labour, and materials which he supplied to the defendants.

As to the claim in respect of the collapse, I agree with the learned Judge in the Court below, and with Mr. Justice Conolly, whose judgment I have had the advantage of reading, that it is not recoverable, and that there is not sufficient evidence from which it can be inferred that the defendants were responsible for the collapse and its consequences.

I think, therefore, that the appeal should be allowed; that judgment should be entered for the plaintiff for £1,015 5s.; and that the plaintiff is entitled to costs on the highest scale here and in the Court below.

CONOLLY, J.:

In this action the learned Judge in the Court below held that the measure of damages which the plaintiff is entitled to recover from the defendants is the amount (if any) which he has lost by exclusion from the contract, and not the value of the works executed by him either at the prices mentioned in the schedule to his contract or at their market value without reference to the contract.

In answer to the 24th issue the jury have found that there was no evidence as to what would have been the profit which the plaintiff would have obtained if he had been allowed to finish his contract, or that any profit would have been made. This being so, the Court could not, upon the basis which the learned Judge held to be the proper one, give any judgment at all. The offer was thereupon made to the appellant either to take a verdict against the respondents for nominal damages or to have a new trial. The appellant did not consent to take a verdict for nominal damages or to have a new trial; and claims a judgment quantum meruit for the work done by him in part-performance of the contract.

The first question which this Court has to answer is whether, under the circumstances shown by the evidence, the appellant is entitled to claim quantum meruit in respect of the work and extras done under the contract of which the benefit was obtained by the respondents, or was he bound to bring his action for breach of contract only, and to claim only the profit (if any) which he would have made if that contract had been completed. He claims that he is so entitled, and further

claims a sum of £495 38. found by the jury as damages which he is entitled to for work and materials rendered useless by the collapse of the tunnel.

As to the first question, the statement of claim alleges that while the plaintiff was executing the contract and extra works the defendants wrongfully entered and took possession of the works and wrongfully determined the contract. The appellant's contract was made on the 15th of November, 1898, and by the terms thereof the work was to be completed before the 2nd of March, 1899. It was not, however, completed by the 1st of August, 1899, on which day Ward, the Engineer for the Karori Borough Council, wrote that in pursuance of the powers vested in him by the contract he had taken possession of the works with the intention of completing the works at the contractors' expense-those contractors being the respondents, with whom the appellant had sub-contracted. The solicitors for the respondents communicated the substance of this letter to the appellant, and two days after this the officers of the Karori Borough Council took possession. The learned Judge in the Court below held that the appellant was entitled to recover from the respondents on account of this seizure by the Karori Borough Council, under an implied warranty to the appellant that he should not be interrupted in his work by any person claiming under superior title. Semble, the measure of damages would be the same as if the respondents had themselves interrupted the work and taken possession,

It may be observed that throughout the existence of the appellant's contract the respondents took no part, but left everything to Ward, the Council's Engineer, who must therefore, in my opinion, be treated as agent for the respondents, with an almost unlimited authority to act for them and to bind them in responsibility for his acts. This proposition was objected to in the course of the argument, where it was contended that the Borough Council had been improperly discharged from the suit, and that they, and not the respondents, were the parties responsible for the damages. I am unable to agree with this. There was no privity of contract between the appellant and the Borough Council. His contract was with the respondents, and their responsibility to him must, in my opinion, be the same as if the works were to be executed for them; and that responsibility could not be got rid of by their doing nothing and leaving all supervision to Ward.

C.A.

1900-1.

SLOWEY

V.

LODDER.

C.A.

1900-1.

SLOWEY

v.

Lodder.

Assuming, therefore, that the respondents are the parties responsible for any breach of contract by the contractees, and that there was a breach of contract by taking possession of the works without reasonable cause-which latter fact has been found by the jury by their answers to issues 7, 8, 9, 10, and 16-was the appellant entitled to sue upon a quantum meruit, and to waive any right to sue for the breach? The cases mainly relied upon in support of this were Prickett v. Badger(1) and Planché v. Colburn(2). Mavor v. Pyne(3) was also cited. The first two of these cases were considered by the learned Judge in the Court below. He held that Planché v. Colburn(2) was an ordinary case of damages for breach of contract, and in Prickett v. Badger(1) that the contention that it was an action quantum meruit was not supported.

I am unable to follow the learned Judge in his opinion upon the case of Planché v. Colburn(2). There was a claim for breach of contract, and also counts for work and labour. The question whether the work had been abandoned was left to the jury; and, although we have no note of the terms upon which that question was left to the jury, it seems clear to me that the Court in Banco treated the verdict of the jury as having been given on the counts for work and labour, and declined to disturb that verdict. Tindal, C.J., said, "When a special contract is in existence and open, the plaintiff can"not sue on a quantum meruit. Part of the question here, "therefore, was whether the contract did exist or not. It dis

66

tinctly appeared that the work was finally abandoned, and "the jury found that no new contract had been entered into. "Under these circumstances the plaintiff ought not to lose the "fruit of his labour." It appears, therefore, to me that it was held that the amount of work which the plaintiff had done, and not the profit which he would have derived if the contract had been completed, was the measure of damages-and this in a case where the contract was on its face indivisible.

In Prickett v. Badger(1) the action was for work and labour performed, in which the plaintiff claimed the same amount as that to which he would have been entitled if a contract of which there had been a breach by the defendant had been performed. It was contended on behalf of the defendant that the action was wrong in form, and should have been for breach of contract. Pollock, C.B., overruled the objection and left (1) 1 C.B. N.S. 296.

(2) 8 Bing. 14.

(3) 3 Bing. 285.

the case to the jury, directing them that the plaintiff was entitled to reasonable remuneration for his services. The jury found accordingly, and the Court held that there had been no misdirection.

In Inchbald v. The Western Neilgherry Coffee, &c., Company(1) the plaintiff sued for breach of contract, and also for work and labour. The Court awarded damages for the breach of contract. I fail to see in what respect this can be treated as a decision adverse to the plaintiff in the present case, since there is nothing to the effect that the plaintiff might not, if the contract was at an end, have recovered upon the other count. The judgments are entirely silent upon this point; the case was no doubt treated as one in which the breath of contract was solely relied on.

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I also fail to follow the learned Judge in the Court below, and to hold that the question has been determined by the case of Ranger v. The Great Western Railway Company (2). It appears to me that all that that case decided was that the appellant had no claim to equitable relief, but had his remedy at law. Lord Chancellor Cranworth said (3), "The right of "the appellant would be to recover such amount of damages as would put him in as nearly as possible the same position as if no wrong had been committed that is, not as if "there had been no contract, but as if he had been allowed **to complete the contract without interruption. This was his legal right, and I can discover nothing that can enable "him to convert a wrongful act, which might entitle him to damages, into an act which entitles him to an account of "work already done, to be taken on terms different from "those for which he had contracted." And Lord Brougham said (4), "The sixth prayer is to pass by the contract altogether, and, in respect of the tortious possession, to disaffirm "or set aside the contract, and to give the contractor the "benefit of a quantum meruit, as if there had been no con"tract. Now, 1 entirely agree with my noble and learned friend that this is what we cannot do, and what the Court "of Chancery, from which the appeal proceeds, could not do, and that the appellant must be left, on that ground, to his action at law, and that this act of the company, assuming it "to be tortious, did not get rid of the contract and entitle him to go beside, above, or beyond it, and to obtain the

66

C.A.

1900-1.

SLOWEY

v.

LODDER.

"account thus sought for." Now, as I understand these dicta, they amount to no more than that if the party has a remedy by way of quantum meruit upon the abandonment of a contract, it exists at law, and not in a Court of equity. They do not go so far as to rule that no such right exists. It appears to me to be not unworthy of notice that Ranger v. The Great Western Railway Company(1) is not cited in Chitty on C'ontracts, Pollock on Contracts, or Anson on Contracts; and is only cited in Addison on Contracts upon another point.

I therefore am of opinion that, the jury having found that the works were wrongfully seized, and that the plaintiff was thereby prevented from completing his contract, he was entitled to treat the contract as at an end, and to sue in respect of works and extras done under the contract of which the defendants had the benefit. That amount is found by the jury to be £1,626 5s., less £611 admitted as paid; leaving a balance of £1,015 5s., for which the plaintiff was entitled to judgment.

As to the other question, whether the plaintiff was entitled to recover in respect of work and materials rendered useless by the collapse of the tunnel, I am of opinion that he was not so entitled.

The allegation in the statement of claim was as follows: "That among such extra works, deviations, and modifications "aforesaid the defendant" [which is a clerical error for

66

plaintiff "]" was ordered to increase the thickness of the "brick lining on the roof of the tunnel mentioned in the said "contract by nine inches; and the performance of such extra "work necessarily required the removal of the wooden lining "of the said tunnel then erected, the excavation of further 'soil above such wooden lining, and the re-erection of such "wooden lining at the higher elevation, in order to enable the "extra thickness of brickwork to be placed in the roof of the "tunnel. The execution and performance of the aforesaid "work in a proper and skilful manner necessarily (as must or "ought to have been known by the defendants and the officers "of the said Corporation) caused the collapse of the portion of "the said tunnel which had then been excavated, and caused large quantities of earth to fall into the said tunnel, and to destroy or render useless large quantities of brick, concrete, wood, excavation, and other work already erected, done, or "placed in position in the said tunnel, and put the plaintiff

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(1) 5 H.L.C. 71.