1. The plaintiff did not at the time of the purchase of the said pole state that it was for his carriage, nor did he say what it was for. 2. There was no defect in the said pole, and it was reasonably fit for the said purpose. 3. The injury to the plaintiff's carriage was not caused by any defect in the said pole. Reply. The plaintiff joins issue on the statement of defence. 4. Claim for Breach of Warranty with Consequential Damages. 1. The plaintiff has suffered damage by the defendant's breach of a warranty on the sale for £5,000 of a picture called made by the defendant to the plaintiff on the 3rd of Sep tember, 1879. 2. The warranty was that the picture was a Turner, which it was not. 3. The plaintiff resold the said picture, with a similar warranty, for £5,250, and he has been compelled to pay the purchaser £5,500 damages and costs and has had other costs to pay to his own solicitor. Particulars of damage : 1880. July 1. £5,500 damages recovered by A. B. in action of A. B. against the plaintiff. £270, the costs of the said A. B. £330, costs paid to the plaintiff's solicitor in connec tion with the said suit. The plaintiff claims £7,000 damages. Defence. 1. The defendant did not warrant that the said picture was a Turner. 2. The plaintiff did not re-sell the said picture with a warrant that it was a Turner. 5. Claim alternatively for Breach of Warranty and Fraudulent Misrepresentation. 1. The plaintiff has sustained damage by a breach of the defendant's warranty given on the 11th of October, 1880, upon the sale to the plaintiff for the sum of £500 of 200 boxes of The warranty was that the said grapes were English grapes. grapes. 2. In the alternative the plaintiff says that at the time of the said sale the defendant represented to the plaintiff that the said grapes were English grapes and not foreign grapes, whereas, in fact, they were foreign grapes, as the defendant well knew. The plaintiff claims £700 damages. Defence. 1. The defendant did not give any warranty upon the sale of the said grapes. 2. The defendant did not represent that the said grapes were English and not foreign grapes. He expressly said they were mixed grapes, which he then believed to be the fact. Reply. The plaintiff joins issue upon the statement of defence. G. Claim by party aggrieved against Defendant for Counterfeiting a Trade Mark. 1. On the 21st of June, 1880, the defendant sold to the plaintiff fifty casks of beer, to which was applied the trade mark of Messrs. Bass & Co. 2. The said trade mark was forged or counterfeited by the defendant or by his orders, and applied by him to the said casks. 3. The plaintiff who bought the said beer in reliance upon the genuineness of the said trade mark, and in the belief that the said beer was of the brewing of Messrs. Bass & Co., is a person aggrieved by the act of the defendant. The plaintiff claims £200 damages. Watercourse. See Easement. Ways. See Trespass-Easement. Contract for work, &c., need not be Work and Labour («). 1. Claim for Work and Labour on a Builler's Contract. The plaintiff's claim is for work done and materials provided by the plaintiff for the defendant at his request. (a) A contract for work and labour or work and materials does not as a rule require to be evidenced by writing. It is not within the Statute of Frauds, unless, indeed, as sometimes happens, it comes within the clause of the 4th section with reference to contracts which are not to be in writing. performed within a year. Then, of course, writing is requisite; but only when the contract will necessarily continue beyond the year. In Sch v. Strawbridge (2 C. B. 808), the plaintiff undertook to board a child at the defendant's request at so much a month, "as long as the defendant thought proper," and although this contract in fact continued for more than a year, inasmuch as, at the time it was made. by its terms it would not necessarily continue so long, it was held that writing was not neces Aliter if not to be performed within a year. sary. In an action for work done, the plaintiff must prove, though he need not aver in his statement of claim, the performance of all conditions precedent on his part; and in the case of building contracts it is geneIn building rally a condition precedent to the right to payment that the architect contracts architect's certificate a condition precedent to payment. should give his certificate as to the amount, &c., of work done; ani until the architect gives this certificate no payment can be enforced. Where a contract for the erection of certain works provided that all extras or additions, payment for which the contractor should become entitled to under the said contract, should be paid for at the price fixed by the surveyor appointed by the contractor's employer, it was held that the surveyor had power to determine what were extras under the con The plaintiff also seeks to recover interest on the above balance from the 31st May, 1882, till payment or judgment. tract, and therefore that his certificate awarding a certain amount to be due for extras was conclusive. (Richards v. May, 10 Q. B. D. 400.) It is no dispensation of the condition that the certificate was withheld by Building fraud and collusion with the defendant (Milner v. Field, 5 Exch. 829), contracts. although it is true that on such a state of facts an action of tort for fraud might lie against the architect and defendant, or both. (Batterbury v. Vyse, 2 H. & C. 432; L. J. 32 Ex. 177; Ladbroke v. Barrett, 46 L. J. 708.) The architect or surveyor need not certify in writing, unless expressly required by the contract to do so. In Morgan v. Birnie (9 Bing. 672), a letter from the architect to the plaintiff inclosing the bills with an approval of the charges was held not to be equivalent to a certificate of approval of the work done. And see Tharsis Sulphur and Copper Co. v. M'Elvay (3 App. Cases, 1040). In building contracts time is not usually of the essence of the contract. (Lamprell v. Billericay Union, 3 Exch. 283.) Where there is a written contract and the plaintiff claims for extras in addition to the charges under the contract, the written contract must be produced, for it is only the written contract which can show what really are extras. (Vincent v. Cole, M. & M. 257; Buxton v. Cornish, 12 M. & W. 426.) And it has been held that even a distinct promise by the defendant to pay for the work done would not do away with the necessity of producing the contract. (Vincent v. Cole, supra.) But where a man is employed to do work under a written contract, and a separate order for other work is afterwards given by parol during the continuance of the first employment, the written contract need not be produced in an action for the second work. (Reid v. Batte, M. & M. 413.) There is no implied warranty in the case of a building contract upon the part of the employer that the work can be done in the mode prescribed by the plans and specifications. (Thorn v. Mayor and Corporation of London, 1 App. Cas. 120; 45 L. J. Exch. 62.) A building contract contained a proviso that in case the contract should not be in all respects performed by the contractor he should pay £1,000 as liquidated damages. It was held that this was a penalty, and not liquidated damages. (Re Newman, 4 Ch. D. 724; 46 L. J. Bank. 57.) If the defendant has received no benefit from the work on account of the improper and unskilful way in which the plaintiff did it, the latter Q Q Where a written contract and also a claim for "extras the former must be produced. Defence. The defendant says that : 1. Except as to £200 parcel of the money claimed, the architect did not grant his certificate pursuant to the contract. 2. As to £200 parcel of the money claimed, the defendant brings [or has brought] into Court £200, and says that sum is enough to satisfy the plaintiff's claim herein pleaded to. 1. The contract contained a clause whereby it was provided that the plaintiff should complete the works by the 31st March, 1882, or in default pay to the defendant £1 a day for every subsequent day during which the works should remain unfinished, and they so remained unfinished for 61 days to the 31st May. The defendant counter-claims £61. Reply. Where made is destroyed The plaintiff says that: 1. As to the 1st paragraph of the defence, he joins issue. The plaintiff as to the counter-claim says that :- 3. The liquidated damages were waived by ordering extras and material alterations in the work. cannot recover anything for his labour. (Farnsworth v. Garrard, 1 Camp. 38; Denew v. Daverell, 3 Camp. 451.) Questions sometimes arise thing being whether, where a particular thing is destroyed or injured while being made to the order of another, the workman or the person for whom the thing is being made will have to bear the loss; and on this point the following distinction exists-If the contract is entire for the performance of a specific work for a specified sum, so that the performance of the whole of the work bargained for and agreed to be done is a condition precedent to the right of payment for any part of it, the workman will be deprived of all legal right to remuneration if the work is destroyed by accident before it has been completed (Appleby v. Myers, L. R. 2 C. P. 651; 36 L. J. C. P. 331); but if the workman is entitled to payment from time to time as the work proceeds, the destruction of the work before its completion will not deprive the workman of his hire. (Menetene v. Athawes, 3 Burr. 1592; Tripp v. Armitage, 4 M. & W. 699.) before com- |