David v Camacho

CourtFederal Supreme Court (West Indies)
Docket NumberNo. 4 of 1958
JudgeHallinan, C.J., Rennie, J.A., Archer, J.A.
Judgment Date23 Apr 1959
JurisdictionCaribbean States

Federal Supreme Court

Hallinan, C.J., Rennie, J.A. Archer, J.A.

No. 4 of 1958

David
and
Camacho
Appearances:

Mr. C.E.Francis with Mr. L.H.Lockhart for plaintiff-appellant.

Mr. E.E.Harney with Mr. H.L.Harney for defendant-respondent.

Contract - Breach — Agreement to build a house.

Facts: This was an appeal against a decision that the appellant was in beach of contract to build a house. Evidence revealed that the appellant agreed to complete building the appellant's house. Contrary to the agreement he tried to force the respondent to use cedar to construct the roof. Unable to coerce the respondent, he went to the United States and left his son to complete the house.

Held: The appellant's behaviour was tantamount to a breach of contract. Appeal dismissed.

Hallinan, C.J.
1

On 7th June 1955, the plaintiff-applicant undertook to build a house for the respondent. The foundation had already been laid. The appellant agreed to build according to the plan but there were no specifications; the respondent was to supply the materials and the appellant the workmanship for which he was to receive $2640. When this dispute arose between the parties the appellant had received $1640 and the work had progressed to the stage of hurting on the roof.

2

The learned trial judge has reviewed the evidence most carefully in his judgement. He found that the respondent who, under the contract, alone had the right to determine the materials to be used, informed the appellant that the roof was to be of pitch pine. The appellant told the respondent that no pitch pine was available. This was on 23rd June. Most probably the appellant knew this, but wished to foist off his cedar on the respondent at a good profit. The respondent on 25 th June told the appellant that pitch pine was available.

3

On the same day, 25th June, the appellant went to the respondent's house, tried unsuccessfully to obtain a further $300 on the contract and said that he was going to the United States of America and would leave his son to finish the: contract. This boy was an apprentice and not fitted to finish the work. The respondent refused to accent this arrangement. The appellant used abusive language and slammed the door in respondent's face. On 27th June the respondent visited the site and told the appellant that the contract was terminated. On 28th the respondent again visited the site with his lawyer to stop the appellant from putting up a cedar roof but this he refused to do.

4

The appellant in this suit has claimed for the unpaid balance of the contract price, i.e. for $1000 and for an alleged purchase of cedar from him by the respondent. The trial judge on the above facts applied the tests laid down in Dakin v. Lee, 1916 1 K.B. 566, and held that the appellant could not recover as the work he was doing, namely in putting on a cedar roof, was entirely different from the work which he had contracted to do, and secondly that the declared intention of the appellant to go to the United States of America and leave the completion of the house to his son was tantamount to an abandonment of the work. He found that the respondent never agreed to purchase the cedar.

5

The respondent counterclaimed for damages as the appellant had broken the contract. He pleaded two heads of damage: first that he had to pay one James $1700 to complete the building which was $700 more than the sum for which the appellant undertook to do the work; and secondly bad workmanship had depreciated the value of the work done by the appellant. The trial judge allowed damages of $700 and also $76.80 for bad workmanship.

6

Counsel for the appellant has referred us to a passage dealing with Renunciation in Chitty on Contracts, 20th Ed., p. 251:

“If, before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it, or acts in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfil his part ( Forslind v. Bechely-Crundall (1922) S.C. (H.L) 173, 190, per Lord Dunedin), this of itself entitles the other party at his election to take one of two courses. He may either treat the renunciation as a breach and sue for damages forthwith or he may wait till the time for performance arrives and then sue.”

7

Later on at page 258 Chitty continues:

“The law is similar in cases where a party renounces a contract in the course of its performance”,

8

and he concludes the section on renunciation as follows:

“These cases, which might be multiplied, are sufficient to show that the question as to when a party to a contract is justified in repudiating is one of fact, and that different views have been taken at different...

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