Carlisle Patriot, 10 Sep 1825 - Arbitration Cause - LOWDEN v. NIXSON (5)

[petra.mi...@doctors.org.uk]

Saturday 10 Sep 1825   (p. 2, col. 5 - p. 3, col. 6)

 

IMPORTANT ARBITRATION CAUSE.

LOWDEN v. NIXSON.

 

[continued]

 

William WILSON was employed in 1822, by Mr. LOWDEN and Mr. NIXSON, to cover the front ends of the dwelling-house with Roman cement to keep out the water. There is no window on the front side of the kitchen, but it also required cement. The walls are very rough. Mr. LOWDEN paid witness £70 at Mr. NIXSON's house.

 

Cross-examined.—Houses are sometimes cemented for ornament. GASH said he would take down the back-kitchen wall rather than cement it.

 

Henry BRAGG.—I am a mason, and worked at Hayclose between Martinmas and Christmas last, (after Mr. LOWDEN had entered upon the premises). The grates had been very loosely set up in the kitchen, back-kitchen, and parlour; the back was filled up with loose stones and morter, and the grates had gone down with the heat of the fire. I re-set the oven; it had been ill done, and pinched of lime, and set upon stones with mould among them: it came down from the bad work. The boiler was in the same state. I also re-laid the flags in the back-kitchen. All the chimneys are at the end of the house, and the flues are divided with slates set edgeways—below they are done with stone. These slates had given way and opened a communication between the flues. The slating work is not a good job. The well is 14 feet deep to the top of the pavement.

 

Cross-examined.—The slates were where the flues went straight up; but it is not common to use them, they are not so good as stone. If the flagging in the area had been well laid, it would not have moved much in frost.

 

Joseph JOHNSPN.—I am labourer to Mr. LOWDEN, and went to Hayclose at Martinmas, 1819. The rooms were not finished till the spring of 1820. I looked after the cattle. The hay was wasted every winter. The water beat in at the west end of the byer, but not so much as at the other end. I have seen the water extend from one side to the other of the dining and drawing-rooms. The walls were very wet in front. Wheat was put in the garrets, and the rain came in so, that it was removed. The men's sleeping-room was very damp indeed. I have seen tubs set in the granary several winters to catch the rain. The turnips may as well have lain out of doors as in the house, the wet came in so much into the sheds. The well is sometimes good, and sometimes bad—sometimes the midden pant runs into it. I have had to lead water all the summer—in a former summer from a mile and a half distant.

 

Wm. DODD.—I went to pave at Hayclose in August 1819, and again in October, and finished on the 17th November. Some of the masons only left on the 14th of that month.

 

The arbitrators and witnesses were recalled to state what their charges were, that the amount might be placed in Mr. LOSH's note-book.

 

This closed Mr. LOWDEN's case.

 

Mr. HODGSON, on the part of Mr. NIXSON, now addressed the arbitrator. He said he should trouble him with but very few observations; there were, however, some circumstances attending this case, which pressed so strongly on his mind in the defendant's favour, that he could not, consistently with his duty, avoid stating them. In the first place (said Mr. H.), Who are the parties in this cause? Mr. NIXSON, an old experienced builder, a man of great respectability, and much employed in important works in this city and neighbourhood;—Mr. LOWDEN, when this contract was entered into, was a London attorney, a gentleman certainly of great respectability in his profession, but one, of all others, from his situation in life, likely to possess the greatest acuteness. He applies to Mr. NIXSON to make him out a specification for building what? not a gentleman's house, but a common farm building. Mr. NIXSON makes out this specification, without any view of taking the job himself, but merely for Mr. LOWDEN's information, and to enable him to treat with other workmen. He is however pressed to take the contract, and upon £105 being added for extras, he consents, at the same time observing that he was so busy that year, he must relet it. An agreement is written at the foot of the specification by Mr. LOWDEN himself and signed by Mr. NIXSON, who thereby stipulates that the buildings are to be of the best materials, and now Mr. LOWDEN insists that the timber should have been Memel or Riga, instead of American, which has been used. But does not the price charged in the specification, £2 per square, completely contradict this, for even the plaintiff's witnesses all allow that Memel could not have been furnished under £2 5s. or £2 10s. per square. But take the buildings generally. They are erected in 1819, and occupied till 1824 by Mr. CONNELL without a single complaint. We have no proof whatever of any complaint being made (except something about the front walls being damp, which they naturally would be in so exposed a situation, and in consequence were covered with Roman cement) until Mr. LOWDEN goes to reside at Hayclose about Martinmas last, when he finds this farm-house not quite so comfortable as the houses which he had inhabited in London, or even Broadfield-House, which he had just quitted. The house might well be uncomfortable and out of repair, for during the whole six years of Mr. CONNELL's occupation not the smallest repair was done, nor was the house or any part of the wood work ever painted. Much has been said about my client's revoking the former arbitration at Hesket, but I think when the facts of that transaction are stated, no blame can attach to us on that score. After the arbitrators had heard the plaintiff's evidence, they agreed to view the buildings next morning, and Mr. LOWDEN, in my presence, asked them to breakfast with him: I objected, and it was unanimously agreed that they should not breakfast with Mr. LOWDEN, and that neither he nor any person on his behalf should attend the arbitrators upon their view. Instead of this, both Mr. LOWDEN and his head-man attend them and point out what they call deficiencies, without any person being present on the part of my client, and they afterwards go into the house and eat and drink with Mr. LOWDEN. But I do not lay so much stress on that. I called before the arbitrators as a witness Matthew GASH, the person who actually built the walls, and who of all others could give the best account, and they immediately object to his evidence, and the arbitrators decide not to examine him. They ought, at all events, to have heard his evidence, and if they had not believed it, then they might have struck it out. Under all these circumstances, I trust the arbitrator will see that I acted properly in advising my client to break off that reference. And what has been Mr. LOWDEN's conduct to-day? He has brought builders and other witnesses from Penrith and places at a distance, but has studiously avoided calling any person from Hesket, or a single workman who was employed in the erection of the building in question; he has not even dared to put into the box Mr. CONNELL, his late tenant, who in fact was his agent, and as such superintended the erection of these buildings. I shall therefore call Mr. CONNELL, and, as I before said at Hesket, should be content for my own part to rest my case on his testimony alone. Moreover, I shall call experienced workmen, who, one and all, will tell you that these buildings are erected in the fair and usual manner of farm-buildings, that they are as good as need be, and in fact as good as they themselves would have made them had they taken this contract. Indeed, I think the buildings speak for themselves. There is not one shrink proved by any of the plaintiff's witnesses, except in the thrashing-machine house, which evidently has been occasioned by the great pressure and weight of the machinery. I shall proceed to call my witnesses to prove what I have already stated, and in addition, that Mr. NIXSON has done a quantity of extra work for which he has not received one farthing. Roofing to the amount of £115 was omitted in the specification. This has been done; the barn has been made wider than first proposed at an expense of £32, several of the rooms have been stoothed and bells hung, making a total for extra work of £160, and upon the whole leaving Mr. LOWDEN debtor to my client nearly £200.

 

 

[to be continued]