Carlisle Patriot, 10 Sep 1825 - Arbitration Cause - LOWDEN v. NIXSON (9)

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

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

 

IMPORTANT ARBITRATION CAUSE.

LOWDEN v. NIXSON.

 

[continued]

 

—Except Mr. RIGG, not a single witness had been called on the other side that one would have expected to have seen. They were not men who had impartially surveyed the premises, and taken down particulars; but tradesmen, workmen, who had momentarily visited them, seen only small parts, made no calculations, and spoke merely in generals. One witness had talked of the loose rubble walls being the "custom of the country;" the custom of the country to make work that would not stand! But was this custom borne out by Mr. NIXSON's own walls in Carlisle? No: they, it had been proved, had been put up with more solidity. (Mr. HODGSON: Because they are ashlar work, and not rubble walls.) Some of the witnesses seemed to affect a doubt whether "best materials" meant Baltic or American timber. Now it was admitted on all hands that the former was the best, and who could, after that, reasonably dispute the meaning of the specification? If one were better than the other, the "best" should have been employed, having been stipulated and paid for; for though the sum of 40s. per square, as mentioned in the specification, might not have been quite the price of Baltic timber, yet the old timber which Mr. NIXSON was permitted to use at pleasure, more than counterbalanced that difference. Something, too had been said about the materials of this and that building; but what had all this to do with the question of a positive bargain? If Mr. HODGSON chose to build Houghton-House with American fir, that was no reason why Mr. LOWDEN should be compelled to have the same, after stipulating for what was better. The matter appears clear enough when one looks at the specification: but no, said Mr. NIXSON, it cannot be, for I am to pay £90 for old materials, and in that case I should pay twice over. This was thought very conclusive, yet it was nothing at all, for Mr. GRAHAM and other witnesses had proved that the old materials were worth at least £300, thus leaving Mr. NIXSON £210 in pocket on that point alone. Mr. NIXSON, as a man of experience, knew that Baltic timber was meant. He took the contract with his eyes open, and must be bound by it; and plenty of Baltic timber might have been got from Liverpool or Newcastle. It was urged that he had made the specification for another person. Why if he had made it as an honest man, how could he object to his own estimate? and yet 100 guineas more than his own estimate had been given him.—Mr. AGLIONBY then put in a case, 1st Campbell, 38, containing an opinion of Lord Ellenborough. He put it in this way. Supposing Mr. LOWDEN had not paid the money. Mr. NIXSON would say, I have finished the buildings; my bill is £2300. Suppose Mr. LOWDEN had then sent Mr. RANDLESON, and through him had discovered the defect in the buildings, and had said, "I won't pay all your demand; but only so much as you ought to have," could he have withheld? This case would shew. FARNSWORTH v. GARRARD, assumpsit for work and labour done and materials found. "The defendant had rebuilt the front of a house for the plaintiff; but when finished it was considerably out of the perpendicular ('This is very applicable,' said Mr. A. 'but I have not before looked at it,') and according to several of the witnesses, in great danger of tumbling down, though others said it might stand for many years. Mr. PARK contended that the plaintiff was still entitled to recover the whole of his demand, and that if the building was so ill-executed as was represented, the defendant's remedy was a cross action. But Lord Ellenborough said: This action is founded on a claim for meritorious service. The plaintiff is to recover what he deserves, it is therefore to be considered how much he deserves, or if he deserves any thing. If the defendant has derived no benefit from his services, he deserves nothing, and there must be a verdict against him. There was formerly considerable doubt on this point. I have since had a conference with the judges on the subject, and I may now consider this as the correct rule, that if there has been no beneficial service, there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff's demand, leaving the defendant to his action for negligence. The claim shall be co-extensive with the benefit. If the wall will not stand, and must be taken down, defendant has derived no benefit from the plaintiff's service, but has suffered an injury." Here then the arbitrator would see his powers. He (Mr. AGLIONBY) admitted in the present case, that Mr. LOWDEN was liable to pay for what was good, but for no more. The most intelligent witnesses thought that £900 injury had been sustained, exclusive of the consequences of being turned out of house and home. On the other hand, Mr. AGLIONBY acknowledged that there were some additions to the specification, as well as neglect of carrying out one or two small sums, and these could be easily settled: but the buildings must come down, and Mr. LOWDEN could not be liable to take them but as old materials. The great question, after all, was whether the premises were to come down or not. His friend, Mr. HODGSON, had said, that Mr. LOWDEN first called upon Mr. NIXSON for an estimate for a mere farm-house, and was afterwards disappointed at not finding a Gentleman's residence, which he certainly could not have without paying for. Now what force was there in this remark? None. Look at the state of the house, as proved. Was it fit for a farmer or any body else to live in? Were the outbuildings fit for a farmer? Was it fitting that his corn and hay should be spoilt? There was an expression of one of the defendant's witnesses which spoke volumes as to the manner in which the job had been done. He said, "We used seasoned wood where we thought it necessary." Every one knew the meaning of this; and even the witness himself would not venture to say where seasoned wood was unnecessary. It had been urged that the premises had been built in too short a time to season the timber. Then why were they so—why stipulate? But they were not: they were to have been finished in October, and yet not completed till the following spring, and of this too he complained. If Mr. NIXSON could not have got properly-seasoned wood he should not have contracted. If he had said to Mr. LOWDEN that the time was too short, and that in consequence he must use unseasoned timber, would Mr. LOWDEN have consented? Certainly not. But all the floors, the shutters, nearly all the wood-work, were unseasoned and had shrunk; and, as Mr. GRAHAM had said, the windows might be shaken to pieces. In respect to the walls, Mr. RIGG, in order to contradict Mr. PROCTOR, had deposed that those of Abbey-House were what was called rubble; but if so that was because he had been intrusted with the inspection of the workmen, for it appeared to have been unknown to that Gentleman, who resided thirty miles distant.—After a variety of other observations, Mr. AGLIONBY came to the reference at Hesket, the expenses of which, he contended, ought to be allowed to Mr. LOWDEN, as it was capriciously broken off. The ostensible could not have been the real reason of the rupture; it was too absurd to think that partaking of a leg of mutton was a sufficient cause, for that could not have been more seducing than Mr. NIXSON's good things; and as to the non-examination of GASH, that was perfectly proper in reason, and consonant with legal rule. Mr. LOWDEN being at Hayclose at the time of the view, could not have been an objection, for the arbitrators had eyes and ears, and knew how to use them. Mr. RIGG thought, indeed, that Mr. LOWDEN accompanied them all the time; Mr. PROCTOR and Mr. PARNELL said that he did not accompany them; but whether or not this certainly could not be a reason. Perhaps, however, the true cause might be guessed at. Mr. HODGSON was a professional man, and would soon see where the shoe pinched. he or Mr. NIXSON might have heard something from Mr. RIGG—some hint that certain of the arbitrators had said on the view that the buildings were in a shameful state. (Mr. HODGSON said there was nothing in evidence to warrant this assumption.) They might have heard something to this effect; they had got the plaintiff's case, in all its strong and weak points, down in writing, and might conclude that in the face of this he would hardly afterwards venture into a Court of Justice, when they had the means of blowing him out of it by evidence that they could get to meet him at all points. And, then, as to the specification. Why should they want that? For a copy? No. Mr. NIXSON had a copy. Mr. PARNELL proved that one was on the table, and that he had seen it in their hands. The object to be gained was something more than a copy. If they had taken it, Mr. LOWDEN must have given them notice to produce; then, perhaps, it would have been lost, and Mr. LOWDEN must have given parole evidence of the document, which would have been a difficult if not impossible task, and he would have been non-suited. There were better reasons for breaking off the arbitration than a leg of mutton; and should Mr. LOSH consider that the rupture was without sufficient cause, then he (Mr. A.) insisted that Mr. LOWDEN should have an allowance for his expenses on that occasion. In conclusion, he congratulated Mr. LOWDEN, and congratulated the public also, on his having the fortitude and manhood to come forward in the face of these difficulties to assert his rights as an Englishman, having been so seriously injured. It would be absurd to think that Mr. LOWDEN would have risked an assize trial for a trifle. If the premises could have been made good for one, two, or even four hundred pounds, he had better have paid the money than to have run such a risk, and, no doubt, would have done so. But the injury was one of great magnitude—one that concerned the public as well as Mr. LOWDEN—it was Mr. LOSH's duty to say what should be the amount of compensation, and whatever his award might be, Mr. LOWDEN would be satisfied with it.

 

Mr. HODGSON.—I can say the same: we shall also be satisfied with Mr. LOSH's determination.

 

Mr. LOSH then adjourned the Court, and took all the documents with him to Newcastle. He promised to come to an early decision.