Carlisle Patriot, 10 Sep 1825 - Arbitration Cause - LOWDEN v. NIXSON (1)

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

 

IMPORTANT ARBITRATION CAUSE.

LOWDEN v. NIXSON.

 

Our readers will remember that this was a special jury cause at the late Cumberland assizes: the plaintiff, Mr. LOWDEN of Hayclose, bringing his action against Mr. NIXSON, a respectable architect of Carlisle, for compensation in damages for a breach of contract in erecting in an improper manner a house and farm-buildings for which Mr. LOWDEN had paid the sum of £2,300. Mr. SCARLETT, for the plaintiff, having fully stated his case, and examined Mr. YOUNG, attorney, and Mr. MACHELL, of Lowplains, a reference was suggested by the Judge and agreed to, the Defendant consenting to an absolute verdict against him (which carried costs of suit), and Mr. LOSH was named to decide the amount of compensation. This inquiry the Learned Gentleman commenced on Thursday the 1st instant, at the Court-Houses, in this City, with open doors. The Court sat twelve hours on Thursday and Friday, and four hours on Monday, when the inquiry terminated.

 

Mr. AGLIONBY appeared for Mr. LOWDEN; Mr. NIXSON's case was conducted by Mr. HODGSON (Clerk of the Peace), assisted by Mr. NANSON. Mr. YOUNG, attorney for Mr. LOWDEN; and he himself was present throughout.

 

As the question excites much local interest, and is moreover one of great importance to the public, we subjoin a copious report.

 

Margaret HENDERSON was the first witness examined on the part of the plaintiff. She deposed that she lived at Hayclose as housekeeper to Mr. Richard CONNELL for a period of three years, and was there when the new house was erected about six years ago, which the family entered upon three weeks before Martinmas, 1819. She observed that the rain came in at the windows and the west side of the building, and ran down the wall; it beat in at the windows, ran upon the ceiling, and then dropped on the floor: this was the case in the two front bed rooms, the dining-room and drawing-room, from which it ran into the dairy. This happened as often as there was rain from the west, and the drawing-room carpet was frequently injured. The water ran in such great quantities that they sat wooden pails to catch it: it also beat very much into the store-room and ran thence into the dining-room. In a room above the store-room, the wet rotted a bed-tick on one side. The beds in the men's sleeping-room had often to be removed to prevent them from being spoilt by the rain which came in through the slates and through the loft, although there are no windows there facing the west. The walls were frequently wet. She was there when the cement was put on, but the house was not much better for it. In the dairy, the milk could not be set upon the stone table on account of the rain. A draft of soot and dust used to come down the chimneys in all the rooms, and cover the furniture so that one could write on it. Mr. CONNELL was very much from home; but witness did not constantly annoy him by telling him of these things; it was her business to attend to them; and she only spoke to him when he remarked upon them himself. When a fire was lighted in one room, the dead smoke came into the others. She had lived in many houses, but never before in so uncomfortable a one as this.

 

Cross-examined by Mr. HODGSON.—The house was only once painted during the three years she lived in it, and then by Mr. NIXSON. The situation is a very exposed one. She could not recollect whether the wet came in when the wind was not in the west; but it came in at other places besides the windows. It came into the dining-room from the store-room under the door, and ran along the floor. In the men's bed-room, it came in through the slates, and not through the casing—principally near the chimney piece. She never examined the outside of the house. Had known the roof repaired, but did not recollect a slate being off. She did not often speak to Mr. CONNELL on the subject. Had been a servant 20 years, and knew of smoky houses, but never so bad as this.

 

By Mr. LOSH.—The rain came in on the west side where there are no windows.

 

Mary SMITH, now residing with the Rev. Mr. SMITH of Ainstable, lived with Mr. LOWDEN during the last winter half year, who then occupied Hayclose. The rain came into the windows upstairs and downstairs. Some came from the ceilings on the carpets; it ran very fast, and dropped for a day or two after the rain was over without, injuring the paper and paint. The chimneys smoked very much when the wind was from the west, and dust and soot so came down as to render the house most uncomfortable and dirty: it could not be kept clean. The back-kitchen was the worst. She was dairy-maid. The water came into the dairy through the floor. She had often set buckets to catch the wet.

 

Cross-examined.—The men's room is over the kitchen, and lower than the main house. The chimneys did not smoke except when the wind was at the west. The dairy is a remarkably good one, and the cellar a good keeping one.

 

Mr. James PARNELL examined.—I live at Askham, Westmorland, and am a land-surveyor. I was appointed arbitrator to settle the dispute between the parties, along with Mr. Benj. PROCTOR and Mr. Samuel RIGG. We entered upon the inquiry, and it continued a day and a half. The first day, we examined the plaintiff's witnesses; on the following day, we went to view the buildings, and returned to Hesket, when the plaintiff closed his case. The original specification was produced by Mr. LOWDEN and placed upon the table, and I took it and kept it till next day; it was at the service of all the arbitrators. After the plaintiff had closed his case, Mr. HODGSON made a speech on behalf of Mr. NIXSON. Then he produced Matthew GASH as a witness. An objection was taken to this person's evidence, as he was interested, and we (the arbitrators) decided against receiving it. After that Mr. HODGSON gave notice of a revocation of the arbitration (The notice was admitted, and delivered to Mr. LOSH.) We walked into the garden, leaving the specification on the table, and when we came back it was gone. I made inquiry after it of the other arbitrators, and of the defendant. Mr. HODGSON produced it: Mr. LOWDEN requested him to give it up; and he positively refused. Mr. LOWDEN said he would write off to London that evening, and move the Court. After some hesitation, Mr. HODGSON said he would give it up when a copy was made. I said he had a copy, as I had seen it in his hands the day before. Mr. NIXSON then produced the copy, and Mr. HODGSON gave the original up. I have seen the buildings at Hayclose since: I saw them last Tuesday, and twice before that: I made a plan of them from my survey, which plan is now before Mr. LOSH. I compared the buildings with the original specification, and I compared the plan, when made, with it. Except the stable and the machine-house, (which are a foot narrower) the measurements agree. I have examined and measured the stack-yard wall, for which £60 10s. are charged in the specification: it is 165 feet in length, and consists of stone and mortar, the latter not good, not being mixed with clean sand, but a mixture of soil and sand. I have examined the other parts of the buildings, inside and out. Very few of the walls are straight, the stables excepted. The foundations are walled without lime. As to morter, the stables and dwelling-house are good, so far as I have examined them. The sheds, barns and byers, are similar to the stack-yard walls—the lime mixed partly with sand, and partly with soil. In consequence, the morter, where exposed to the weather, decays; but this would not have been so soon the case had the lime been mixed with good sharp sand. The walls are filled with loose stones (called fillings) without lime. Part of the timber in the outhouses is old oak, part yellow or white American deal—the latter by no means the best for building, oak or Baltic fir being much better, and costs about one-third more. The floors of the dwelling-house, and the pannels of the doors and window-shutters, have given way, the wood used in them not having been seasoned. The beams in the dairy ceiling are of old oak, very much decayed; in fact, rotten: they are covered with lath and plaster: this gives them an appearance of squareness and solidity which otherwise they would not have: the joints in the dairy are of American fir. I made an elevation of the south-end wall of the house. (Put in and delivered to the arbitrator.) It is not proper to fill up the walls with loose stones; such work is not so substantial as if filled up with morter. So far as I have examined it, the morter is good. The front wall is not true: and the end wall is overshot. The front and south end of the house, all the back-kitchen, the machine house, the wall between the byer and the barn, part of the back wall of the sheds, and the west end of the byer, should all be taken down and re-built: I think the other parts of the byer and sheds might stand, though they are by no means good. I have made a section of the barn and granary roofs: the lower represents the barn as it is; the higher as it ought to be. (Plan put in.) In consequence of the footing-beams being placed in the way represented in the plan, they are warped; all the beams are in the same way, except in one dwelling-house, which I have not examined. Many things mentioned in the specifications are wanting. (List of deficiencies given in.) I calculate the loss and inconveniences which Mr. LOWDEN will be put to while the alterations are going on, at £250:8s. (Particulars delivered in.)

 

Cross-examined—The machine-house is in a bad state; the machine is a six-horse-power one, and the walls are not sufficient for it, but the foundation is good. The walls in the stack-yard are built without lime. The foundation of the sheds and back wall of the byer are without lime; and the shed foundations, not having a great weight to bear, might be laid without that material. The builder would not be justified in using bad sand, even if pressed to complete a building in a hurry. I consider the front wall of the house much worse for being out of the perpendicular. Old oak, I deem better than American fir. I think the old beams in the dairy were rotten when put in: at the end it looks like dry rot. I am not a practical builder.

 

 

[to be continued]