Carlisle Patriot, 13 Aug 1825 - Cumberland Summer Assizes (19)

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

Saturday 13 Aug 1825   (p. 4, col. 1-6)

 

CUMBERLAND SPRING [sic] ASSIZES.

  

[continued]

 

LOWDEN v. NIXSON.  S. J.

 

Only five special jurors appeared, namely, Joseph BURROW, Thomas SCOTT, Daniel HEBSON, Joseph SALKELD, and Daniel CLIFF, Esquires. Seven talesmen were therefore sworn.

 

Messrs. SCARLETT, ALDERSON, BLACKBURN, and AGLIONBY, counsel for the plaintiff: Messrs. BROUGHAM, PARK, and HOLT, for the defendant.

 

Mr. AGLIONBY opened the pleadings. The declaration set forth that the defendant had agreed to build the plaintiff a certain range of buildings of good and sufficient materials in a workmanlike-way, and to sink a well in a proper situation and in an effectual manner, in all of which he had failed.

 

Mr. SCARLETT.—He had now to address the jury on behalf of Mr. LOWDEN, who was well known to him, having been for many years a most respectable solicitor in London, but having retired from business, and taken up his residence in Cumberland, he found himself under the disagreeable necessity of coming into this Court to ask for damages for the breach of a contract on the part of the defendant. He would say that he considered Mr. LOWDEN as having been very ill-used; at the same time he would not depreciate the talents and skill of Mr. NIXSON. All that he regretted was, that Mr. NIXSON had not given Mr. LOWDEN that benefit of his talents and skill to which he was entitled, but had left the work in question to altogether inferior persons. Some years ago, the estate of Hayclose was the property of Mr. OLIPHANT, who let it on a lease of several years to Mr. CONNELL, undertaking to lay out on the buildings five hundred pounds in repairs. Before this intention was carried into effect, however, the property passed to Mr. LOWDEN, and he was of course bound by the contract of his predecessor. But on inspecting the farm-buildings, it was found that that it would be desirable to lay out £1250; and on the representation of Mr. NIXSON that a complete set of new buildings in a more eligible part of the farm might be erected for £2,200, Mr. LOWDEN consented to expend that sum, in order to better the property, and render it in all respects worthy the atention [sic] of a spirited tenant. A meeting took place at Penrith between the parties, Mr. NIXSON produced ample specifications, and having been liberally allowed a further sum of one hundred guineas for extras, Mr. NIXSON agreed to finish the new erection by the 20th of October in the same year, undertaking to employ the best materials in a workmanlike manner, reserving the privilege of employing the materials of the old buildings. One of the conditions was, that the new dwelling was not to be erected on any spot where there was a deficiency of water, and Mr. NIXSON was to begin by sinking a well. Residing in London, and entertaining a perfect reliance that the work would be done in a proper manner, of the best materials, according to the specification, Mr. LOWDEN paid £200 a month, without suspicion or hesitation, and thus made the whole payment before he had seen the building. But the contract had been violated in all its parts. In the first place, the undertaking was not only not finished by the 20th of October, but some of the most important parts of it were not even begun at that date. The consequence was, that the work went on during winter. Perhaps to this cause was in part owing the great defect and premature decay of some portions of the building. Sorry was he to say that almost all the money laid out had been thrown away. The wet penetrated the walls, and a coat of Roman cement was suggested, the cost of which Mr. NIXSON said would be £70, and Mr. LOWDEN was so easy as to agree to pay £25 of that sum. Time passed on, and something occurred to put an end to Mr. CONNELL's lease, when Mr. LOWDEN came down to reside on the property himself, and then he found what could scarcely be believed outside Cumberland. Mr. NIXSON appeared to have thought, from first to last, that he had nothing to do except to receive the money. He let off the work; the person who took it let it again; and the third person had another letting. What was the result of this middle-man system? The jury would be astonished to hear. Throughout the whole house, the walls were hollow—merely two cases of stone, not filled up with rubble properly limed, but loosely thrown in! The consequence was, that even the smoke penetrated to all parts of the house between the wall-cases, and if you lighted a fire in any part of it, you had smoke in every part. So rude and ignorant were the sub-contractors for the work, that they appeared to have laid the foundation by the eye; and when they found they had deviated from a right line, they placed a stone in an overhanging position, and actually built upon that, and thus the wall had given way. No portion of the roof keeps out the rain. The chimneys or flues are divided from each other, not by stone or brick work, but by slates set upright, which give way before time and the chimney-sweeper, and the smoke gets from one to the other, and into all the rooms. Then the state of the walls. Though apparently eighteen inches thick, they are so damp that they will take neither paint nor paper, and Mr. LOWDEN is therefore compelled to live in a house without these common comforts. He would prove, that instead of the best materials, the timber consisted of common American yellow pine; so that although erected in 1819-20, the building, in 1825, is so far decayed as to be ready to fall down. Then he had leave to use the old materials, and to be sure he did use them with a vengeance. An old post was put into the house that had mortice-holes in it. These were turned inside, filled with plaster, and the sound part was put outside to give it the appearance of requisite solidity. Mr. NIXSON engaged not to build on a spot deficient in water; yet the well sunk for the pump is dry three or four months in the year, and water was obliged to be brought, for common domestic uses, more than a mile. The well, instead of being a proper one, was just sunk deep enough to catch the surface water in winter, which drained in and spoiled all the spring water. To give another specimen how Mr. LOWDEN had been abused. Not more than a hundred yards off from where the lime was mixed there was fine sand, nevertheless the lime had been mixed with common earth, and the morter [sic], having no tenacity, crumbled to dust. To put the premises in a proper state would require at least £1400. Even the granary did not keep out the wet. When Mr. LOWDEN found how he had been treated, he naturally threatened an action, and the question was referred to two persons, they having the power to choose a third. They had a meeting. Mr. LOWDEN's case was gone through, they took it all in writing, and no doubt it was carefully set down in Mr. BROUGHAM's brief. Having heard Mr. LOWDEN's case, the arbitrators had a view, and Mr. NIXSON's attorney made an ingenious speech; but the proceeding was broken off because the arbitrators decided that GASH, one of the sub-contractors, could not be examined without giving evidence against himself. Mr. SCARLETT went on to state some other facts of minor importance, and concluded a very long speech by assuring the jury that he would make his evidence as short as possible.

 

 

[to be continued]