Supreme Court
Action No. 252 of 1981
9th February, 1983.
Moe, CJ.

Mr. Dean Lindo S. C. for the Plaintiff.
Mr. Denys Barrow for the Defendant.

Building Contract - Breach of Contract - Premature repudiation of Contract by Plaintiff without giving Defendant adequate notice - Time not of essence to the contract - Special Damages - Assessment of Special Damages.

J U D G M E N T

The Defendant claimed that the Plaintiff owed him $1,719.50 due under a building contract entered between them in May 1980. By the contract he, the Defendant, agreed to build premises for the Plaintiff and the Plaintiff agreed to pay the sum of $7,060.00. He had virtually completed all work under the contract when the Plaintiff wrongfully prevented him from completing the work, and at that time he had been paid the sum of $5,340.50. The Plaintiff replied that the Defendant agreed to the building contract at an estimated price of $6,860.00. He denied that he prevented the Defendant from completing the work and said that the Defendant refused to work for two weeks continuously and then quit the job of his own accord. He claims that the work done was valued at only $2,732.00 and seeks the sum of $2,608.50 as overpayment.

The first issue for determination was whether there was agreement as to the amount to be paid to the Defendant under the contract. The Plaintiff sought to establish that the contract called for payment in accordance with calculations shown in an estimate (admitted as an Exhibit). The evidence from both Defendant and Plaintiff that $5,340.50 was paid to the Defendant does not support the Plaintiff's contention and I reject it. I accepted the Defendant's evidence, firstly, that there was an agreement to a contract price of $6,860.00 and later there was agreement to a further $200 for extra work.

The next issue was whether the Defendant was prevented from concluding the contract. Again, I accepted the evidence of the Defendant supported by one Jeremiah Cassanova that the Plaintiff stopped the Defendant working on the building. The Defendant said one Thursday he wasn't feeling well and told the Plaintiff. He also told him when he felt better he would finish the work on Friday. The Plaintiff told him if he didn't work that Thursday, he shouldn't come back on the job anymore. When he went the Friday morning to the site he saw someone else on the job. The Plaintiff told him he didn't have any more job with him. So, he took up his tools and went home.

I then turned to see whether the Plaintiff was entitled to bring the contract between himself and the Defendant to an end in the way he did. I was satisfied that the Plaintiff stopped the Defendant from working because the work was taking long to be concluded, the Defendant was absent from the work site on occasions when he was expected to be there, and the Plaintiff was not satisfied with certain work done while the Defendant was absent. The evidence of Mr. Downer is that he told the Plaintiff he would give him the job in three months. Mr. Wright's evidence is that the Defendant told him the building would be completed in about three weeks time. The difference in evidence as to the statement by the Defendant as to when the job would be concluded was, in my view, of little consequence since I do not find on the evidence that time was made the essence of the contract, in which circumstances, the Plaintiff ought to have given notice making it so and stating a reasonable time. This he did not do. He treated the contract as at an end. He told the Defendant he no longer had the job and he put someone else on it. In the circumstances, I find that the Plaintiff was in breach of his contract with the Defendant and the Defendant is entitled to damages for the breach. What damage or loss did the Defendant suffer as a result of the Plaintiff's breach? He was prevented from earning and being paid the remainder of the contract price amounting to $1,719.50.

I enter judgment for the Defendant in the sum of $1,719.50 with costs. The Plaintiff's claim for $2,608.50 overpayment is dismissed.

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