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Decisions of the Superior Courts of New South Wales, 1788-1899

Chadley v. Wyatt (1836) NSW Sel Cas (Dowling) 447; [1836] NSWSupC 72

quantum meruit - architecture - assumpsit

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 17 July 1836

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 40[1]

An architect retained generally to superintend the erection of certain buildings, but dismissed in the process of the work for alleged unskilfulness, cannot in assumpsit for work and labour recover his commission on the value of the work when done on the ground that he was wrongfully prevented by his employer from completing the work. The measure of his remuneration is the commission on the work done at the time of dismissal as a quantum meruit.

Assumpsit for £225 for work and labour as a surveyor and architect in drawing plans of buildings for defendant and superintending the erection thereof and for certain commission thereon. Pleas, 1st general issue, 2nd payment of £55 on account, and 3rd that the work and labour of plaintiff had been done by him in so unskilful and negligent a manner as to be of no use or value to defendant. At the trial the defendant gave evidence in support of his special pleas and a verdict was found for the plaintiff damages £132.10. This verdict was afterwards set aside and a new trial granted for the reason of irregular conduct on the part of some jury members. On the second trial a verdict was taken for the plaintiff damages £500 subject to the opinion of the Court of the following case.

The defendant employed the plaintiff some time in or about the month of June 1834 to draw plans and specifications and to make estimates for the building and erection of a range of houses in George Street and King Street Sydney. The plaintiff was also to superintend their erection as architect for which the defendant was to allow the plaintiff a commission of 5 per cent upon the value of the said buildings. During the progress of the building of this range of houses viz 26th November 1834 and previous to their being completed the defendant dismissed the plaintiff from his superintendence as architect. The value of the buildings as far as they had then proceeded at the time of the plaintiff's dismissal amounted to £3,000. Their value when completed afterwards amounted to £4,500.

In the month of January last the defendant brought an action against the plaintiff to recover £500 for loss and injury which defendant alleged he had sustained by the negligence and want of skill of plaintiff in erecting the said buildings. On the trial of that cause defendant recovered damages to the amount of £25 against the present plaintiff. If the Court is of opinion that the plaintiff had a right to his commission only on £3,000, the value of the buildings as far as they had proceeded on the 26th November, the date of the plaintiff's dismissal, then the plaintiff's verdict to be reduced to the sum of £95, but if the Court should be of opinion that the plaintiff had a right to his commission on the sum of £4,500, the entire value of the buildings then a verdict to be entered for the sum of £170.

Plunkett S.G. for the plaintiff contended that the contract with the plaintiff being entire, it could not be severed and he was entitled to his commission on the entire value of the buildings when completed. If the consideration for the agreement had entirely failed, then the defendant could not have been made liable at all but such a contract cannot be rescinded in part and held good as to the rest. He was dismissed for an alleged cause, which he might have remedied had he the opportunity given him for that purpose. He was ready and willing to complete his contract had he been permitted, but having been prevented by defendant that is no reason why he should not recover for the whole. Readiness to perform is the same as performance; Jones v. Barkley (1781) [ Jones v. Barkley (1781) 2 Dougl. 684, 99 E.R. 434]. Had the defendant pointed out to the plaintiff what he complained of in the work the plaintiff might have remedied it. This case is distinguishable from Beaston v. Collyer (1827) [ Beaston v. Collyer (1827) 4 Bing. 309, 130 E.R. 786] for the plaintiff could not be considered as a hired servant, liable to be dismissed when the employer was dissatisfied with him. Here skill and knowledge were required and the plaintiff was employed to exercise these qualities until the work was completed. The defendant therefore could not rescind the contract at his own option and pay the plaintiff upon the valuation of the work done at the time of dismissal. If he was entitled to anything he was entitled to the whole.

Wentworth contra. It must necessarily be inferred from the facts found in the special case that the present plaintiff was dismissed for want of skill, as evidenced by the verdict in the defendant's favour for £25. There is no principle of law that holds that a person employing another under like circumstances to those in this case is bound to retain him throughout the whole job. The case of an attorney is precisely analogous to this. A client retaining an attorney to conduct a cause may dismiss him, even without cause, and he is only bound to pay him for his work and labour up to the date of the dismissal. As well might it be said that the attorney was entitled to all the costs of the suit, as that this plaintiff was entitled to his commission on the whole value of the building after he had been dismissed for unskilfulness in the progress of the work. Is a surgeon dismissed for unskilfulness in the treatment of a wound entitled to his reward for the whole cure if the patient recovers through the skill of another?

Mere contracts for time are distinguishable from a general retainer, and it would be a bad doctrine to contend that in the very face of the grossest error, you must do on to the end with a man who is incapable of performing the work to your satisfaction. Here there was no special contract. It was a mere general retainer upon an implied undertaking that the plaintiff should perform his work in a skilful manner. As soon as he was found unskilful the defendant had a right to dismiss him and pay him only the value of the labour performed. This action was only on the common counts for work and labour. If the action had contained a special count stating the contract and that he was ready and willing to perform it but that he was wrongfully prevented by the defendant and had proved his case then he might have recovered. All that the plaintiff went for was a quantum meruit and the rate of remuneration depended only on usage. Under the common counts he could only recover for as much as his work and labour actually performed were worth. The argument relied upon on the other side could only be taken advantage of on a special contract. The gravamen of the plaintiff's case is that the defendant prevented him from going on with the work, but this is not alleged or proved.

Forbes C.J. The gravamen of the plaintiff's cause of action is the supposed wrongful dismissal by the defendant and that therefore he is entitled to recover commission upon the whole value of the work. Now the plaintiff only declares for work and labour on a quantum meruit. It is clear that he could not under a general count recover on that ground. He is seeking now to recover for work and labour done, which he was prevented from doing by the tortious act of the defendant that he cannot do under a common count for work and labour. It appears to me that the plaintiff is only entitled to recover for so much commission as was due upon the work done at the date of his dismissal.

Dowling and Burton JJ were of the same opinion.

Verdict to be entered for £95.

Note

[1] See also Chadley v. Wyatt, 1835.

Published by the Division of Law, Macquarie University