Archibald v Higgs and Hill (St. Kitts) Ltd

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 12 August 1977
• Neutral Citation: KN 1977 HC 4
• Docket Number: No. 80 of 1975
• Date: 12 August 1977

High Court

Glasgow, J.

No. 80 of 1975

Archibald

and

Higgs and Hill (St. Kitts) Ltd.

Appearances:

Mr. C.F. Henville et al for the plaintiff

Mr. F. E. Kelsick et al for the defendant

Contract - Breach.

Facts: The plaintiff sought damages for breach of an oral contract between the plaintiff and the defendant company. The main issues were what were the terms of the contract and whether there was a contract and that the defendant company repudiated the contract.

Held: That the plaintiff was entitled to damages for breach of contract.

Glasgow, J.

1 The plaintiff's claim against the defendant company is for damages for breach of a contract alleged to have been made orally between the plaintiff and the defendant company during the month of June, 1975. The defendant company in its Statement of Defence denied having entered into the alleged contract; it also denied that it wrongfully repudiated the alleged contract; it denied paragraph 9 of the Statement of Claim which alleges that by reason of the breach complained of, the plaintiff suffered loss and damage, and it further denied each and every item listed under the heading “Particulars of Special Damage.”

2 The facts, as I find them, are as follows: The plaintiff is, and was at all material times, an officer of Barclays Bank International Limited, and owner of 21,352 square feet of land situate at Frigate Bay Estate in the Island of Saint Christopher and known as Lot No. HLl/147 of the Frigate Bay Development. The plaintiff purchased the said lot of land from the Frigate Bay Development Corporation, a statutory body established by the Frigate Bay Development Corporation Act, 1972 (No. 13 of 1972). The defendant company is a firm of engineers and building contractors.

3 On the 18th June, 1975, the plaintiff applied to the Managing Director of the Frigate Bay Development Corporation (hereinafter referred to as the Corporation) for “planning permission to erect a four bedroom split level dwelling house” on his said lot, which is an extremely rocky piece of land situate on the side of a hill. With his said application the plaintiff submitted in triplicate five drawings relating to the proposed dwelling house, namely, (1) Site Plan, (2) First Floor Plans, (3) Ground Floor Plan, (4) Elevations, and (5) Sectional Elevations. The said drawings were prepared by a Barbados-based firm of architects and are dated June, 1975. The following note appears on Sheet 5 – Sectional Elevations:

“All structural details are subjected changes concrete floors and roof are to be 1:2:4 mix concrete foundations are to be 1:3:6 mix.

Depth of footings and height of floors are to be determined on site by the Engineer.”

4 Clause 7 of an Agreement dated 28th February, 1974 between the Corporation and the plaintiff for the sale of the said lot required the plaintiff within two years from the date of the signing of the said Agreement to submit for the approval of the Corporation detailed plans for a suitable residential building, and provided that the Corporation should within a reasonable time after receipt of such plans notify the plaintiff of the approval of such plans or of such alterations or modifications, if any, which it requires to be made thereto.

5 Before a house could be built on the plaintiff's lot, a considerable amount of rock had to be removed therefrom. The plaintiff hired from the Corporation a bulldozer which had a blade and a ripper. The bulldozer was able to cut a road about 115 feet long leading from the Corporation's road to the plaintiff's lot but it was unable to remove a triangular piece of rock which had to be removed in order to get the desired ceiling height and to get the floor level. The plaintiff had a conversation with Mr. William Turner, a civil and mechanical engineer employed by the Government and attached to the Ministry of Trade, Industry and Tourism as Development Engineer. Mr. Turner has been working with the Corporation since it was established. As a result of this conversation, Mr. Turner, acting on the plaintiff's behalf, spoke with Mr. David Blanchard, who was then general manager and a director of the defendant company. Mr. Blanchard told Mr. Turner that he, (Turner) should show the plaintiff's said lot to Evans who would decide whether or not it was safe to do blasting there. By “Evans” Mr. Blanchard meant and was understood by Mr. Turner to mean Harry Evans, a plant maintenance foreman employed by the defendant company. In addition to being plant maintenance foreman, Mr. Evans also did a lot of blasting on behalf of the defendant company. He was the defendant company's explosives expert. Mr. Turner went with Mr. Evans and showed him the plaintiff's lot. Mr. Evans said that it was safe to do the blasting there. Mr. Turner again spoke with Mr. Blanchard who told him that the cost of doing the blasting was $250 and that carrying out the work was conditional on the plaintiff paying in advance. On the 20th June, 1975 the plaintiff drew a Barclays Bank cheque for $250 in favour of the defendant company. He gave it to Mr. Turner who in turn gave it to the defendant company. On the same day Mr. Turner had a telephone conversation with Mr. Brian Martin, a quantity surveyor employed by the defendant company. Mr. Martin informed Mr. Turner that the blasting on the plaintiff's lot would be carried out on the 25th June, 1975.

6 Mr. Turner again went to the plaintiff's lot with Mr. Evans. Mr. Evans indicated to Mr. Turner where he wanted holes drilled in the rock preparatory to blasting and the depths to which he wanted them drilled. On the 21st and 22nd June, 1975 holes were drilled in the places in the rock indicated by Mr. Evans. The defendant company was to provide the explosives with which the blasting of the rock on the plaintiff's lot was to be done. The defendant company was also to provide Mr. Evans' services.

7 On the 24th June, 1975 the defendant company negotiated the said cheque for $250. On the following morning, Mr. Evans went to Mr. Turner's office and informed Mr. Turner that he had drawn the explosives and that before he fired them he wanted to be sure that the plaintiff knew he was responsible for any damage. Mr. Turner replied that that was incorrect because he had previously been assured by Mr. Martin that if the defendant company was doing the job it accepted responsibility. (It is not clear whether such an assurance had in fact been given to Mr. Turner by Mr. Martin, but it is clear that Mr. Turner and Mr. Martin had a telephone conversation between the 20th and 25th June, 1975 and that as a result of that conversation Mr. Turner formed the impression that Mr. Martin had given him such an assurance). Mr. Turner then telephoned Mr. Blanchard and asked him why they had changed their minds about doing the job. Mr. Blanchard said that the defendant company could not undertake to do he work unless the Corporation accepted all responsibility and liability for any damage that may be caused to the properties of Colin Mallalieu and John Mallalieu. Mr. Blanchard mentioned to Mr. Turner that he had discussed the matter with Mr. Mike Sutherland, who was the consulting engineer for Mr. John Mallalieu's property. Mr. Turner told Mr. Blanchard that he (Mr. Turner) was not prepared to take any liability for any damage ‘that might occur. Mr. Blanchard told Mr. Turner that in that case the defendant company could not do the work and that he would have to return the plaintiff's money.

8 On the morning of the 25th June, 1975 Mr. Blanchard telephoned the plaintiff. He told the plaintiff that he was sorry that they could not blast, because the house being built for John Mallalieu did not have a ring beam end the house built for Colin Mallalieu had certain structural defects, and that what was required was for the engineers of both Mallalieus and the engineers of the defendant company to visit those two properties and note all defects before blasting and then re-visit them after blasting to see what if any damage had been done in the interim, and that it was too inconvenient for them to get this organised, and that he was going to return the plaintiff's cheque. The plaintiff said to Mr. Blanchard: “We'll see”. The defendant company sent to the plaintiff by post a Royal Bank of Canada cheque for $250 in favour of the plaintiff. Nothing but a complimentary slip accompanied the said cheque. The defendant company did not carry out blasting operations on the plaintiff's lot on the 25th June or at any other time.

9 On 2nd July, 1975 Mr. Dennis Byron, the plaintiff's solicitor, wrote the defendant company on the plaintiff's behalf. The last three paragraphs of the letter of 2nd July read as follows:–

“Mr. Archibald's loss includes the delay of his entire building program which was verbally outlined to your firm on his behalf and his financial loss is incurring everyday at the rate of $200 per day from 26th June 1975 in wages not to mention other sources of loss with which your firm as building and engineering contractors must be familiar.

I should mention that Mr. Archibald has also incurred liability to the Frigate Bay Development Corporation for the use of a compressor and drilling holes and other preparatory work for your excavation in accordance with the direction given by your firm.

This letter is to demand that you perform your contract within 48 hours by completing the excavation work, bearing in mind that time is of the essence of this arrangement. Failure to do this will lead to Mr. Archibald making other arrangements to have the work completed. Your liability will include refunding the $250 and paying the additional costs which may be incurred as a result of the breach of your contract. Mr. Archibald will also seek to recover compensation for his loss as a result of the delay in having the excavation...