⦿ CASE SUMMARY OF:
Victor Oladapo Taiwo v. Princewill (1961) – SC
by PipAr Chima
⦿ LITE HOLDING
The measure of the damages recoverable by the building owner for the breach of a building contract is the difference between the contract price of the work or building contracted for, and the cost of making the work or building conform to the contract.
⦿AREA OF LAW
Victor Oladapo Taiwo
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING OF FACT
These facts briefly are that in March 1953 the contractor (appellant) undertook to build a house for the employer (respondent) for a sum of £2,300, which was to be paid for in instalments as the work progressed. At a comparatively early stage of the work it was found that the plan was defective, and the employer agreed to pay the sum of £250 for the work thrown away.
The contractor then continued the work and accepted further instalments until a total of £1,700 had been paid. He then abandoned the work in 1954 on the ground that the £250 mentioned above had not been paid. The plaintiff then instituted proceedings in the High Court but was apparently not in the country when the case was called on and it was struck out. The plaintiff later commenced the present proceedings. The building was never completed and the property on which it was situated was sold before the commencement of this suit. The learned Judge held that the contractor had lost his right to repudiate for failure to pay the £250 and awarded the employer the sum of £1,700 on the basis that the consideration had wholly failed. The contractor appealed, and there are two matters which arise for consideration.
i. Was the learned Trial Judge right in holding that the contractor had lost the right to repudiate on account of the failure of the employer to pay the extra £250?
ii. Was the learned Trial Judge correct in the assessment of damages?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT..
i. I am in agreement with the conclusion of the learned Trial Judge to the extent that the contractor lost any right that he may have had after he had continued with the building and accepted further instalments, though he retained the right to recover the sum of £250, by action if necessary.
2. Issue 2 was held in the negative.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Unsworth FJ
In the circumstances mentioned above I would refer the case back to the learned Trial Judge for the assessment of damages in accordance with what I consider to be the correct rules. In doing so I would add that I think the learned Judge would be justified in taking into account the £250, as it is relevant for the purpose of ascertaining the total sum which would have been payable to the contractor if he had completed the work If this amount is taken into consideration it could not then, of course, form the subject of a separate action.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
In Mertens v. Home Freeholds Company (1921),2 K.B. 526, where the Court approved the law on this point as stated in an earlier edition of Hudson. In that case the contractor had undertaken to build to the roofing and the Court held:- The proper measure of damages was what it cost the plaintiff to complete the house substantially as it was originally intended and in a reasonable manner at the earliest moment he was allowed to proceed with the work, less any amount which would have been due and payable by the defendant to the plaintiff, had the defendant completed the house to the roofing at the time agreed by the terms of the contract.
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA