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Mr and Mrs Smith wanted a new kitchen extension at their home and a new bathroom. They asked a local builder, Mr Jones, if he would do the work. Mr. Jones came to the Smiths house and gave an oral indication that he would do all the work for 30,000. The Smiths agreed to proceed on that basis.
Mr Jones then pulled from his pocket a piece of paper on which he wrote the Smiths name, detail of the work to be done and the price agreed. Mr Jones said this was just a note of his estimate but asked Mr Smith to sign it, for his records. Mr Smith did so. (Mr Smith noticed there was some printing on the back of the note but he didnt bother regarding it.)
Mrs Smith asked how long the work would take. Mr Jones said he thought it would be finished by Easter. This was important to Mrs Smith as her sister Muriel and her family were arriving to stay for two weeks holidays then. She did not, however, specifically inform Mr Jones of this event.
Mr Jones said he would use the services of Mr Lester, an independent plan drawer, to devise the design for the new kitchen and bathroom and his fee would be included in the agreed price.
Mr Jones started the work and initially made good progress but unfortunately then became ill. Mr Jones recovered after a month but it soon became apparent to Mr and Mrs that the work would not be finished by the time of Muriels visit.
Mrs Smith asked Mr Jones if it would be possible to finish the work on time. Mr Jones said not. Mr Jones said it was unfortunate that he has been ill but that was not his fault. In any event, he said, the main cause was of delay was that the plans drawn by Mr Laster had been full of errors. Mr Jones did however expect to complete the work by mid-May, approximately 6 weeks later than the original completion date discussed.
By the time of Muriels visit, at Easter, the kitchen was completed and useable, but the bathroom was not. The Smiths took the view that the house wasnt really fit for visitors so they arranged for Muriel and her family to stay in a luxury country hotel, 5 miles away from the Smiths house at the cost of 2000.
The work continued but by mid-may it was apparent that the work would still not be finished for at least another month. The Smiths decided they had had enough of the delay and mess and ordered Mr Jones to leave the site. They said they would rather pay for someone else to finish the work. Within days, the smiths had found a replacement builder to complete the project. Which he did in two weeks for an agreed price of 15,000.
Mr Jones had been paid 2/3rds (20,000) of the contract price, by the time he was ordered off the site. The Smiths have refused to pay the balance claimed by Mr Jones of 10,000. They say that the work had been unreasonably delayed, they had incurred expense by contributing to the extra cost of accommodating Muriel in Hotel, and it had cost more to employ another builder to complete the work that was outstanding under the original quote. They also make the point that the new builder had in addition to correct many minor errors in the work done by Jones which was of poor quality.
Mr Jones has now commenced an action claiming the 10,000 outstanding from the contract price. Mr and Mrs Smith want to counterclaim for the additional building cost, the cost of accommodating Muriel in the hotel and general damages for in convenience and loss of enjoyment caused by the delay.
Mr Jones points out that on the back of the note (which he calls the agreement) which Mr Smith signed, there appear these two statements.
Jones (the Builder) undertakes to use his best endeavour to complete the work in the time stated, but it is agreed by the parties that time is not of the essence of this agreement and no damage will be claimed in the event of delay.
Jones accepts no responsibility for losses caused by the acts of independent contractors.
Advise the Smiths.
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