Swan and Swan v Daniels (D&S Construction)

• Jurisdiction: Bermuda
• Judgment Date: 28 October 1987
• Date: 28 October 1987
• Docket Number: Civil Jurisdiction 1986 No. 122
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Wade, J (Acting)

Civil Jurisdiction 1986 No. 122

Hubert Swan and Grace Swan

and

Rudolph Daniels (Carrying on business under the name of D&S Construction and Architectural Designs)

Mertens v Home Freeholders CoELR [1921] 2 KB 535

Sumpter v HedgesELR [1898] 1 QB 673

Breach of contract — Building dispute — Defendant abandoned contract — Method of calculating damages in building contracts

JUDGMENT

Wade, J., Acting

In this action, which arose out of a building contract, the Plaintiffs/owner sued to recover damages and interest thereon suffered as a result of an alleged breach of contract by the Defendant/contractor.

The Defendant denies the allegation and counterclaims for the value of work done.

The first issue for the Court to decide is whether there was a contract. This poses no real difficulty as the parties are agreed that there was a written contract submitted by the Defendant and executed by them on an unknown date in February 1985 (Exhibit P5, page 1 of the agreed bundle refers). This document shows the contract price as $79,000.

The agreement stipulated that the contractor would undertake the purported project consisting of a master bedroom and bath, closet, cantilever and arched porch and swimming pool. In the end result, it turns out that the plan did not properly represent the Plaintiffs' instructions and had to be varied. They were varied, substantially by Mrs. Swan, one of the Plaintiffs. These changes and additions were communicated orally to the Defendant and the architect and were later incorporated into an amended contract. This is borne out by the documentation entitled Amendment to the Contractual Agreement dated 6th June, 1985 (Exhibit 7) which reads:

‘THIS AMENDMENT is to the Contractual Agreement already signed between clients Grace and Hubert Swan and contractor Rudolph A. Daniels. Acknowledging the original plans did not contain the details the client expected, therefore additional plans have been verbally agreed on and added.

‘The contractor will now complete master bedroom, closets, bath, covered porch with protecting walls on the upper level, arched porches and patio, swimming pool and pool house (with balustrade) which has not been included in price. There will also be a supporting wall along the roadside as discussed between client and contractor. The contractor agrees that the house will be completed with agreed extensions by June 30, 1985, and the swimming pool; pool house walls, etc., will be completed no later than July 31, 1985.

‘The client agrees to pay ($9,536.50) half of the agreed additional cost of $19,073 on June 6, 1985 and the other half $9,536.50 on the completion of the job, consisting of extension to house, porches, swimming pool and pool house and walls.’

Throughout the hearing, the Defendant expressed certain disquiet...