Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum pręstandum.
John Whyte v. William M'Conochie, Wright and Undertaker
Date: 24 January 1761 Case No. No 34.
Duty of one who undertakes to build a house to another for a price.
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By contract betwixt John Whyte and William M'Conochie, M'Conochie became bound for L. 430 Sterling money, to erect and finish a country house for Whyte, conform to a plan agreed on; and it was stipulated that the whole work should be well and sufficiently done.
M'Conochie being a wright and undertaker, employed hands of the best reputation for mason-work, and the sclater-work; gave them good materials, and desired them not to be sparing of them. He finished the wright-work himself.
When the building was finished, it was found that the mason-Work and sclater-work was entirely insufficient, so that the rain came in at all corners; but the wright-work was well done.
John Whyte brought an action for avoiding the contract altogether, and for repetition of all the sums he had paid to M'Conochie.
M'Conochie answered, That he had employed the best hands, and given the best materials, which was all an undertaker was liable to do; and with regard to what he had executed himself, he had done it thoroughly well: That he was still willing to build up the walls a-new, and to new-sclate the house; both of which he could do without spoiling the wright-work.
The Lords, before answer, ‘allowed the defender to perform the operations proposed by him, and any other thing he shall find necessary to make the house sufficient, in terms of the contract, all to be done betwixt and the 1st of August next; but the defender shall not be allowed to haurl or cast any of the walls with lime.’
Act. Lockhart, Gordon, Wight.Alt. Miller, Dalrymple.Clerk, Justice.
Fol. Dic. v. 4. p. 13. Fac. Col. No 10. p. 17.
