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Counterclaim for Damages for using Inferior Materials and not completing the Work according to Contract (a).

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1. The defendant says that the said work was not according to contract. By the contract between the plaintiff and the defendant, dated the 18-, under which the work was done and materials provided, it was agreed that first class materials only should be used, and that the work should be completed in the best style to the satisfaction of the architect.

2. Inferior materials were used, and the work was not completed in the best style, and was not completed to the satisfaction of the architect.

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Defence that Payment was only to be made on the Certificate of the Architect, and that he had not certified (b).

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1. The said work was done and the said materials were provided under a contract [in writing dated the 18-], whereby payment was to be made only upon the certificates of the architect.

2. No certificates of the architect were made or given in respect of the work or materials the subject of this action.

Defence that Extras were only to be paid for if ordered by the Architect in Writing, and that the Claim is for Extras not so ordered (b).

1. The claim of the plaintiff is in respect of extras or additions to the contract dated the 18-, between the

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materials provided (see, as examples, Lowe v. Holme, 10 Q. B. D. 286; 52 L. J. Q. B. 270; Mackay v. Bannister, 16 Q. B. D. 174; 55 L. J. Q. B. 106), though it is in such cases permissible to make use of inferiority to contract of work done as an answer pro tanto to the claim for the contract price. Where it is sought to recover damages arising from the inferiority of the work, it is necessary to counterclaim or bring a cross-action for that purpose. (See Mackay v. Bannister, supra.)

(a) See preceding note.

(b) See Work," ante, p. 366, as to the absence of certificates. Where a contract stipulates that no extra work shall be paid for unless ordered in writing, the price of extra work done without such order cannot be recovered. (Russel v. Viscount Sa da Bandiera, 13 C. B. N. S. 149; 32 L. J. C. P. 68; Kirk v. Bromley Union, 2 Phill. 640; Tharsis Sulphur Co. v. M'Elroy, 3 App. Cas. 1040.)

plaintiff and the defendant, and it was by the said contract provided that no extras or additions should be charged for unless ordered by the architect in writing.

2. The extras and additions, the price of which is now sued for, were not ordered in writing by the architect.

Defence and Counterclaim to an Action for Work and Materials (c). (R. S. C. 1883, App. E. Sect. II.)

The defendant says that

1. Except as to £200, parcel of the money claimed, the architect did not grant his certificate pursuant to the contract.

2. As to £200, parcel of the money claimed, the defendant brings [or, has brought] into Court £200, and says that sum is enough to satisfy the plaintiff's claim herein pleaded to.

Counterclaim.

The defendant says that

1. The contract contained a clause whereby it was provided that the plaintiff should complete the works by the 31st of March, 1882, or in default pay to the defendant £1 a day for

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(c) As to the absence of certificate, see Work," ante, p. 366.

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As to payment into Court, see Payment into Court," ante, p. 798. As to the claim for delay, see "Liquidated Damages," ante, p. 278; Law v. Local Board of Redditch, (1892) 1 Q. B. 127.

In building contracts, where there is a clause that alterations or extras entailing further work are not to affect or vitiate the provisions as to time of completion, or as to penalties for delay, it is no answer to a claim for delay in completion or for such penalties that the delay was due to the act of the employer in requiring such alterations or extras. (Jones v. St. John's Coll., Oxford, L. R. 6 Q. B. 115; 40 L. J. Q. B. 80.) And this is so where the contract contains clauses which, by necessary implication, prevent the inference from arising that the time was to be extended, or the penalties not to be recoverable in case of the employer causing delay by requiring alterations or extras. (Ib.) But in the absence of such clause or clauses, it would, in general, seem that delay due to the acts or defaults of the employer, or of those for whose acts or defaults he is responsible, would be excused, and that penalties for delay in such case could not be recovered. (Roberts v. Bury Commissioners, L. R. 5 C. P. 310; 38 L. J. C. P. 367; Lawson v. Wallasey Board, 11 Q. B. D. 229; 52 L. J. Q. B. 302.) The general rule of law, in the absence of stipulation to the contrary, is that a party cannot take advantage of nonfulfilment of a condition, the performance of which has been hindered by himself (Com. Dig., Condition, L.; Roberts v. Bury Commissioners, supra), and cannot sue for a breach of contract occasioned by his own breach of contract (Ib.; Lawson v. Wallasey Board, supra).

every subsequent day during which the works should remain unfinished, and they remained unfinished for sixty-one days to the 31st of May.

The defendant counterclaims £61.

(Signed)

Delivered the 22nd of January, 1883.

Reply to last preceding Defence and Counterclaim (c).

(R. S. C. 1883, App. E. Sect. II.)

The plaintiff says that—

1. As to the first paragraph of the defence, he joins issue. 2. As to the second paragraph thereof, the plaintiff accepts the £200 in satisfaction.

The plaintiff, as to the counterclaim, says that

3. The liquidated damages were waived by ordering extras and material alterations in the works.

4. The defendant waived the liquidated damages by preventing the plaintiff from having access to the premises till a week after the agreed time.

(Signed)

Delivered the 5th of February, 1883.

(c) See preceding note.

CHAPTER XII.

Part I.

DEFENCES AND SUBSEQUENT PLEADINGS IN ACTIONS FOR

WRONGS.

For the Date, Title, and Formal Parts of Defences and Subsequent Pleadings, see "General Forms of Defence," ante, p. 556, "General Forms of Reply," &c., ante, p. 561;"Counterclaims," ante, pp. 577, 580.

Denial of the Acts or Matters complained of (a).

(See R. S. C. 1883, App. D. Sect. VI.)

The defendant denies [or, The defendants deny] the several acts (or, matters) complained of [or, the several acts and matters complained of respectively].

(a) See "Denials, ante, pp. 548 et seq., and the rules there cited.

A denial of the several acts or matters complained of (see the above form in the text) is equivalent in effect to a specific denial of each of the breaches of duty or wrongful acts alleged to have been committed by the defendant, and therefore does not conflict with the provisions of O. XIX. rr. 17 and 19, cited ante, pp. 548, 549.

This general form of denial is appropriate to actions for wrongs (see R. S. C., 1883, App. C. Sect VI., and App. D. Sect. VI.), and should not be employed except in cases of that character.

Where express denials in terms of the plaintiff's allegations are pleaded, care must be taken that the denials are sufficiently specific, and such as to answer the point of substance in the allegations traversed. (See O. XIX. rr. 17, 19, cited ante, pp. 548, 549.)

In general, a denial of the several acts or matters complained of in actions for wrongs operates only as a denial that the defendant committed any of the acts or defaults in respect of which the action is brought, and (subject to the observations, infra, with respect to damages) no other

defence than a denial of the committing of those acts or defaults is admissible thereunder. Thus, a denial of the acts or matters complained of does not operate as a denial of any averments which are made by the plaintiff merely by way of "inducement," or introduction to the statement of the acts or defaults alleged to have been committed by the defendant. (See "Denials," ante, p. 548.) Accordingly, in actions for wrongs arising out of contracts, it does not deny the allegation of the contract or of the facts from which the contract or duty is implied. In actions for wrongs independent of contract, the above defence does not ordinarily put in issue any of those allegations of the plaintiff which precede in logical, though not necessarily in actual, order, the statement of the wrongful act or default complained of; e.g., in actions for disturbance of a right, the above defence does not operate as a denial of the allegation of the plaintiff's right or of the facts constituting the right, and, in actions for trespass to land or goods, it does not deny the allegation that the land, or the goods, were the plaintiff's. (See, as to the effect of the former plea of Not Guilty in such cases, Bullen & Leake, 3rd ed., p. 698.) Hence, all matters of "inducement" must, if disputed, be specifically denied or stated not to be admitted. As to matters of inducement in actions of contract, see "Denials," ante, p. 551; and see further as to "inducement," under the former system, Bullen & Leake, 3rd ed., pp. 7, 466, 698.

A mere denial that the defendant did the act complained of "wrongfully,” or "maliciously," would usually be open to objection as embarrassing, and should not be pleaded. (See "Defamation," post, p. 875.)

In general, a denial of the several acts or matters complained of, like a specific denial in terms of the acts which are charged as constituting the injury, denies the bare acts only, and not their wrongful quality under the particular circumstances, unless in cases where no details are given of the ground of complaint, and the plaintiff describes the wrongful act complained of only by a legal term necessarily involving its wrongfulness, as, for instance, where the plaintiff expressly charges an "assault" or "battery," or a "conversion" of goods, &c. (See "Trespass," post, p. 970; Conversion," ante, p. 382.)

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Except in such last-mentioned cases, a denial of the acts or matters complained of does not entitle the defendant to set up thereunder any matters in confession and avoidance of the alleged ground of complaint, and, accordingly, all matters in confession and avoidance, that is, any facts which show, either that the act was not wrongful by reason of some excuse or justification, or that, although it was wrongful, the cause of action has been satisfied or discharged by matter subsequent, as, for instance, by a release, must be specially pleaded, when relied upon by the defendant in an action for a wrong. (See O. XIX. r. 15, ante, p. 546.)

As previously stated (ante, p. 64), no denial is required as to the damages claimed or their amount, and allegations of damage, whether of general or of special damage, need not in general be pleaded to, though where the allegation of damage is a part of the cause of action itself, or, as it is termed, is of the gist of the action, a denial of such allegation, though not perhaps strictly necessary, would seem to be usually advisable. (See "Damages," ante, p. 64.)

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