1862. v. THE REGENT'S CANAL COMPANY. to the sad result through his own carelessness, the plaintiff, his representative, could not recover. Now, it plainly ap- WITHERLEY peared in this case that the deceased knew when he came to the bridge that it was moving, and therefore was not in a fit state for him to pass over it. Nor was that all; for, being on it, he then, it being still in motion, attempted to get off it, and it was in that attempt he lost his life. It was for the jury to say whether, under those circumstances, his death arose from any want of care on the part of the company to prevent his getting on the bridge, or getting off it. Even if they thought that there was some want of care on the part of the company, yet if the accident had partly been caused by the want of care on the part of the deceased, they ought to find for the company. If, however, it was entirely owing to want of care on the part of the company, let them find for the plaintiff. The jury consulted together for some time, and seemed unable to agree. After some time they asked whether, if the deceased contributed in any degree to the accident, they were bound in law to find for the company? The learned Judge said if he, by his own negligence, contributed to the misfortune, so that but for that negligence it would not have occurred-that is, if, though there. were some want of care on the part of the company, the misfortune might have been avoided and would not have occurred but for want of reasonable care on his part-then the company would not be liable; in other words, if the misfortune arose partly from his own want of care, then the jury ought to find for the company. The jury then consulted again, but The learned counsel for the plaintiff, having made a remark as though the learned Judge had said that any degree of want of care on the part of the deceased (whether 64 1862. WITHERLEY v. THE REGENT'S CANAL COMPANY. CASES ON THE HOME CIRCUIT. it had led to the accident or not) would entitle the company to the verdict, The jury again asked for explanation with reference to this observation of the learned counsel, but The learned Judge said the learned counsel had quite misunderstood him, and they were to take the law as he had laid it down. What he had said was, that if there had been such want of care on the part of the deceased that but for such negligence it would not have occurred, the company were entitled to the verdict, even although there had been some want of care on their part. The jury then withdrew to consider their verdict, and soon returned with a verdict for the company, adding, however, that they thought there was not sufficient protection for the public, and that there ought to be some barrier to prevent them from passing on to the bridge while it was open. Verdict for the defendants (a). (a) Ribton moved in C. P., but took nothing. OXFORD CIRCUIT. Gloucester, coram Hill, J. FRANKLIN v. DARKE. 1861. Gloucester On a contract DECLARATION, for work and labour and materials. Second count, on an agreement under which the plaintiff, for 2001., was to do certain work to the satisfaction the defendants' surveyors. Breach, that the defendants wrongfully prevented him without written from completing it. do work acof cording to specifications, and to charge for no extras orders, the mere oral di Pleas, to the first count: never indebted, payment and rections of the set-off. to 4. To the second count, a denial of the breach. 5. That the plaintiff wilfully neglected and refused proceed with the work, wherefore the defendants determined the agreement. 6. Payment of all monies due for work done to the satisfaction of the surveyors. Pigott, Serjt., and W. H. Cooke for the plaintiff. On the 25th June, 1860, the plaintiff entered into an agreement in writing with the defendants, to execute the masons and bricklayers' work described in certain specifications, without delay, and to the satisfaction of the defendants or their surveyors, observing all the conditions in the specification: payments to be made of such sums as the surveyor may from time to time, during the progress of the works, appoint in writing, provided that no additional or extra works or materials, other than mentioned in the specifications, shall be undertaken or used, or ordered, without an order in writing previously obtained, under the hands of the surveyors. The specification further provided, that the works should be executed according to the plans, &c., and all further instructions to be given by the archi VOL. III. F F.F. employer to do some increased work cannot be given in evidence to sustain a de mand for extras in the absence of any evidence of a new contract. 1861. FRANKLIN บ. DARKE. tec in writing or otherwise. And the architect to have the power of preventing the contractor's further execution of the works, and causing the same to be finished by other workmen, deducting the cost from the balance due under the contract. The plaintiff commenced the works, and various payments were made. Complaints were made of delay; and on the other hand, claims for extra work alleged to have been ordered, not in writing by the architect, but by the defendants. In April, 1861, the architects gave notice to the plaintiff' to take the work out of the plaintiff's hands. Before then, he had said he considered the agreement cancelled, and that he should charge by measure and value. And after that, when spoken to about finishing the contract, he had said he declined to do so. The case for the defendants was, that there had been undue delay; that the plaintiff had been paid all that the architects appointed, and that it would cost 50l. to finish the work. The plaintiff being examined, it was proposed that he should state the parol orders given by the defendants for increased excavations for cellars; but HILL, J., refused to admit the evidence. At the close of the case, HILL, J. (to the jury).—Was the dismissal justified by the plaintiff having wilfully refused to complete the work? If so, he is entitled to be indemnified for any loss on the contract. Verdict for the plaintiff 157. (a). (a) A rule had been obtained in the Exchequer, on the part of the plaintiff, for a new trial, on the ground of misdirection and rejection of evidence as to the extra work. But in Easter Term the rule was discharged, the Court thinking that the orders for the alleged extras ought to have been in writing, signed by the architect, there not being sufficient evidence of a new contract to pay for them as extras. See Goss v. Lord Nugent, 5 B. & Ad. 58; Rees v. Lines, 8 C. & P. 126; Lamprey v. Billericay Union, 3 Exch. 101; Johnson v. Weston, Vol. I, p. 693. 1862. Oxford, coram Channell, B. COLLIER v. BROWN THE YOUNGER. ACTION for goods sold and delivered. Plea: never indebted. Oxfordshire Spring Assizes. Where a wife separate from a husband un der an agree The particulars were for clothes supplied to the wife of ment with his the defendant from July to November, 1860. The defendant, the son of a farmer, was married to his wife, a domestic servant, in August, 1858, and from that time to the date of the supplies in question she had new clothes. no Shortly after the marriage the defendant left his wife, and had not since lived with her. She went into a situation, which she had to leave, in consequence of her becoming with child by him. In November, 1859, she informed him of this, and applied to him for support, which he refused. In April, 1860, she was delivered, and had expended all her savings in May, when she applied to the defendant's father, who entered into a kind of agreement with her, embodied in a letter to her from his attornies, which ran thus: "Witney, Oxon, May 8, 1860. "To Maria Loden, otherwise Brown. "Madam,-We are authorized by Mr. James Brown, the elder, of Coggs, to offer you the following terms, on the conditions hereinafter mentioned, viz.: "During the joint lives of yourself and your child, to pay you the sum of 15s. per week, on condition, 1st, That you do not at any time take up your residence within fifteen miles from Witney Church. "2ndly, That you do not, either personally or by letter, by agent or otherwise, apply to Mr. James Brown, the elder [as originally drawn the letter also contained the words or James Brown the younger,' but these words were afterwards erased by consent], on any matter or pretence whatever, or by any means seek or attempt to address, annoy or molest them [them' altered into 'him']. The young woman, in execution of this agreement, put her child out to nurse at 4s. a week, and went into service father for a specific weekly sum, not paid, having reco and tradesmen vered above that amount for board and lodging, held, in an action by an man for clothes supplied to her, that the husband was liable, if the clothes were suited to her position in so ciety as his wife. |