1Q. B. QUEEN'S BENCH DIVISION.

673

[IN THE COURT OP APPEAL.] C.A.

SUMPTBB v. HEDGES. J i s .
Contract—Abandonment of Contract—Eight to sue on quantum meruit—
Building on Defendant's Land—Evidence of New Contract.

The plaintiff, a builder, who had contracted to erect certain buildings on

defendant's land for a lump sum, after he had done part of the work,
abandoned the contract, • and the defendant thereupon completed the
buildings.
Held, that the plaintiff could not recover from the defendant in respect
of the work which he had done as upon a quantum meruit, there being no
evidence of any fresh contract to pay for the same. *
Munro v. Butt, (1858) 8 E. & B. 738, followed.

APPEAL from the judgment of Bruce J. at the trial before

him without a jury.
The action was for work done and materials provided. The
plaintiff, a builder, had contracted with the defendant to build
upon the defendant's land two houses and stables for the sum
of 565Z. The plaintiff did part of the work, amounting in value
to about 333L, and had received payment of part of the price.
He then informed the defendant that he had no money, and
could not go on with the work. The learned judge found that
he had abandoned the contract. The defendant thereupon
finished the buildings on his own account, using for that pur-
pose certain building materials which the plaintiff had left on
the ground. The judge gave judgment for the plaintiff for the
value of the materials so used, but allowed him nothing in
respect of the work which he had done upon the buildings.

C. J. Peile, and G. Thorn Drury, for the plaintiff. The

plaintiff was entitled to recover as on a quantum meruit for
the unfinished work of which the defendant took the benefit.
Munro v. Butt (1) is distinguishable, for in that case it does
not appear that the defendant had completed the buildings, or
done anything from which a new contract could be inferred;
(1) 8 E. & B. 738.
VOL. I. 1898. 2 T 2
674 QUEEN'S BENCH DIVISION. [1898]

C. A. and his merely retaining his land on which the work not in
1898 accordance with contract stood could not afford ground for
SUMPTEH inferring a new contract.
HEDGES ^ e c a s e °^ Lysaght v. Pearson (1) is in point. I n that
case the Court of Appeal in a case similar to the present held
that the plaintiff could recover.
[They referred to Whitaker v. Dunn. (2)]
B. M. Bray, Q.C., and E. Bray, for the defendant, were not
called upon.

A. L . S M I T H L . J . I n this case the plaintiff, a builder,

entered into a contract to build two houses and stables on the
defendant's land for a lump sum. W h e n the buildings were
still in an unfinished state the plaintiff informed the defendant
that he had no money, and was not going on with the work
any more. The learned judge has found as a fact that he
abandoned the contract. Under such circumstances, what is a
building owner to do ? H e cannot keep the buildings on his
land in an unfinished state for ever. T h e law is.that, where
there is a contract to do work for a lump sum, until the work
is completed the price of it cannot be recovered. Therefore
the plaintiff could not recover on the original contract. I t is
suggested however that the plaintiff was entitled to recover for
the work he did on a quantum meruit. But, in order that that
may be so, there must be evidence of a fresh contract to pay
for the work already done. W i t h regard to that, the case
of Munro v. Butt (3) appears to be exactly in point. That
case decides that, unless the building owner does something
from which a new contract can be inferred to pay for the
work already done, the plaintiff in such a case as this cannot
recover on a quantum meruit. I n the case of Lysaght v.
Pearson (1), to which we have been referred, the case of
Munro v. Butt (3) does not appear to have been referred to.
There the plaintiff had contracted to erect on the defend-
ant's land two corrugated iron roofs. W h e n he had com-
pleted one of them, he does not seem to have said that he

(1) Not reported, except in Times (2) (1887) 3 Times L. E. 602.

Newspaper of March 3,1879. (3) 8 E. & B. 738.
1Q. B. QUEEN'S BENCH DIVISION. 675
abandoned the contract, but merely thatjjhe would not go on O.A.
unless tbe defendant paid him for what he had already done. 1898
The defendant thereupon proceeded to erect for himself the STJMPTEK
second roof. The Court of Appeal held that there was in that HEpgES
case something from which a new contract
to
might be inferred
° A. T,. Smith L.J.
to pay for the work done by the plaintiff. That is not this
case. In the case of Whitaher v. Dunn (1) there was a con-
tract to erect a laundry on defendant's land, and the laundry
erected was not in accordance with the contract, but the
official referee held that the plaintiff could recover on a
quantum meruit. The case came before a^Divisional Court,
consisting of Lord Coleridge C.J. and myself, and we said that
the decision in Munro v. Butt (2) applied, and there being no
circumstances to justify an inference of a fresh contract the
plaintiff must fail. My brother Collins thinks that that case
went to the Court of Appeal, and that he argued it there, and
the Court affirmed the decision of the Queen's Bench Division.
I think the appeal must be dismissed.
CHITTY L.J. I am of the same opinion. The plaintiff had
contracted to erect certain buildings for a lump sum. When
the work was only partly done, the plaintiff said that he could
not go on with it, and the judge has found that he abandoned
the contract. The position therefore was that the defendant
found his land with unfinished buildings upon it, and he there-
upon completed the work. That is no evidence from which
the inference can be drawn that he entered into a fresh con-
tract to pay for the work done byiithe plaintiff. If we held
that the plaintiff could recover, we should in my opinion be
overruling Cutter v. Powell (3), and a long "series of cases in
which it has been decided that there must in such a case be
some evidence of a new contract to enable ithe plaintiff to
recover on a quantum meruit. There was nothing new in
the decision in Pattinson v. Luckley (4), but Bramwell B.
there pointed out with his usual clearness that in the case of
a building erected upon land thejimere fact that the defendant
(1) 3 Times L. R. 602. (3) (1795) 6 T. E. 320.
(2) 8 E. & B. 738. (4) (1875) L. E. 10 Ex. 330.
2 Y 2 2
676 QUEEN'S BENCH DIVISION. [1898]'
C. A. remains in possession of his land is no evidence upon which an
1898 inference of a new contract can be founded. He says : " In
SUMPTBB the case of goods sold and delivered, it is easy to shew a contract
HEDGES from the retention of the goods; but that is not so where
chut""i,j work is done on real property." I think the learned judge
was quite right in holding that in this case there was no
evidence from which a fresh contract to pay for the work done
could be inferred.

COLLINS L.J. I agree. I think the case is really concluded

by the finding of the learned judge to the effect that the
plaintiff had abandoned the contract. If the plaintiff had
merely broken his contract in some way so as not to give the
defendant the right to treat him as having abandoned the con-
tract, and the defendant had' then proceeded to finish the work
himself, the plaintiff might perhaps have been entitled to sue on
a quantum meruit on the ground that the defendant had taken
the benefit of the work done. But that is not the present case.
There are cases in which, though the plaintiff has abandoned
the performance of a contract, it is possible for him to raise
the inference of a new contract to pay for the work done on a
quantum meruit from the defendant's having taken the benefit
of that work, but, in order that that may be done, the cir-
cumstances must be such as to give an option to the defendant
to take or not to take the benefit of the work done. It is
only where the circumstances are such as to give that option
that there is any evidence on which to ground the inference
of a new contract. Where, as in the case of work done on
land, the circumstances are such as to give the defendant no
option whether he will take the benefit of the work or not,
then one must look to other facts than the mere taking the
benefit of the work in order to ground the inference of a
new contract. In this case I see no other facts on which such
an inference can be founded. The mere fact that a defendant
is in possession of what he cannot help keeping, or even has
done work upon it, affords no ground for such an inference.
He is not bound to keep unfinished a building which in an
incomplete state would be a nuisance on his land. I am
1Q. B. QUEEN'S BENCH DIVISION. G77

•therefore of opinion that the plaintiff was not entitled to recover C. A.

for the work which he had done. I feel clear that the case of isos
Whitaker v. Dunn (1), to which reference has been made, was SOMPTER
•the case which as counsel I argued in the Court, of Appeal, and HEDGES
in which the Court dismissed the appeal on the ground that
*• •"• ° Collins Ij.J.
ihe case was concluded by Munro v. Butt. (2)
Appeal dismissed.

Solicitor for plaintiff: Sydney R. Letchford.

Solicitor for defendant: G. E. Philbrick.
E. L.

[IN THE COURT OF APPEAL.] O.A.

189S
STEPHENSON v. GAKNETT.
Feb. 2.
Practice—Staying Action—Frivolous and vexatious Action —Interlocutory "
Application in County Court—Subsequent Action in High Court raising
same Question.
In an action in a county court judgment was recovered for a sum of
money and costs, but before tbe costs were taxed the plaintiff agreed,
on a representation of the poverty of the defendant, to accept a smaller
sum than that for which judgment had been given, and executed a deed
releasing the defendant from the judgment debt and costs. Subsequently
the plaintiff carried in his bill of costs, and applied to the county court
judge for an order to tax, upon the ground that the release had been
obtained by misrepresentation. The judge, after hearing evidence, found
that the execution of the deed had been obtained by misrepresentation, and
made an order that the costs should be taxed, and should be paid together
with the balance remaining due under the judgment. The defendant in
that action thereupon brought the present action in the High Court for a
declaration that he had been released from the judgment debt and costs,
and for an injunction to restrain further proceedings to enforce payment
thereof:—
Held, that as the question raised in this action was identical with that
decided by the county court judge upon the interlocutory application, and
had been decided by a court of competent jurisdiction, the action ought to
be stayed as frivolous and vexatious and an abuse of the process of the
Court.

APPEAL from an order of a judge at chambers reversing an

order of the district registrar at Leeds.
(1) 3 Times L. E. 602. (2) 8 E. & B. 738. •