Burns & Blane Limited v. United Construction Company Limited, Civ. Case 4-D-66; 6/5/67; Duff, J.

Burns & Blane Limited v. United Construction Company Limited, Civ. Case 4-D-66; 6/5/67; Duff, J.

Plaintiff sued for goods sold and delivered and services rendered. Plaintiff had acted as a subcontractor to defendant, the main contractor, on a construction project. Defendant did not deny that it was liable under the contract. However, defendant alleged that plaintiff’s recovery should be reduced by the amount of expenses which defendant had incurred in correcting certain defects and also by the amount of a settlement which defendant had made with a third party, the company for which the building was being constructed, because of other defects in materials which plaintiff had supplied.

            Held: (1) There was no privity of contract between plaintiff and the third party with which defendant made the settlement, nor did defendant expend funds to correct those defects in respect of which the settlement was made. Therefore, the amount of the settlement should not be deducted from plaintiff’s

Claim. (2) With respect to those expenses incurred by defendant in correcting certain of plaintiff’s defects, the damages sought by defendant were by way of set-off and should not be treated as special damages which should have to be specially pleaded. These damages should not, in equity, be rejected. Citing Habib Javer Nanji et. Al. v. Vir Singh, (1962) E.A. 557. If plaintiff required further particulars as to such damages, it was required to seek them, and it cannot now raise the matter on appeal.