UNIVERSITY of GLASGOW

The Corresponence of James McNeil Whistler
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System Number: 12033
Date: [20 November 1878][1]
Author: Thomas Smith[2]
Place: London
Recipient: [unknown]
Repository: Library of Congress
Call Number: Manuscript Division, Pennell-Whistler Collection, PWC
Document Type: MsD


In the High Court of Justice
Queens Bench Division

'175[3]'

Nightingale v Whistler[4] } Copy aff[idavi]t in support of sum[mon]s to [sign payment?]

Mr Allingham[5]
55 Old Broad Street

John Mackrell & Co[6]
21 Cannon Street

[p. 2] 1878 M. No. 397

In the High Court of Justice
Queens Bench Division
Between Benjamin Ebenezer Nightingale plt [plaintiff]
&
James Abbott McNeil [sic] Whistler def[endan]t

I Thomas Smith clerk to B. E. Nightingale of Albert Works Albert Embankment Lambeth in the County of Surrey Builder & Contractor the above names [sic] plt make oath & say as follows -

1  I am Manager to the plt & have had the manage[men]t of the works hereinafter ment[ione]d on behalf of the plt & I am duly authorised by him to make this aff[idavi]t & from my knowledge of the transactions between the plt & deft I am able to depose to the foll[owin]g facts.

2  This action is brought to recover the sum of £450 due & owing from the deft to the plt in respect of work done & materials supplied in Tite St Chelsea in the C[oun]ty of Midd[lese]x under a contract[7] in writing dated 5th of November 1877 & made between the plt and the deft

[p. 3] 3  The said sum of £450 was on the 12 of Augt 1878 certified by E. W. Godwin[8] the defts' architect in the s[ai]d contract mentd to be due to the plt on a/c of the works done for the deft at Tite St afsd [aforesaid] & tho' sev[era]l appl[icati]ons have been made to him for pay[men]t th[ere]of the same still remains unpaid.

4  On the 16 of Augt 1878 I on the plt's behalf & in his name wrote to the deft as follows
"I beg to inform you that I hold the architect's certificate dated the 12 inst, for £450 on a/c of work done - Will you be good enough to let me have your cheque in exchange at 4 o'clock this afternoon"

5  On the following day by the directions of the plaintiff I called on the deft & asked him for a cheque for the above sum of £450. & at such interview the defendant stated that he was not then prepared for payment - that he wo[ul]d see Mr Godwin his architect & write to the plaintiff

6  On the 23 of Augt 1878 the plaintiff received a letter from the said Mr Godwin as follows -
"I met Messrs Webb[9] at Tite Street on Wed[nesda]y & left them to talk over the matter of the house without Mr Whistler. What [p. 4] arrangement they came to I cannot tell but I presume they will communicate with you"
The said Messrs Webb are Solicitors through whom all payments had previously been made on behalf of the deft to the plt

7  On the same date the plt wrote to the sd Messrs Webb as follows -
"I learn from Mr Godwin that I may expect to receive payment of the overdue certificate from you - If so will you kindly say when I may send for it."

8  On the 24 of Augt 1878 I again saw the deft who stated that he had seen the said Messrs Webb, that they had the matter in hand of payment under consideration & that the plt should hear from him (the deft) by the following Thursday - the 29 of Augt 1878

9  On or about the 26 of Augt 1878 the plt rec[eiv]ed from the said Messrs Webb a letter of which (omitting formal parts) the following is a copy -

"Dear Sir,
Mr Whistler's House
Tite Street, Chelsea
In reply to yours of the 28th inst. we beg to state that we are not in a position to honor your [p. 5] certificate
Yours truly
G. & W. Webb"

10  On the 28 of Augt 1878 the said Messrs Webb wrote to the plt as follows
"Since our last to you Mr Whistler has called upon you us & has desired us to see you with reference to the balance of your a/c. We shd be glad therefore if when in the City you or your representative would call upon us & be prepared with a statement shewing what further claims (if any) you have or are likely to have against him in relation to his House" -

11  On the 30 of Augt 1878 I called upon the sd Messrs Webb on behalf of the plaintiff & presented to them an approximate account of further monies claimed forrom the defendant by the [deft?] plt & shewing the sd £450 as certified to be due - The total amounted to nearly £200 beyond the sd £450 - Messrs Webb simply said that they were without instrons but promised to write the plt

12  Subsequently on the same or following day [p. 6] the plaintiff reced from the sd Messrs Webb a letter from dated a letter 30 August 1878 as follows -
"Whistler - As we promised your representative who met the writer today we write you but regret to state that up to the time of writing we are without instructions" -

13  On or about the 7 of Sept. 1878 the plt reced a letter from the deft of which the following is a copy

"Mr Nightingale
Dr Sir,
I am sorry that any trouble should have been given to you in this matter but as I told your head clerk I was totally unprepared for this returned certificate & am not at this moment at all ready to pay the required sum. However the whole affair will be talked over tomorrow at Mr Allingham's 55 Old Broad St where I hope to meet your representative as arranged at 12 o'clock -
Very faithfully Yours
J McN. Whistler
The White House
Chelsea
Thursday - Sept - 6 -"

14  On the 7 of Sept 1878 I called at 55 Old Broad St in the City of [p. 7] London & saw the said Mr Allingham who informed me that the deft would not be there that day as appointed but that he had been authorised by the deft to make a proposal on his behalf[.] The said Mr Allingham then stated that the deft's proposal was to pay £100 in cash in a fortnight on a/c of the plaintiff's claim in this action & the balance claimed by him beyond that sum & to give 2 or 3 Bills of Exchange for the balance & at the same the said Mr Allingham assured me that the deft had plenty of money coming in which would enable him to meet the said Bills at maturity - I then referred the said Mr Allingham to the plaintiff's Solicitors in this action informing him at the same time that I could not say whether such proposal would be accepted.

15  I verily believe that there is no defence whatever to this action & that the deft has only entered an appearance [p. 8] thereto for the purpose of delaying payment of the said sum of £450

Sworn at No. 30 Broad Street Cheapside in the City of London this 20 day of November 1878

Thos Smith

Before me

N. S. E. Steinberg

A Comm[issione]r to adm[inste]r oaths in the Supreme Court of Judicature


This document is protected by copyright.


Notes:

1.  [20 November 1878]
Dated from final date on document.

2.  Thomas Smith
Thomas Smith, clerk to B. E. Nightingale.

3.  '175'
Written in another hand in upper right-hand corner of sheet. This was one of the legal documents from JW's bankruptcy kept by James Anderson Rose (1819-1890), solicitor [more], and given a number.

4.  Nightingale v Whistler
Benjamin Ebenezer Nightingale (b. 1838), builder [more]. This document concerns JW's dispute with Nightingale over the construction cost of the White House, his studio house at Tite Street, which far exceeded the original estimate. The size of the final bill pushed JW, already hard-pressed financially, towards crisis point (see his correspondence with E. W. Godwin, #08736, #01748; G. & W. Webb to JW, #08735, and JW's own affidavit, #12049).

5.  Mr Allingham
Theodore Frederick Allingham (b. 1845), solicitor [more], who seems to have dealt with a number of JW's tradesmen creditors in 1878 (see, for example, W. & H. Hamper to T. F. Allingham, #11888).

6.  John Mackrell & Co
John Mackrell (1824-1909), solicitor, of Mackrell & Co. [more].

7.  contract
See #08923.

8.  E. W. Godwin
Edward William Godwin (1833-1886), architect and designer [more] of the White House.

9.  Messrs Webb
George Webb (b. ca 1835), of G. and W. Webb. lawyer [more], and William Webb (b. ca 1851), of G. and W. Webb, lawyer [more].