Scottish Court of Session Decisions

Subject_1 MANDATE.

Laing
v.
The Lord Chief Baron

1753, Nov. 15.
Case No. No. 4.

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The Lord Chief Baron having employed Laing to repair his house at Dairy, Laing sued him for payment of his account, and the defence was, that the repairs were contrary to his orders. A joint proof was allowed, and I thought there was very sufficient proof that the Lord Chief Baron's orders with respect to the roof of the house were to preserve the ceiling (whereof the plaister was raised work of stucco in 1661 with the Scots Arms and King Charles II.) of the two floor rooms which were immediately below the garrets, otherwise not to meddle with the roof; whereas Laing took off the whole roof and took down that ceiling and loft which was within the roof, the ceiling being fixed to the lowest baulks of the couples, and gave the house a split new roof. Laing again proved to the satisfaction of the Court the rottenness and insufficiency of the roof, both lath and couples, though the heart of the wood of many of the couples was so fresh they were employed in repairing the roof of another office-house. And Lord Chief Baron proved that the roof might have been repaired without taking down all the couples, at least without taking down that ceiling, by putting in new couples and joining them to the old ones, or by joining them to the old baulks to which the ceiling was fixed. Some of us were for repelling the defence simpliciter, but others of us, particularly Justice-Clerk, Kilkerran, and I, thought that Laing had acted contrary to orders, and therefore in strict law had no action, (which is agreeable to L. 24. C. De Negotiis, and L. 40. D. Mandati But yet we thought that he had action in equity so far as the defender was profited by the work, (which also Mr Craigie for the defender yielded) and therefore I moved that his counsel should give in a special condescendence what articles they objected to; and 2dly, a condescendence attested by some tradesmen of character in this place, what would have been the expense of repairing in the manner the defender proposed by supporting that ceiling and interlining the old joists and couples with new ones, and imagined that the expense would have been at least as great that way, because the operation was much more difficult. However the majority would not agree to the motion, but upon a vote sustained the account as it was, reserving to the Lord Chief Baron to object to any particular articles that either they were not furnished or were overrated; and repelled the defence.