Scottish Court of Session Decisions

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Cite as: [1868] ScotLR 5_544_1, [1868] SLR 5_544_1

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SCOTTISH_SLR_Court_of_Session

Page: 544↓

Court of Session Inner House First Division.

Thursday, May 28. 1868.

5 SLR 544_1

Henry & Co.

v.

Fowler.

Subject_1Agreement
Subject_2Remuneration for Work done.

Facts:

Circumstances in which held that a party sueing for remuneration for work done had failed to prove that the work was done on the employment of the defender.

Headnote:

This was an action for payment of certain sums of money alleged to be due by the defender to the pursuers for work done in the way of pulling down old houses and making excavations in ground belonging to the defender.

Judgment:

The Lord Ordinary ( Kinloch), after a proof, pronounced this interlocutor:—“Finds that, on or about the month of August 1856, the defender William Fowler entered into a contract with Robert Paterson, designing himself mason, 140 Renfield

Page: 545↓

Street, Glasgow, under which the said Robert Paterson agreed to execute the digging, mason, and brick work of three tenements proposed to be erected by the defender, for the contract price, in whole, of £2366, 4s. 0½d., from which the said Robert Paterson afterwards made a deduction of £100: Finds that his contract included, inter alia, the work of digging a foundation for the intended buildings, and also that of taking down a certain old building on the ground; Finds that the work of digging the foundation was in greater part performed by the pursuers William Henry & Company, as was also that of taking down the old house in question: Finds that the pursuers have not proved, by sufficient evidence, that this work was done by them on the employment and responsibility of the defender, and not as sub-contractors under Paterson, or otherwise under his employment: Assoilzies the defender from the conclusions of the action and decerns: Finds the pursuers liable to the defender in the expenses of process,” &c.

The pursuers reclaimed.

Wm. N. M'Laren for reclaimers.

Fraser and Strachan, for respondent, were not called on.

The Court adhered.

Solicitors: Agent for Pursuers— J. M. Macqueen, S.S.C.

Agent for Defender— John Galletly, S.S.C.

1868

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