Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Aberdeenshire, and from the record made up in that Court it appeared that the defender Macbean had employed the pursuer Napier, a builder in Aberdeen, to build him a house in Market Street of that town. The defender employed no architect, but himself arranged about the plans and specifications, and entered into the contract with Napier, which consisted of an offer and acceptance in the following terms:

“5 Spa Street, Aberdeen, Aug. 14, 1868.

Mr D. M'Bain.

Dear Sir,—I hereby make offer to execute the messon, carpenter, slater, plumber, and plasterer and bell-hanger work, also good grates, and Venetian blinds for front windows, and one for the back, and finish all to your satisfaction, for the sume of Twenty hundred pounds sterling, say £2000 stg.—I am, &c. Charles Napier.

“ Aberdeen, 14 Aug. 1868.

Mr Charles Napier, Builder, Spa Street, Aberdeen,

Dear Sir,—I hereby accept your offer of £2020 sterling to build my house in Market Street, according to plans and specifications, and in addition to supply all grates, and Venetian blinds for eleven windows, and also anything necessary to complete the work not mentioned in the specifications to be done free of any extra charge.—Yours truly,

“ Donald Macbean.”

It will be observed that the sums mentioned in these two letters do not coincide; but it was explained that the additional £20 in the acceptance

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was the result of a verbal agreement after the offer was made, and had reference to the modification imported into the contract by the last clause of the acceptance. To superintend the execution of the work, the defender employed an inspector, with full powers of control, and, at the same time interfered a good deal himself during the execution of the contract.

The pursuer now sued for the balance due him of the contract price, and for his account for extra work and furnishings connected with the building of the said house, after deducting payments to account. The pursuer's averments were—“(1) That on or about the 14th day of August 1868 the pursuer contracted with the defender to build the house now belonging to him, in Market Street of Aberdeen, according to certain plans and specifications, at the agreed-on price of £2020 sterling. (2) That the pursuer accordingly erected said house, and, in the course of its erection, was ordered by the defender, or his inspector, to perform the various extra works detailed in the statement annexed to the summons, amounting to £204, 8s. 9d. sterling, which extra works were performed by the pursuer accordingly. (3) That the amount of said contract price, and the price of said extra works, are together £2224, 8s. 9d. sterling, to account of which the pursuer has received from the defender the sum of £1681 as credited in the account annexed to the summons, leaving a balance of £543, 8s. 9d. sterling still due to the pursuer by the defender.” Mr Macbean's defences consisted of certain objections to the work done, and deductions claimed therefor. His averments on the different heads were as follows:—“(1) On 26th May 1869 a petition, herewith produced, was presented to the Dean of Guild of Aberdeen by Mr Douglas, proprietor of the ground immediately south of the defender's feu, craving that the defender should be ordained to take down or render secure the south gable of his house, which was alleged to be in an insufficient and dangerous state. The Court remitted to Messrs William Henderson and William Smith, both architects in Aberdeen, who, on 5th June 1869, lodged a report, herewith produced, stating, inter alia, that the defender's house was off the perpendicular to an extent ranging from two to seven inches, that the south gable bulged outwards in the middle to the extent of about five inches, and that it would not be advisable to take band in the said gable. Bather than pull down the south gable, a joint-minute, dated 9th July 1869, herewith produced, was prepared and lodged in the process before the Dean of Guild. By this minute the defender is taken bound to pay the expense of an extra gable to be built by Mr Douglas, and also to pay for the ground taken from Mr Douglas, in consequence of the defender's house encroaching on his feu, and the expenses incurred by him thereaneut, in consideration of which Mr Douglas agreed to discharge the said action, and to pay to the defender whatever sum would have been payable by him for taking band in the gable of the defender's house, if the gable had been constructed originally so as to allow such band to be taken. By letters, dated 31st May, 1st and 8th June, and 1st, 2d, and 5th July 1869, from the defender's agents, and of which copies are herewith produced, the pursuer was duly advised of the said proceedings, and intimation was given to him that he would be held liable for any loss or damage the defender might sustain; but he took no measures to render the defender's house sufficient, or to obviate Mr Douglas's complaint. The extra gable is not yet completed, nor the charges arising from these proceedings ascertained, but the whole expenses connected therewith will fall to be deducted from the contract price of the house in question.… (2) The pursuer was bound to furnish joists and beams of American pine for the front shops, but he has put in white wood instead. The difference in price is £17, which falls to be deducted from the contract price. The inspector, if he gave such orders as the pursuer asserts, had no power to deviate from the specifications. He was never authorised by the defender to make new contracts for him.… (3) The pursuer undertook that the workmanship and the materials generally should be equal to any house in Market Street, yet he disregarded that condition, and, among other instances, put sheet glass in the windows fronting Market Street instead of plate glass. The defender objected to this, and the pursuer employed Messrs J. & S. Fyffe, glaziers, to change the glass, and it was changed accordingly; but Messrs Fyffe have now raised an action against the defender for the difference in value between plate glass and sheet glass, and also for work which comes under the contract between the pursuer and defender. The pursuer is bound to relieve the defender of that claim, and the amount, £72, 14s. 4 1 2d., together with all expenses connected therewith, must be deducted from the contract price. (4) Several of the lintels and window sills are cracked and unsafe, but have not been removed and replaced. This must be done at the pursuer's expense, or deduction given from the contract price therefor.”

There were also one or two other objections admitted by the pursuer.

On 11th May 1870 the Sheriff-Substitute ( Comrie Thomson) pronounced an interlocutor in these terms:—“Finds, as matter of fact, that the pursuer contracted with the defender to build a house for him in Market Street for £2020 sterling, according to plans and specifications: That the plans and specifications in process are those according to which it was agreed by the parties that the house should be built: That it was in the specifications stipulated that the work should be performed ‘in a substantial and tradesmanlike manner, to the entire satisfaction of the employer, or any competent person whom he may appoint as inspector:’ That the defender appointed the witness James Anderson as inspector: That the house has been built to the satisfaction of the said inspector; and that the defender also expressed himself as satisfied with the building and with the inspection thereof, until the dispute to be afterwards noticed arose between him and the adjoining feuar Douglas: That in all the particulars in which the specifications were departed from, the pursuer was acting by the directions and with the authority of the defender, as communicated to him by the inspector: That the defender authorised and knew of the extra work sued for; and that the same was done and is correctly charged: That the south gable of the house sunk and bulged to some extent: That the cause of the said sinking and bulging was the softness of the foundation: That by the specifications it is provided that the contractor ‘will excavate the whole area of the buildings to the depth necessary, and sink the trenches for the foundations to the depth shown on sections, and farther if required to procure a firm foundation:’

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That the pursuer, with the view of getting a firm foundation, went six feet lower than shown on the sections, being to the same depth as the foundation of the next house to the north: That in doing so, and in going no lower, he had the sanction of the said inspector: That the adjoining proprietor to the south (Douglas) refused to take hand in the defender's south gable, and took proceedings against him in the Dean of Guild Court: That after sundry procedure, in the course of which the defender maintained that the said gable was sufficient, and denied that he had encroached on Douglas' feu, the defender agreed to pay the expense of an extra gable to be constructed by Douglas, and also compensation for the ground which had been taken by him from Douglas' feu: That the pursuer was no party to these proceedings: That the defender has failed to prove in this process that the expense to which he has been put in consequence of his said agreement with Douglas was occasioned by the failure of the pursuer to perform his contract with him, or that the pursuer was to blame for two inches being built upon which did not belong to the defender: Therefore repels the defences; and appoints the case to he enrolled that parties may be heard on the application of these findings; and as to the liability of the pursuer to replace the lintels alleged to be broken, and for further procedure.”

He afterwards, on May 18th, pronounced another interlocutor decerning ad interim for £450, and ordering the pursuer to replace the broken lintels before farther procedure in the case.

To both of these interlocutors the Sheriff ( Jamieson) adhered on appeal.

The defender thereupon appealed to the Court of Session.

Solicitor-General and Birnie for him.

Watson and Keir, for the respondents, were not called upon.

At advising—

Lord President—I am quite satisfied with the interlocutor of the Sheriff-Substitute in this case, of date 11th May last. I think it is well founded, and clearly expressed. At the same time, I have some feeling for the defender, against whom the judgment has gone. However, all the mischief that has happened to him has been his own doing. When a man who has spent his life in a different employment makes up his mind to build an expensive house, and sets about it in the way that Mr Macbean did in this case, he can expect nothing else than what has happened to Mr Macbean. He does not employ a professional architect, and though he does employ a clerk of the works or inspector, he chooses a man, however honest and cautious—and he certainly was that—still of no position or reputation in the trade. Now, this is just one of those pieces of absurd folly for which a man always suffers in the end. It is just like a man trying to get on without professional advice from a physician or a lawyer in their peculiar branches. And what does he do besides, he puts himself into the hands of a tradesman of no very high rank in his line of business, and all the check he places over him is the appointment of the inspector already mentioned. Now, seeing that Mr Macbean went about the building of his house in this fashion, and acted entirely as though he desired to be his own architect, making not only the preliminary arrangements, but also ordering alterations and additions during the execution of the work, and in fact acting just as we would expect a person to have acted who had set out in the manner that he did, the question now comes to be whether he has made out by his proof in this action any of the objections to the contractor's accounts which he has undertaken to substantiate. The first and most serious objection is that made to the south gable of the house, and no doubt there has been serious subsidence there. But we must ascertain the cause of this subsidence, and see whether the contractor is responsible for it. Now, if we examine the proceedings which took place in the Dean of Guild Court between Mr Douglas, the conterminous feuar, and Mr Macbean, we see, first, that the building along the line of this south gable was an encroachment upon the next feu; and second, that the said gable was both insufficient and insecure. On the first head there appears to be no attempt to make the contractor liable; and as to the second head, the fault seems to have arisen entirely from the nature of the foundation. The foundation was admittedly soft, and consequently the contractor went down a great deal farther than he was bound to do; whereupon the inspector, after a careful investigation, was quite satisfied, and directed the contractor to proceed accordingly. The foundation turned out, after all, to be insufficient, but that is not enough to subject the contractor in liability. It is farther necessary to observe that the defenders' idea of the insecurity of this gable and the reasons and liability therefor, are quite different now from what they appear to have been at the raising of the action against him in the Dean of Guild Court by Mr Douglas. There is there no communication with Mr Napier until after defences are lodged. These defences are a total denial of the facts alleged; and the case ultimately comes to a compromise, in which Mr Macbean departs from the position he took in his defences. Now, without impugning for a moment the propriety of the agreement come to in that case, it is clear that there was much probability in the position originally assumed by Mr Macbean, and it is clear that he has now quite turned round. This first objection, therefore—namely, that to the insufficiency of the south gable—I think we cannot listen to. As to the remaining objections, I think it is clear from the proof that the substitution of white wood for yellow pine was made with the defender's sanction. I think it is equally clear that we have no means of judging as to the objection to the glass, for there is really no proof whatever on the subject. And as to the extra work done, that is even in a worse position, because the account is sworn to by the pursuer himself and the inspector; and though their evidence is contained in a very few words, there was no attempt upon the defender's part to contradict it, though it was open to him to do so either on cross-examination or by leading farther evidence. I see no reason, therefore, for disturbing the Sheriff-Substitute's interlocutor.