Scottish Court of Session Decisions

The pursuers of this action were brickmakers and builders in Glasgow, and in April 1873 they entered into a contract with the defenders, who were joiners and builders, also in Glasgow, to execute the brickwork of certain tenements which the latter were about to erect in Ann Street, the payment to be according to certain rates, as contained in a schedule prefixed to the contract, which was in the following terms:—“The bricks to be of the best [machine] make. The walls above 4 1 2 inches thick to be built in three courses of stretchers to one of headers; the mortar to be composed of best lime and clean sharp sand, in the proportion of one cart unslacked lime shells to three carts sand. The whole work must be executed in the most substantial and tradesman-like manner, of the best materials, to the entire satisfaction of the proprietors, architects, and inspector. The proprietors reserve full power to make alterations and to increase, diminish, or omit portions of the work as they may think proper. The work will be measured when finished, and valued by the rates contained in this schedule, with the corresponding slump sum in letter of offer. Contractor to pay one-half expense of measurements and schedules.”

The word “machine” was deleted by the offerers. The whole contract price was £632. During the progress of the work certain instalments of the price were paid to the contractors. The brickwork, with the exception of some interior partitions, was finished about the 9th December, and the bricklayers handed over the premises to the masons, who were to put on the chimney heads. This was finished on December 14, and the scaffolding was removed in order that the joiners might do their part of the work, when, on the night of December 15, a high

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gale of wind blew down half of the brick gable and one of the walls. A question having arisen as to who was liable for the loss, the following agreement was entered into between the parties:—“It is hereby agreed between Messrs D. Clow & Co. and Messrs Andrew M'Intyre & Son, both within mentioned, that the foregoing petition be, and is hereby withdrawn; that Messrs M'Intyre proceed forthwith to rebuild the gable and walls that have fallen, keeping note of men's time and material at the work; that Messrs Clow shall pay on Friday first an instalment on account of the work now done (excepting the gable in dispute), up to within ten per cent.; that all questions as to the liability for rebuilding the gable are hereby reserved entire, and if it be ultimately found that Messrs M'Intyre were not bound to rebuild it, Messrs Clow & Co. bind themselves to pay them not only to pay the contract price of the gable as built before the fall, but also the cost of re-erecting the gable and walls at current rates for time and material.” The work was accordingly done, and then Messrs M'Intyre raised an action against Messrs Clow, concluding for the expense of the rebuilding.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 30 th June 1874.—The Lord Ordinary having heard counsel, and considered the closed record, proof, and process, decerns against the defenders in terms of the conclusions of the summons: Finds the defenders liable in expenses, of which allows an account to be given in, and remits the same, when lodged, to the auditor to tax and to report.

Note.—The west brick gable of a tenement at the corner of Ann Street, Glasgow, and of a new street then in course of formation, having been blown down on the morning of Tuesday the 16th of December 1873 by a very severe gale, it was agreed upon by the defenders and the pursuer who had contracted with the defenders for the execution of the brick-work of that and certain other tenements, one of which was adjoining, that the pursuers should rebuild that brick gable and the other brick walls which had been injured by its fall; that all questions as to liability for such rebuilding should be reserved entire, and that, should it be found that the pursuers were not liable to rebuild, the defenders should pay them not only the contract price of the gable which fell, but also the cost of re-erecting the fallen gable and walls at current rates for time and material.

The pursuers having rebuilt the brick-work of the gable and injured walls, the defenders maintain that they are not liable in the cost of such rebuilding, 1st, because the fall of the gable was due to its having been constructed of defective materials and with defective workmanship, and to its having been otherwise disconform to the contract; and 2d, because the gable and injured walls were never taken off the pursuer's hands, and were at their risk when the gable fell. The defenders also maintain, 3d, that the charges made in the account libelled on are grossly unreasonable and excessive.

By the contract between the parties, which was completed by the defenders' letter of 24th April 1873, the rates in the schedule of the estimate, No. 12 of process, are to be applied to the four tenements specified in that letter, two of which are those above mentioned. The pursuers did not undertake to build the brick-work of these tenements for a slump sum, but at the rates per rood, yard, and foot, specified in the estimate for the various kinds of brick-work therein mentioned. Although the estimate was prepared with reference to two houses in Hillhead Street not then proceeded with, and not with reference to the four houses mentioned in the defenders' letter of 24th April 1873, the Lord Ordinary considers that the conditions annexed to the schedule in that estimate, with reference to materials, workmanship, and other matters, are applicable to the contract under which the pursuers undertook to build the brickwork of the house the gable of which fell. By these conditions it is provided that ‘the work will be measured when finished, and valued by the rates contained in this schedule, with the corresponding slump sum in letter of offer. Contractor to pay one-half expense of measurements and schedules.’ The pursuers' letter of offer at the end of the estimate, No. 12 of process, contained a slump sum, but that letter and slump sum did not apply to the four tenements mentioned in the defenders' letter, but only to the two tenements in Hillhead Street, which were not then proceeded with.

The gable in question fell eight days after the brick-work thereof was completed. It was constructed upon a stone and lime rubble wall, six, or thereby feet high, and the skews and chimneyheads were also of masonry, which fell to be erected by another contractor. The brick-work of the gable was wholly completed upon the 8th or 9th of December, and the pursuers' workmen then left it and went to complete the brick-work of the adjoining tenement. The only brick-work in the tenement the gable of which fell that then required completion was part of the partition walls through which the workmen's gangway was erected, and which could not be finished till that gangway was removed. The masons began to put on the stone skews upon the top of the brick-work of the gable on Friday the 5th of December, and they proceeded with the building of the stone and lime chimneyheads upon the 8th or 9th of December, when the bricklayers left.

Upon the completion of this mason work on the 15th of December, the defenders, who were to execute the joiner work, took away the scaffolding which the masons had used in putting on the skews and building the chimney-heads, and proceeded with the erection of the roof timbers. These were not erected, and in particular the ridge-board which would have steadied the gable and enabled it to resist a westerly gale was not erected when the gable fell. That fall was occasioned by a very severe west gale, the extreme velocity of which is proved to have reached fifty-one or thereby miles per hour.

1. The evidence in regard to the materials and workmanship of the gable is very contradictory. By the conditions annexed to the schedule of the estimate the pursuers were bound to furnish bricks of the best make, to build all walls 4 1 2 inches thick in three courses of stretchers to one of headers, and to use mortar composed of the best lime and clean sharp sand in the proportion of one cart of lime to three carts of sand.

The Lord Ordinary is of opinion that it is proved that the pursuers implemented their contract both as regards materials and workmanship; that the only deviation in the construction of the gable by building according to the usual practice the bricks in four courses of stretchers to one of headers was

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acquiesced in by the defenders, and that such mode of construction, which required the same amount of materials and labour, did not affect the stability of the gable or in any way lead to its fall.

The witness to whose evidence the Lord Ordinary attaches the greatest importance is John M'Calman, the inspector appointed by the defenders to look after the work. He was inspector during the whole time it went on. He depones that the mortar was, with two exceptions the best he ever inspected, the lime being of the best quality, the sand being sharp and clean, and the proportion of these being one to three. He also states that he never had occasion to object to the materials or to the work, which was all good. He further depones that he had a conversation with the defender Mr Clow at the gable two days after it fell, when in answer to his remark that he was well pleased the wall had broken down so well, Mr Clow said that it was a very good wall, and as good a wall as he had ever seen, or words to that effect. In this he is corroborated by the pursuers' foreman Docherty. M'Calman also depones that Mr Clow on several other occasions expressed himself to the effect that the pursuer's brick walls were excellent walls. Mr M'Kellar, the maker of the bricks now objected to, depones that Clow said to him that he was satisfied with the pursuers' work, but he cannot say whether this was before or after the gable fell. M'Calman further states that the gable was built in the usual way, with four courses of stretchers to one of headers, which he thinks is as good as three courses of stretchers to one of headers, and depones: ‘I carefully examined the bricks which fell to satisfy myself that I had not been “done” in regard to the quality. I was quite satisfied with the result of my examination, and expressed myself so to Mr Clow. I considered the bricks in every respect good and sufficient. No more of them were broken than I would expect to be broken in such a fall.’ Docherty likewise depones that he looked at the fallen brick work, and saw no appearance that it had fallen from defects in the bricks.

Further, the defenders Mr Clow and Mr Ross and Mr Peacock, for whom the defenders had contracted with the pursuers, were constantly at the work, and no complaint was ever made by them to the pursuers or their foreman, or to Mr M'Calman, of the work, and even after the gable fell, and during the dependence of the proceedings in the Sheriff-Court with reference to its rebuilding, and in the relative correspondence, the materials and workmanship were not objected to. The part of the gable which was rebuilt was also, without any objection being stated, built with four courses of stretchers to one of headers.

John Paterson, brickmaker and builder in Glasgow, who inspected the materials of the gable three days after it fell, depones that he saw ‘no appearance whatever to indicate that the gable had fallen from the insufficiency of the bricks or of the lime,’ and that the bricks were ‘in all respects perfectly good and sufficient for the job.’ Alexander Eadie, joiner and builder in Glasgow, also saw and examined the materials and what remained of the gable two or three days after it fell, and formed the opinion that the workmanship was exceptionally good for the class of work, that the job was an exceptionally good one, and that ‘the gable had been blown in by stress of wind, and not from any defect in material or workmanship.’

The defenders have no doubt adduced three witnessess who give a contrary opinion, both as regards the bricks and lime, and as regards the workmanship, but the Lord Ordinary considers that the evidence of the pursuers' witnesses is entitled to greater weight than that of the defenders' witnesses. The defenders never stated any objection to the pursuers, or their foreman, in regard to the gable, but paid the pursuers instalments to account of that and the other brick work according to the usage of the trade, as the work progressed, having previously got measurements to enable them to do so, storey by storey, and they took possession of it when completed, through their masons, who built the skews and chimney heads upon it. Further, the fallen materials were used in the re-erection of the gable, new bricks being only used in place of those bricks which had been broken by the tall, or which were so wet by the great rain that fell as to be unfit for use, and the only objection stated by the defenders to the old materials being again employed was with reference to the wet bricks.

After full consideration of the proof, the Lord Ordinary is of opinion that the gable, which was supported only by the front and back walls, and not by any brick work partition being built into it, fell, not from any defect in the material or workmanship, but from the great severity of the gale, which, as is proved, blew down other walls in the neighbourhood.

II. The Lord Ordinary also thinks that the second ground on which the defenders resist payment of the pursuers' claim is not well founded. There is no usage or practice of trade proved that the brickwork is at the risk of the bricklayer until the whole work contracted for is completed and measured and paid for. The stipulation in the condition annexed to the schedule of prices that ‘the work will be measured when finished, and valued by the rates contained in this schedule,’ is merely a provision for settlement of the balance of the contract price, after the instalments, which were payable by usage, and which were paid by the defenders under deduction of the usual ten per cent., are taken into account. If the brickwork did not, as the Lord Ordinary thinks, accresce to the employer as it progressed, it did so upon each part of it being completed and taken possession of by the employer through his other workmen, and the work was thereafter at the employer's risk. The defenders went so far as to contend that until the whole work should be finally measured and paid for, which might not, and frequently does not, in tenements take place until months after the tenement is completed and inhabited, the brickwork is at the pursuer's risk. In the absence of usage and of special contract to that effect the Lord Ordinary considers that, in accordance with the ordinary rule of law applicable to such a contract as the present, the risk is with the employer.

III. The account sued for includes not only the rebuilding of the gable but also the clearing away of the fallen debris, and the rebuilding of those parts of the internal brick walls which were knocked down by the falling materials of the gable. The account is charged according to the brickbuilders' price list, No. 34 of process, which contains the rates then current for time and material, being those which it was agreed that the defenders should, if legally liable, be bound to pay the pursuers. The pursuers have proved that the time and materials contained in the account are accurate,

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and that the charges for these are correctly made according to these current rates.”

The defenders reclaimed, and pleaded inter alia—“(1) The gable in question never having been taken off the hands of the pursuers, and having been at their risk when it fell, the pursuers were liable to rebuild the said gable, and the defenders ought to be assoilzied. (2) Separatim, the action cannot be maintained, in respect that the fall of the gable was due to its having been constructed of defective materials, and with defective workmanship, and having been otherwise disconform to the contract.”

Argued for them—Messrs Clow & Co. stood for the purposes of this action in the position of the pursuers' employers; There were two things to be observed—(1) The quality of the materials and workmanship; (2) That the work had not, when the accident happened, been taken off the hands of the contractor, and still stood at his risk. (1) The conditions of the contract had not been observed; the bricks were of inferior quality, and the proportion of stretchers to headers was too large. (2) According to the contract the price was only payable on completion and measurement, and the work having been neither completed nor measured, the price was not payable, and the risk consequently was still on the contractor. The payments made to M'Intyre were only payments to account to keep him from being too long out of pocket. They were merely according to a rough estimate, and the work had not been finally valued, paid for, and taken over, so that the risk was not transferred. The contract was a locatio operis, not locatio operarum. The contract was an entire contract to do the whole brick work, and though the gable itself was finished, other parts of the building were not. It was in the contemplation of the parties that there should be interruptions in finishing the different parts of the building; but the contract was not fulfilled until the whole was finished. This was not a case of adding work to the property of another. The risk does not depend upon the mere transference of the dominium, as for instance in sale, where the risk passes without the transference of the dominium. This was not a case of total loss or destruction of the subject—a comparatively small part of an extensive contract was destroyed, and there was no more reason for saddling the owner with the loss than there would have been if a single cope stone or course of bricks had been thrown down. The conductor bad entered into a contract to furnish a specific thing, and implement of his bargain was the only thing on which he could found an action for payment. If he were entitled to succeed in such an action as the present, he must be entitled to leave the work in its present ruined and unfinished condition. Even if there had been total destruction, the risk would still have been the contractor's— a fortiori when the loss amounts to only one-tenth of the whole contract price. The whole question was whether the contractors were entitled to the whole contract price, and in addition, the price of rebuilding the gable, or whether they were bound to rebuild the gable for the contract price and nothing else.

Authorities—Bell's Comm., 1, 456 (M'Laren's edit. 486); Appleby v. Myers, June 21, 1867, 2 Law Rep., C.P. 651.

The pursuers pleaded:—“(1) The pursuers having rebuilt said gable and walls in terms of the minute of agreement referred to in the condescendence, and the re-erection not having been caused or rendered necessary by any fault on the part of the pursuers, the defenders are bound to pay the pursuers the expense thereof.”

Argued for them—The action was one for payment of the price of rebuilding the gable after it had fallen down. If the defenders' first point, as to the insufficiency of the materials and workmanship, were established by the evidence, the pursuers would no doubt have been liable. The contract was originally for two houses; it was afterwards extended to four more at the same rates. Nothing was said in the contract about inspection being deferred till the completion of the whole six houses. The bricklayers had finished this house so far as that was possible consistently with the completion of the joiners' work, and it had been partially paid for. The joiners had taken possession of the gable, and it was while they were working on it that it fell down. The question was, whether the builder was bound to replace it without loss to the owner. There was nothing in the contract inconsistent with the idea that the work was to be paid for as it was finished, storey by storey. The contract was silent in regard to everything but the rate of payment. The work, being built on the property of another, as it proceeded became the property of the owner of the soil. The builder was thus entitled to the value of the work which had perished, it having been connected with the soil, and being the property of the owner of the soil. As the work proceeded the obligation became individualized, and that house was the one which the contractor was bound to build. If the house perished by damnum fatale the employer could not say, ‘Build me a new house,’ but must pay for the work done for him and his property when it perished. The doctrine of specific appropriation would also apply to a ship if the contract was that payment was to be in instalments—so much when the keel was laid, and so on. If the ship was burnt during any stage, then Res perit domino, and the obligation has ceased because it has been particularized. In the case of repairs, the employee is entitled to payment for repairs put into his employer's ship. If this is true of repairs, why not also of new work.

The loss must fall on the employer unless it can be shown that the work was such as he was not bound to take over. In building a house on another man's ground, labour and materials are added to his property in the same sense as in the case of repairing a ship. If there is only one special ship which the owner is bound to receive so there is only one which the builder is bound to build. In the case of Appleby v. Myers the contract was rather a special one, and was treated by the Court as such. The four Judges of the Common Pleas held that the principle of the civil law, Res perit domino, applied to it; the five Judges of the Court of Exchequer Chamber held that it did not. The specialities of the present case were these:—It had been argued as if the pursuers were contractors for one specific thing; it was not so. The contract was for whatever brickwork was necessary for four houses. The amount of the work and a slump price formed no part of the contract. The work was paid for as it proceeded, in virtue of a universal custom, which amounted to a right, and was recognised as such by the defenders themselves

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Authorities—Bell's Prin., 162, (Guthrie's edit.;) Bell's Illust., 1, 124 and cases quoted; Pothier, cap. iii., p. 7, Contrat de Louage, 434; Gillett, 1 Taunton, 137; Abbott on Shipping, p. 3; Simpson v. Duncanson's Crs., Aug. 2, 1786, M. 14,204.

At advising—