Scottish Court of Session Decisions

At advising—

Lord President—This action was raised by Mr William Landless, an architect in Glasgow, to recover payment of an account from his employer, Mr Wilson, who was the proprietor of building-grounds in various parts of Glasgow. The sum sued for is £98, Os. 6d., but the defence is now confined to one item of the account amounting to £87, for the preparation of plans for buildings to be erected on subjects situated at Wood Lane, Broomielaw, and relative attendances, &c. The amount of this charge is not a matter of dispute; it was settled by a remit to a person of skill, who decided that it was fairly charged at the ordinary rates. But the defence is that the pursuer undertook to prepare the plans gratuitously. Now, I need not say that that defence throws the whole onus probandi on the defender, to show that the pursuer did undertake to make them for nothing. The first thing to do is to look at the plans themselves; they are of a very elaborate nature, and are measured plans in this sense, not only that the whole space of ground belonging to the defender at Wood Lane is displayed and covered with buildings, but every separate tenement and room and passage and staircase is laid down according to a measured scale. In addition there was an elevation of the building, and the whole were carefully prepared and amended in reference to the probable profits, the rents likely to be obtained by the defender from his tenants. Now, prima facie, an undertaking to prepare such plans gratuitously is an exceedingly unlikely thing, and if it is to be proved, it must be by very distinct evidence. Now, what is the evidence in support of the averment here? The defender himself and his agent Mr Buchan say that the defender resolved to take plans from two architects in competition, the other architect being a Mr Gordon, and the arrangement made with him is distinctly enough proved. Mr Gordon himself, as well as the defender and his agent, says that he undertook to make his plans gratuitously, and such an undertaking was perhaps not surprising, as we see from the evidence that Mr Gordon's plans were rather in the nature of sketches, and not plans measured to scale. Now, an architect may very naturally offer to supply sketches gratuitously, especially to a former employer, even without any particular stipulation, and it was apparently stipulated that Mr Gordou's plan should be so made. The question is, Was this also the case with the pursuer's plans? Neither the defender nor his agent venture to say distinctly that it was proposed or assumed that Mr Landless was not to be paid for his work. There is not a word to that effect. They do say that he was told there was to be a competition of plans, and though Mr Landless denies that, I am willing to take it for granted that he was mistaken in this respect. There was room for a mistake, and I am willing to take it that he made the mistake, and ought to have understood that there was to be a competition. But is it implied in the so-called competition that the competitors were not to be paid? If so, we must know what kind of contract it is in which that condition exists. Conditions may be easily implied in well-known and nominate contracts, but in unusual and innominate contracts it is fixed law that nothing can be left to implication. It is here alleged by the defender that there was to be a competition of plans for these buildings, which were to be private buildings, and not public edifices such as a church or a town-hall, and that we are told by the pursuer and Mr Gordon (and they are uncontradicted) is quite unknown in practice. Mr Gordon says in his experience of 19 years he never heard of such a thing, and the pursuer's evidence is to the same efiect. It would then have been an unusual, in fact an unprecedented, proposal to have competing plans for these private buildings, and there is no room for implication of such an arrangement. In the case of competing plans for public buildings, it seems to be usual to issue in writing the terms and conditions of the competition, and the competitors are generally paid in one way or the other, for besides the prospect of being the successful candidate there is often a provision for a prize to the second and even the third, but it is always a matter of stipulation in each case. It would be an extraordinary result in the case of plans for private buildings to hold that a competition was an implied condition. On that ground I think the defender has failed to establish his defence. But the other aspects and circumstances of the case go to confirm my impression. The defender, it seems, made up his mind that he could get the best and most available plans from the pursuer. There were none of those constant interviews between the defender and Mr Gordon which passed between him and the pursuer—these latter took place once a-week or oftener for the purpose of arranging first as to the ground plans, then as to the elevation, and then as to the probable rental to be derived from the scheme. In fact, both parties endeavoured to make the plans as attractive as possible, and having done that Mr Wilson seems to have made up his mind to sell the property and not build upon it at all. With this view he wished to impress intending purchasers with the idea that the ground was very available notwithstanding its apparently irregular form. That irregularity was got over in what I think a most ingenious manner by the pursuer's plan; and he so influenced very strongly the minds of the intending purchasers. Mr Carrick himself says it was so. Now, all that seems to confirm the pursuer's case—that he prepared the plans on the same footing as any other architect, and for the usual rate of remuneration. It is not possible to suppose, if he believed he was to get nothing for his plans, that all these repeated meetings with the view of bringing them to the greatest possible perfection would have taken place. The plans themselves speak loudly in that direction—they must have cost a great deal of money as well as labour.

On the whole matter, I have no doubt that the defender has entirely failed to prove that this work was intended to be done gratuitously, and I think the pursuer is entitled to receive the usual remuneration.

Lord Deas—In September 1876 the defender purchased certain property in Glasgow apparently with the intention of building on it. We all know that heritable property fit for building on was selling about that time for a ransom in Glasgow. He accordingly obtained these plans from Mr Landless, and quite complete and accurate plans they are to enable anyone to deal with the subjects. It is not now disputed that the charges we have to deal with are proper and ordinary charges if Mr Landless is entitled to be paid at all. But it is said he undertook to do the work gratuitously. I think there is no proof of that, and it is a very incredible thing in itself. No doubt it is said that Mr Gordon also furnished plans, and that both sets of plans were given in on the footing of a competition, the architect only to be paid for his plans if they were accepted and acted on. But to this theory I think a fatal answer is that the sets of plans were in no sense competing. The one set was complete, with elevations and accurate scale measurements. But the things called plans by Mr Gordon were not of that description at all—they were mere sketches, and no builder could have set to work to build by them in that state. A mere sketching out of the basement is no plan at all. Mr Gordon's sketches are said to have been at one time in process, but they have unfortunately disappeared. If they had been here they could have been seen, but they certainly do not appear in the proof under the name of plans, and they have now disappeared. If Mr Gordon's agent had taken the trouble to recover them by diligence, he could have done so, and there might have been some sense in that.

Mr Wilson at first intended, as I said, to build and sell houses on his land. But he did not do so; but sold the ground to Mr Carrick. He bought it originally for £13,000, and sold it to Mr Carrick for £16,000. How can anyone doubt that he got this price mainly by exhibiting the pursuer's plans. I think the use made of Mr Landless’ plans is most important, and may be said to have contributed very largely to the defender having got a sum of £3000. It is therefore out of the question that he should not be paid anything for them; and without going further into detail I may say that I think these facts are conclusive against the defence maintained by Mr Wilson, and that the pursuer is entitled to his decree.

Lord Mure—I think the Sheriff is quite right. This is an action to recover professional charges for work done by the pursuer; the charges are admittedly not above the ordinary and proper rates, and he is therefore entitled to recover, unless it can be shown that he agreed to do the work on some other terms. The onus of proving such agreement lies clearly on the defender, and the evidence as to it being contradictory, I am not able to arrive at the conclusion that this defence has been proved. The pursuer and the defender and his agent are not at one in regard to it, and I think it a great pity that the terms of the original undertaking or agreement were not shortly put in writing at the time. The pursuer certainly did not understand that he was to furnish these plans gratuitously; and they are complete plans—quite different from the sketches by Mr Gordon, who admits that he undertook to do his work without the ordinary remuneration. And after the pursuer's plans were done, a special application was made to him in December for an elevation plan, to use for showing to the buyer. This Mr Gordon says is not usual in cases of ordinary competition. On the whole case I agree with your Lordships, and I think that even if the evidence had been in favour of there having been a competition, the taking and using of the pursuer's plans to the extent the defender did would form a good ground for Mr Landless’ present claim.

Lord Shand—There is a conflict of evidence here as to the terms of the contract between the parties, but the onus of proof being clearly with the defender, who alleges an extraordinary and peculiar agreement, I agree in thinking that he has failed entirely to discharge it. The pursuer is quite distinct that he never heard anything of a competition, and that his work was done on the ordinary footing, and the plans themselves go strongly to support that view. On the other hand we have the defender and his agent Buchan; but I cannot reckon them as two witnesses, for an agent who comes into the witness-box in circumstances like these must not be surprised if he is identified to this extent with his client. On that state of the evidence I agree in thinking that the defender is bound to prove the special agreement he founds on; and that even if the original footing was really a competition of plans between the two architects, and the defender afterwards thought fit to change his mind, it would be impossible to hold that he was entitled to say to each of them, “For all your plans and your labour you shall have nothing.” But I am very clearly of opinion that when these plans had been prepared (say, on the footing of a competition which was afterwards frustrated by the defender's change of mind), and the defender had made use of them to obtain an advantageous bargain with a purchaser, he was bound to pay for the services which were thus beneficial to him. It does not seem to make any difference that the plans should be used for the purpose of enhancing the value of the ground in the eyes of a purchaser, and not, as originally intended, for the erection of Mr Wilson's buildings upon it. I am not nice to inquire whether the legal principle underlying this case is that of recompense or implied contract or obligation; but I hold that the services were rendered, and must be paid for by a fair and adequate return. On any view of the case I think the pursuer is entitled to succeed.