Scottish Court of Session Decisions

Lord President—This action is laid on the employment of the pursuer as surveyor by the defender to measure certain work which was to be done for Mr Macgregor, and if that cannot be made out there is an end of the case.

Now, it cannot be contended that there was any direct employment either in writing or by verbal agreement; there is no trace of such in the evidence. The only ground of employment is, that it is the natural and legal inference to be drawn from the relations of the two parties as measurer and contractor, and that raises a question of law which if any doubts on the subject had been felt upon it in the course of business would be one of some difficulty. But it is a question of law which was never heard of until this case was brought into Court. I cannot see that there are any specialties in this case, except that the surveyor who was employed to measure the work done was also the architect employed by the proprietor. The question therefore admits of being decided as a pure legal question. It is usual for such a contract as this to be in either of two forms—either that a certain amount of work shall be done by the contractor for a slump sum, or that the work shall be charged for at rates stated in the schedule; but even when the contract price is a slump sum the position of matters still is, that if any additions or deductions require to be made, these shall be measured and paid for according to the schedule price; and in large jobs there are always additions or deductions at the end, and therefore something requires to be done to make out the precise amount. The contractor in either case would hardly be so blind as not to keep a record of the work done, and I can hardly conceive such an omission. Thus he is able whenever the work is completed to render his account for payment of the contract price, and also for such additional work as may have been done at the schedule price, or where there is no contract price, stating the whole account according to the measurement and schedule prices, and there can be no objection to his rendering his account and demanding payment of it. Then if the employer is not satisfied with the amount he is entitled to challenge it, as every man who has an account rendered to him is entitled to do. In any event, I do not see how the employer could state his objections without employing someone to see that the work was done, to measure it, and to ascertain whether it was according to the contract, and thus the employer gets a man of skill to say whether he should pay the account or object to it. The employment of that man of skill, who was in this case a surveyor, is by the proprietor on whose ground the work has been done, to enable him to judge of the correctness of the work. It is difficult to see how from the relations of the parties it can be contended that the contractor is to employ a person to check his account which he has stated in terms of his contract. He has stated his account in conformity with the contract, and is entitled to come to the Court and demand payment. Certainly he would be rash to do so before his employer had time to state any objections he might have to it, but the contractor would have a perfect right to do so, although he might find himself in an awkward position with regard to expenses. Nevertheless his right to sue is undoubted. From the relation of parties here the contractor cannot be called the employer of the measurer. In the ordinary case the architect, as the representative of the proprietor, selects a measurer, and therefore the selection of the measurer is by the employer or proprietor. In the present case the architect employed himself as surveyor. There was nothing wrong in this; it is not the common practice, but there is nothing wrong so long as the man acts honestly, as I have no doubt Mr Beattie did. But it will not affect the liability of the contractor, or the relation of the measurer and the contractor, that the architect puts himself in the position of the measurer. The object of the work being measured is to satisfy the employer, and there is no other purpose for which it is done. Some confusion is caused by the question as to the practice, general or universal, of including the measurer's fee in the contractor's account. As finally adjusted, the certificate of the architect is put on the account, including the measurer's fee, and the whole account is put into the hands of the contractor to recover payment from the employer. The effect of this is, that the contractor having received payment of his account and of the measurer's fee is under an obligation to pay it over to the measurer, and that is quite fair and proper. But if the employer objects to the amount of the fee the contractor has no title or interest to insist on payment of that. If the employer says, ‘I see the measurer's fee is included in your account, and as I think it is overcharged, I will not pay it until I have investigated its correctness,” would the contractor have a title to sue for the whole account including the fee? I think he would have no right as creditor

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