Scottish Court of Session Decisions

This was an action by John Miller, lessee of the Crown Temperance Hotel, No. 2 West Register Street, Edinburgh, against James Hall Renton, stockbroker, and proprietor of the Crown Hotel, and of adjoining premises in Princes Street, and against William Beattie & Sons, builders, Edinburgh, concluding for payment of £1200.

It was admitted that the defender Renton resolved in the beginning of 1885 to execute alterations on the premises adjoining the hotel of which pursuer was tenant, and contracted with defenders Beattie & Sons to execute them.

The pursuer averred that it was stipulated by this contract that the work should be done by 1st March, and that Beattie & Sons proposed to Renton that the work should go on night and day, which he agreed to, notwithstanding both defenders knew that such work would be ruinous to his hotel business. “(Cond 3) Nevertheless, the defenders improperly and illegally, and with gross recklessness and want of due care, or any care or attention to the rights and interests of the pursuer, proceeded with and, in defiance of the pursuer's remonstrances and threats, carried out the said works, working, as after mentioned, night and day. Had the defenders carried out and executed the work contracted for with due care and attention to the pursuer's rights and interests, and not working at untimely and unusual hours, the loss arising to the pursuer would have been comparatively little. The said works, carried out as they were, were also in the knowledge of all the defenders a gross violation of the contract of lease under which the pursuer held his hotel. The work contracted for included taking down

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nearly the whole front wall of the tenement supporting the upper portion thereof let to the pursuer. The first and second floors were shored up with temporary wooden supports, iron beams were introduced for their permanent support, the wall taken down re-erected a little to the south of the original site, and also certain internal partitions removed. The front wall of the premises, No. 12, 13, and 14 Princes Street was removed, and the premises entirely gutted and rebuilt. Besides, extensive alterations and additions were made at the back of said premises.”

In answer it was admitted that the workmen began operations on 22d January, and worked night and day till 30th, except on the Sunday (25th).

The pursuer averred that by the noise, shaking, and dust caused by these operations his customers were prevented from sleeping or doing business, and he had suffered serious loss, both in custom and in deterioration of furniture, etc.

He also averred—“(Cond. 6) In the beginning of March the contractors, in the course of their operations, by removing supporting masonry rendered part of the back wall of the west half of the main tenement insecure. This wall supported a chimney-stalk, it was therefore necessary that the whole wall should be taken down and rebuilt from the foundation. For this purpose the workmen required to take possession of the attic rooms over the western part of the tenement, and the pursuer was entirely deprived of their use until the 5th day of May. The defenders, however, by letters from their agents, dated 3d and 6th March, admitted their liability to make compensation to the pursuer for the use of these rooms for that time. The pursuer avers that this result of the defender's operations might have been foreseen and prevented by due and reasonable precautions. He has sustained serious damage to his business thereby, in addition to the temporary deprivation of the use of the rooms. For his protection he was compelled to call in the assistance of an architect to advise with him as to the condition of the building.”

Both defenders pleaded that the action was irrelevant.

The substance of the defender Renton's defence was contained in his third plea in-law, which was—“(3) The operations condescended on not being of a nature such as would necessarily imperil the stability of the pursuer's premises, and this defender having employed independent contractors of skill and experience to execute the same, and having taken them bound to use all means and appliances necessary for protecting the premises occupied by the pursuer from injury, is not liable for any damage which may have been occasioned to the pursuer.”

The defenders Beattie & Sons pleaded—“(3) The defenders having only performed their duty under their contract are not liable for damage due to operations lawfully performed by them in pursuance of the said contract.”

By interlocutor of 13th November 1885 the Lord Ordinary ( Lord Lee) found the pursuer's allegations against the defenders Beattie & Sons not relevant or sufficient to support the conclusions of the action, and assoilzied them accordingly.

The pursuer reclaimed, and argued that proof ought to be allowed against the defenders Beattie & Sons. The averments were relevant, and the result of the proof might be to show that they alone are responsible for the damage that had taken place.

Authorities— Laurent v. Lord Advocate, March 6, 1869, 7 Macph. 607; Cameron v. Fraser, October 21, 1881, 9 R. 26.

Replied for Beattie & Sons—This was an action by a tenant against his landlord for alleged breach of contract; it was a question with which the present defenders had nothing to do.

Authorities— M'Lean v. Russel, Macnee, & Co., March 9, 1850, 12 D. 887; Hughes v. Percival, 8 L.R., App. Cas. 443.