Scottish Court of Session Decisions

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David Sandeman & Son, wine merchants, occupied on a ten years' lease the basement flats of certain premises in Glasgow, one portion of which belonged to Graham and others, and the other to Duncan's trustees. The sunk flats were connected with each other by openings in the gable wall, and were occupied as a bonded store by Sandeman & Son.

On 13th April 1896 Sandeman & Son discovered that the whole premises so occupied by them were flooded to a depth of 3 feet 6 inches by water entering from that portion of the flat belonging to Duncan's trustees; and on 20th November 1896 they raised an action against Duncan's trustees concluding for payment of £4000 in name of damages for injury resulting to their stock of wines from the influx of water.

Duncan's trustees lodged defences to this action, in which they denied liability in toto.

On 10th March 1897 the Lord Ordinary ( Kyllachy) allowed parties a proof of their averments bearing on the question of damage; and on 1st June the First Division recalled this interlocutor and allowed a proof at large.

Meanwhile on 18th December 1896 Duncan's trustees raised an action against A. & P. Steven, hydraulic engineers, Glasgow, to have them ordained to free and relieve the pursuers of the action raised against them by Sandeman & Son, or otherwise to make payment to the pursuers of £6000.

The substance of the pursuers' averments was that they had employed the defenders to remove an old hoist in their premises and to construct a new one, that it was the duty of the defenders to close or disconnect a pipe which had supplied the old hoist with water from the street main, and which was not required for the new lift, and to instruct the Glasgow Waterworks Corporation to cut away the valve connection with the street main; that the defenders had broken off the pipe and stopped it with a plug of wood, and had failed to instruct the Waterworks Corporation to disconnect the street main; that the street valve was negligently left open by the defenders, and that consequently water came in from the main, the cellar became flooded, and serious damage was done to Sandeman's stock of wine.

The pursuers averred that “they have suffered and will suffer loss and damage through the negligent and untradesmanlike conduct of the defenders.”

The defenders denied the pursuers' averments.

The pursuers pleaded—“(1) The said flooding having occurred through the fault and negligence of the defenders, and through their failure to implement their contract with the pursuers in an efficient and tradesmanlike manner, the defenders are bound to relieve the pursuers of the consequences thereof. (2) The action at the instance of Messrs Sandeman having been brought against the present pursuers in consequence of the said flooding caused by the defenders' said negligence and failure as aforesaid, the pursuers are entitled to relief as concluded for. (3) Alternatively, the pursuers having suffered loss and damage to the extent sued for through the fault of the defenders, and through their failure to complete their contract with the pursuers in a careful and tradesmanlike manner, the defenders are liable in reparation therefor, and the pursuers are entitled to decree in terms of the alternative conclusions of the summons.”

The defenders pleaded—“(1) The action is incompetent, et separatim, premature.”

On 10th March 1897 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Sustains the defences in so far as directed against the conclusions for relief, and dismisses these conclusions, and decerns; but with respect to the alternative conclusion for damage, before further answer allows parties a proof of their averments, and the pursuers a conjunct probation.”

Opinion.—“In this case I agree with the argument of the defenders that the action as an action of relief is irrelevant. I should for myself be prepared to accept the test of the competency of such actions expressed by Lord Neaves in the case of Colt v. Caledonian Railway Company, 21 D. 1108, 3 M'Q. 833. But in any view it seems to me to be settled that the claim of relief and the claim from which relief is sought must at least be commensurate, and I think that is not the case with the claims here. They are not, in my opinion, commensurate in the sense explained in the case of Colt, and also in the more recent case of Ovington, 2 Macph. 1066.

“I apprehend, however, that this point is really of no practical importance, because the pursuers have a good conclusion for damages, and I am of opinion that they have sufficiently averred a prima facie case of breach of contract, and have also made averments of damage, which I cannot upon their statement pronounce to be necessarily irrelevant. I desire to reserve as much as possible all questions of measure of damages, which questions in cases of this kind are sometimes delicate, but I am not prepared to accept the defender's argument that if damages fall to be paid under the principal action to the Messrs Sandeman, the fact of such damages being incurred may not form a relevant and material element in assessing the damages due for the defenders' alleged breach of contract.”

The pursuers reclaimed, and argued—The Lord Ordinary was wrong. The conclusions for relief were competent, though no doubt a proof was necessary. [ Lord Kinnear—But if you are entitled to relief, you are not required to prove anything. If you are entitled only to reparation for wrong you must prove the injury, but an action of relief is irrespective of any evidence, and the very fact of there being a decree against you gives you a right.] No doubt, but if there were two persons attacked in respect of a wrong done, and one only, say the employer, was sued, he would have recourse against the person

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employed by him— Pollock v. Wilkie, July 17, 1856, 18 D. 1311. The claims here were commensurate— Colt v. Caledonian Railway Company, 1860, 21 D. 1108, 3 M'Q. 833; Ovington v. M'Vicar, May 12, 1864, 2 Macph. 1066; Gardiner v. Main, November 29, 1894, 22 R. 100; and Highgate & Company v. Magistrates of Paisley, July 9, 1896, 23 R. 992, also referred to.

Argued for the defenders—The action of relief was incompetent. In the first place the pursuers did not admit liability to Sandeman & Son, but denied it. In the second place, the two claims were not commensurate, Sandeman's claim upon the pursuers being founded on the obligation to warrant the premises water-tight contained in the lease, and on alleged personal fault on the pursuers' part, while the pursuers' claim was founded on negligence and fault on the part of the defenders. The defenders could not step in and defend the action raised by Sandeman against the pursuers. The ground of action as between landlord and tenant was a violation of the maxim sic utere tuo; as between the landlord and the defenders the ground of action was negligence in performing a certain work. In any event, the two actions could not proceed together, one proof would not do for both, and the present action must be either dismissed or sisted. [It is unnecessary to recapitulate the defenders argument on the relevancy of the pursuers' averments as to fault and damage.]

At advising—