Scottish Court of Session Decisions

Alexander Knox & Robb, measurers, Mercantile Chambers, Bothwell Street, Glasgow, pursuers, brought an action in the Sheriff Court at Glasgow against the Scottish Garden Suburb Company, Limited, 141 West George Street, Glasgow, defenders, for payment of £121, 8s. 2d., being the amount alleged to be due by the defenders to the pursuers for work done by them.

The following narrative of the circumstances of the case is taken from the opinion of Lord Mackenzie (infra)—“This is an action by a firm of measurers and surveyors, for payment of an account of £121, 8s. 2d. The defenders are the Scottish Garden Suburb Company, Limited. This company was incorporated on the 6th June 1910, … and was promoted with the idea of building workmen's houses in Greenock, having in view the establishment of an Admiralty torpedo factory there.…The pursuers aver that they were instructed by Mr Salmon, the official architect of the company, to carry out the work done by them, under dates June 7th and 9th, 1910, and also 13th and 23rd of August 1910. The first three items in the account are small charges for outlays only, and really follow the view to be taken of the items charged under June 7th and 9th. The rest of the work consisted in measuring plans, altering schedules, and preparing estimates.

“The grounds upon which the pursuers seek to make the defenders liable are— (1) that Mr Salmon had the instructions and authority of the defenders to employ the pursuers to do the work; (2) that according to the custom in the building trade Mr Salmon, as the official architect of the defenders, had implied authority to employ the pursuers, and that the defenders became liable for the pursuers' fees although there was between them no direct relation of employer and employed; and (3) that the defenders made use of the information which was the result of the pursuers' work, and are therefore liable in payment.…”

From the account it appeared that the items charged under June 7th and 9th were for measuring plans and preparing estimates

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of certain self contained houses, meeting contractors, &c.

Proof was allowed and led.

On 27th May 1912 the Sheriff-Substitute ( Fyfe)—pronounced the following interlocutor—“… Finds (1) that by the custom and usage of the building trade an architect has implied authority to engage the services of a measurer; (2) that pursuers were employed by defenders' architect to do the work, the cost of which is sued for. Finds in law that pursuers having been employed by defenders' architect, defenders are liable in payment of the account sued on.…”

Note.—“The real issue in the case is—Was there employment of pursuers in the legal sense so as to render defenders liable for their fees?

It is not suggested that pursuers had direct formal employment by letter or minute of the defenders. If they were employed at all they were employed by the defenders' architects acting on behalf of the defenders.

In my opinion pursuers have established their averment of custom of trade to the effect that the official architect of a person or company proposing to build has implied authority to engage the assistance of a measurer, and that the architect's constituent then becomes liable for the measurer's fees, although the constituent and the measurer have had no direct communication. This agency doctrine has been recognised in a Scottish judgment (Black v. Cornelius, 1879, 6 R. 581), and in several English cases collected in Hudson on Building Contracts, 3rd ed., p. 129.… I entertain no doubt whatever that Messrs Salmon & Gillespie were defenders' architects.

“Nor is there any room for doubt that pursuers were employed by Salmon & Gillespie to do the work they now sue for.… In accordance with the proved custom of trade, accordingly, the pursuers have a claim against defenders for their fees.”

The defenders appealed to the Court of Session. The case was heard before the First Division on 21st and 25th February 1913. The following authorities were cited at the hearing—Brown v. M'Connell, June 7, 1876, 3 R. 788; In re Rotherham Alum and Chemical Company, [1883] 25 Ch. D. 103; Black v. Cornelius, January 24, 1879, 6 R. 581, 16 S.L.R. 475; Moon v. Witney Union, [1837] 3 Bing. N.C. 814; Ireland v. Livingston, [1872] L.R. 5, E. & I. App. 395.

At advising—