Scottish Court of Session Decisions

Elphinstone Forrest, builder and con tractor, 12 Dixon Street, Glasgow, pursuer, brought an action against the Scottish County investment Company, Limited, 155 St Vincent Street, Glasgow, defenders, for payment of a sum of £633, 16s sterling, which he alleged was the unpaid balance of a sum due to him under a contract with the defenders.

The defenders pleaded—“(3) ( a) The pursuer having failed to execute the work undertaken by him in accordance with the contract founded on, is not entitled to sue for the price under the contract. (6) Separatim—In any case the cost of completing the work in compliance with the contract falls to be deducted from the contract price, and being in excess of the sum claimed as due under the contract, the defenders should be assoilzied.”

The contract was entered into in the following circumstances:—“(Cond. 1) In or about June 1910 the defenders, through their architect Alexander Adam, issued to the pursuer, inter alios, a schedule for the digger, mason, and brick works of four tenements proposed to be erected in Garrioch Road, North Kelvinside, Glasgow, for the defenders. (Cond. 2) The pursuer on or about 27th June 1910 lodged with the said Alexander Adam an estimate for the digger, mason, and brick works of said four tenements, with offer attached thereto to undertake the work for the sum of £3495, 15s. This offer was subsequently amended by being made subject to 2 3 4 per cent. discount. By letter of 31st March 1911 Mr Adam on behalf of the defenders accepted the pursuer's said offer as follows:—‘On behalf of my clients, the Scottish County Investment Company, Limited, I hereby accept your offer of Three thousand four hundred and ninety-five pounds, fifteen shillings stg. (£3495, 15s.), subject to 2 3 4per cent. discount, for the digger, mason, and brick work, supplying all material and labour in connection with same. Payments are to be by five cash instalments on completion of 1st, 2nd, 3rd, and 4th storeys, and on completion of chimney heads, stalks, and drains, balance to be paid on presentation of measurement.’”

On completion of the contract the defenders declined to pay the said sum of £633, 16s. sterling, being the balance of the price claimed by the pursuer, in respect that the work was not in certain respects conform to contract, and accordingly the pursuer raised the present action.

The defenders, inter alia, averred—“(Stat. 5) According to the said estimate (as provided for in items 44, 45, 46, 47, and 48), the front wall of the buildings was to contain the following rybats, viz., out and inband rybats of windows 24 inches and 12 inches long on face alternately, and 17 inches and 10 inches long on face alternately, rybats of oriel window's 24 inches and 12 inches long on face alternately, and 17 inches and 10 inches long on face alternately, and rybats of close openings 24 inches and 12 inches long alternately. In building the said front wall the pursuer did not give effect to the provisions in the contract above referred to. Many of the inband rybats supplied are not of the prescribed length on face. No outband rybats of the prescribed length have been supplied, and the pursuer has in place thereof inserted headers or other stones. The pursuer has thus not adhered to the dimensions, pattern, and definite arrangement prescribed by the contract, but has adopted an entirely different mode of construction from that prescribed by the contract. The mode of construction adopted by the pursuer entailed less labour and was cheaper, and it involved theloss of the

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harmony and uniform appearance which compliance with the contract would have secured. In addition the buildings have not the security and stability they would have had if they had been erected as provided for in the contract. Explained that the tenements were built on forced or made-up ground, on what is believed to have been the site of an old quarry. There was consequently greater risk than usual of subsidence of the buildings. In these circumstances under the mode of construction prescribed by the contract there was much greater security and less risk of injury to the buildings than under the method adopted by the pursuer. The nature of the ground and the increased risk of subsidence were well known to the pursuer. Such a deviation from the contract can only be cured by taking down substantially the whole of the front wall and rebuilding it in accordance with the contract, the cost of which is moderately estimated at £1000. Not known and not admitted that on the instructions of the architect the pursuer constructed the butts of the wall in the same method as had been done in the case of tenements in Garrioch Crescent which the pursuer had previously constructed for the defenders. Denied that the architect had any power to authorise the deviations in question.… (Stat. 7) According to the said estimate (items 191 and 192) the retaining walls at the back of the tenements were to be constructed of rubble. The pursuer has constructed the said walls of concrete. The cost of removing the concrete walls and rebuilding them in accordance with the contract would amount to £15. Not known and not admitted that the variation of the estimate was carried out on the instructions of the architect. Explained that the architect had no authority to sanction the variation.… (Stat. 10) None of the deviations before mentioned was authorised by the defenders or by anyone having authority from them, express or implied, to consent thereto.”

The pursuer averred—“(Ans. 5) On the instructions of the architect, in exercise of his powers under the contract, the pursuer constructed the butts of the walls in the same method as had been done in the case of tenements in Garrioch Crescent which the pursuer had previously constructed for the defenders, in which case the mode adopted had proved successful. The butts were built in accordance with the architect's plan. The mode thus instructed did not involve less labour, and was not cheaper than the mode originally contemplated in the schedule, nor did it affect the harmony or appearance of the building, nor lessen its security or stability.… (Ans. 7) Admitted that the said walls were constructed of concrete. Quoad ultra denied. This variation of the estimate was also carried out on the instructions of the defenders' architect.”

On 13th November 1913 the Lord Ordinary ( Hunter) found the said sum of £633, 16s. sterling due from the defenders to the pursuer, under deduction of the sum of £5 claimed by the defenders in respect of the failure of the pursuer to carry out certain minor details of the contract.

Note—The pursuer, who is a builder and contractor in Glasgow, sues the defenders, who are a limited company owning property there, for payment of £633, 16s. That sum represents the balance of price alleged to be due by the defenders to the pursuer for the digger, mason, and brick works of four tenements in Garrioch Road, Glasgow. By letter dated 31st March 1911 Mr Adam, an architect acting on behalf of the defenders, wrote to the pursuer accepting an offer to do the work for £3495, 15s., subject to 2 3 4per cent. discount, in the following terms:—‘On behalf of my clients, the Scottish County Investment Company, Limited, I hereby accept your offer of Three thousand four hundred and ninety-five pounds, fifteen shillings sterling (£3495, 15s.), subject to 2 1 2 per cent. discount, for the digger, mason, and brick work, supplying all material and labour in connection with same. Payments are to be by five cash instalments on completion of 1st, 2nd, 3rd, and 4th storeys, and on completion of chimney-heads, stalks, and drains, balance to be paid on presentation of measurement.’ On 3rd April 1911 the pursuer confirmed the terms of this letter.

The pursuer proceeded with the work and received instalments from the defenders towards the price amounting to £2708. On 5th June 1912 the measurement of the whole of pursuer's work was duly completed by the measurers named in the contract and certified as correct by the defenders' architect. The amount of the completed measurement is £3341, 16s., which after deduction of the instalments already paid left a balance due to the pursuer of £633, 16s. On 5th June 1912 the pursuer applied to the defenders for payment of his account in terms of his certificate. After a delay of about a month the defenders on 4th July replied finding fault with the measurement in respect that it did not give in detail the sizes found in respect of each item, and also a full description of the material and labour supplied. This was an unusual request, but the pursuer passed it on to the measurers who were employed by the defenders. Further delay took place. Meantime the defenders appear to have put the schedule of the pursuers work prepared by the measurers in the hands of a Mr Lukeman, an architect. As a result of an inspection by this gentleman of the work the defenders on 10th September wrote the pursuer pointing out certain discrepancies between the work as scheduled and the work as completed. Except as regards a small matter of key drawing the joints of the inner walls of the wash-houses the pursuer did not admit the validity of the defenders' complaints, but he offered to do anything that could reasonably be called for in implement of his contract. On 16th November 1912 the pursuer offered to have the matters in dispute referred to a neutral architect or surveyor of experience and repute. Finally on 14th January 1913 the present action was raised.

The evidence led satisfied me that not only was the price of the pursuer's work as

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finally measured well within the original estimate, but that Mr Frank Burnett is right when he says, ‘The buildings in Garrioch Road were very much above the average class of mason work in tenements of this kind; workmanship good and material good. Altogether I consider it a very creditable job.’

The defenders, however, founding upon the alleged discrepancies between the schedule work and the executed work, maintain that the pursuer is not entitled to sue for the price under the contract, and separation that as the cost of completing the work in compliance with the contract falls to be deducted from the contract price, and is in excess of the sum claimed, they ought to be assoilzied. Reliance is placed by them upon two decisions of the Court of Session— Ramsay v. Brand, 25 R. 1212, and Steel v. Young, 1907 SC 360. In the former of these cases it was held that where a building contractor fails to follow the plans agreed upon, the general rule is that he is not entitled to the contract price, and that the proprietor has the option of calling upon him to remove the materials from his ground, or of retaining them subject to the builder's claim against him in quantum lucratus est. In the latter case a builder who had used milled lime instead of mortar cement was held not entitled to sue upon the contract. It was held in both those cases that approval of the architect afforded no justification for a deviation from the contract not sanctioned by the building owner, but the deviations founded upon were treated as material, and not merely in detail. I cannot think that either of these cases is an authority for the proposition that an architect who understands construction, and who is acting for a proprietor of ground who does not understand construction, cannot alter any of the innumerable details of the schedule of work which is primarily intended as a basis for pricing without formally applying to his principal. At all events the builder, in my opinion, is entitled to assume, as appears from the evidence to be customary, that the architect has authority to give instructions as regards details of construction. Under the contract the work was to be completed in a tradesmanlike manner to the entire satisfaction of the proprietors and architect, or any person appointed to inspect the work, and power was reserved to increase, lessen, or omit any part of the work. The only person in the present case appointed to inspect the work for the defenders was their architect Mr Adam. A good deal was attempted to be made of the terms of a letter relating to this, and another contract about buildings in Garrioch Crescent, written by the defenders' agents to Mr Adam, and dated 8th October 1909, in which they say, “You will please note that our clients do not wish any alterations made upon the contracts, and you will please be good enough not to order any extras without their consent.” I think that Mr Adam rightly interpreted that letter as prohibiting him from involving his clients in any alteration involving extra expenditure, and in that sense adhered most faithfully to the terms of the letter.

The most important ground of complaint made by the defenders against the pursuer's work is contained in their 5th statement of fact. Generally speaking, the objection taken is that the work done is not in conformity with items 44–48 of the estimate, in the matter of the inband and outband rybats, i.e., the stones next the windows, the inband rybat being a tye going through the wall of 2 feet depth, and the outband rybat stretching across the butt, and having a depth of 6 to 10 inches, with filling behind to the full thickness of the wall. It is not easy on the defenders' statement to understand how they suggest that the wall should have been constructed. A study of the items in the estimate does not make it any clearer. If only the sizes of stones specified were to be used in construction, a difficult, and perhaps an impossible problem faced the builder. The measurer Mr Bradshaw, who prepared the schedule, says that he received no instructions as to what sizes of rybats were to be used, and consequently inserted the ordinary size of rybat as a basis for pricing. What happened was this. The architect Mr Adam gave the pursuer instructions to adopt the same system of building as was adopted in connection with Garrioch Crescent buildings, which were erected without complaint for the same defenders by the pursuer under a schedule similar to the present one. These instructions the pursuer carried out entirely to the satisfaction of the defenders' architect.

If the plan No. 17 of process is looked at it will be seen that the butt to the immediate left of the doorway is constructed in the following way:—the topmost course consists of two inband rybats with a closer between; the second course consists of a single outband rybat stretching across the butt, which is 3 feet 3 inches in width; the third course is then similar to the topmost; and the fourth to the second, and so on. I do not understand that any objection is taken to the topmost and alternate courses, but complaint is made that the second, fourth, &c., courses contain only one outband header instead of two. The architect who supervised the work is satisfied that the work as completed is preferable construction to what is suggested by the defenders, even on the assumption that that is what the schedule prescribes, which I think is by no means clear. This view is supported by Mr Burnet, who has large practical experience of such buildings as were erected, and indeed, as I think, by the evidence generally. The complaint I have dealt with may be taken as typical of the complaint as to the rybats on the lower storeys. As regards the higher storeys of the building, some of the outband rybats are about 5 feet, but the same explanation applies here. I think this question as to the rybats was a matter of construction, as to which the pursuer was bound to and did follow the architect's instructions.

The suggestion made on record that the wall should be taken down in order that only stones of the dimensions prescribed

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by the schedule should be substituted for those actually in the wall was so absurd that I am not surprised that no witness advocated such a course.

The defenders next maintained that the pursuer was in breach in not providing through band headers in every length of 5 feet of the ashlar. A through band is a tye going through the full thickness of the wall. The evidence upon this point was allowed on the footing that it had a bearing upon the complaint made in statement 5. In argument, however, the defenders rested this part of their case upon the provisions in items 7 and 24 of the estimate. Nothing was said about this point by the defenders in their original letter of complaint to the pursuer, and I do not think there is any record for it. Upon the same ground I disregard the evidence led by the defenders to the effect that there should have been 7 instead of 6 courses of masonry to the height of the windows.

The complaints of the defenders in the other articles of their statement of fact are technical and trivial. In statement 4 it is said that the window. lintels are not all 4 1 2feet in length as they should have been in terms of item 30 of the schedule. The pursuer's witnesses were cross-examined at considerable length upon this point, but it was practically not referred to in the evidence given for the defenders, and no argument was submitted to me thereon by the defenders' counsel. I do not think it was a maintainable point.

In statement 6 it is said that the windowsills have not been high-splayed as they should have been in terms of item 69. The cost of doing this work is estimated at £5. This work was not done because of the architect's special instructions, and deduction in respect of the work not having been done has been made by the measurer in pricing. I think this was a detail in construction upon which the pursuer was entitled and bound to follow the architect's instructions.

In statement 9 reference is made to a slight fracture in the lintel over the entrance at the back of the tenement No. 162 Garrioch Road. The defenders allege that ‘the fracture has been caused by the said lintel being defective when inserted into the building, or by the pursuer's failure to insert a saving or keystone immediately above the centre of the said lintel.’ These averments are certainly not proved. In my opinion they are disproved. I think that the cause of the fracture was subsidence of the ground.

“The averment of the defenders that has given me most difficulty is that contained in their seventh statement. According to the estimate, items 191 and 192, the walls dividing the back greens are to be of rubble. They have, in accordance with instructions given by the architect, been constructed of concrete. Looking to the decision given in the case of Steel, I do not think that an architect has authority at his own hand, and without the authority of the building owner, to alter one substance for another, and I doubt whether the clause in the schedule is sufficient to imply such authority. This is, however, a very small item The cost of removing the walls, which are about 6 or 9 inches in height, and rebuilding them in accordance with the con tract would, according to the defenders' averment, amount to £15. I do not think anyone contemplates this expenditure being made. The evidence given satisfies me that concrete was substituted for rubble in the interests of the defenders. They must have seen, or at all events they ought to have seen, as the wall was in course of construction, that it was concrete and not rubble. Had their consent been asked by the architect, who no doubt thought it was too small a matter to trouble them about, I have no doubt that they would have had the good sense to give their consent. They are not being asked to pay more than the schedule price, and I have no doubt they are lucrati to the full amount claimed. If I sustained the defenders' contention, I should simply meantime deduct £15 from the amount sued for, and allow the pursuer to amend so as to claim this item, not under the contract, but because the defenders have benefited to that extent by his work, or give decree for the balance, leaving the pursuer to bring a separate action, to which I can see no defence. I have come, however, to the conclusion that in the special circumstances of this case to give effect to such a plea in reference to a matter of such minor importance would and could benefit no one. I shall therefore give decree for the sum sued for, under deduction of £5 claimed by the defenders under statement 8 in respect of the pursuer's failure to key-draw some pointing, a matter which the pursuer prior to raising this action expressed his willingness to make conform to the schedule.”

The defenders reclaimed, and argued—When a party to a contract engaged to do certain work according to specification, he was not entitled to recover the full price if he did not fulfil the contract. If the breach of contract were not absolute, he was entitled to recover the price under deduction of the sum necessary to make the work correspond with the specification. If, however, the breach was an entire breach he could not recover on the contract at all, and could merely sue quantum lucratus the other party. In this case the breach was absolute. The estimate formed part of the contract, and it was not competent for the architect to vary it by word of mouth— Burrell & Son v. Russell & Company, March 26, 1900, 2 F. (H.L.) 81, Lord Halsbury, L.C., at 86, 37 S.L.R. 641; Sharpe v. San Paulo Railway Company, [1873] L.R. 8 Ch. Ap. 597, Lord Romilly, M.R., at 605; M'Elroy & Sons v. Tharsis Sulphur and Copper Company, November 17, 1877, 5 R. 161, rev. 5 R. (H.L.) 171, Lord Hatherley at 174, 15 S.L.R. 115, 777; Rex v. Peto, [1826] 1 Younge and Jervis's Reports 37, Alexander, C.B., at 54; Hudson on Building Contracts (4th ed.), vol i, pp. 11, 409. In such a case the contractor did not get the right to sue on the basis of quantum meruit— Ramsay & Son v. Brand, July 20, 1898, 25 R. 1212, Lord President (Robertson) at 1214, 35 S.L.R. 927; Steel v. Young, 1907 SC 360, 44 S.L.R. 291; Ellis v. Hamlen,

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3 Taunton's Reports 51. A party to a contract of sale might insist on getting the article stipulated for even though one equally good, or even a better one, were offered— Ashwell & Nesbit, Limited v. Allen & Company, cited in Hudson on Building Contracts (4th ed.), vol ii, p.462; Gordon v. Millar, May 28, 1839, 1 D. 832; Waddell and Others v. Campbell, January 21, 1898, 25 R. 456, Lord Adam at 460, 35 S.L.R. 351. In building contracts at least the rule was absolute that the contractor must complete the work modo et forma before suing on the contract— Ramsay & Son v. Brand ( cit. sup.); Muldoon v. Pringle, et e contra, June 9, 1882, 9 R. 915, 19 S.L.R. 668. Failing completion of the work the contractor could merely sue quantum lucratus the other party— Sumpter v. Hedges, [1898] 1 QB 673, Chitty (L.J.) at 675, Collins (L.J.) at 676; Thornton and Another v. Place, [1832] 1 Moody and Robinson, 218; Addison on Contracts (11th ed.), pp. 876, 879, 880–881; Pollock on Contracts (8th ed.), p. 276; Leake on Contracts (6th ed.), p. 34. In mercantile contracts there was a presumption that all stipulations in the contract were material— Whitaker v. Dunn, [1887] 3 T.L.R. 602; Pollock on Contracts (8th ed.), p.278. In the present case failure was in a condition-precedent, and so went to the root of the contract— Bettini v. Gye, [1876] 1 QBD 183.

Argued for the respondent—No breach of contract had taken place. Rybats of any size might be used, and even if their size was fixed the deviation therefrom was trivial. The contractor was entitled to assume that the architect had authority to act for his employers. Moreover, the acceptance of the work threw on the reclaimers the onus of showing it was not conform to contract. The contract was based on the plans of the architect and not on the estimate, which was merely intended to fix the rates of payment. In any event, the deviation from the contract being immaterial, the reclaimers should be ordained to pay the price under deduction of the cost of bringing the work into conformity with the plans. In Ramsay & Son v. Brand ( cit. sup.) the facts were different from those here. The facts were also different from those in Steel v. Young ( cit. sup.) and in M'Morran v. Morrison & Company, December 22, 1906, 14 S.L.T. 578, inasmuch as here the deviation from the contract was trivial. The reclaimers could not, in any event, repudiate the contract now that they had allowed the work to continue under the supervision of their representative— Muldoon v. Pringle, et e contra ( cit. sup.); Robertson v. Jarvie, December 19, 1907, 45 S.L.R. 260, Lord M'Laren at 263. The rules laid down by the Lord President in Ramsay & Son v. Brand ( cit. sup.), and accepted by Lord Low in Steel v. Young ( cit. sup.), only applied to a limited class of building contracts— i.e., when the architect had no authority to act for his employers. In contracts of sale there was no essential difference in the remedies open to a purchaser of heritable and of moveable property— Louttit's Trustees v. Highland Railway Company, May 18, 1892, 19 R. 791, Lord M'Laren at 799, 29 S.L.R. 670; Erskine's Institutes, book iii, title i, sec. 11. The case of Ellis v. Hamlen ( cit. sup.) was also inapplicable, because there was here no breach of contract, and esto that there was a breach there was a new implied contract to pay for the work done according to its value— Munro v. Butt, 8 Ellis and Blackburn's Reports 738, Lord Campbell (C. J.) at 752.

At advising—