Scottish Court of Session Decisions

William Steel, builder in Greenock, raised an action in the Sheriff Court at Greenock against R. L. Young, residing at Khartoum Villa, Ashton, Gourock, to obtain from him payment of £85, 2s. 6d., which he averred was due him as the balance for the mason work of certain additions and alterations which he had contracted to make on the defender's said villa at Ashton. The sum to be paid for these alterations, &c., as they were originally specified, was £138, 9s. 9d., but the amount due for the work as brought out by the final measurements was £165, 2s. 6d. Of this, £80 was paid to account by the defender on 15th October 1904, the balance, £85, 2s. 6d., being the sum sued for in this action.

The pursuer, inter alia, pleaded—“(1) The defender being justly indebted and resting-owing to the pursuer the amount sued for, decree should be pronounced as craved.”

The defender, inter alia, pleaded—“(4) The pursuer having failed to execute the work condescended on in the most substantial and tradesmanlike manner, of the best materials, and to the entire satisfaction of the architect, as provided in said contract, is barred from pursuing the present action. (5) The cost of removing the items condescended on, which are disconform to contract, and having the work completed in terms of the contract, being in excess of the sum sued for, defender should be assoilzied with expenses.”

The defender in article 5 of his statement of facts, inter alia, stated—“The work and material are disconform to contract as aforesaid in the following items—… (3) The gables and back wall are built in lime instead of cement mortar.”

The pursuer's answer was—“(3) Lime was substituted at the express instructions of the architect, and the reduction made by the pursuer and the price charged is the reduction made and the price fixed by the architect at the time.”

The remaining facts in the case are sufficiently set forth in the following interlocutor of the Sheriff-Substitute ( Neish), which was pronounced on 5th December 1905, and in the note appended to that interlocutor—“Finds in fact (1) that the pursuer contracted with the defender in terms of the specifications and relative plans to execute the mason work in connection with certain alterations and additions to the defender's house, ‘Khartoum,’ Gourock;(2) that the pursuer has executed said work in terms of the specifications and plans with the exception of ( a) …, ( b) …, and ( c) the building of the gables and back walls;(3) that with regard to items ( a) and ( b) the amount to be deducted from the pursuer's claim in the present action would be £1, 10s. and £1, 5s. respectively: Finds further, with regard to item ( c), (1) that the specification provided that the brickwork of the gables and back wall was to be built in cement mortar; (2) that the gables and back wall were built in milled lime; (3) that the pursuer has not proved that the substitution of milled lime for cement mortar was made with the consent of the defender: Finds in law (1) that the pursuer was not entitled to substitute milled lime for cement mortar without the consent of the defender; and (2) that the defender is entitled to deduct from the pursuer's claim in the present action the sum which it would cost to rebuild the gables and back wall in cement mortar: Finds further, that the cost of rebuilding the gables and back wall in cement mortar would exceed the amount sued for: Therefore assoilzies the defender and decerns: …”

Note.—“The pursuer in this action sues the defender for the balance of an account for the mason work of certain additions to and alterations on the defender's house at Gourock. The contract between the parties is contained in specifications and relative plans, and with regard to certain smaller items, an offer and acceptance of later date. The specifications were drawn up and issued by Mr John Robson, the defender's architect, and were accepted by him on the defender's behalf. The work was begun in June 1903, and in January 1904 Mr Robson was dismissed by the defender, and Mr Wyllie was appointed architect in his place. At that date the whole of the pursuer's work to which objection is set forth in article 5 of the defender's statement of facts had been executed, with

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the exception of items 4 and 6—the brickwork paving in the east passage and the concrete steps at the porch. There is, I think, no question that the work so far as executed was approved by Mr Robson, and on 15th October 1904 the defender paid the pursuer £80 to account.

The measurement of the work was completed by the measurers on 31st March 1904, and was sent by the pursuer to Mr Wyllie in due course. On 7th November 1904 the measurement was returned to the pursuer with the letter No. 34 of process. That letter, though perhaps not very explicit, amounted to a refusal to grant the pursuer a certificate, and the result was the present action.

The defender sets forth in article 5 of his statement of facts the defects in the pursuer's work which he maintains justified Mr Wyllie in refusing a certificate. I propose to deal first with the third item, viz., ‘The gables and back wall are built in lime instead of cement mortar,’ because I have come to be of opinion that it is fatal to the pursuer's claim.

The specification stipulates for the gables and back wall being built in cement mortar, and it is admitted that they were built in milled lime. I hold it as settled by the case of Ramsay & Son v. Brand, 25 R. 1212, that the pursuer was not entitled to substitute milled lime for cement without the consent of the defender, and that the consent of the architect, Mr Robson, which was undoubtedly given, is of no avail. Accordingly the pursuer has attempted to prove that the substitution was made with the defender's consent and approval.

[ The Sheriff then examined in detail the evidence.]

It appears to me, therefore, that the pursuer has failed to prove that the alteration upon the specification was made with the defender's consent; and that being so I am of opinion, again on the authority of Ramsay & Son v. Brand, 25 R. 1212, that the defender is entitled to set off the cost of rebuilding the gables and back wall in cement against the pursuer's claim for the balance of the contract price. It is, I understand, not disputed, and, at anyrate, I think it is proved that the cost of rebuilding would exceed the sum sued for, and therefore I think the pursuer's claim must fail.

The result is certainly an unfortunate one for the pursuer. Even according to Mr Wyllie's deduction on the measurement, and adding a deduction in the same proportion for the back wall, the total deduction for the use of milled lime would only have been £5, 11s. from a balance on the contract of £85, 2s. 6d., but then a deduction made on that principle is precisely what the Court refused to sanction in Ramsay & Son v. Brand. Nor do I think that the job is any the worse for the substitution, because I think the rough cast answered the purpose of cement in keeping out damp; and the defender's own witness, Mr Miller, says he does not think the use of milled lime has materially damaged the building. But again, I think I cannot give effect to this contention, because the defender stipulated for cement, and he was entitled to get it whether it was necessary or not.

If I am right in the views I have expressed, they are sufficient for the decision of the case; but in view of the proof which has been led I think it right to state my opinion with regard to the rest of the defender's objections to the pursuer's work as set forth in article 5 of the defender's statement of facts.

[ The Sheriff then examined the evidence as to whether or not a gable had been properly stepped, and dealt with other questions of fact.]

I think I have now dealt with the whole case, and the result is that on the grounds indicated in the beginning of my note I must assoilzie the defender. On the question of expenses I think, however, the defender must submit to a deduction. It is true that as regards the sum sued for he has been completely successful, but the question of whether lime was substituted for cement with the consent of the defender might have been settled with a very small amount of proof. On all the other questions raised by the defender I am against him, with two trifling exceptions, one of which the pursuer offered to put right before the action was brought. These questions have occasioned by far the greater portion of a long and expensive proof, and I shall therefore allow the defender only two-thirds of his expenses.”

The pursuer appealed, and argued—(1) The architect had authorised the substitution of milled lime for cement mortar, and the evidence established that he had the defender's authority to permit the variation. (2) The architect had an implied mandate to authorise the substitution, and further, where an employer gets substantially the house he has contracted for, he is not entitled to reject it or refuse to pay for it because of minor deviations. Such a deviation as this the architect had implied authority to authorise, especially in view of the facts that he had written out the specification, and that the work was to be done to his satisfaction. Variations in building contracts were constantly agreed to as the work proceeded— Ramsay & Son v. Brand, July 20, 1898, 25 R. 1212, 35 S.L.R. 927, Lord President Robertson's opinion. (3) As the defender knew of the variation, or as, at any rate, the variation had been permitted by the architect, whose knowledge must be taken to be that of the defender— Ayr Road Trustees v. Adams, December 14, 1883, 11 R. 326, esp. Lord Shand at 349, 21 S.L.R. 224—he must, after acquiescing in the variation and electing to make the best of the house by continuing to live in it, at any rate pay the pursuer the amount by which he was lucratus— Ramsay & Son ( cit. sup.) — and this was in the present case the contract price, less the difference in cost between milled lime and cement mortar.

Argued for the defender—Even assuming parole evidence to be competent to prove the variation of a written contract, which he

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did not admit— Kirkpatrick v. Allanshaw Coal Company, December 17, 1880, 8 R. 327, 18 S.L.R. 209; Bargaddie Coal Company v. Wark, March 15, 1859, (H.L.) 3 Macq. 467; Carron Company v. Henderson's Trustees, July 15, 1896, 23 R. 1042, 33 S.L.R. 736—it required, at any rate, to be evidence of the clearest kind, and put a heavy onus upon the party seeking to prove the variation— Burrell & Son v. Russell & Company, March 26, 1900, 2 F. (H.L.) 80, 37 S.L.R. 641—and this the pursuer had failed to discharge. (2) Neither had the architect implied authority to sanction the variation. For at the very utmost this implied authority, if it existed, could only extend to trivial variations in a contract, and could not possibly cover a variation which could not be remedied without pulling down the work and re-erecting it in toto. (3) The taking possession or remaining in occupation of a house not completed or altered according to specification did not amount to a waiver of any condition of the contract, nor afford evidence of a new contract to pay a quantum meruit— Ellis v. Hamlen, 1810, 3 Taunton 52, 12 Rev. Rep. 595; Munro v. Butt, 1858, 8 Ell. and Bl. 738, esp. Lord Campbell, C-J., at 752; Thornton and Another v. Place, 1832, 1 Moo. and Rob. 218, 42 Rev. Rep. 781; Addison on Contracts, 10th ed. 813; Ramsay v. Brand ( cit. sup). The action as laid was an action on contract, and not an action either for quantum lucratus est the proprietor or quantum meruit the builder.

At advising—