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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Young & Co. v. Gillespie [1867] ScotLR 4_86 (11 June 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0086.html
Cite as: [1867] SLR 4_86, [1867] ScotLR 4_86

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SCOTTISH_SLR_Court_of_Session

Page: 86↓

Court of Session.

Tuesday, June 11 1867.

Lord President

4 SLR 86

( Ante, vol. iii, p. 869.)

Young & Co.

v.

Gillespie.

Subject_1Jury Trial
Subject_2New Trial.
Subject_3

Facts:

Motion for new trial, on

Page: 87↓

the ground that the verdict was contrary to evidence, refused.

Headnote:

This was a hearing on a rule with a view to a new trial. The pursuers were Messrs W. D. Young & Co., iron and wire fence manufacturers in Edinburgh, and the defender Mr W. H. Gillespie of Torbanehill. The following issues were adjusted for trial:—

“Whether, at various times, betwixt 16th April 1861 and 1st July 1864, the pursuers, on the employment of the defender, made the furnishings and performed the work specified in the five accounts, numbers 6, 7, 8, 9, and 10 of process, or any part thereof: and whether the defender is indebted and resting-owing to the pursuers the sum of £142, 9s. 7d. sterling, being the amount of said five accounts after deducting £140 paid to account thereof, and the sum of £13, 18s. 3d. sterling, being the interest due thereon on 31st December 1865, or any part of said sums, with interest on £142, 9s. 7d. from 31st December 1865? Or,

“1. Whether the pursuers failed to completely make and fit up the conservatory, specified in the account No. 7 of process, in a workmanlike manner?

“2. Whether, in consequence of the operations, and through the fault of the pursuers, in connection with the said conservatory, the defender has suffered loss, injury, and damage to the extent of £70, or part thereof?”

After the issues were adjusted, the defender paid all the pursuers' accounts, except one, for a conservatory erected at Stirling, for which £70 was charged. The only question before the jury had therefore reference to this charge. The trial took place on 8th and 9th April last, when the jury returned a verdict for the pursuers under the principal issue for £70 and interest. They also found for the pursuers on the first counter-issue, and for the defender on the second, assessing the damages at £12. The defender moved for a rule on the pursuers, to show cause why the verdict should not be set aside, as contrary to evidence, and a new trial granted.

A rule was granted.

Pattison and Asher for defender.

Gifford and Burnet for pursuers.

The Court discharged the rule.

 Judgment:

The Lord President—In this case there are three issues. The two counter-issues embody the defences of Mr Gillespie. In regard to the first counter-issue, I think it very clear that it cannot be said that the pursuers failed to complete the conservatory, because it is plain from the correspondence in evidence that it was the defender who prevented them from completing it. Then, as to the second counter-issue, the pursuers have all along, in the correspondence and on the record, admitted their liability to repair the damage done by one of their men to the stonework of the house, and the jury have allowed a full sum according to the evidence on that head. But other imperfections in the work are alleged, some of which are remediable and others not. As to those which are remediable, it is the defender's own fault that they have not been remedied, and the jury have included in the £12 a sufficient sum to defray the expense of doing so. I include among the remediable imperfections the straightening of the astragals. But two things are said to be irremediable—the flatness of the roof and a want of parallelism in the erection. The flatness of the roof, however, could not be avoided, because the incline could not have been different in the place, which was prescribed by the defender himself. There is more delicacy about the want of parallelism, but that is always a matter of degree, and the question whether the deviation was sufficient to justify the rejection of the whole work was one peculiarly for the jury, with whose opinion I see no reason to interfere.

The other judges concurred.

Rule discharged, with expenses.

 Counsel:

Agents for Pursuers— Macnaughton & Findlay, W.S.

Agent for Defender— Henry Buchan, S.S.C.

 1867

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0086.html