Scottish Court of Session Decisions

William Cornelius, a house painter in Edinburgh, being about to erect certain shops and dwelling-houses in May or June 1877, got a specification of the work to be executed from Mr Deas, architect, Edinburgh. Mr Deas received and accepted estimates for the work which Cornelius had empowered him to do. Mr Deas then employed Mr Edward Black, an ordained surveyor, to measure the works connected with the erection of the buildings, which he did from plans furnished to him. He also prepared the schedules of the work, and these measurements and schedules were used by Cornelius in obtaining estimates, and were issued by him to the different contractors, and formed the basis of the contracts that were entered into for the building. Black's account for the proportion of the schedules and measurements was charged by the various contractors, and was included in the contract prices. The buildings were not gone on with, and this action was raised by Black for payment of his charges, which had been refused.

It was averred by the pursuer that the plan adopted by Deas was in accordance with the usage of the professions or trades to which he and the pursuer belonged, and that Cornelius, the defender, was well aware of the usage.

The defender averred, inter alia—“Denied that the defender either employed the pursuer or authorised his employment. Explained that the defender's arrangement with Mr Deas was as follows, viz., that Mr Deas was to draw the plans, make all working designs, do all the surveyor's work, and superintend the erection of the buildings until their completion, for three and a-half per cent. on entire cost. Further, denied that the defender used or issued or authorised the issue of any schedules prepared by the pursuer, or that the amount sued for is due by the defender to the pursuer. Quoad ultra denied.”

The Sheriff-Substitute ( Hallard), after proof, pronounced an interlocutor finding, inter alia—“(3) That the employment upon which said work was done proceeded from the witness Deas, whom the defender had selected as his architect; (4) That the defender knew that Deas was not to do the work of a surveyor or measurer himself, and became aware in the course of its execution that the pursuer was doing it; (5) That the pursuer's claim is supported by the constant and uniform custom of trade;” and decerning in terms of the libel. He added this note—

“ Note. — The owner of a site who desires to build on it employs an architect to prepare the necessary plans. These require a conversion into material for tradesmen's estimates. It is the surveyor or measurer who fulfils that function on the employment of the architect. He measures the plans and issues the schedules of specification for the use of the tradesmen who are invited to estimate thereon. If the work goes on, the tradesmen pay the measurer's fee, which is made an item in the schedules. Where the work does not go on, it is to the owner of the site, or client of the architect, that the surveyor or measurer looks for his fees, including the cost of schedules. That is the constant and uniform practice. Mr Brown's evidence on this point was remarkably clear and decisive. The equity which underlies that practice is that the surveyor's work is done for behoof of the owner with the owner's knowledge. If, in the present case, the architect

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* Decided January 24, 1879.

Page: 476↓

agreed to protect the owner (defender) from this liability, the latter will have his action. In the meantime he must pay the pursuer's account.”

The Sheriff ( Davidson) on appeal adhered.

The defender appealed to the Court of Session.

At advising—