Carruthers v Macgregor
| Jurisdiction | Scotland |
| Judgment Date | 30 June 1927 |
| Docket Number | No. 91. |
| Date | 30 June 1927 |
| Court | Court of Session |
Lord Blackburn, Lord Ashmore, Lord Murray.
Evidence—Burden of proof—Building contract—Different contractors for builder and joiner work—Cracks developing in walls—Cause unexplained—Action by builder for balance of contract price—Onus of proof of cause of defects—Applicability of doctrine of ‘res ipsa loquitur.’
A builder contracted, in accordance with plans and specifications issued by an architect, to carry out the building and plastering work in connexion with the erection of a house, and another contractor undertook to carry out the joiner work. The builder finished his work in December 1924, at which date the walls were plumb, and the owner accepted possession of the house and paid two instalments of the builder's account. Towards the end of the month the outside walls began to crack, and, although repairs were effected, the cracking continued, till, in May 1925, it was discovered that the walls were off the plumb. In an action by the builder against the owner for the balance of his account, the owner repudiated liability and counter-claimed for damages, averring that the defect in the walls was occasioned by the use of faulty materials in the construction of the concrete floors by the builder. The builder averred that the damage to the walls was caused by the use of unseasoned timber in the construction of the roof by the other contractor. Neither of these averments was established at the proof, but either of them might have been the cause of the cracking of the walls.
Held that, in these circumstances, breach of contract had not been established against the pursuer, and, accordingly, that he was entitled to decree for the balance of the contract price.
Observations upon the applicability of ‘res ipsa loquitur’ in cases where there is a possibility that the fault may be due to the action of a third party.
Alexander Carruthers, builder, Thornhill, brought an action in the Sheriff Court at Dumfries against George Cameron Macgregor, timber merchant, Sanquhar, for payment of £81, 5s. 11d., being the balance of the contract price and extra charges for builder work executed by the pursuer on a bungalow which the defender was having built for his own occupation. The defender made a counter-claim of damages for £200.
The facts of the case were set forth in the interlocutor of the First Division as follows:—‘(1) That Mr Scott, architect, on the defender's instructions, prepared plans for the erection of a bungalow for the defender's own occupation, and issued separate specifications for the building, plastering, and joiner work; (2) that the pursuer offered to carry out for the sum of £400, Is. the building and plaster work in terms of said plans and specifications in a trades-manlike manner and to the satisfaction of the said architect; (3) that this offer was accepted by the said architect on the defender's behalf; (4) that the offer of another contractor to execute the joiner work, including the roofing of the bungalow, was also accepted by the defender, who himself supplied the timber; (5) that the work the pursuer contracted to do was finished in the month of December 1924; (6) that the roof was then in position, the wooden floors laid, but that the whole of the work on the house had not been completed; (7) that the pursuer was paid an instalment of the contract price on 4th January 1925 amounting to £250, and another in February 1925 amounting to £100; (8) that certain extra work was done by the pursuer for which £17, 1s. 4d. is admitted to be a reasonable charge; (9) that about the 24th of December 1924 the exterior walls, which are brick walls 9 inches thick, began to crack in several places, and that on the pursuer's attention being called to the fact he, under protest, repaired the cracks; (10) that it is admitted that, if the pursuer's work was not to blame for the cracks, he was entitled to be remunerated for the cost of the repairs, and that £28, 3s. 7d. is a reasonable sum to charge for the repairs; (11) that the balance of the contract price unpaid (£50, 1s.), together with the charge for extra work (£17, 1s. 4d.) and the charge for repairs (£28, 3s. 7d.), less a sum of £14 unexpended on the estimates for grates, makes up the sum of £81, 5s. 11d. now sued for; (12) that after the cracks had been repaired by the pursuer more cracks developed and the condition of the walls became worse; (13) that in May 1925 it was ascertained for the first time that the walls were at that date off the plumb, the lower part of the walls immediately above the damp course having moved or sprung outwards to an extent varying from 1/2 an inch to a little over an inch; (14) that when the pursuer completed his contract work in December 1924 the walls were plumb, and that since that date the defender has been in possession of the house; (15) that the defender has failed to prove that the springing of the walls was caused by the expansion of the concrete floor laid by the pursuer or by any cause for which the pursuer is responsible; (16) that the breeze used by the pursuer for the manufacture of the concrete was conform to the terms of the specification, and was clean breeze within the meaning of the contract; (17) that the dry filling used by the pursuer in conformity with the plans was suitable for the purpose for which it was used; (18) that the pursuer duly completed his contract with the defender; (19) that the pursuer has failed to prove that the springing of the walls was caused by the use of unseasoned timber for the roof; (20) that either the expansion of the concrete floor or the contraction of the roof might have accounted for the springing of the walls.’
On 11th June 1926 the Sheriff-substitute (Brand)...
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