George Mercer Taylor (Appellant Plaintiff) Victor Pavitt (Respondent Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE MORRIS,LORD JUSTICE ROMER |
| Judgment Date | 13 June 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0613-2 |
| Court | Court of Appeal |
| Date | 13 June 1956 |
[1956] EWCA Civ J0613-2
In The Supreme Court of Judicature.
Court of Appeal
Lord Justice Singleton
Lord Justice Morris and
Lord Justice Romer
MR.D.SUMNER, instructed by Mr.R.W. Platt, appeared for the Appellant (Plaintiff).
MR. H.V.LL0YD-J0NES, Q.C., and MR. G. W. WILLETT, instructed by Mr. G. Swinburne Raynes, Agent for Messrs. Atkins, Walter & Locke, appeared for the Respondent (Defendant).
This case has a somewhat long history. Mr. Pavitt is a builder and Mr. Taylor is an estate agent and was in the matters with which we are concerned the building owner. Sometime in the year 1950 a contract was made between Mr. Taylor and Mr. Pavitt for certain work to be done to a house belonging to Mr. Taylor, to wit, Brockamhurst Cottage, Red Lane, Betchworth, Surrey. A specification was provided and became part of the contract which was ultimately entered into. The architect was Mr. Sutton-Smith of thefirm of Sutton-Smith & Son. The precise date of the contract I do not know. It was sometime after July, 1950.
Mr. Pavitt agreed to do the works which were comprised in the specification and to complete the whole of them as shown on the plan, which was attached to the specification, and to hand over the premises in a complete and thoroughly habitable condition.
The builder did considerable work, but disputes arose, one of which was that the builder said that he was not being paid as much as he ought to be paid. As action was commenced by the builder against the building owner and that action was ordered to be tried before an Official Referee, His Honour Brett Cloutman. In accordance with the practice which takes place in a good many suits before an Official Referee, there was delivered what is called a Scott Schedule where the arguments of the two parties on various issues are set out. One answer which was made by the builder to a contention of the building owner was that he was ready and willing to complete the work at the agreed figure of £2,180, including profit, and he would be prepared to do so under Mr. Sutton-Smith, the original architect, provided he had guaranteed payments for work done.
When the case came to court it was decided that it would be a very good thing if that could be done, that is, that the work should be completed and the dispute between the parties adjusted accordingly. There was a sum of money, about £300, in court, and the builder was given judgment for a further sum of £508. Judgment was given on 8th February, 1954 by consent. The order, as far as material, reads: "By consent, on the plaintiff undertaking to complete the specification of works at Great Brookamhurst with due dispatch on terms of Scott Schedule (with reference to the page of it) and on payments to be made by defendant on architect's certificate at twenty-eight days interval or such reasonablestages of completion as the architect may decide, judgment for the plaintiff for £508 and costs on the claim and counterclaim; the plaintiff to have the costs involved in the sum of £305 paid into court", and an order was made for the payment of the amount of £508.
That judgment, as I have said, was on 8th February, 1954. So at that time this question had run for three and a half years or thereabouts. Fairly soon after the order was made, the plaintiff went back on to the site with the intention of completing the works. In view of the years that had elapsed since any work was done upon the site, the condition of the premises had changed considerably and it was obvious that the builder's difficulties would be greater than he had anticipated. The first difficulty that arose was that he could not get payment for anything which he did. He was not a man in a big way of business. He had had some other work in hand in 1954 for the same building owner in different parts of Surrey, and in this matter he had employed a good deal of his capital. He bad had to wait for his money. He had an order for payment; he was not then paid and, of course, his own costs had been very considerable in the first litigation.
When he went upon the site again the main difficulty was that there was no architect. He took some plant upon the site and he had various men working. The work had to be done. The judgment was that the work had to be done under, or with, Mr. Sutton-Smith as architect. The course which the matter took from 1954 onwards is shown quite clearly by the correspondence between the parties, although these are one or two interviews to which I shall have to refer.
On 22nd March, 1954, the builder's solicitors wrote to the building owner's solicitor: "we received a call from our client on Friday last and when he mentioned he had seen Mr. Sutton-Smith on the 14th instant, and who, up to that date,had not heard from your client in regard to the work at Brookhamhurst. We thought it would be as well to lot you know". This was a matter which the building owner, Mr. Taylor, said he was most anxious to have completed, at an early date. The house had been left for four years. Whether it is his fault or someone else's fault I do not know, but on 22nd March the builder has to write, or get his solicitor to write, "The architect you have agreed upon has not even heard from you yet".
On 7th April Mr. Taylor wrote to the architect: "I believe you are aware of the circumstances under which the works started by Mr. Pavitt were discontinued and the result of the subsequent litigation, but in case you are not fully informed, Mr. Pavitt offered to complete his original contract and asked that you act as my architect. The case was settled along these lines and Mr. Pavitt is due to re-commence building operations on the 12th instant, and that being so will you kindly reply confirming that you are prepared to do so, subject to your fees being in accordance with your letter dated the 28th February, 1951. In that letter you indicated that, having already been paid two thirds of the scale fees, the remaining one third would be payable to you on completion of the building operations, if, of course, you acted in a professional capacity. Yours faithfully, G. M, Taylor".
On the 7th April the builder's solicitors wrote to the building owner's solicitor, thanking him for his letter of 31rt March, enclosing a cheque for £508, the balance of the claim due under the judgment. They added: "In regard to our letter of the 22nd ultimo our client has still not heard from Mr. Sutton-Smith that he has been instructed by your client in the matter. We have had to make arrangements on behalf of our client with his former suppliers for credit accounts, and the suppliers have asked that we make payments to them for the goods supplied. We should therefore be glad if you wouldarrange with your client that we shall receive payment of the monthly draws".
There was a further letter on 12th April, 1954, and another on 30th April, 1954, this time from Mr. Taylor to the architect. He said: "I would, of course, expect to advise you regarding payments already made and other relevant matters and give you all the information you required as soon as you decided to accept my instructions in accordance with my letter dated the 7th ultimo".
The architect wrote to the building owner on 7th May, 1954, wanting particulars of the terms of settlement.
On 20th May, 1954, the builder's solicitors wrote to the building owner's solicitor: "We are in receipt of your letter of the 17th instant with enclosures. We instructed our client to send Mr. Sutton-Smith his invoice, etc. with a request for the first certificate and this our client did on the 13th instant, only to receive a letter from Sutton-Smith & Son dated the 14th instant, that although they had had some correspondence with your client, they had not then been appointed or accepted the appointment as his architect at that time and could not act on your client's behalf in any way whatever. We cannot advise our client to go outside the terms which were arranged when this action was settled, and must call upon your client to immediately complete the arrangements for the employment of Mr. Sutton-Smith as architect, and that immediate attention be given to the issuing of the first certificate and for payment for the work done and materials supplied as found due."
Mr. Platt, the building owner's solicitor, writes in reply on 22nd May: "I can understand your client's concern but if Mr. Sutton-Smith refuses to accept my client's instructions then obviously another architect must be appointed. Have you any objection to Messrs. Crow of Dorking? I will have another word with Mr. Sutton-Smith at once." Thedifficulty was that the solicitor had not answered Mr. Sutton-Smith's enquiry as to what the terms of the settlement were in a matter in which he had previously been architect.
The correspondence goes on. On 27th May Mr. Platt wrote to the architect: "Mr. Pavitt is concerned as to payment for work he has commenced and I would, therefore, be grateful if you would reach a decision as soon as possible on whether you wish to accept Mr. Taylor's renewed instructions in this matter."
Having gone into the matter on such instructions as they could get, the architects say on 31st May, 1954: "We regret that we must decline the appointment as architect". Why the building owner's solicitor had not given the architect the full particulars he asked for long before that date, indeed before the question was raised by the builder, I do not know, and I think it is much to be regretted.
After further communication, the solicitor, Mr. Platt, writing on behalf of his client, the building owner, said: "My client appreciates that Mr. Pavitt is not being paid for the work he has done, and although I have no wish that we should usurp the functions of architects, perhaps...
To continue reading
Request your trial