Jamieson v Watt's Trustee
| Jurisdiction | Scotland |
| Judgment Date | 29 March 1950 |
| Date | 29 March 1950 |
| Docket Number | No. 29. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Sheriff of Aberdeen, Kincardine and Banff.
ContractPactum illicitumRecompenseBuilding operations requiring licenceStatutory offence to act without licenceAction for payment for work not covered by licenceAdmissibility of doctrine of recompenseEmergency legislationDefence (General) Regulations, 1939 (S. R. & O. 1939, No. 927, as amended by S. R. & O. 1941, No. 1596, and S. R. & O. 1945, No. 502), Reg. 56A, par. 2.
Reg. 56A of the Defence Regulations, 1939 (as amended), by par. 2, declares unlawful any work, with certain specified exceptions, done without a licence in the construction, reconstruction, alteration, demolition, repair or decoration of a building, or work required for the purpose of providing water, light, heating or other services for a building.
The proprietor of a house instructed a joiner to execute all the joinery work in connexion with repairs and alterations to the house. The joiner applied for and obtained, under Reg. 56A, a licence for the expenditure of 40 upon the joinery work. On its completion he rendered an account for 114, 8s. 6d., being the total cost of the work done by him. The proprietor admitted his obligation to pay the joiner the sum of 43, 7s. 7d., the excess of 3, 7s. 7d. being admittedly a reasonable margin of error, but he refused to pay the remainder on the ground that Reg. 56A had been contravened.
Held that the pursuer was not entitled to payment for work not covered by the licence in respect that his claim depended on his breach of a statutory regulation, and accordingly that the equitable doctrine of recompense was inapplicable.
Cuthbertson v. LowesUNK, (1870) 8 Macph. 1073, in which the contract in question was by statute void but not illegal,distinguished.
WarEmergency legislationControl of building operations and materialsLicenceArticle bought for purpose of contemplated operationsWhether cost to be included in licenceDefence (General) Regulations, 1939 (S. R. & O. 1939, No. 927, as amended by S. R. & O. 1941, No. 1596, and S. R. & O. 1945, No. 502), Reg. 56A, par. 4.
Reg. 56A of the Defence Regulations, 1939 (as amended), by par. 4, provides that, in computing the cost of an operation or of any work, regard shall be had to the value of any goods or services used for the purposes thereof notwithstanding that the provision thereof did not involve the expenditure of money solely or primarily for the purpose of the operation or work.
In applying for a licence to execute a scheme of alteration and repair to a house, a tradesman, who had been entrusted by the proprietor with the supervision of the operations, did not include the price of a grate which he had already obtained, with the proprietor's approval, for the purposes of installation in the house.
Held that the cost of the grate, which formed an integral part of the operations, should have been included in the application for a licence, and that accordingly par. 4 of Reg. 56A had been contravened.
James Jamieson, carpenter and joiner, brought an action in the Sheriff Court of Aberdeen, Kincardine and Banff, at Banff, against Dr Andrew Noble, as sole trustee of the late James Watt, for payment of 114, 8s. 6d.
The following narrative of the circumstances in which the action arose is taken from the opinion of the Lord Justice-Clerk:"The late James Watt was the proprietor of a cottage in Banff which was let to a tenant and factored by the pursuer. Mr Watt decided to carry out repairs and alterations. He instructed the pursuer to do the joiner work involved and to employ other tradesmen for the other work. The pursuer obtained estimates. He also acquired a grate which Mr Watt agreed was suitable for installation. Thereafter the pursuer applied for, and obtained, in Mr Watt's name a licence for the work proposed to be done. The amount passed was 161, which did not include the price of the grate which was 35. The amount of the 161 allocated to the joiner work, including the cost of installing the grate, was 40. It turned out that the cost of the joiner work was 43, 7s. 7d. Certain additional work was carried out by the pursuer which was not covered by the licence. This is detailed in condescendence 4. The cost of the additional work amounted to 36, 0s. 11d. The pursuer rendered an account for these three items, 43, 7s. 7d. for the work actually licensed, 35 for the grate and the 36, 0s. 11d.114, 8s. 6d. in all. Mr Watt having died, his trustee has admitted liability for the item of 43, 7s. 7d., but has refused to pay for the grate and the unlicensed work. The ground of refusal is that, as the pursuer in incurring these items of expense was acting in contravention of Defence Regulation 56A, he is not entitled to recover them in a Court of law."
As regarded the additional work not covered by the licence, the cost of which amounted to 36, the pursuer described in detail the various items of which it was composed. He contended that they were all necessary for the welfare of the property and such as he was justified as factor in making even where they had not been specially authorised by Mr Watt. He further averred that, in any event no licence was necessary in view of provisos (a) and (b) to paragraph 6 of Regulation 56A in respect that he had reasonable ground for believing that the cost would not exceed that permitted in the licence and that what had been done without a licence had been done in circumstances of emergency. Included in the items was a sum of 4, 9s. 2d., the cost of repair to a dangerous roof and ceiling, which he contended had no relation to the contract. The defender denied that any of the operations other than those covered by the licence had been carried out on the instructions of James Watt.
As regarded the grate, the installation of which formed part of the alterations, its price had not been included in the licence obtained for the joiner work in 1947, and the pursuer averred that no licence was required. He had bought the grate in 1946 and had shown it to Mr Watt and obtained his approval.
The defender pleaded, inter alia:"(1) The sum sued for to the extent of 71, 0s. 11d. arises out of an unlawful and void contract and is irrecoverable in law. The action is incompetent and should be dismissed with expenses. (2) Et separatim. The pursuer having illegally executed work in excess of that authorised by the building licence issued under Defence Regulation 56A, the whole contract between pursuer and the said James Watt became unlawful and void. The action is accordingly incompetent and should be dismissed with expenses." "(4) The pursuer having executed works or supplied goods as condescended on by the defender to the amount of 71, 0s. 11d. in excess of the amount licensed and defender having previously offered and now tendering the sum of 43, 7s. 7d., defender is entitled to absolvitor with expenses."
On 21st June 1949 the Sheriff-substitute (W. R. Walker) repelled the first, second and fourth pleas in law for the defender and allowed a proof.
The defender appealed to the Sheriff (Sir George Morton, K.C.), who, on 28th October 1949, recalled the interlocutor of the Sheriff-substitute, sustained the first and fourth pleas in law for the defender to the extent of 66, 11s. 9d., decerned against the defender for payment to the pursuer of 43, 7s. 7d. and allowed a proof before answer in respect of the item of 4, 9s. 2d.
The pursuer appealed to the Court of Session, and the case was heard before the Second Division on 26th January and 9th March 1950.
At advising on 29th March 1950,
LORD JUSTICE-CLERK (Thomson).[After the narrative quoted supra)
The first matter to be determined is whether the pursuer was in breach of the Regulation. Broadly, what the Regulation does is to prohibit work in the construction, reconstruction, alteration, demolition, repair and decoration of a building or required for the purposes of providing water, light, heating or other services for a building being done without a licence. It is not contended that a licence was in force in respect of the disputed items, but it is contended that no licence was required.
I deal first with the items other than the grate. It is clear that these items are all new and independent matters and not just things which emerged as sequel of the licensed work. Obviously in matters of this kind there must be a reasonable margin of error, and the defender recognises that this is so in conceding that he must pay 43, 7s. 7d. for the work actually licensed, though in fact the permitted figure was 40. But, where a new departure has been made, the pursuer must, if he can, rely on the provisos in the Regulation. He relies on provisos
(a) and (b) to par. 6. There was some controversy as to whether (a) was applicable at all to the present situation. I do not require to decide that point, since, on the assumption that it is applicable, I am satisfied that the Sheriff was right in his view that there were no sufficiently relevant averments to bring the pursuer under it. So far as proviso (b) is concerned, I again take the Sheriff's view. I can find no relevant averments of urgency or emergencyNo dispute arose between the parties as to the propriety of the course adopted by the Sheriff of remitting the item of 4, 9s. 2d. to probation.
The position as regards the grate is unfortunate for the pursuer. There was obviously some misunderstanding of the position, and it appears to have been shared by the licensing authority. There can be little doubt that a licensing authority which licenses the installation of a grate must contemplate that there is to be a grate. Nevertheless, when one looks at the legal situation, it is difficult to resist the conclusion that, as this grate was acquired for the purpose of being installed as part of the work being carried out, its cost should have been covered by the licence specifically. It is clear that the necessity for a licence is not confined merely to labour...
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