Ramsay & Son v Brand

JurisdictionScotland
Judgment Date20 July 1898
Date20 July 1898
Docket NumberNo. 192.
CourtCourt of Session
Court of Session
1st Division

Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 192.
Ramsay & Son
and
Brand.

Contract—Executory Contract—Deviations—Remedy.—

Where a building contractor fails to follow the plans agreed upon, the general rule is that he is not entitled to the contract price, and that the proprietor has the option of calling upon him to remove the materials from his ground, or of retaining them subject to the builder's claim against him in quantum lucratus est, but when the deviations are not material, the proprietor may be ordained to pay the contract price under deduction of the cost of bringing the building into conformity with the plan.

Contract—Executory Contract—Architect.—

Where a builder contracts to do work according to plans and specifications, and the specification bears that the work is to be done to the satisfaction of the architect in every respect, the architect is not entitled to sanction deviations from the plans, and the proprietor is not bound by the architect's certificate to accept any work other than that contracted for.

D. Ramsay & Son, builders, Arbroath, raised an action in the Sheriff Court there against Robert Brand, Arbroath, for payment of £79, 10s., being the contract price of the mason work of a cottage.

The contract bore that the mason work was to be executed according to plans and specifications, the contract bearing—‘the whole to be done to the entire satisfaction of the architect in every respect.’

After various proceedings in Court, the Sheriff-substitute (Dickson), on 27th October 1897, pronounced this interlocutor:—‘Finds that the pursuers have completed the mason work of the cottage in Fergus Square, Arbroath, referred to in the petition and in the contract between the pursuers and defender, to the satisfaction of the said A. A. Symon [the defender's architect]: Finds that the contract price of the said mason work under said contract is £79,10s.: Finds that the sum is due by the defender to the pursuers,’ &c.

The defender appealed, and argued;—The work done was not conform to the contract. Symon's certificate was ultra vires.1

The respondents argued;—Even admitting that the certificate was not final, still it was evidence that the architect was satisfied with the work, and that was the sole condition the builder was called upon to fulfil.

On 16th March 1898 the Court pronounced the following interlocutor:—‘Recall the interlocutor of the Sheriff-substitute dated 26th August 1897, and the interlocutors subsequent thereto; remit to Mr A. A. Symon, architect, Arbroath, to report whether the work executed prior to the 26th August 1897 has been done to his entire satisfaction in every respect, or in what respect, if any, the said work is disconform to contract, and what sum, if any, it would cost to complete the work in accordance with the contract,’ &c.

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