Townsend (Builders) Ltd v Cinema News & Ppy. Management Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD COHEN,LORD JUSTICE SELLERS |
| Judgment Date | 28 November 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J1128-1 |
| Court | Court of Appeal |
| Date | 28 November 1958 |
[1958] EWCA Civ J1128-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed),
Lord Cohen and
Lord Justice Sellers.
Mr. M.A.B. KING HAMILTON. Q.C. and Mr. NORMAN WIGGINS (instructed by Messrs. Dod, Longstaffe & Fenwick) app eared on behalf of the Appellants (Defendants).
Mr. HUGH FORBES (instructed by Messrs. W.J. Fraser & Sons) appeared on behalf of the Respondent Plaintiffs.
Mr. DAVID GARDAM (instructed by Messrs. Sydney Redfern & Co.) appeared on behalf of the Respondent Third Party.
: This case has arisen out of certain building work which was done in the years 1952 and 1953 to a house known as No. 92 Cheyne Walk, in Chelsea: The sums involved are by no means large; and it is indeed a tragedy of the case that, owing to its complexity and the great length of the trial in the Court below, the costs of the proceedings appear to be somewhat out of proportion to the sums involved. That misfortune I cannot help recording; but I do not forget that it is the function of the Court not to deplore, but to decide the questions that have arisen. Nevertheless, I have thought (as did the learned Judge) that it would, on the whole, be in the best interests of all concerned that I should deliver judgment at once.
Though I shall come back to refer somewhat more in detail to certain matters of fact, it may be useful, as a foundation to what follows, that I should state, as briefly as possible, the essential facts of the case; and first I will identify the parties concerned.
The Plaintiffs in the action are a firm of builders, Townsends (Builders) Limited, who were engaged as such on the work in the house; and I shall, for convenience, refer to them hereafter as "Townsend". The Defendants to the action are (or were) the owners of the property, 92 Cheyne Walk, a company known as Cinema News and Property Management, Limited. It is apparent that that company is substantially owned and controlled by a gentleman, Mr. Samuel Harris, who was at the date of the trial some 84 years old. I shall refer, accordingly, to the Defendants as "Harris" - by the name of the principal proprietor of the company; for in my judgment there is no relevant distinction, in any of the matters before us, between Mr. Harris, as proprietor of the company, and the company itself. In particular, I reject the argument that a certain undertaking which was given by Mr. Harris in July, 1953, was given by him personally and not as representing the company. The house, 92 Cheyne Walk, though it was bought by and in the name of the Defendant company, was intended as a residence for Mr. Harris and his wife, a lady slightly older than her husband, and, unhappily, suffering seriously from diabetes. Third, is the partnership firm of David A. Wilkie & Partners, the architects concerned with the work; and to them I shall refer by the name of "Wilkie".
I will next state the nature of the proceedings and the various claims raised therein. The claim in the action, originally started in the Queen's Bench Division, is by Townsend against Harris, for a sum of £150, alleged to be owing on the building contract in connection with this house, which contract was executed on the 18th November, 1952. The £150 was particularly related to the cost of certain works done to two rooms in the house, one of which was on the first floor and one on the second floor. If I may assume that the plans before me are orientated in the ordinary way - north, south, east and west - both rooms were in the north-west corner of the house. On the first floor, a room so situated was made into a bathroom and lavatory, with access thereto from the room to the south and the room to the east. In the case of the second floor, the corresponding room was already fitted as a bathroom and lavatory, but the work consisted of making a new entrance from the room on the east, so that it would thereafter be accessible from the rooms both on the south and on the east, in the same way as would be the case on the first floor. The answer to Townsend's claim in the action has been that the sum in question is not recoverable because the work dona was illegal - and also (as I understand it) because the work done was quite worthless.
Second, there is a counterclaim in the action, by Harris against Townsend, for damages for breach of the building contract. The alleged damage was £493 odd, being the cost of reinstating the two rooms on the first and second floors that I have mentioned in their original condition. The answer to that counterclaim on the pleadings is that there was no damage suffered by Harris; though it has also been argued before us, and I shall deal with the argument as being open, that there were no breaches of the contract
Then third, Wilkie was brought in by Third Party notices served both by Townsend and by Harris – in the case of Townsend, as the Judge says (but it does not now matter), somewhat late. There was argument in the County Court to the effect that the Third Party procedure was not, in certain respects, an appropriate means for raising the issues against Wilkie; but these objections have now (if I may say so) very properly been abandoned; so that the issues between Harris and Townsend respectively, on the one side, and Wilkie on the other, are now before us for decision. These issues are, first, as between Townsend and Wilkie, that, in so far as Townsend is liable to Harris for the alleged breaches of contract, he (Townsend) can claim against Wilkie for an, indemnity, seeing that he (wilkie) was responsible for the events which constituted or resulted in the alleged breaches and any damage suffered in consequence thereof by Harris. And second, and finally, as between Harris and Wilkie, first it is alleged by Harris that Wilkie is liable to Harris for damages for the same figure, £493 odd, on the ground of negligent conduct as Harris's architect; and it is also claimed, by way of such damage, to recover any costs which Harris may have to pay to Townsend: secondly, and per contra, Wilkie claims (and this is not now in dispute) a figure of £175 for unpaid professional fees.
I will now go back to the facts of the case. The plan and the specification of the work to be done at 92 Cheyne Walk had been prepared by Wilkie; and that work included (as I have already indicated), on the first floor, fitting out the north-west room (as I have called it) as a bathroom and lavatory, with doors into the two adjoining rooms respectively to the east and south. The intention in fact was that this bathroom and lavatory would be available, on the one hand, for Mrs. Harris, who would be occupying, as a bedom, the room to the east, and also by the nurse or compan or, in the absence of either, by Mr. Harris himself, who would be occupying the room to the south. As will be seen, however, it was at one time suggested that these two rooms were to be the bedroom and dressing room of Mrs. Harris. That point has a relevance to certain of the by-laws.
On the second floor (as I have already also stated), it was intended, by the plan and specification, to make the existing bathroom and lavatory accessible from the room to the immediate east. The point of that was this, that the room to the south was intended to be occupied by a house-boy; whereas the room to the east would be occupied by a man and his wife, also in the service of the Harrises. Unless the alteration was made, it meant that the occupants of the room to the east would have to gain access to the bathroom by going through the house-boy's bedroom. It also appeared, on plans later submitted, that these two rooms were intended as Mr. Harris's bedroom and dressing room - a suggestion which bore no relation whatever to the facts as they really were or had ever been intended.
Townsend's tender for this work was duly accepted; and the contract was entered into (as I have said) on the 18th November, 1952. I must now refer to certain terms of the contract. After reciting that certain drawings and the specification had been signed and identified by the parties thereto, the terms of the contract were stated in Conditions appended to the signed document. The first of those Conditions reads as follows (so far as relevant): "The Contractor" (that is, Townsend) "shall carry out and complete the Works" – and that, of course, means the works specified in the attached specification – "in accordance with this contract in every respect in accordance with the directions and to the reasonable satisfaction of the Architect" – that is, Wilkie. I turn to paragraph 3 of the Conditions, upon which a good deal of argument has turned. Sub-paragraph (a): "The Contractor shall comply with and give all notices required by any Act of Parliament or by any regulation or byelaw of any local authority or of any public service company or authority who have any jurisdiction with regard to the Works or with Whose systems the same are or will be connected" - etc.; and then it goes on, in sub-paragraph (b), "The Contractor before making any variation from the Contract Drawings or Specification necessitated by such compliance shall give to the Architect written notice specifying and giving the reason for such variation and applying for instructions in reference thereto". It should be stated (without taking too much time to read the details of the contract) that if a variation was authorised by the Architect then the builder - the Contractor - was entitled to charge the owner, by way of an extra, for any additional work for which the variation called.
In reading the first sub-paragraph of paragraph 3, I emphasised the second use of the word "by". If I may just go back to it, as the paragraph is...
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