Lord Mackenzie.—[After dealing with matters with which this report is not concerned]—It is also clear that the pursuers did the work they now ask payment for on the instructions of Mr Salmon. It is impossible, however, to find ground for holding as regards the June items that there was any contractual relation between the Company and the measurers.—[His Lordship discussed this matter and continued]—Nor is it possible to agree with the view taken by the Sheriff-substitute that the defenders are liable in consequence of a custom of trade. I find it impossible to formulate what the custom of trade is under which the defenders are supposed to be liable. It is intelligible that where a private individual or a company has employed an architect and definitely settled plans with him, and he is instructed to proceed with the work, the architect may then proceed to employ a measurer in accordance with the custom of trade. This is the view taken by Mr Barclay, the pursuers' expert witness. The present case, however, is different. At the time Mr Salmon instructed the measurer the position of matters was still inchoate, although certain plans had been apparently adjusted with the Admiralty.—[His Lordship then dealt with questions with which this report is not concerned, and expressed his opinion that as regarded the first five items of the account the defenders made use of the work charged for, and were bound accordingly to pay these items.]
Lord President.—I agree with the opinion that has just been delivered, and I would not find it necessary to say anything were it not for the fact that the learned Sheriff-substitute has gone upon a different ground. I wish to say most distinctly that the proposition which is laid down by the Sheriff-substitute in his note, that, by the custom of trade, the official architect of a company proposing to build has implied authority to engage the assistance of a measurer is not, in my opinion, good law, and is certainly not borne out by the case which he quotes—the case of Black v. Cornelius . I have no doubt whatever that when an architect is employed, plans have been approved of, and he is instructed to go on with the building, that he has the right, with no further order, to employ a measurer, without whom the whole matter cannot be gone on with or proper schedules for contractors given out. That was all that was decided in Black v. Cornelius . But the idea that, because a man has the position of official architect, he has a free hand to employ measurers when he likes is perfectly out of the question.
In the actual circumstances of this case I think it is quite clear that the parties did get the good of these measurements, and never could have gone on to consider what the houses would really cost, and what propositions they could put before the public, without seeing the measurements. Therefore, without going into the details which Lord Mackenzie has already discussed, I entirely concur in the interlocutor proposed by him.
Lord Johnston.—I have had the advantage of perusing the opinion prepared by Lord Mackenzie, and I entirely concur in the results at which he has arrived and the method of arriving at them. I respectfully concur also in what your Lordship has added.
