BUTE. Craig v Barclay. Dec. 20, 1892. Sheriff CoWAN. those of a similar character that cannot be laid on the natural bed. RENFREW AND All others are capable of being so laid, the advantage being that the stone rests more solidly in the wall, and the surface exposed to the weather is not so apt to laminate, scale off, or waste. The advantage to a builder of building in stones "on cant" or "edge" is, as stated by the defender himself, that "it leaves as a rule a "greater space behind in the wall to be filled up with shivers"; and because a larger price being charged for the stones when to be laid on the natural bed, those to be laid on cant cost him less It is, however, quite apparent that stones thus built in on cant are objectionable because of the vacant space left behind them in the wall and the greater surface which is exposed to the air. The defender's witnesses endeavoured to attach to the words "where "practicable" the meaning where practicable having regard to cost. The Sheriff-Substitute has no hesitation in rejecting this meaning. He was The alleged custom of trade giving to a builder under such a clause a latitude in respect of stones built in on cant was sought to be established by the testimony of five builders-two from Glasgow, three from Paisley-the defender, and one measurer. The Sheriff-Substitute considers that, while they have succeeded in showing that a good many builders have succeeded in violating their contracts, the evidence of builders is not alone sufficient to establish a rule of trade as against their employers. much surprised at the evidence of Mr. Dansken, the measurer, who alone, outside of the building fraternity, supported the contention of the defender. On the other hand, there is the testimony not only of architects and one measurer, but also of three builders. The Sheriff-Substitute refers particularly to the evidence of Thomas Wilson-"I know of no such custom." The SheriffSubstitute regards this alleged custom as not being proved. Of the fact that to the extent of from one-third to one-half of their surface both walls are built in this objectionable manner there can be no doubt. In this almost all the witnesses agree. The defender admits it in his evidence. That this front wall is not equal to that of the O. S. Church, Paisley, need not surprise one, when the defender, in his very frank evidence, admits that he had simply ignored the stipulation to that effect. Now, the frontage of the Church referred to, recently erected in Paisley, is beautifully symmetrical. Several of the witnesses speak to the inferiority of defender's front wall both as regards stones and workmanship, and the defender confessed to it being inferior. As regards symmetrical beauty a layman may judge; and there can be little doubt that the defender's is, in that respect, an inferior frontage. There are some eighteen to twenty large stones-risers they are called from 12 to 14 inches high, dotted over the wall, catching the eye and blemishing its appearance; whereas in the O. S. Church frontage the highest stone rises only 10 inches, and the BUTE. Craig v Barclay. Dec. 20, 1892. Sheriff CowAN. RENFREW AND Whole gable has a pleasing and beautifully regular aspect. Now, that the defender's wall could have been built in a similar manner is shown by the plan No. 17 of process; and the question put over and over again to witnesses for the defence, whether, starting from an 8-inch course, it was necessary to have risers of 12 to 14 inches, was not calculated to throw much light on the case, when it is the fact, as almost admitted by the defender, that there are in his wall a considerable number of stones from 4 to 6 inches in height. It was argued that the clause on page 7 is in itself inconsistent. Its true meaning appears, however, when the way in which a wall is built is considered. The explanation given by various witnesses commends itself to the Sheriff-Substitute as eminently reasonable. The clause, "the walls to be built in regular or level courses," must be read in connection with the words which immediately follow, "with through bond-stones," &c. The inner face of the walls must be brought up simultaneously with the outer face so that the through bond-stones may be put in. With the exception of certain principal stones, however, the defender has neither in front nor back wall put in any "through"bonds." The objection on this head applies, as explained by Mr. Abercrombie, to the masonry in front, below the window sills, and to the back wall. The provision is distinct and clear. Without such stones the two faces of the wall are not, and cannot be, kept together, and there is danger when the roof is imposed on the structure of the two faces of the walls parting, such danger being all the greater when, as in defender's wall, the wall is, on its inner face, of brick. On these grounds the Sheriff-Substitute considers that the defender has not fulfilled his contract with the pursuers. His excuse apparently is that he considered the work to be cheap or third-class work. There is nothing in the schedule to indicate this. Much was sought to be made of an alleged option to the builder to make an addition to a gable with either brick or rubble. The Sheriff-Substitute considers no such option was given to the builder, but it was in the hands of the architect. A great deal of nonsense was talked by some of the witnesses about the provision for mortar. There can be little doubt that one ton of lime shells to three carts of sand will, as admitted by the great majority of witnesses, give a good strong mortar, thoroughly serviceable and strong. It is a well-known fact that lime shells, when slaked with a view to making mortar, increase fully one half in volume and weight-a fact which some of the witnesses seem to have forgotten. It remains only to consider whether the pursuers have in any way barred themselves from the remedy sought either by delay or agreement. The Sheriff-Substitute does not think that the delay in this case has been such as to preclude the pursuers. Much of the work objected to was done in the absence from town of their RENFREW AND Craig v Barclay. Dec. 20, 1892. architect, and objection was taken as soon after his return as enabled him to be quite satisfied of the existence of the faults. His letter No. 12 of process must, the Sheriff-Substitute thinks, be read as a whole; and as the defender refused to do what was Sheriff CowAN. asked in the first part of the letter, he cannot claim to take advantage of the second part of what was truly an effort at amicable compromise. H. C. Jan. 13, 1893. PAISLEY, 13th January, 1893.-The Sheriff having advised the process, recalls the interlocutor of the Sheriff-Substitute of 20th Sheriff CHEYNE. December last; finds in fact (1) that in June, 1892, the defender contracted with the pursuers to do for them the digger, mason, and brick work of certain proposed alterations and additions at the Lawn Street Mission Hall, Paisley, in terms of specification No. 5 of process; (2) that it was, inter alia, provided by the said specification that the whole stones should be free from soft, discolouring, or wasting parts, and laid on the natural bed where practicable, and that the walls should be built in regular or level courses with through bond-stones in each course not more than 6 feet apart; (3) that the defender has built the front and back walls, so far as they were built at the date when this action was raised (since which date nothing has been done to them), in disregard of the above-quoted provisions, the stones in both walls, to the extent of one-third to one-half of their surface, being laid "on cant," though it was practicable to have laid them on the natural bed, and there being no through bond-stones in either wall, with the exception of rybats; and having regard to these findings, ordains the defender forthwith to take down and proceed to re-erect, in conformity with the specification No. 5 of process, the front and back walls of the building to which the said specification applies so far as the same fall within the contract, all at the sight and to the satisfaction of Mr. Thomas Graham Abercrombie, architect, Paisley, with certification to the defender that if he fails to obtemper the foregoing order, warrant to take down and re-erect will be granted as craved in the petition, and decerns ad interim, reserving meantime all questions of expenses; further remits the case to the Sheriff Substitute for such further procedure as may be necessary. JOHN CHEYNE. Note.-Though it was candidly admitted by the defender in the witness-box that he had ignored the stipulation requiring the facings of the front wall to be equal to the front wall of the O. S. Church, I cannot, in the absence of any averment on the subject on the record, make that a ground of judgment, and accordingly I have felt it necessary to alter so far the Sheriff-Substitute's interlocutor. On all other points, however, I am in agreement with the Sheriff-Substitute, and that being so, I may be pardoned if I make only a few remarks in supplement of what he has said. That, to the extent of from one-third to one-half of their BUTE. Craig Barclay. Jan. 13, 1893. Sheriff CHEYNE. RENFREW AND Surface, both the front and back walls, as erected by the defender, are built of stones placed "on cant," there can on the proof be no doubt whatever, and the only question, so far as this branch of the case is concerned, is whether that is or is not a breach of the contract. Now, upon the record and in his evidence the defender appears to defend what he has done upon the ground that, though the contract says that the whole stones are to be laid on the natural bed where practicable, he had notwithstanding, in virtue of an alleged custom or usage of the building trade, an absolute discretion as to how stones were to be laid, and might lay them on the natural bed or on cant just as he pleased, and entirely uncontrolled by the architect. A more extravagant proposition than this it would be difficult to imagine, and I am not surprised that at the discussion before me the defender's counsel did not venture to maintain it, and strove to justify his client's action entirely upon a construction of the clause in the contract, suggesting that the introduction of the words "where practicable" gave his client liberty to put into the walls on cant any stones which came from the quarry cut on cant. It may be questioned whether this construction, if adopted, would help the defender much, in view of what the witness Mr. M'Ghee says at the beginning of his cross-examination, and in the absence of any proof that all stones which have been laid on cant arrived out on cant from the quarry; but be that as it may, I am of opinion that the construction suggested by the defender's counsel-which, it may be remarked, virtually reduces the clause to insignificance--is an extremely farfetched one, and much less natural than the one which the pursuers' witnesses-in company, it may be added, with Mr. Scott, one of the defender's witnesses-present, and which commends itself to my mind as the true one, viz., that the effect of the words "where practicable" is simply to permit mullionslong stones intended for pillars and stones about chimney vents, which must necessarily be there to be laid on cant. So far, however, as the main portion of a wall is concerned, there is nothing, from a builder's point of view, which renders it impracticable to lay every single stone on its natural bed; and if a builder, acting under such a clause as we have here, chooses, for the sake of saving himself the trouble of selection and possibly making a little more out of the job, to lay a large number of stones otherwise than on the natural bed, he does so at the risk of having to undo his work on its being challenged by the architect. It was urged that it was impossible for the defender, using, as he did, risers of from 12 to 14 inches high, to get from ordinary Auchenlea rubble a sufficient number of stones cut so as to admit of their being laid on the natural bed; but there is nothing, so far as I can see, in the contract obliging him to use risers of that height (the reference to the O. S. Church rather suggests that smaller risers should have been used), and, apart from that, it seems plain that even with risers of from 12 to 14 inches he could have got a sufficient number RENFREW AND of suitable stones by paying a little more for them. As regards the other objection—the absence of through bondstones-it is clear from the proof (1) that, apart from rybats, there are no such stones in the walls so far as built; (2) that there is nothing to prevent such stones being introduced in the part of the front wall below the window sills and in some at least of the butts; and (3) that their introduction, specially in view of the fact that the inside facing of the walls has been, with the pursuers' concurrence, made of brick, will be of advantage to the pursuers, as the two parts of the wall will be thereby more securely tied together than they are at present. I have only in conclusion to say that I agree with the Sheriff- For pursuers-Mr. J. F. M'LENNAN, advocate; Mr. J. M. LANG SHERIFF COURT OF MIDLOTHIAN. HANNAN, Defender. Statute―Married Women's Property (Scotland) Act, 1881.— Held that the expression in an Act of Parliament, "after "the passing of the Act," is to be construed as including in the operation of the Act the whole of the day on which it received the royal assent. This point was raised in an action under the Married Women's Property Act of 1881, where the pursuer's father died on the day the Act received the royal assent, and was disposed of by the Sheriff (BLAIR) in the following interlocutor: BUTE. Craig u Barclay. Jan. 13, 1893. Sheriff CHEYNE. No. 34. Hannan v Nov. 1, 1892. EDINBURGH, 1st November, 1892.-The Sheriff having resumed consideration of the cause, recalls the interlocutor complained of; Sheriff BLAIR. finds that it is admitted that the late Thomas Hannan, cattleman, Westbank, the father of pursuer and defender, died on the 18th July, 1881, intestate; that the pursuer was married before, and that her marriage was dissolved by the death of her husband |