Replies to Query CXCIX. (Vol. VI., p. 470). (A.) I agree with the general principle that every professional man should be bound to bring ordinary care and skill to the performance of his work. But, on the authority of Priestley and Another v. Stone* (Court of Appeal, July 30th, 1888, in which judgments were given by Lord Esher, M.R., and Lindley and Bowen, LL.J., upholding the decision of Mr. Justice Fitzjames Stephen), I am of opinion that, in the absence of fraud by the architect, the builder has no remedy as against him. Then, as regards the building owner, it would appear that it was he, technically, who made the representation that great care had been taken in the preparation of the quantities; but he also took great care to contract himself out of all liability. I do not see how that contract can be set aside except for fraud, which is not, however, alleged. The builder is, presumably, a man of full age, and compos mentis, and signed the contract with his eyes open. He was not compelled to sign it without satisfying himself as to the correctness of the quantities; but the inference to be drawn is, that he then thought it was to his interest to do so, and consequently, as events have subsequently proved, acted unwisely, and deliberately undertook the risk. The case above quoted does not leave the law as affecting the present usual course of business between quantity - surveyors and builders on a satisfactory footing. Although the decision was by a strong and unanimous court, it was much questioned as to its righteousness by lawyers and the building trade; but it must hold until such time as it may be overruled by the House of Lords. The facts in this case are not identical with those submitted by the questioner, but I see nothing in the latter to prevent them being governed by the judgment. Nevertheless, the case requires to be read with great care, and the precedents cited therein should be also referred to. I have not the Law Reports' reference, but the judgment is recorded in "Professional Notes," vol. iii., p. 131, and a good account of the proceedings is to be found in the Building News, 3rd August, 1888, p. 162. Vide, also, article in the Builder, 4th August, 1888, pp. 76 and 88. It would be interesting to know what the builder would do, had the quantities been in excess and the owner claimed a deduction on that account. Would he not say thus: "No, I deliberately agreed with "the owner to undertake the risk of loss or gain by errors (if any) of "both kinds, and cannot now make any allowance"? (B.) ARTHUR HARSTON, Fellow. The iniquity of the above quoted condition is beyond question, and a somewhat similar clause used to be inserted by the Commissioners of Her Majesty's Works in the advertisements for tenders. "Professional Notes," vol. ii., pp. 59, 127, and 131. On May 28th, 1890, the Royal Institute of British Architects addressed a letter to the Office of Works, which resulted in a reply, dated 4th July, 1890, that, in the future, the words "which must be "verified by the persons desirous of tendering" would be omitted.— Vide R.I.B.A. "Journal for 31st July, 1890. The case now under consideration is rather one of law, but I should certainly think that an action would lie against the architect for negligence in preparing the quantities. If I were the builder I would certainly commence one. If there have been, as there are almost certain to have been, variations on the contract, would not this afford a proper and sufficient ground for the re-measurement and re-adjustment of the quantities? If, as a result of the insufficient quantities, the client has obtained work and materials for which he has not paid, would it not be well to couple him in the action, if taken, particularly if the architect does not happen to be a man of means? On the other hand, the builder goes into this matter with his eyes wide open, and a judge may hold him to his contract-it was for him to claim more time, if that allowed was too short. If the quantities had been taken out, as they should have been, by an independent surveyor, such surveyor would have been liable for deficiencies, in the absence of any condition to the contrary. On the whole, the case, although doubtful, is one in which, I think, the man who did the work is responsible. (c.) WM. WOODWARD, Fellow. In my opinion the contractor cannot recover against the architect for alleged inaccuracies in the bills of quantities. He has signed the contract to do the work, and by so doing has accepted the situation with all its liabilities, among others the responsibility for the accuracy of the bills of quantities. Unfortunately, this is a matter of constant occurrence. Builders accept bills of quantities from architects, sign contracts to do work without verifying the bills of quantities, and find, when too late, that they are saddled with heavy losses from inaccuracies in the bills. JOSIAH HUNT, Fellow. Reply to Query CC. (Vol. VI., p. 471). WATER RIGHTS-EASEMENT. I am of opinion that X is wrong. He bought the field from whence the supply was taken, with the existing right thereon, and, although no reservation appears to have been made, the right of supply, to my mind, was established and cannot now be stopped by him. It appears to me to have been a settled conviction in the minds of A and B that the right was confirmed by lapse of time, and if X had any doubt about it he should have raised the question when he bought his field, and also when B bought his. CHAS. SIMMONS, Fellow. Replies to Query CCI. (Vol. VI., p. 471). AGRICULTURAL HOLDINGS ACT, 1883, SECTION 44. (A.) This seems to be a legal question, but I am of opinion that the landlord's agent can distrain for the year's rent legally due at Michaelmas last within the period he names. Under the Agricultural Holdings Act, 1883 (sec. 44), a landlord can distrain for rent which is not in arrear more than twelve months from the date on which it accrued, or on which, by custom, the rents of the estate are usually collected. For instance, if the rent is reserved yearly, one year's rent legally due at Michaelmas 1892, but collected annually, say, on the following December 10th, might be distrained for on December 9th, 1893. If reserved half-yearly and, by custom, collected on June 10th and Dec. 10th, the Lady-day rent would be recoverable by distress up to June 9th, and the half-year's rent due at Michaelmas up to December 9th in the following year. This was settled by case of In re Bew ex-parte Bull (56 L. J. Rep., Q. B., L. R., 18 Q. B. D., 642). If, however, the tenant becomes bankrupt, the landlord cannot then recover more than half a year's rent, and would have to accept poundage with other creditors for the balance of rent owing. (B.) WM. B. CANNING, Fellow. Distrain at once for the year's rent due at Michaelmas 1893. Having recovered this, should the tenant become bankrupt or compound with his creditors, you can set off the tenant-right valuation in discharge of the half-year's rent due at Lady-day 1894. Although the Lady-day half-year's rent is legally due on the 25th March, but, under the custom of the estate, is not payable until June, it would, except under special circumstances, be considered sharp practice to put in a second distraint until after that date. (c.) GILBERT MURRAY, Fellow. Yes. The first half of the year's rent was legally due on 25th March, 1893-customarily payable June 1893. Therefore, in distraining before June 1894, you would be within the year allowed by the 2nd clause of Sec. 44. J. R. EVE, Fellow. Reply to Query CCII. (Vol. VI., p. 472). RATING OF HOARDINGS. Assuming the rates in the £ in the parish are under 7s., then too large a deduction has been made in respect of these, and if, as is usual, the person paying the rent is the owner of the hoarding, then there is no justification for deducting the £4, as its repair and maintenance devolve on him, in addition to the rent he has agreed to pay. WM. EVE, Fellow. Replies to Query CCIII. (Vol. VI., p. 472). AGRICULTURAL HOLDING-DEFINITION. (A.) If the house, offices, gardens, shrubbery, and pasture land are let as one holding, that holding is not, in my opinion, a holding within the meaning of the Agricultural Holdings (England) Act, 1883; but if the pasture land is let as a separate holding from the rest of the premises, although to the same tenant, that holding is a holding within the meaning of the Act (see sections 54 and 61). (B.) S. B. L. DRUCE, Associate. On the face of it, and from the description of the property, which is somewhat bald, it seems to me that this is a class of case to which it is entirely doubtful whether the Agricultural Holdings (England) Act, 1883, was intended to apply. As I read it, the ten acres of pasture form part of the curtilage of the house and premises, and the house is a "private house," therefore the occupation can hardly be called a "pastoral holding" in the words of the Act. If the ten acres of pasture were let distinct and separate from the private house and offices, gardens and shrubbery, it might be called a "pastoral holding," and in such case the Act would, I presume, apply. (c.) CHARLES BIDWELL, Fellow. No, unless there is a separate rent or letting for the pasture land. Section 54 provides that the Act shall not apply to a holding which is not either wholly agricultural or wholly pastoral, or in part agricultural, and as to the residue pastoral. "Pastoral" is literally a sheep farm or sheep walk, but it may be taken as meaning pasture land as compared with the land which is ploughed and cultivated. F. PUNCHARD, Fellow. (D.) The definition of the application of the Agricultural Holdings Act, 1883, is in Section 54. This section is not clear, but I cannot find any case as to its interpretation. I conclude, however, that its intention is to exclude a residential occupation of the nature of that referred to in the question. Section 54 states that the Act shall not apply to a holding that is not either "wholly agricultural or wholly pastoral." This, the occupation in question is certainly not. Or, "is in part agricultural, and, as to the residue, pastoral." By the way in which the word " agricultural" is placed in contradistinction to "pastoral," I conclude that it is intended to mean "arable." If this be so, then the holding does not come within this definition. As the occupation has apparently always been treated as one, at one reserved rent, it is clear that no arbitrary division of it can be made for the purpose of the Act. E. A. RAWLENCE, Fellow. Replies to Query CCIV. (Vol. VI., p. 472). SURFACE WATER-DEFINITION. (A.) In my opinion water falling upon a roof is certainly "surface water." As it appears to me the question arising under the agreement is whether it is practicable to exclude such surface water from the sewer; that is to say, whether there is any ditch or drain other than the sewer into which the owner of the houses could discharge such surface water. Inasmuch as no water from the surface of the ground falls into the sewer, the subsoil must be either very porous, or there probably is some ditch or drain near. In the former case perhaps some "swallow hole" or dumb well would absorb the roof water. RICHARD F. GRANTHAM, Associate. (B.) The fact that a building stands between the clouds and the surface of the ground does not change the character of the water. What now falls on the roof would have fallen on the ground, and have found its way to the nearest watercourse less that portion which the ground absorbed; and the construction of a road which intercepts the course of the water from the land to the river does not absolve the road from taking that water away. The Corporation is, in my opinion, right in its contention. (c.) ROBT. GODFREY, Fellow. The Corporation are, I think, right in refusing the admission of roof water into their sewers in accordance with the terms of the agree ment. All rainwater is naturally either" surface" or "subsoil." The latter it cannot be, and the interposition of a house can hardly be con sidered to remove the roof water (which would otherwise fall upon the ground) from the description of surface water. CHARLES H. Lowe, Fellow. |