Walker v. McMillan

Walker v. McMillan
Collection
Supreme Court Judgments
Date
1882-05-03
Report
(1882) 6 SCR 241
Judges
Ritchie, William Johnstone; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
New Brunswick
Subjects
Municipal law
Decision Content
Supreme Court of Canada
Walker v. McMillan (1882) 6 SCR 241
Date: 1882-05-03
John Walker and William Spears
Appellants
And
James McMillan
Respondent
1881: Nov. 2, 3; 1882: May 3.
Present—Sir William J. Ritchie, Knight, c. J., and Fournier Henry, Taschereau and Gwynne, J. J.
APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
41 Vic., chs. 6 & 7 (N. B.)—By-law of city of St. John.—Building erected in violation of.—Negligence of contractor.—Liability of employer—Several defendants appearing by same attorney.—Separate counsel at trial—Cross-appeal—Rent, loss of.—Damages.
On the 26th September, 1877, S. contracted to erect a proper and legal building for W. on his (W.'s) land, in the city of St. John Two days after, a by-law of the city of St. John, under the act of the legislature, 41 Vic., c. 6, "The St. John Building Act, 1877," was passed, prohibiting the erection of buildings such as the one contracted for, and declaring them to be nuisances. By his contract, W. reserved the right to alter or modify the plans and specifications, and to make any deviation in the construction, detail or execution of the work without avoiding the contract, &c., &c. By the contract it was also declared that W. had engaged B. as superintendent of the erection—his duty being to enforce the conditions of the contract, furnish drawings, &c., make estimates of the amount due, and issue certificate. While W.'s building was in course of erection, the centre wall, having been built on an insufficient foundation, fell, carrying with it the party wall common to W. and McM., his neighbour. On an action by McM. against W. and S. to recover damages for the injury thus sustained, the jury found a verdict for the plaintiff for general damages, $3,952, and $1,375 for loss of rent. This latter amount was found separately, in order that the court might reduce it, if not recoverable. On motion to the Supreme Court of New Brunswick for a non-suit or new trial, the verdict was allowed to stand for $3,952, the amount of the general damages found by the jury. On appeal to the Supreme Court and cross-appeal by respondent to have verdict stand for the full amount awarded by the jury—
Held, (Gwynne, J., dissenting), 1. That at the time of the injury complained of, the contract for the erection of W.'s building being in contravention of the provisions of a valid by-law of the city of St. John, the defendant W. his contractors and his agent (S.) were all equally responsible for the consequences of the improper building of the illegal wall which caused the injury to McM. charged in the declaration.
2. That the jury, in the absence of any evidence to the contrary, could adopt the actual loss of rent as a fair criterion by which to establish the actual amount of the damage sustained, and therefore the verdict should stand for the full amount claimed and awarded.
Per Gwynne, J., dissenting, That W. was not, by the terms of the contract, liable for the injury, and, even if the by-law did make the building a nuisance, the plaintiff could not, under the pleadings in the case, have the benefit of it.
The defendants appeared, by the same attorney, pleaded jointly by the same attorney, and their defence was, in substance, precisely the same, but they were represented at the trial by separate counsel. On examination of plaintiff's witness, both counsel claimed the right to cross-examine the witness.
Held (affirming the ruling of the judge at the trial), that the judge was right in allowing only one counsel to cross-examine the witness.
Appeal from a judgment of the Supreme Court of New Brunswick[1] discharging a rule nisi for a non-suit or a new trial.
The facts of the case are, shortly, these: The respondent and the appellant Walker are owners of lots adjoining each other situate on the east side of Prince William Street in the city of St. John, the buildings on these having been swept away in the great fire of June, 1877. The respondent commenced to erect a building on his lot, one Spears being the contractor, and shortly afterwards the appellant Walker entered into a contract with Spears to erect the mason work of a block of stores to be erected on his lot, the stores to be brick. Miller and Nice had a contract to build, finish and complete the carpentering, painting and plumbing of the buildings,—this being an entirely independent contract from that of Spears; it is dated the same day. Under these contracts, Spears, Miller and Nice went on with the building of appellant's building, and the walls were up to the top and ready for roofing; the floors were laid three stories. Under Act of Assembly 41 Vic. chs. 6 and 7, the mayor, aldermen and commonalty, on the 26th Sept. A.D., 1877, had passed a by-law relating to the construction of buildings. The walls to be built according to the contract contravened the provisions of the by-law. On the 6th Dec., 1877, a heavy rain storm took place, and in the afternoon the centre wall of Walker's building gave way, bringing down the other walls, tearing away the party wall between the building and respondent's building, and doing considerable damage to respondent's building. The foundation, it would appear, was defective and improperly built, but had been approved by the architect. For this damage the respondent commenced an action in the Supreme Court, to which the appellants pleaded several special pleas; in these pleas the principal allegation is that the buildings so being erected were not in possession of or under the control of the appellants, or either of them, but in the possession and under the control of Spears.
The case was tried before Mr. Justice Weldon and a special jury at the St. John circuit, November, 1879, when the jury, under the charge of the learned judge, found a verdict for the plaintiff for $5,327.32, including $1,375 for loss of rent.
The motion for a new trial was made on a variety of grounds, and the first ground was the refusal of the judge to permit the counsel of each defendant to cross-examine the plaintiff's witnesses and to address the jury for the defendant.
The defendants appeared by one attorney and united in their defence, which was substantially the same; but on the trial they appeared by different counsel, but during the progress of the trial no different defence was set up by either defendant. The other grounds were: improper reception of evidence; improper rejection of evidence; the refusal of the judge to order a non-suit; misdirection.
After argument for a new trial the court refused the rule, the verdict being reduced by the amount of the rent. The appellants thereupon appealed to the Supreme Court of Canada, and the respondent, by way of cross-appeal, claimed that the verdict should stand for the full amount awarded by the jury, $3,952 for general damages, and $1,375 for rent.
Mr. Kaye, Q.C., and Dr. Tuck, Q.C., for appellants, and Mr. Weldon, Q.C., and Dr. Barker, Q.C., for respondent.
The principle arguments urged and authorities cited are reviewed at length in the judgments of the Chief Justice and of Mr. Justice Gwynne. See also report of the case in New Brunswick reports[2].
RITCHIE, C. J.:—
[After having stated the pleadings, proceeded as follows:]
All the pleas are by defendants, by S. R. Thomson, their attorney, and are signed by Mr. Kaye as counsel for defendants.
At the trial it is said in the case:
Mr. Weldon and Mr. Barker for the plaintiff.
Mr. Thomson for Walker.
Mr. Kaye for Spears.
Mr. Thomson cross-examines the first witness. Mr. Kaye proposes to cross-examine witness as his counsel Mr. Spears. This being objected to by plaintiff's counsel.
Judge:—I rule, as the defendants have not severed in their pleadings there is no right that the defendants' counsel can be heard to cross-examine the witness, the plea is for both, one attorney and one counsel.
The witness appears then to have been further cross-examined by Mr. Thomson. Plaintiff's second witness was cross-examined by Mr. Kaye, when, at the close of his cross-examination, Mr. Thomson claimed the right, as counsel for Mr. Walker, to cross-examine the witness, Mr. Kaye being counsel for Spears.
The learned judge stated that, in accordance with his previous ruling, only one counsel could cross-examine the witness.
As the defendants appeared by the same attorney, pleaded jointly by the same attorney, and the pleas were all signed by the same counsel, and the same attorney and counsel appeared on the trial, and the defence, being in no material sense different and distinct, but on the contrary the defence of both being in substance precisely the same, under the circumstances I think the judge was right in refusing to allow the defendants to be represented separately at the trial. This was a matter relating to the conduct of the suit, and was in his discretion, and in my opinion no fault can be found in the way he exercised that discretion.
As to the merits:
On the 5th September, 1877, 41 Vic., c. 6, "An Act to amend the law for the better prevention of conflagrations in the city of St. John," and 41 Vic., c. 7 were passed.
Sec. 7 of 41 Vic., c. 7 is as follows:
7. The inspector shall have full power to decide upon any questions arising under the provisions of this Act, and of the by-laws passed under the authority of this Act, relative to the manner of construction or materials to be used in the construction, alteration or repair of any building in the city of St. John, and he may require that, plans of the proposed erection, alteration or repairs shall be submitted for inspection before issuing his permit; provided, however, that should any question arise between the inspector and the owner or architect of any building, or should the owner or architect object to any order or decision of the said inspector, the matter shall be referred to the arbitrament of three persons (who shall be either architects or master builders), one to be chosen by the inspector, one by the owner or other person interested, and these two shall choose a third, and the decision of these referees, or any two of them, submitted in writing, shall be final and conclusive on the matter referred.
8. The inspector shall examine all buildings in the course of erection, alteration or repair throughout the city, as often as practicable, and make a record of all violations of any provision of this act, or of the by-laws made under the authority of this act, together with the street and number where such violations are found, the names of the owners, lessee, occupants, architect and master mechanics, and all other matters relative thereto.
27. No building shall be erected hereafter in any part of the city of St. John, without a permit being first obtained from the inspector of buildings, and no addition or alteration to any building, subject to the regulations of this act, shall be made without a permit from the said inspector.
30. The Mayor, Aldermen and Commonalty of the city of St. John, in Common Council, are hereby authorized and empowered from time to time to make, ordain, amend and rescind by-laws and ordinances regulating the mode of constructing buildings in the city of St. John, and any part thereof, with a view to ensuring the sufficient, safe and proper construction thereof, and the security of life and limb, and protection against fire.
31. Whosoever shall commit or make any act or default contrary to the provisions of this act, or contrary to any of the provisions of any by-law or ordinance made under the authority of this Act, shall be liable to a penalty of not less than twenty dollars nor more than one hundred dollars for every such act or default, to be recovered by proceedings to be taken in the name of the inspector of buildings, before the police magistrate of the city of St. John, or other magistrate sitting at the police office in the said city; and in default of payment, the person convicted shall be committed to the common gaol of the city and county of St. John for a period of not more than two calendar months, in the discretion of the committing magistrate. 32. Whosoever, having been convicted as last aforesaid, shall permit the continuance of any matter or thing contrary to the provisions of this act, or contrary to any of the provisions of any bylaw or ordinance made as aforesaid, shall, for each day's continuance after such conviction, be liable to a further penalty of not less than ten dollars nor more than fifty dollars, to be recovered before the police magistrate of the city of St. John, or sitting magistrate at the Police Office in said city, in the same manner and with the like effect as hereinbefore mentioned in the last preceding section provided.
On the 24th September, 1877, defendant entered into a contract with J. & W. C. Spears for the erection of a building on his lot adjoining that of plaintiffs, and signed the following:—
This agreement, made this twenty-fourth day of September A.D., 1877, between J. & W C Spears, parties of the first part, and James Walker, party of the second part, witnesseth, the said party of the first part, for and in consideration of the payments to be made by them by the said second party as hereinafter provided, do hereby contract and agree to furnish all the material, labor, tools, machinery, etc., and to build, finish and complete for the said second party all the masons' and other trades of the block of stores to be erected on Prince William Street, east side, between Princess and King Streets, to be described as in the foregoing specifications, and according to the plans and drawings therein especially referred to; which plans and drawings are declared to be a part of this agreement.
And the second party, for and in consideration of the said first party fully and faithfully executing the aforesaid work, and furnishing all the materials therefor, as specified, so as to fully carry out the design according to its true spirit, meaning and intent, and in the manner and by and at the times set forth in the foregoing specification, and to the full and complete satisfaction of John C. Babcock, superintendent as aforesaid, doth hereby agree to pay to the said first party as the work progresses, and as the same shall be certified to by the said superintendent, the sum of ten thousand four hundred and forty-one ($10,441) dollars, to be paid in the following manner: On demand, as the work progresses, in payments amounting to seventy-five per cent. of the amount as set forth and specified above, and as the same shall be certified by the superintendent, and the balance of twenty-five per cent. as shall be found due as hereinafter provided.
It is further agreed by the parties that the twenty-five per cent. aforesaid agreed to be reserved by second party from the value of work executed, shall be held by second party until the full completion of the work to the satisfaction of the superintendent aforesaid, as security for the proper execution of the contract by first party, and as indemnity, as far as the same is sufficient, to be applied on the liquidation of any damages arising under this contract.
It is further agreed by the parties hereto that all the foregoing conditions and stipulations shall be mutually binding upon executors and administrators.
In witness whereof, the parties hereto have set their hands the day and year first above written.
JAMES WALKER,
J. & W. C. SPEARS.
JOHN C. BABCOCK.
And in the specifications referred to we find;
"§ V. The proprietor has engaged John C. Babcock as superintendent of the erection and completion of said building; his duty being faithfully to enforce all the conditions of the contract, and to furnish all necessary drawings and information required to properly illustrate the design given; also to make estimates for the contractor of the amounts due to him on the contract, in no case estimating any materials or work which are objectionable, or have not become permanent parts of the work; and when the building is completed, to issue a certificate to the contractor, which certificate, if unconditional, shall be an acceptance of the contract, and shall release him from all further responsibility on account of the work.
§ VI. It is to be understood by the contractors that the building or work is entirely at their risk until the same is accepted, and they will be held liable for its safety to the amount of money paid by the proprietor on account of the same.
§ VII. In case of any unusual or unnecessary delay, or inability, by the contractor in providing and delivering the necessary materials, and performing the necessary labor at the time the same is required, so as to insure the completion and delivery of the building or work at the time hereinafter set forth and contracted; then, and in such case, the proprietor, within three days after having notified the contractor of his intention so to do, shall have the right to enter upon the work and procure such necessary materials or labor to be furnished or performed, as the case may require; and remove from the same all defective materials or workmanship as in the judgment of the superintendent may be found necessary, and carry on the work to completion in such way as shall be proper and right, charging the cost thereof to the contractor, and deducting such charges from the amount of the contract price.
§ VIII. The proprietor reserves the right by conferring with the superintending architect, to alter and modify the plans and this specification in particular, and the architect shall be at liberty to make any deviation in the construction, detail, or execution, without in either case invalidating or rendering void the contract. And in case such alteration or deviation shall increase or diminish the cost of doing the work, the amount to be allowed to the contractor or proprietor shall be such as may be equitable and just.
On the 26th September, 1877, by-laws were passed by the mayor, &c., of the city of St. John, in common council, under the authority of the 30th sec. of 41 Vic., ch. 7, regulating the mode of constructing buildings in the city of St. John. In the latter part of September the building was commenced, the centre wall of the building having been misplaced was taken down and rebuilt; it is admitted on all hands that this wall was not built in compliance with the acts or by-laws and was not properly built. On the 6th December, this wall gave way, fell, and with it brought down the wall of plaintiff's building. The defendants contend that having contracted with a competent person they were not liable for the damage done plaintiff's building by the falling of this wall.
There was evidence to show that a large quantity of sand for building purposes had been put in the building for the convenience and use of the contractors, and that a somewhat continuous rain having come on, and the building not being roofed, the weight of the water and the sand contributed to the fall of the wall, though Mr. Causey, an experienced builder called by the defendants, and who rebuilt the wall, says:
I went to rebuild in the trench. The original was twelve inches astray. I saw indications on the clay. He said if the wall had been built in its present position as laid out on the plan it must have been on the clay. Half of it in the front part. It had not gone down to the rock in the right place. I re-built as laid down in the plan. I got down to the rock. I got the rock for it from the cellar floor. The wall had got to the solid rock in front. Other part on clay. I should say it was not a proper job. I think Spears could not have known from the character I have heard of him. If so badly built it is a wonder to me it held until it got to the top.
The work was superintended by Mr. Babcock, defendants' architect, and Spears his agent. For the work done on the building the architect, under sec. 5 of the specifications, gave certificates as follows:—
St John, November 2nd, 1877.
This certifies that Messrs. J. & W. C. Spears are entitled to the payment of three thousand dollars ($3,000.00) for labour and material supplied to building of James Walker, Esq., east side of Prince William Street, between King and Princess Streets, St, John, according to contract.
"$3,000.00.
JOHN C. BABCOCK.
Received the above amount,
J. & W. C. SPEARS.
St. John, November 24th, 1877.
"This is to certify that Messrs. J. & W. C. Spears are entitled to a payment of twenty three hundred dollars ($2,300.00) for labour and material furnished to building of Dr. Jno. Walker, on the east side of Prince William Street, between King and Princess Streets, Saint John, N. B., according to contract.
"$2,300.00.
JOHN C. BABCOCK.
Architect and Superintendent.
J. & W. C. SPEARS.
I think it is clearly established that injury was occasioned by the centre wall of the Walker building giving way, and there was conclusive evidence that this wall was improperly built on an improper foundation, was too weak, and was contrary to the statute and the by-laws.
Simeon Jones, in his evidence, says:
I know the buildings and recollect the occasion. I was on Prince William street near King. I heard a noise and saw the Walker building apparently settle down in the middle and fall, and I think the side of McMillan building fell out. Settled down in the middle and fell down. I could not see the rear of the building. Michael W. Maher:
I reside in St. John. Am Inspector of buildings since September, 1877. I knew the properties of McMillan and Walker before they fell. They are east of the street Prince William. I am practical builder for 40 years. I have been architect and practical builder. * * * I saw the Walker building a story above the street. I went to visit it. I think they were putting on the beams. I went there; I saw Mr. Spears and enquired who had charge of the building. I hunted up Mr. Spears and told him that the walls were not according to the law, and the vibration in the walls. Mr. Spears said he thought it good enough. I saw Spears near Yeats' iron store. I saw him at the building the next day or soon after, and met Spears, I think it was by appointment. I told him what I required. Spears, Babcock and John McMillan. I think Mr. Spears asked if I would not allow to get the building covered in when he would do it. I would not for or against. I wanted several courses of the— Mr. Spears spoke of spikes and ordinary concrete would do better. I spoke to Mr. Spears. He said he was the inspector of the building. I did not say anything; I was rather taken aback. The character of the building for storage and warehouse buildings. I stated what the law required me to have done, and then Mr. Spears said he—"
The sentence breaks off here, but I presume it has reference to what he said a moment before. Spears had said that he was the inspector of the building.
Joseph Pritchard says:
I reside in St. John. I know the Walker building. I have had conversation with Mr. Spears. He asked me what I thought of the building. I told him they looked very well, a few days before they fell, as far as they were. I said if the building was mine I would not have those shores in front. I said I would not trust them. He said that they were going to put iron pillars there. I said in the meantime the posts would have to support the whole of the building above. He asked to go and see it, and said it is stronger than you think it is. I told him I would not like to trust them myself to be under. The shore was under the front floor. There was no wall in front. The shore looked like a piece of scantling or deal. I was on the opposite side of the street.
The evidence of Spears, the contractor, is as follows:
I arranged for the building on the Walker lot. I spoke of John C. Babcock; he was here before I came. I entered into a written contract with Dr. Walker for the building on the lot adjoining McMillan's. (Called for and produced by defendants). This is the contract. Only one signed. This is my signature of the firm and Dr. Walker, signed in presence of Babcock (the architect).
No. 2 contract.
Babcock same person I spoke of. I went on to construct this building. Miller & Nice had the contract for the carpenter work; it went on as I progressd with my contract. I began latter part of September to build; I went on. Babcock furnished me with plans—this is one. (One produced. No. 3.) * * * * * * * * This plan was given to me by Babcock as the working plan. The building is 65 feet high, 26 feet from the face of the McMillan wall to the face of the centre wall, and 26 feet to the face of the south wall. I worked under that plan from the commencement. I commenced the foundation, and I had to excavate extra to the rock in front, and ran to the rear. I built the stone wall and was ready for the first tier of beams. Walker and Spears were both there occasionally. I should judge a small space. There was a mistake in the plan. I went to the Babcock office as he was away. There was a foot of a mistake; it was a foot too near the McMillan building. Babcock suggested me to build another wall alongside this. I told him it would be, my judgment-would be, against the doing this, as it would be on two separate foundations—better way to take down and re-build it; and it was done. I was directed, but can't state the language he used. I had previously built according to the plan. I took it down and re-built it. I then went on with the building. Mr. Spears was there while the building was in progresse Dr. Walker was there occasionally. Mr. Spears every day, some times several times a day. * * * Mr. Maher was in there one day and Mr. Spears and Babcock were there. We were in the front. Maher said the space was wider than the law provided, and the centre wall was not strong enough, that was his opinion. Mr. Spears had some words, and said he would make himself superintendent of the building, and Mr. Maher went away. Afterwards Maher came and told Mr. Spears that the wall, cellar wall, must be increased in thickness. This was the second time, Spears came and he wanted Maher to allow him to enclose the building, and he would increase the wall. Maher did not allow this to be done, I was asked for my, opinion, was by driving a spike three inches into the wall and bricks four inches, and by that way add four inches to the wall. Maher or Spears asked me if I could build a wall, in the way I stated, to be as strong as if 16 inch. I declined an opinion. The centre wall was left 16 inches as it originally was. Some weeks—three or four—the building fell. When Maher first came it was one story; the second time I think a second story was up. I notified Mr. Babcock to have the roof put on to protect the building, but it was not done Mr. Spears came there—was annoyed at my not having more men as the work was not progressing. I told him it was going up faster than it ought to in my judgment. He said it was necessary to get the top on before the winter set in. I said in my judgment I would not put them along as fast as they were going. I told there was a great mass of green material and it was put up too fast in my judgment. I had not been in New Brunswick before; I had only built in New York and Brooklyn, McMillan's building fell 6th December about four o'clock, * * * Before the rain storm came on the building was allright. I received from Mr. Spears on the contract $5,300. I had certificates from Mr. Babcock which I gave to Mr. Spears when I got these payments. (These certificates called for). I never got the certificates back again.
No. 3. November 2, 1877, John C. Babcock certificate for $3,000.
No. 4. November 24, 1877, John C. Babcock certificate for $2,300.
These amounts paid by Mr. Spears to me. Mr. Spears paid me before on the Walker estate, all paid by him to me. The building was nearly all up as before described. I think the upper story was up, the rear and side walls and the centre wall when I got the $3,000; that is all I received. The certificates was given after the conversation between Walker, Spears, Babcock and myself, It would have taken $1,500 to complete my contract with Walker. I built the McMillan party wall; it was well built. The witness makes a plan, shews the jury.
I spoke of Mr. Maher having said such wall was too slight.
Maher spoke to me, I spoke to Mr. Spears.
Spears was hurrying previous to walls being up.
John McMillan another witness:
My father and myself are the firm. Dr. Walker in possession of adjoining lot to the lot occupied by my father. I was present when our building was the second story. Walker at first story, adjoining the party wall. Mr. Spears, Mr. Babcock and Mr. Maher called my attention to the centre wall. Mr. Spears said Maher had called his attention to the centre wall and would have it wider, which he thought was absurd. He said he knew as much as Mr. Maher, and he would have himself made inspector. I soon left, and Maher went with me. I did not know Spears until he came here. We had a temporary place on Canterbury street. The building was nearly completed. The outside wholly completed. Preparing the internal fittings. Finally got in about 1st January. What rent were you to pay?
Objected. (I am of opinion it is somewhat doubtful whether the question is allowable, as the damages on this ground would be too remote; but I think by allowing it and the damages are agreed rent, the question may be put; no injury can be done in such view of it) Mr. Thomson objects to this.
The firm of J. & A. McMillan had agreed to rent the building from the plaintiff. The rent was to be 10 per cent. on the outlay, $3,000 a year. 1st January, 1878, to the time we got into it after its being repaired would be $1,250. The latter part of June we got into it. * * * * * * *
Cross-examined:
I am quite sure of the conversation I had with Spears in Maher's presence was in the Walker building.
James McMillan, plaintiff, says:
This building I had put up to be occupied by the firm.
The defendant's case.
William Miller:
I am a carpenter. I did the Walker building carpenter work. There was with me George Nice as co-contractor. Spears did the mason work. Sand was put in the Walker building, next to McMillan. Sand was brought in and dumped against the wall. I spoke to Mr. Spears and told him it would spring the floor. He said it would not do so, and he spoke to Mr. Babcock. He put the shores within 3 feet of the centre wall,
George Nice, in his cross-examination, says:
Weight close up to the wall. Babcock told him to spread it over the floor about eighteen inches. The weight would be on the end of the beams. The shores would take the weight off the walls. Spears had been there two or three weeks, it had been screened over a fortnight, * * * Contract was made by Mr. Babcock's directions. He was there every day, and Mr. Spears there every day, and Mr. Walker not so often. I got my money from Mr. Spears.
Re-examined by Mr. Thomson:
I was there at the laying of each floor. They were not against the wall nor allowed to do so. They were rough boards and would come down as it fell. No. After sand was in made. Babcock said spread over the floor. Beams 3 x 15. John C. Babcock
I am an architect. Principally engaged in New York City on my own responsibility. I profess to be a skilled man. Built a great many under my superintendence. I am a witness to the contract. I saw Walker sign and W. C. Spears. I am the architect who prepared the plan; all prepared by me—contract by the contractor. When my plan was made no work done on McMillan's. My plan was made with reference to a particular wall. I had nothing to do with a partition wall. I think it would be a suitable building according to my plan. I have no doubt if my plans were followed. This plan shews the dimensions. This central space constructed. It was to be carried to the rock. I was at the ground when the wall in the centre was commenced. The excavation made. The plan shews here the cellar wall was to be placed from the Wiggins side fifty-five feet. This was to the centre of Wiggins wall to McMillan wall centre fifty-five feet. I did not measure the distance when the trench was dug. Commenced from the centre of Wiggins twenty-four inches. Twenty-four inches on Walker lot. Width of north cellar, 25.6. To McMillan wall twenty-four inches. Cellar wall not located by these figures. I did not know the trench dug was in centre line of my plan. It had gone to the rock. The rock was about four feet from the centre line of the building and came to a foot in rear. The wall was carried up to the street level. I think I was the first to discern it was wrong. The McMillan wall carried up some distance, cannot say how far. When I discerned I had to see how the mistake occurred. I put it right in the rear, but not in the front. Wall to rear of McMillan building at the front. I pointed this out. We concluded to take it down and build it right. I saw Mr. Spears about it. It may be first or second day of May. It was done very quickly. I saw some portions taken down, not all. When I next saw it, it was nearly re-built. I had not seen it between those two periods. It would be necessary to excavate the trench for the alteration. I did not see it done. I suppose it had been done; I did not know it was done. I did not tell Spears' foreman I had discovered a mistake.
(Mr. Kaye reads from his notes of evidence what Mr, Spears said in his evidence, and he asks the witness if that is true. This being objected to by Mr. Barker, I express my opinion that it is not regular, but the witness is to state what took place between him and Mr. Spears and not what is read by Mr. Kaye and taken down by him. The witness may give his version of the conversation).
There was some measurement made as to see how much it was out of line, and some suggestions made as to whether the error could not be redressed in the first story by moving over the wall. I could not agree to that, and I ordered the wall to be taken down. I did not suggest to Mr. Spears to build any other wall alongside of it. It would not be practicable. When you sent for Spears a general conversation took place, but I can't recollect exactly what was said. I regretted the error had been made in locating the wall. I did not tell Spears it was my mistake. The wall was not built in the first instance according to the plan. Some time after the accident I did discover the new wall had not been built on the rock, or some of it. After the accident I discovered a part had not been built up from the foundation (trench, rock). The beams were sixteen inch from centre in second, third and fourth floors, to twelve inch to centre of beam in first floor. The beams bore five inches in the under. The beams are bevelled below to save the walls in case of fire. The flooring was laid across the beams. Ordinary rough spruce boards. Rough stuff the 1 1/4. On the floor. The beams are cut to allow a deflection. The boards were laid on the beams; nailed, but open so water would pass through. Not roofed; all the rain that I ever saw in that building passed through the floor. I don't think the rain would pass over the floor to the side at the walls. I heard Miller and Nice's statements. Can you, from the work done in that building by Miller and Nice, speak as to their capacity as carpenters?
(Objected to); I only judge from that work. The carpenters, in my opinion, were competent to do the work they contracted for.
I saw sand on the building, in the north side, from front to rear, fifteen or twenty feet from the front. It was placed adjoining to the central wall the highest and sloped to McMillan's wall. It went to the vault, about fifty feet in length. When first put in half the distance in the width, but afterwards spread out. Between McMillan and the centre the cart passed through. A considerable quantity in when I first saw it. It was added to. I gave directions to Mr. Spears regarding it a week or ten days before the accident. I could not say exactly the quantity. And to spread over the surface to a depth of more than eighteen inches. I first ordered it to be taken away, and therefore allowed it to remain if spread over the building. Sand laid on a four inch ledge. A large portion of the sand was levelled off as I directed. I directed on several occasions. I said I thought it dangerous to place so much sand, it might injure the walls. I am not aware of any assent being given before the sand was brought in. What would be the effect of a body of sand? It would affect the wall. I thought there was sand enough for the building or more. A cubic yard of wet sand 1 1/2 ton. I should think between seventy-five and one hundred tons there of sand. After the accident I found a part of the front portion of the wall had not been carried to the rock. The base of the wall was a little wider than the wall, and the ground widened the bearing on the wall. If there had been no sand, the rain in my opinion would not carry down the wall. It lad received injury from the sand before the rain. The wall had been effected by the sand before the rain came. I generally visited the building every morning, most generally twice a day. I did not actually see everything done. The rain would strike the wall and run down it. I heard Captain Pritchard give his testimony. I said there was no wooden shore in front. Iron columns was in before the accident, not less than a week. No boards on the roof of the Walker building. The fire walls not complete. Side and rear complete. I think no unnecessary delay in putting on the roof. I have recollection of McMillan's roof; rain fell through it. I can't say about the fire wall being carried out. Board could be put on before the parapet were put. I allowed a girder to run fore and aft in the cellar, resting on brick piers in lieu of the timber in the specification, which it was impossible to get. I saw McMillan's wall and party wall. 8.4.8 beams rested practically on an eight inch wall. Not so strong as a sixteen inch solid wall. This stopped at second story. Vaulted up two stories and then carried up fifteen inch solid. The sixteen inch would balance on the side of the 8.4.8. The upper part of the wall would be stronger than below, in my opinion. A large portion of the McMillan fell out by the withe anchor of ours, and one wall giving way. The sixteen inch wall or stronger than the hollow wall of 2.8. I think the party wall was defective in this respect. 26th September, the date of the contract; plan made before, I think. Spears' men worked in the buildings of McMillan and Walker. I knew Mr. Spears before he built here. He had erected, etc.
I observed a shore on McMillan's building, in front of the iron column. I saw nothing the matter with it.
Cross-examined by Mr. Weldon:
I came to St. John in July, after the fire. The Spears were builders, and had given satisfaction to the work done. I recommended them to come. My plans were made before the contract. The figures and details are on the plans to work by. I gave them measurements. They are bound by them and the figures on the plan. The contractor will not err when it is followed. I gave one to Spears from the centre wall to the centre of the wall or from face to face 27.6. Right through from face to face 25.6. Explain the measure 13.9 altered. I don't think the alteration was made after the mistake was discovered. Either plan would. I can't tell the alteration when made. Altered from 25.6 to 26.6. No mistake in the figures. The alterations in the plan were made in my office. I can't say whether the alteration was made before or after. I think the alteration was made after the commencement of the wall. He had no right to take from that side. I think 25.6. On 24.6. There is a discrepancy. I don't think I was wrong. 2.24.6. 26.6.2. 13.3 to locate the pier after first wall was built. There is an alteration, 13.3 to 39. The wall ready for beams. The trench was to the wall. I discovered a break in the wall, and the error would diminish one foot to nothing in the distance of sixty feet of the height to a sharp pointed wedge. It had to go ten inches beyond the trench. I had to give certificates, and the work was done to my satisfaction. I knew I employed a competent man to do it, and I expected it was done. I think I found out the error first. I relied on my plan in my office. Mr. Watson was my assistant. Did you tell Spears. I had taken a wrong point? I did not. I do not think the error is the original. The other working plan is corrected by it.
I gave the certificate up to 24th November. 2nd November. There was a permit got. The party wall was, I think, up. I think the wall of McMillan was up. I made some objection. I had solid done when I wanted. It was rear. There was, I think, over three feet. The joist did not always strike the withes. More beams put up stairs. Below twelve inches apart. Would the milky water indicate water running down the wall? There must be milk. It would indicate lime. Would it percolate the foundation? It would not, I think, the brick, it might the stone. Not many alterations made. Spears was the agent, he paid for Walker. I obeyed Mr. Spears' directions. Did Mr. Maher call your attention to the wall? He did. He did not tell me it was an unsafe wall. I did not hear the conversation between Mr, Maher and Spears. Maher did not tell me the wall would not do. We were to do. It was to be done. No terms were fixed between Wiggins and us. There was an old wall twenty-four inches. We had nineteen inches as a party wall in Walker's. It is, I think, the dividing line at the centre of the wall. It was intended as a sixteen inch, but large brick made it an eighteen inch wall.
I think Maher was there twice. A second time he insisted his direction were to be carried out. He kept increasing it. I never told Spears to put up the shores. I did not know it until after the accident. I did not tell Spears. I found under wall on the sand side was gone. Perfectly' sound on other side. The sand was. The centre wall gave way and the building fell. Sand levelled before the accident. I think engaged in taking. Fifty cubic yards, 1 1/2, 75 tons. Dry sand much less. I think McMillan's roof was not tight. I think it was three inch deal in front of McMillan. Thirty feet width of McMillan. A stick eighteen and twenty-four would not' carry it without deflection. A brick tier and iron column. I don't know how the weight was distributed. The beam and anchor well in the wall. It brought down the whole by the withes. We do not use hollow party walls in the States. I have seen them. The withes are not equal to the solid wall. 13.9 is my figure.
Re-examined by Mr. Thomson:
These figures are the original in my office. The plan may have been in the office. One cellar is a foot wider than the other if the wall was located from that line. I discovered the deflection. The building would be a foot narrower in the front or rear He had it partly up. It was his duty and he thought so. I found it after the building fell. I believe the effect of the sand. No danger of dry sand in a proper place. I gave a certificate after as percentage to make good if any irregulation. All party walls are carried up solid. The solid wall would increase the weight. No such indication as a milky wall. I examined the wall after the accident. I am satisfied they were close was such they as my saying I had made a mistake; It made no matter who made the mistake, it would have to be altered. Soft crust ought to go to the rock; I saw a shore in front: The
By a Juror—Is it customary to cover that wall with boards?
I can't say it was, I don't know.
TUESDAY, 25th November;
What did you mean by I obeyed Mr. Spears' directions? I obeyed meant such directions as one would give to his architect. I had received directions to prepare plans and specifications, and, secondly, to receive tenders; also, what tender to accept, and prepare agreement with that party to arrange for commencement of work and order of payment. That is the usual directions. After the contract was made he did not interfere with me in any particular. Mr. Spears was away a good deal of the time:
Cross-examined by Mr. Barker:
I did not tell him a mistake had been made; he must have known it. He was in Halifax a part of the time. Spears was often there. I think he complained of the work not going on as fast as he could. I spoke to Spears: It was not necessary, in consequence of what Mr: Spears said. It was partly, not to a very great extent, by his influence: I can't tell you. I won't say it was not. I spoke before the beginning of the building. Was not Spears there constantly? He was there about the building, I thought I had no conversation about the wall, I won't swear I had not. It was my own judgment about the wall. After work had progressed I got the permit, (Mr. Thomson—It was in writing. You have already said so, have'nt you?)
Re-examined:
This wall was ordered down by my directions. He, Spears, gave no order, neither directly or indirectly:
William Causey:
I am a mason. In St John forty to fifty years. I have looked at the contract. I don't presume to be much of a judge of the carpenter work. The foundation was built and what the contract describes. All foundation walls to bed in solid rock, which will be levelled off and shaped off as directed or required, laying all footings on large flat stone, bedded in cement when rock may not show sound or fit to be removed, and concrete substituted. Would such a foundation, if made, would it be proper and sufficient? (Objected to by Mr. Barker). It would be proper for such a building and fit and sufficient.
stone wall ready for coutract. The work would be quite sufficient.
The usual way of doing it as described in contract. Head of granite pier sufficient. The usual way. Freestone. The general way. Specification.
The brick wall would be sufficient if properly built. A 16 inch wall would be sufficient for offices and stores anchored as required. The contract is such if carried out would, in my opinion, be sufficient. Walls secured by anchor would be sufficient. I have done walls as thus described. I am of opinion it is sufficient. A building so constructed would, in my opinion, be sufficient. I had to examine after the building fell next morning. I could not for the debris. I went to re-build in the trench. The original was twelve inches astray. I saw indications on the clay. He said if the wall had been built in its present position as laid out on the plan it must have been on the clay. Half of it in the front part. It had not gone down to the rock in the right place. I re-built as laid down in the plan. I got down to the rock. I got the rock for it from the cellar floor. The wall had got to the solid rock in front. Other part on clay. I should say it was not a proper job. I think Spears could not have known from the character I have heard of him. If so badly built it is a wonder to me it held until it got to the top. * * *
Cross-examined by Mr. Barker:
I found a trench down to the solid rock sufficient for a two foot base, which was brick, I found it half in the clay; the one part on rock, one on clay. I re-built by a plan according to the dimensions of this plan. My centre wall was a two foot wall. This plan is a sixteen inch. The space would be less. No such vibration on a building used for offices or for iron. This is for storage of heavy goods. Supports would be underneath. Sixteen inch for offices would be sufficient. A wall might dry in a month. Built according to the specification it would take some time in the flat near the ground.
James Walker:
I am a defendant. I had to trust to my architect. I am neither a builder nor contractor, I trusted to my contractor. I believe if Mr. Babcock's specification had been followed there would have been no trouble. I did not interfere more than giving advice to take every precaution to prevent accidents.
Cross-examined by Mr. Weldon:
Babcock is my architect, and William M. Spears looked after it and attended to it much more than I did. I live five miles from town. I went to the building as it was going along, saw the cellar walls after they re-built them.
Cross-examined:
Spears made no complaint to me, nor Mr. Maher. Spears endeavoured to allay any suspicious in my mind about the building. Very particular in wanting stone and cement. I once remarked I wanted stronger mortar. He said he understood his business. It was my suggestion, I had to be satisfied. Did not interfere.
Re-examined:
There was talk about the wall. I told Babcock there was a new law, and Babcock had some conversation with Mr. Maher, and he had made it all right. I did not understand what it was.
Re-examined by Mr. Thomson:
This was about the building, and to get a permit, and he told me he had done, and I was told.
William M. Spears:
I am one of the defendants. I was acting for him as his agent. After the contract was made. I did not interfere directly or indirectly. I think I saw the building going up from day to day with the contractors. I have too much respect for Captain Pritchard to say I did not say what he said I did, but I have no recollection of it.
No. 7. 22nd September, J. Harris & Co., contract for iron work.
I have no recollection in stating of what Mr. Maher said; if so, it was only in a joke. I have no knowledge of mason work.
No idea of taking charge or interfering. I was away two or three weeks every month while the building was progressing. I was executor of the late John Walker, and had to go to Halifax. I did not observe the building. I saw the sand there. Was knowing Spears' men going from one building to another. I had no fear of it, neither of the weight, height or depth of the sand. I cannot remember the quantity there. I merely saw sand what was usually hauled from a wood-boat.
The only recollection I have is the taking of the wall down. I saw them altering. Neither consulted or directed anything about it. I did not know the cause for what I had seen until after the accident.
Cross-examined;
While I was in St. John I was there every fine day, sometimes half a dozen times a day, looking after it for Dr. Walker; he spoke to me to do so. I was in Halifax in November probably not less than a fortnight. I was in Halifax half-a-dozen times. I was in Halifax two or three times after the contract was signed, 27th September. I was not there in October. I am not prepared to say that I was more than once in Halifax.
There every fine day and several times on some days. I did not know anything about the wall being shifted until after the accident. Building on the Potter property. I don't remember when the conversation when Babcock spoke of. I remember Maher asked what the building was designed for. I went and got a permit from Mr. Maher. I was not present when the I was present when Mr. Maher asked what the building was designed for. He considered a 16 inch wall would be insufficient if converted into warehouse or stores, but if for offices it would be sufficient. Did not Mr. Maher speak of it being contrary to law? I don't remember he did. I will swear that at no time I was doing I suppose Maher was speaking about the regulations. I think this was after we got the permit.
* * * * * * * * * *
I think the matter was referred to more than once. I do not ask Mr. Maher to allow me to complete. The centre wall would be made heavier afterwards. There was no arrangement with Mr. Maher or Babcock that I was to strengthen the centre wall. Is it not new to you that Mr. Maher stated to you that the centre wall was not according to law? He did say it was not sufficient for a warehouse, I don't remember, but I won't' swear he did or did not.
I suppose Maher only came as city inspector. He had nothing that I knew of.
If Maher, as city inspector, required you to make alteration? I did not refuse nor did I assent. He inquired if the building was to be used for other purposes than offices. I was to do certain things. It was intended for offices as much as for other purposes. Was it intended for offices?
Intended for both offices and warehouse purposes.
Then Mr. Maher's opinion was that if it was for warehouse purposes it was not sufficient? That was a part of the contract for warehouse purposes. It is for warehouse purposes, I never heard otherwise. It was built for wholesale purposes. I did not know it was for that purpose when I had the conversation with Mr. Maher. I did give Mr. Babcock instructions for the building. They were prepared under my directions. I did not know the contract was for wholesale business. I thought it was to be strong enough. So far as my recollection goes I said it was intended to be used for offices, and, if so, it was sufficient. The central wall was not then completed. There was no position demanded to carry it out. I really do not remember what impression was made in my mind. I said I might have said so, but I was not serious in saying I had control.
I did not take any steps to alter it from what Mr. Maher said. I heard nothing from Mr. Spears. I do not remember speaking to Mr. Babcock after what Maher said. I had a conversation with Mr. Babcock before or after Maher was at the building. I had not much opinion about it and I made no change. I do not remember Babcock made any change in the timber on the girder. I do not know sufficient about the specifications to make, nor of any alteration made. I made no objections. The season was getting late and I was anxious the building to proceed, and I may have spoken to Spears. I did not talk to the parties about the work. I do not recollect speaking to Spears more than once.
Assuming the work to have been lawful if done in a proper way, and that defendant had entered into a contract with a third person for the performance of the work, and that, therefore, he would not, under certain circumstances, be liable for any negligence on the part of the person with whom he had contracted in the performance of the work, it is very obvious in this case that the work was done under the immediate superintendence of Babcock, the defendant's architect, and defendant's agent, Mr. W. M. Spears, who, plaintiff says, "looked after it, and attended to it much more than I did." The work done on, and materials in, the wall which fell were estimated and certified for under the contract as being properly done by the architect, the contract expressly providing that "in no ease was he to estimate any materials or work which are objectionable," and were paid for by the agent. The evidence clearly shows that, independent of the statutes and bylaws, the work was so improperly done as to create a nuisance which caused the damage to the adjoining proprietor. There can be no doubt, the wall fell from being improperly constructed, and this the jury must be taken to have found, as the judge in his charge said:
If you are of opinion that the centre wall was improperly built, and the accident occurred by the falling down by reason of its weakness, or that a sufficient foundation had not been provided to bear the weight necessary for a warehouse, I am of opinion the plaintiff is entitled to recover and the defendants are liable. If the foundation was not on the solid rock or not a sufficient foundation after the inspector pointed it out, the plaintiff is entitled to recover.
On this ground it would be difficult for defendants to escape liability, but there is another ground on which I prefer to rest my judgment, viz., that the erection of the centre wall which fell and did the damage was an illegal erection, and that all engaged in its erection are liable; Walker, who caused it to be erected; Sears, who superintended its erection, and the party who actually erected it.
I think it was within the competency of the local legislature to pass these acts.
The prohibition imposed was for a public purpose, for the better prevention of conflagrations in the city of St. John, and to regulate the construction of buildings in the city of St. John, and to provide for the due inspection thereof—41 Vic., c. 6, being "An Act to amend the law for the better prevention of conflagrations in the city of St. John," and 41 Vic., c. 7, being "An Act to regulate the construction of buildings in the city of St. John, and to provide for the due inspection thereof."
These acts were passed for a public purpose, their policy was purely restrictive for the purpose of guarding against fire, and to secure the erection of proper buildings in a city such as St. John. Any erections contrary to the regulations therein imposed being clearly unlawful, beyond all question it was unlawful to contract to do that which it was unlawful to do, and any contract which, though lawful in its inception, by a change in the law became unlawful to fulfil, is necessarily at an end.
There can be no doubt that this building was a direct violation of the law and in defiance of the inspector, and was consequently an unlawful erection, and the contract entered into for the erection of such a building was put an end to by the law prohibiting its being carried out, and though a person employing a contractor to do a lawful act may not be responsible for the negligence or misconduct of the contractor or his servants in executing that act, yet, if the act itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage from the doing of that wrong, as was held in Ellis v. The Sheffield Gas Co.[3]. For, can it be doubted that if one person commits an unlawful act or misfeasance under the direction of another both are equally liable to the injured party?
There was a statutory duty imposed on owners of property in that part of the city of St. John as to the character of the buildings to be erected and the mode of erection, and the non-compliance with such statutory duty and the erection of a building in contravention of the statutes and by-laws and in defiance of the inspector of buildings, clearly rendered the building a nuisance, had there been no section in the act declaring such erection a nuisance.
Such being the case the owner of the land, Walker, and his agent, Spears, and the contractors, Spears & Co., were all, in defiance of an express law and regulation to the contrary, engaged in the erection of a building, the centre wall of which fell and caused the injury complained of, and permitting and causing such wall to be erected, all parties engaged in such unlawful erection were liable for the damage occasioned to the neighboring property by the falling of the wall so erected, such damage being the result of work unlawfully done. Therefore the owner, for whom and at whose instance the work was done, the owner's agent, who superintended and directed and paid for the work, and as he says:
When I was in St. John I was there every fine day, sometimes, half-a-dozen times a day, looking alter it for Mr. Walker, he spoke to me to do so;
and as Walker says:—
Mr. Wm. M. Spears looked after it and attended to it much more than I did,
together with the parties who were employed to do the work, are equally responsible for the consequences of the improper building of the dangerous and illegal wall which caused the injury to plaintiff charged in the declaration.
This case seems to me to come clearly within the principle established in Bower v. Peate[4], and Angus v. Dalton[5]:
That where a defendant has employed a contractor to do the work which in its nature is dangerous to a neighbouring property, and damage is the result of the work done, the employer is liable though he has employed a competent contractor and given him directions to take precautions in executing the works.
Here all the parties were engaged in an illegal act, for when a statute prohibits a particular work being done, a party cannot procure the work to be done and avoid responsibility by contracting with another to do that work. The erection of, or causing to be erected, this wall contrary to law by Walker on his property, being the creation of a nuisance and contrary to the statutory duty imposed on owners of property in respect to erections on their properties in the city of St. John, and mischief having resulted therefrom, it is no answer that the mischievous results arose by reason of the manner in which the owner's contractor performed his work in connection with the erection of the illegal structure. In Stevens v. Gourlay[6] it was held that "a contract for the erection of a building in contravention of the provisions of the Metropolitan Building Act 18 and 19 Vic., c. 122, cannot be enforced." Erle, C. J., in that case said:
The contract was for the erection of a building known to the plaintiff to be, or whether known or not, at all events it was in violation of the Metropolitan Building Act 18 and 19 Vic., c. 122.
And, after discussing whether the structure was a building within the meaning of that statute he says:
Upon the whole, I think this case a contract for the erection of a fabric or structure in violation of the statute, and that the parties being in pari delicto potior est conditio defendentis.
Williams, J., says:
Assuming then that this shop was a "building" within the statute, the rest of the case is clear. There has been a plain infringement of the act, and the plaintiff is disentitled to recover upon the principle laid down in the case of Foster v. Taylor[7] where it was held that the vendor of butter in a firkin that was not branded as required by 36 Geo. 3, c. 86, could not recover the price of it. That case is a distinct authority to show that the plaintiff cannot be allowed to enforce in a court of justice a contract which has been entered into in violation of the provisions of an Act of Parliament.
Crowder, J.:
I am also of opinion that this rule must be made absolute on the ground that the contract declared on was entered into and carried into effect in express violation of the Metropolitan Building Act. In Brooms Legal Maxims[8]:
If an exercise of public authority render impossible the further performance of a contract which has been in part performed, the contract is ipso facto dissolved.
And also[9]:
Again, we find it laid down where H. covenants not to do an act or thing which was lawful to do, and an act of Parliament comes after and compels him to do it, the statute repeals the covenant. So, if H. covenant to do a thing which is lawful and an act of Parliament comes in and hinders him from doing it, the covenant is repealed. But if a man covenants not to do a thing which then was unlawful, such act of Parliament does not repeal the covenant.
In the Bank of U. S. v. Orr[10] the Court said:
But when the restrictive policy of a law alone is in contemplation we hold it to be an universal rule that it is unlawful to contract to do that which it is' unlawful to do.
In a case in the Massachusetts Supreme Judicial Court, Sturgess v. Society of Theological Education[11]:
Defendant having occasion to construct a sewer from the cellar of its building to the common sewer, employed a contractor to do the work. In constructing this sewer it was necessary to cut through a plank barrier which had been constructed beneath the surface of the street to prevent the tide flowing into cellars in that locality. The contractor so negligently performed this part of his work that the tide-water came through the opening made by him and flowed into the cellar of a building owned by plaintiff, adjoining that of defendant. It was held that defendant was liable for the injury done by the tide-water to plaintiff's premises. The owner of a building, who has used due care in the employment of an independent contractor, is not responsible to third persons for the negligence of the latter occurring in his own work in the performance of the contract, such as the handling of tools or materials or providing temporary safeguards while doing the work. Hilliard v. Richardson[12]. Connon v. Hennessy[13]. As to such matters, pertaining to the mode in which he does the work, he is not the servant of the owner. But where the thing contracted to be done from its nature creates a nuisance, or when being improperly done, it creates a nuisance and causes mischief to a third person, the employer is liable for it. Gorham v. Gross[14] and cases cited. In the case at bar the defendant had a right to make an opening through the barrier for the purpose of laying a drain, but it was his duty to close it securely so that the collars should be protected from the tide. Having employed an independent contractor, it is not responsible for his negligent acts while doing the work, because in respect of such acts he is not its servant; but if the work, after it was done, created a nuisance and caused injury to the plaintiff, it is responsible. Sturges v. Society of Theological Education. Opinion by Morton, J.
And in the case of King v. Davenport[15]:
The delegation of legislative power to a city to prohibit the erection, placing or repairing of wooden buildings within limits prescribed by ordinance without permission, and to direct and prescribe that all buildings within the limits prescribed shall be made or constructed of fire proof materials, and generally to define and declare what shall be nuisances, and to authorize and direct the summary abatement thereof, etc., is within the competency of legislative power, and authorizes the passage of an ordinance prohibiting the erection or repairing of any building within the fire limits with combustible materials, and providing for the summary abatement or removal of the same. Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may be prohibited in the midst of dense masses of population, on the general principle that every person ought so to use his property as not to injure his neighbour, and that private rights must be subservient to the general interests of the community. An ordinance of a city passed in pursuance of legislative authority, establishing fire limits and declaring that a wooden roof put on a building thereafter within the fire limits to be a nuisance, and requiring the city marshal, under an order from the mayor, to remove the same, is reasonable exercise of the police power of the state, and has the force and effect of a statute when set up in justification by the marshal in removing such a roof.
As to the rent:
The loss of the use of the building during the time the damage was being repaired, was the direct and immediate result of defendant's act, and though damages may not be recoverable as rent, or rent as rent recoverable as damages, I know no better way of establishing the exact amount of the damage sustained, than by shewing the actual amount that the plaintiff (but for the defendant's wrongful act) would have received from the occupation of the building during the time reasonably required to repair the injury (in this case the actual time it took to repair was shewn), and as defendant offered no evidence on this point to shew that the amount claimed and found by the jury was unreasonable or in excess of the actual loss, and did not raise any question for the jury in relation thereto, though the judge offered to submit to them any question on which counsel might desire to take their opinion, I can see no reason why the jury should not, in the absence of any evidence to the contrary, adopt the actual loss of rent as a fair criterion by which to establish the actual amount of the damage sustained as the legal and natural consequence of defendant's wrongful act, and to enable plaintiff to recover for such loss as was proved to be the direct result of the wrong to be redressed.
The appeal will therefore be dismissed, but inasmuch as the damages claimed in the declaration amount only to $5,000, and as the amount found by the jury was in excess of that sum, and as the declaration has not been amended, the verdict can only be entered for $5,000.
FOURNIER, HENRY and TASCHEREAU, J. J., concurred.
GWYNNE, J.:—
This action was brought originally against the defendant Walker and one Spears, and judgment in the court below was against them both, and both appealed. Upon the argument before us it appeared to us that there was really nothing to support the judgment as against Spears, and this being admitted by the learned counsel for the respective parties, it was agreed that a nolle prosequi as to Spears should be entered in the court below, and that the case should be treated here as the appeal of Walker against a judgment rendered against himself alone.
The point arising for adjudication, without setting out the lengthy pleadings spread upon the record, may be stated thus:—A and B, being owners of contiguous lots of land, purposing to erect houses on their respective lots, agree with each other that there shall be erected on the line between their lots a party wall common to both buildings, the erection of which A assumes; and they respectively enter into written contracts with C for the completion of the mason's work of their respective buildings. By the contract between B and C the latter agreed to furnish all the materials, labor, tools, machinery, &c., and to build, finish, and complete for B a building as described in certain specifications set out in the contract, according to plans and drawings in the specifications referred to, which plans, drawings and specifications were declared to be part of the contract.
By the 4th article, it was provided that the contractor should in all cases be his own judge as to the amount of diligence and care required for the proper execution of the various constructions.
By the 5th, it was declared that B had engaged John C. Babcock (an architect) as superintendent of the erection and completion of the said buildings; his duty being faithfully to enforce all the conditions of the contract, and to furnish all necessary drawings and information to properly illustrate the design given; also to make estimate for the contractor of the amounts due to him on the contract, in no case estimating any materials or work which are objectionable, or have not become permanent parts of the work, and when the building is completed to issue a certificate to the contractor, which certificate, if unconditional, shall be an acceptance of the contract, and shall release him from all further responsibility on account of the work.
By the 6th, it was declared that the building or work should be entirely at the risk of the contractor until the same should be accepted, and that the contractor should be held liable for its safety to the amount of the money paid by B on account of the same.
By the 7th, it was provided that in case of any unusual or unnecessary delay or inability by the contractor in providing and delivering the necessary materials, and performing the necessary labor at the time the same is required, so as to insure the completion and delivery of the building or work at the time hereinafter set forth and contracted; then and in such case the proprietor, within three days after having notified the contractor of his intention so to do, shall have the right to enter upon the work and procure such necessary materials or labor to be furnished or performed as the case may require, and remove from the same all defective materials or workmanship, as in the judgment of the superintendent may be found necessary, and carry on the work to completion in such way as shall be proper and right, charging the cost thereof to the contractor and deducting such charges from the amount of the contract price.
8th. The proprietor reserves the right, by conferring with the superintending architect, to alter and modify the plans, and this specification in particular; and the architect shall be at liberty to make any deviation in the construction, detail or execution, without in either case invalidating or rendering void the contract, and in case such alteration or deviation shall increase or diminish the cost of doing the work the amount to be allowed to the contractor or proprietor shall be such as may be equitable and just.
9th. The contractor is to co-operate with the contractors for the other parts of the work, so that, as a whole, the job shall be a finished and complete one of its kind, and he is to arrange and carry on his work in such a manner that any of the co-operating contractors shall not be hindered or delayed at any time; and when his part of the work is finished, he shall remove from the premises all tools, machinery, debris, &c., and so far as he is concerned, leave the job clear and free from all obstructions or hindrances.
While both buildings were still in course of erection by C, a centre wall of B's house fell, either by reason of the persons employed by C not having built that wall upon rock foundation as was required by the plans and specifications—a fact which did not become known to B. or his architect until after the wall fell—or by reason of sand to be used on the building having been brought by persons employed by G on to the floor of B's building so in course of erection, and having become saturated with rain and too heavy for the floor to bear, and the falling wall taking with it the floor upon which the sand was so deposited, brought with it the party wall erected by C under his contract with A, in which A and B were mutually interested, thereby damaging also the front wall of A's building erected for him by C under his contract. In such a case will an action lie at the suit of A against B for the damage so done to the party wall in which A and B. are so mutually interested, and to the front wall of A's building so in course of erection? And can A recover from B monies paid by A to C for re-erecting and restoring the party wall and other wall so damaged? or other damages alleged to have accrued to A by reason of his not having had his building completed ready for occupation at the time at which it might have been completed if B.'s wall so erected by C had not fallen, and, in falling, done the damage aforesaid? At the trial there was much evidence given attributing the falling of the centre wall of B's building to the weight of the sand piled upon the floor of the building, and other evidence, which attributed the fall to the fact of the wall not having been built, as required by the plans and specifications, upon rock foundation. At the close of the case, the learned counsel for the defendant moved for a non-suit upon the ground that the action did not lie against B—that he was not responsible for the neglect, default or misconduct of the persons employed by C, the contractor, such persons not being servants of B.
The learned judge before whom the case was tried refused to nonsuit the plaintiff upon the ground that, as he held, articles 5 and 8 of the contract, quoted above, had the effect in law of making the defendant responsible, as retaining control by his architect to receive or reject what was proper or what improper work, and that therefore it became a duty imposed upon the defendant to take care that the work was properly executed according to the specifications—that it was the duty of the architect, acting for the proprietor of the building and engaged by him, to take care that the work was properly done, and that if the work was improperly done, the defendant, having taken control over the contractor, rendered himself liable in law as a party to the act and injury sustained by the plaintiff; and he so charged the jury; and he added that if they should think that the wall fell from not having been built upon the rock, as required by the contract, they must find for the plaintiff. The jury found for the plaintiff.
In the following term a motion was made upon behalf of the defendant for a nonsuit, or for a new trial, upon several grounds stated, and among others, for misdirection in the learned judge having directed the jury as above, and a rule nisi was granted, which, after argument, was discharged.
It is against the rule discharging the rule nisi that this appeal is taken, and I am of opinion that the appeal must be allowed, and that the rule in the court below must be made absolute for a new trial.
The ruling of the learned judge before whom the case was tried, on the motion for a nonsuit and his charge to the jury cannot, in my opinion, be upheld consistently with a sound application of the principle which is recognized in modern times as governing the case, both in the decisions of the English courts and in those of the courts of the United States.
In Bush v. Steinman (1799)[16], where A, having a house by the roadside, contracted with B to repair it for a stipulated sum, and B contracted with C to do the work, and C with D to furnish the materials, and the servant of D brought a quantity of lime to the house and placed it on the road, by which the plaintiff's carriage was overturned, it was held that A was answerable to the plaintiff for the damage sustained. C. J. Eyre, before whom the case was tried, was of opinion at the trial that the action was not maintainable; and although after argument he yielded to the opinion of his brothers in holding that the action was maintainable, he confesses his inability to state upon what precise principle it can be supported. Heath, J., founded his judgment upon the single ground that all the sub-contracting parties were in the employ of the defendant, and he illustrates the case by an obiter dictum which he lays down, namely, that:
Where a person hires a coach upon a job, and a job coachman is sent with it, the person who hires the coach is liable for any mischief done by the coachman while in his employ, although he is not his servant.
And Rooke, X, rests his judgment upon the position taken by him, namely: that he who has work going on for his own benefit, on his own premises, must be civilly answerable for the acts of those whom he employs. The case, then, comes not recommended by any concurrence of opinion of the learned judges by whom it was decided in the principle upon which their judgment can be supported.
In Laugher v. Pointer (1826)[17], where the owner of a carriage hired of a stable keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to a horse belonging to the plaintiff, the latter, having brought an action for such injury against the owner of the carriage, was non-suited by Abbott, C. J., and upon argument, the court being divided, the non-suit was maintained. In that case, Littledale, X, who concurred with the C. J., that the action did not lie, and the C. J. both repudiate the obiter dictum pronounced by Heath, X in Bush v. Steinman; while Holroyd and Bailey, J. J., who maintained that the action did lie, did so upon the ground that, as they held, the driver of the horses while engaged in driving the defendant was the servant of the defendant, and that so the maxim respondeat superior applied. And Littledale, J., for the purpose of showing that Bush V. Steinman had no application to Laugher v. Pointer, points out the fact which had been relied upon by Rooke, X, as the ground of his judgment, that in Bush V. Steinman the injury was done upon or near, and in respect of the property of the defendant, of which he was in possession at the time, and granting that the rule of law may be that in all cases where a man is in possession of fixed property he must take care that his property is so used and managed that other persons are not injured, and