1. This is one of those melancholy disputes between a building contractor and his employer which come before these Courts so frequently. Although the amount in dispute is small, the point at issue is an important one to architects and the persons who employ them.
2. On the 12th of March 1914, plaintiff entered into a contract with Pandurang Laxman and Laxman Kashinath with reference to the work of building a house at Chandanwadi in Sonapur Lane. The agreement states that Pandurang Laxman and Laxman Kashinath, defendants in this suit, have got the plans in respect thereof passed by the Municipality through the engineer, Mr. Laxman Harischandra Chowdhari. Defendants had asked for lenders showing the rates for the said work, and out of the same they have accepted the tender of Allimahomed Rahimtulla, the plaintiff. Then it is agreed that the plaintiff's work was to be measured every month by the defendants' engineer and on receipt of the engineer's chiti they would pay the amount of the said chiti the next day after keeping 10 per cent. thereof as deposit. And as to the balance that might remain as deposit, when the plaintiff completed the defendants' work, defendants would get their engineer to measure the same forthwith and would pay immediately all the moneys due to the plaintiff along with the final bill in full settlement.
3. Mr. Chowdhari was, no doubt, the defendants' engineer for supervising the work which was being done by the plaintiff, and from time to time he wrote letters to the defendants that the plaintiff's work had been measured up and that so much money might safely be paid to him. On the 7th of June, Mr. Chowdhari wrote: 'Herewith please find the final bill of the work done by your contractor, Mr. Allibhai Rahimtulla, of your new building at Shankersett Lane, amounting to Rs. 14,989-5-2.'
4. The bill is headed: 'Abstract of work done by Mr. Allibhai Rahimtulla, contractor of the building of Mr. Pandurang Laxman, of Mahadeo Ranker Sett Lane near Sonapur Lane.' It contained 'quantities, description of work, rate, amount due.' The total is Rs. 14,989-5-2, and after that the letters E. & O.E. and it is signed by Lakshman H. Chowdhari, L.C.E.
5. Now the last thing the defendants wanted to do when they got the final bill, from their engineer was to pay it. As it often happens, they endeavoured to get off paying what apparently was due by them. The second defendant who was called said, he suspected Chowdhari's measurements were incorrect as the amount was too big. 'I did not tell him that I was suspicious of his measurements.' That is the secret of the whole difficulty. Defendants wanted to get a reduction off what appeared on Chowdhari's certificate because it was too big. But instead of telling Mr. Chowdhari that they thought his measurements were wrong or his rates were wrong, they wait for several weeks and in the meantime ask another engineer, Daruvwlla, to look at the bill and take measurements. It is not until Daruvalla made out a fresh bill that Chowdhari became acquainted with that fact. Mr. Daruvalla's bill is dated (sic) of August 1915. It does not appear when Mr. Chowdhari was first acquainted with it, but sometime after the 11th August he asked his assistant to look over the measurements again and compare them with Mr. Daruvalla's measurements and he found that his own bill might be reduced by Rs. 141-5-0, so he wrote on the 16th of October to the defendants:
In continuation of my letter to you of 7th June last, forwarding the final bill of the work done by Mr. Allibhai, contractor...please note that there have been some mistakes in it and that the bill has to be reduced by Rs. 141-5-0 as per following details.
6. Meanwhile before that correspondence had commenced between the plaintiff and the defendants. On the 10th of September, defendants' solicitors wrote:
Our clients are not bound to pay to your client any amount which may be certified by Mr. Chowdhari. Mr. Chowdhari left the measurement of the work to a Surveyor and our clients find that the measurements so taken are incorrect. The principle employed by Mr. Chowdhari for charging for particular kinds of work is also erroneous. He has also allowed rates for ornamental work which are in excess of the proper rates. Our clients finding that the bill made out by Mr. Chowdhari was incorrect have had the work remeasured and a proper bill made out by another engineer, Mr. B.B. Daruvalla, where from it appears that the correct total amount of the bill for the work done by your client is only Rs. 13,647-7-9. Deducting from it Rs. 12,900 admitted by your client as received from ours there remains only a balance of Rs. 747-7-9 due to your client and our clients are ready and willing to pay the same.
7. On the 16th of September, the defendants' solicitors wrote: 'Our clients are quite prepared to hold a joint survey.'
8. On the 17th, the plaintiff's solicitors wrote: 'Our client is not bound by the certificate of any engineer your client may choose to put forward now nor is he bound to hold a joint survey. Under the agreement your client is bound by the certificate of his own architect, Mr. Chowdhari.' There can be no doubt that in form the bill sent in on the 7th of June by Mr. Chowdhari to the defendants was a final bill. It is suggested that the letters E. & O.E. at the bottom prevented it from becoming a final bill. But it is not those letters which determine the nature of the bill but the contents of the bill itself. The bill is clearly a final bill for the work done by the plaintiff for the defendants. Those letters commonly put in this country under a bill have, as a matter of fact, no effect whatever. I certainly do not remember having seen those letters on any bill before 1 came into this country. But it does not follow that if those letters are not put there the bill cannot be revised before it is finally settled by payment, or that even after payment has been made under certain circumstances the question of the amount cannot be re-opened. Therefore, it seems to me perfectly clear that that bill of 7th of June was a final bill. Then, were the defendants bound to pay under the contract that bill? It was a final bill prepared by Mr. Chowdhari who was the engineer in June. Therefore, the obligation to pay the bill arose from the terms of the contract I have already referred to, viz., when you complete our work we will get our engineer to measure the same forthwith and will immediately pay all the moneys due to you along with the final bill in full settlement.' That is a perfectly plain and unambiguous contract and if an employer of a building contractor were at liberty after the final bill was sent in by the regular engineer to take it to another engineer because it did not satisfy him, then it would not be possible to say when the question of payment could be settled, because the bill might be taken to another engineer and then to a third engineer and so on and the obligation to pay might never arise according to the employer. The position in a contract of this sort between a contractor and his employer is well defined in the case of Clemency v. Clarke (1879) 2 HBC 41. There the same point was taken as taken here. The architect had not actually taken the measurements himself but had given that work to an assistant to do. Grove, J., at p. 45, says:
Then I will assume that the taking out the quantities and the measuring up was done by a surveyor. I do not see how any architect could ever discharge such a duty if he were required to personally go in detail into all the work. It may be that the measuring up, and the quality of the material in some classes of work could be properly got at by skilled persons who might be employed under the architect. The architect, though in certain parts of the document he is treated as an agent of the party, is for the purpose of this certificate a judge; and if he were bound to do all the details of various kinds of work himself, in all probability he would be incompetent to do them: because although he is skilled as an architect--skilled as a person generally in surveying work--he may not be skilled in the particular details of all this general work. 1 do not think, therefore,--it being admitted that the architect has behaved with perfect honesty in the matter and that there is nothing in the shape of corruption or improper conduct attributed to him--that this certificate is the less final because he has taken the measurement of the works from another person, namely, the surveyor who has gone through the work and made a report of the measurements to him.
9. Mr. Chowdhari did check the measurements of his assistant, for he has told us from the entry in his diary that he went to the premises on the 11th of April and spent four hours going over the measurements and checking the most important items. Therefore, I do not think there is anything in the point taken by the defendants that Chowdhari did not perform his duty properly in preparing the final bill. At page 52 of the same report Lindley, J., says:
A certificate, of course, can be impeached for fraud: it may be impeached for collusion: on the other hand it cannot be impeached for mere negligence, or mere mistake, or mere idleness on the part of the architect.
10. Therefore, the parties agreed that the building contractor should be paid according to the final certificate of the architect and that certificate is issued. The employer cannot impeach it except on the ground of fraud. If the architect is incompetent and makes mistakes in preparing the final bill then the employer has his remedies against the architect, but the building contractor is bound to be paid. Therefore, in my opinion, the defendants were bound to pay under the bill of 7th of June and if they discovered that Mr. Chowdhari had made mistakes, the defendants had their remedy against him.
11. Now, after Mr. Chowdhari was acquainted with Mr. Daruvalla's measurements he sent his assistant to go over his own measurements with those of Mr. Daruvalla and he admitted, on the 16th October, that there were certain mistakes amounting to Rs. 141-5-0. The plaintiff had nothing whatever to do with those mistakes, but he has in his claim deducted from the amount he demanded the amount admitted by Mr. Chowdhari to have been wrongly calculated. That under the circumstances was a very fair, thing for him to do. In other respects it has been urged that the evidence showed that Mr. Chowdhari's bill was incorrect. The difference between Daruvalla's amounts and Mr. Chowdhari's chiefly lies in the measurements, but it has also been pointed out to me that in one instance Mr. Chowdhari bad allowed a higher rate than was allowed in the contract. That was for artificial panels. The item is a small one but it is instructive to show the inherent dishonesty of the defendants' case. First of all, I was told generally that Mr. Chowdhari had allowed higher rates than those appearing in the agreement. That was subsequently whittled down to the one rate for artificial panels. The contract rate was Re. 1-2-0. Mr. Chowdhari had allowed Re. 1-3-0. His explanation was that a part of the shutters instead of being of Kayal was made of Moulmein teak at the 2nd defendant's instance. I believe Mr. Chowdhari that that was so. He was supervising the building and, therefore, he saw the shutters before they were painted, for Mr. Daruvalla has told nothing about this but sees in the agreement artificial panels. He sees these panels painted and takes it for granted that the panels are of Kayal teak, in order to prove that Mr. Chowdhari had overcharged defendants in his bill. Mr. Daruvalla did not even take the precaution of testing whether any part of, the shutters was Moulmein teak. He sees the agreement and sees the shutters painted and says that Mr. Chowdhari has made a mistake. That is a small point, but in one way it goes to the very root of the defendants' objection to pay the plaintiff's bill. Then Mr. Chowdhari is said to have allowed plaintiffs higher rates than the market rates in cases where rates were not fixed by the agreement. I was handed by defendants' Counsel a comparative statement in which those items were marked in blue pencil. I find that in that statement the only item in which there is a difference is three blue stone chairs for the front. Mr. Chowdhari allowed Rs. 6, Mr. Daruvalla thinks Rs. 4 is the proper rate. The total difference would be Rs. 6. Therefore, these two instances in which Mr. Chowdhari is supposed to have made out his bill unfairly against the defendants, have been shown to be practically without foundation if not entirely so. It might be satisfactory from all points of view if I were to appoint an independent surveyor to go and measure the work, in which case I should be satisfied in my own mind as to what were the correct measurements although it might be said that the third man might, also possibly err in his measurements; I am not going to do that on a point of law. I am satisfied on a proper construction of the agreement that the defendants were bound by the certificate of Mr. Chowdhari. If they think they paid too much, then they can endeavour to recover the excess from Mr. Chowdhari. Unfortunately in the plaint, plaintiff refers to the letter of 16th October as a certificate. That is not a certificate. It is merely an annexure to the certificate of 7th June. It is a mistake in drafting. Paragraph 7 has been made use of by the defendants in order to contend that Mr. Daruvalla's certificate was final before Mr. Chowdhari's. However that is clearly an unsound contention, because there can only be one final bill prepared by an engineer and Mr. Chowdhari issued his final bill on the 7th June. When the bill was prepared Mr. Chowdhari was the defendants' engineer. Before the building was completed they might have changed their engineer. As a matter of fact Mr. Chowdhari prepared the plans, supervised the building and prepared the final bill which the defendants were bound to pay.
12. Therefore there will be a decree of the plaintiff for Rs. 1,208-15-5 with interest on Rs. 1,200-3-5 at 6 per cent. per annum from 15th October 1915 till judgment. Costs and interest on judgment at 6 per cent.