Hugh Walmsley, J.
1. The set two appeals maybe dealt with, together, for they are both directed against the same judgment. In a suit for damages, a decree has been made directing the defendant to pay a sum of Rs. 7,071-5-0 with the result that defendant has preferred an appeal (No. 170) in which he asks us to hold that he is not liable at all, or, in any event, that the sum should be assessed at a much lower figure, while the plaintiff has preferred an appeal (No. 245) claiming a larger amount.
2. The circumstances are as follows: The plaintiff, a lady, the wife of Baroda Prosad Rai Choudhuri, erected a large pucca building at No. 52 Beni Nandan Street, Bhowanipur, in 1915-1916. The plan of the building was prepared by a firm styled Sinha and Sarkar, of which the defendant Nagendra Nath Sinha is the working partner. In July 1915 the plaintiff engaged the defendant to watch the erection of the building, on a salary of Rs. 125 monthly, and he continued to be so employed until April 1916, when the plaintiff dismissed him. When the building was completed it was found to be unsatisfactory, and in 1919 it was inspected by Sarat Chandra Sen a retired Engineer, who submitted a lengthy report. Since the completion of the building, it has been taken on lease by the Calcutta Police for a term of several years, at a satisfactory rent. The plaintiff's case is that the defendant secured the appointment by misrepresentation that he was employed to supervise the building operations with full responsibility for the materials and the labour, and that in consequence all the defects in the building are to be attributed to negligence and incompetence on his part.
3. In regard to the charge of imposture the plaint is indefinite. In the 5th paragraph it is said that the defendant misrepresented himself as an expert engineer and that he is not a passed engineer or any kind of expert. The plaintiff's deposition is more explicit: she said that defendant told her that he had passed from the Sibpur Engineering College and that he had built a large house in Bailygunge. The learned Judge thinks that he cannot have had the hardihood to claim, the Sibpur degree, but that he very probably did lead the lady to think that he was a properly trained engineer. With this conclusion I cannot agree. The defendant was known to the plaintiff's husband and had been employed by him in connection with some alterations to the house in which the plaintiff and her husband lived. I have no doubt that the defendant was engaged because he was known to the plaintiff and not because he pretended to qualifications which he did not possess.
4. The learned Judge also found that the defendant was employed with full responsibility, and on that finding he has held that his work is to be measured by the standard applied to Architects and Engineers in England. Taking this view he has quoted extensively from Halsbury's Laws of England. There is no evidence to show that the defendant was engaged as an architect is engaged in England and it is a matter of common knowledge that the English practice does not obtain in India, except to a very small extent. The defendant's firm, or we may say the defendant himself prepared the plans for submission to the Municipal Authorities, but so far as the building is concerned, the defendant was nothing more than a paid servant under the plaintiff. The question of his liability for defects in the completed building has Jo be determined with reference to that relationship. He will not escape liability merely because he was a paid servant and not an architect, but it is necessary to consider the terms of the contract under which he was employed.
5. So far as the plaintiff is concerned the learned Judge seems to think that as a pardandshin lady she was entitled to special consideration at the hands of the defendant. In that I think he is wrong. Whether the plaintiff observed the parda strictly or not, as soon as she embarked on a scheme of house building for profit, she must be taken to have given up the protection that the law affords to pardanashin ladies. She became simply an employer, and the contract on her side must be considered on that basis.
6. She says in her plaint that she advertised for some one to 'supervise the building operation' and that she afterwards appointed the defendant for that purpose. No advertisement has been produced in evidence, to serve as a guide to the terms of the appointment, and it is not suggested that the agreement was reduced to writing. We have to infer the terms from circumstances. The parties are agreed that the monthly remuneration was Rs. 125. With all deference to the learned Judge I cannot regard that as a very liberal sum. The building was a fairly large one, and the cost must have been considerable, the defendant's salary represented a very small percentage on the general cost, and do not think the inference can be drawn that the salary indicated complete responsibility. The defendant was not given any one to assist him, and it appears that he was treated as a servant and nothing more.
7. With regard to the materials used, the plaint says that the defendant supplied some, and the plaintiff others, but that it was the duty of the defendant to satisfy himself as to the quality of everything. There is, however, no evidence to show that defendant supplied any particular materials. A general statement to the effect that he supplied materials is made but that is all. On the other hand it is admitted that the plaintiff's brother supplied some. As for the assertion that the defendant was required to examine the quality of the materials, it is difficult to believe that it was open to him to reject what was supplied by his employer's brother. The plaintiff's husband settled the price of the windows and doors, and there again the defendant had no option but to use them. I think the conclusion must be that the defendant had to do the best he could with the materials supplied to him, and that he was not expected or even permitted to be particular as to their quality.
8. Another matter is that of deviations from the sanctioned plan. It is common ground that the building erected did not conform to the plan that was sanctioned by the Municipal Authorities. The plaintiff alleges that it was the defendant who is responsible for these deviations, while he says that the plaintiff insisted' on them. The only coroborative evidence comes from Yakub Mistri who supports the defendant, and it certainly seems probable that it was the employer and not the servant who voluntarily departed from the plan.
9. It is also to be remembered that the plaintiff had a manager and other servants, among them being one Bhudar Dutt through whom all payments were made.
10. Taking all these circumstances into consideration, I think the conclusion must be that the plaintiff engaged the defendant as a servant, to work under her orders, and to see that proper use was made of the materials supplied to him.
11. The same conclusion is reached if we approach the subject from the defendant's side of the contract. I have already said that I do not believe that he was guilty of any imposture, but he did offer-himself as competent to watch the progress of the masonry work. The work that he undoubtedly did was to check bills for materials and labour and pass them on to Bhudar Dutta for payment.
12. In my view, therefore, the plaintiff and the defendant stood in the relation of employer and servant, and the question of liability has to be determined by reference to the provisions of the Indian Contract Act. The section applicable to this case is Section 212 which runs as follows: 'An agent is bound to conduct the business of the agency with as much skill as is generally possessed by persons engaged in similar business, unless the principal has notice of his want of skill. The agent is always bound to act with reasonable diligence and to use such skill as he possesses; and to make compensation to his principal in respect of the direct consequences of his own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill or misconduct'.
13. The defendant is liable, therefore, for the direct consequences of his neglect, want of skill or misconduct. It is not enough, however, for the plaintiff to say that the completed building is defective in this respect and that. She must come down to particulars, and show that each defect of which she complains results from neglect, want of skill or misconduct on the part of the defendant.
14. In her plaint she claimed, provisionally a sum of Rs. 15,000 by way of damages under seven heads. The plaint was filed the day after the Engineer submitted his detailed report, and although no reference is made to that report, I have no doubt that the figures are based on it. The report was not filed in Court until many months later. The learned Judge used the report as evidence, and objection has been taken before us that it was not properly, proved and that it ought to be discarded. Our attention has also been drawn to orders regarding it in the order-sheet, particularly the one made at the time when it was filed, viz., 'the question of its admissibility will be considered at the time of trial'. It appears to me that in the lower Court confusion was made between the admissibility of the document and its value as evidence The facts that the report was not mentioned in the plaint, and that it was not filed until a year later, may be reasons for regarding it with caution, but they do not affect its admissibility. I think that it was undoubtedly admissible provided that it was properly proved, and the form of the objection before us is that in thin respect there was failure to comply with the rules of evidence. The objection is technically correct. The Engineer when deposing made general remarks about the building and then said 'Ex. 5 is my report' and it was received in evidence. He ought to have made the contents of the report a part of his deposition by using it to refresh his memory, as a medical witness does with a post mortem report. After doing so, he could have said that the report was the document that he prepared at the time. There were obvious reasons, however, against this course: the report is full of detail, and it covers more than one hundred pages of the paper-book. The defendant did not object to the method adopted by the Court, and I do not think that we ought at this stage to reject the report in consequence of an error, in form rather than in substance. If we were to hold that we were precluded from looking at the report on this account, I think we should be compelled to remand the suit that it might be formally proved, and I imagine that neither party would be pleased by such a course.
15. The report ends with an estimate of damages very similar to that set out in the plaint. It will be convenient to take seriatimthe items mentioned by the plaintiff.
16. The first is 'damages due to excess height of the superstructure in the ground floor and first floor of the main building'. For this the plaintiff claimed Rs. 2,400 and his been allowed Rs 1,200. The Engineer's estimate is Rs. 2,400. The learned Judge says that on the one hand the rooms are stronger and more commodious, but on the other the plaintiff practically loses the light of adding a third storey. I do not think that the latter consideration should be given any weight. The building was designed to be one of two storeys, and in October, 1916, the. Municipal authorities required the plaintiff to give an undertaking not to add a third storey except on specified' conditions. It is true that the plan was not strictly followed. The plaintiff says that this was the doing of the defendant, while the defendant says that he merely obeyed the instructions of his employer. It is pointed out to us that the Building Department served the plaintiff with a notice on the subject as early as January 1916, and yet the defendant remained in plaintiff's service until the following April. The natural inference is that the plaintiff did not then regard the change as due to the defendant's ignorance or misconduct. I think, therefore, that on this head no damages should be awarded.
17. The second item is 'damages for building and dismantling verandah in block No. 52 D'. The claim is for Rs. 200 and the sum allowed is Rs 100. The learned Judge's reason for allowing only half the amount claimed, is that although plaintiff's consent was obtained the defendant failed in his duty in not representing to her all the facts and the risk she ran. I think he is right in the view he has formed about the plaintiff's knowledge, but I do not think he goes far enough. The plaintiff was taking a lively interest in the building, and, in my opinion, the defendant was acting under the plaintiff's instructions and not merely with her approval. In the view I take of the relation between them I do not think that the learned Judge's reason for saddling the defendant with part of the expenditure thrown away is a good one. On this item also I think that nothing should be allowed.
18. The third item is 'damages for bad sloping of roofs and floors'. The claim is for Rs. 600 and the amount allowed is Rs. 300. The learned Judge finds that the roof or most of it was completed in the defendant's time, but he is doubtful about the floors. In this matter we are certainly faced by the fact that defendant's service was ended before the completion of the building. In January 1916 the notice mentioned above was issued, and it required the plaintiff to stop work at once, and in the report on which it was based it was said that beating of the roof had just been commenced. The undertaking was not given until long afterwards, and I think we must infer that the defendant cannot be responsible for the roof work. We were not shown any reason for differing from the learned Judge about the floors. The plaintiff, therefore, cannot recover anything on this head.
19. The fourth item runs 'Cracked walls partly to be dismantled and re-built and partly to be repaired.' The sum claimed is Rs. 1,800 and the whole has been allowed. This is the Engineer's estimate and the learned Judge thinks that it would be presumptuous to interfere with the estimate of such an authority. A very large part of the Engineer's report is devoted to cracks. He gives the length and the direction of many cracks, but in his report he says nothing about their breadth and depth. When asked in cross-examination all that he had to say was 'Some of the cracks were right through. I examined some of them and saw that they were not of plaster only'. It appears, therefore, that some of them were not 'right through' and some of them may have been of nothing more than the plaster. His examination it must be remembered was made three years after the defendant had been dismissed. On such evidence it is quite impossible to accept his estimate, and there is no other evidence on which an estimate can be based, no account of the cost of repairs having been produced. So whether negligence on the part of defendant was the cause of cracks or not, no sum can be fixed as damages on this head.
20. The fifth item is: 'Value of excess materials not accounted for'. The sum claimed is Rs. 3,000. The learned Judge has allowed nothing, and he has given his reasons in dealing with the ninth issue. With those reasons I agree entirely, and I need not repeat them. The plaintiff has failed to establish her right to demand anything on this account.
21. The sixth item is 'excess payment made to the labour contractor etc.' The sum claimed is Rs. 2,000 and the learned Judge has allowed Rs. 671. This figure is. based on the Engineer's report, and, in my opinion, the method adopted by him is most unsatisfactory. He measured the masonry, and then worked out the cost at so much per hundred cubit feet. The sum at which he arrived was deducted from the sum shown as paid out during the defendant's term of service, and from the result a further sum of Rs 700 was deducted for unforeseen expenditure. This sum of Rs. 700 is purely arbitrary. No attempt is made to justify it, and I regard it as a confession that his method of calculating the cost of labour is not reliable. The defendant made out bills, and it is not suggested that his calculations or measurements were wrong, or his rates excessive.
22. In my opinion he cannot be called on to refund any part of the money paid out on his signature, unless it is shown that he expressly agreed that the payment should be subject to revision at a later date on the method followed by the Engineer. I have used the word refund, but I ought to add that the money did riot pass through his hands; his duty was only to pass the bills. I think that nothing should be allowed on this head.
23. The last item runs as follows: 'Damages due to the loss of durability of building owing to bad supervision'. The claim was for Rs. 5,000 and the sum allowed is Rs. 3,000. The Engineer used this expression, after more than one attempt, 'due to loss of income for constant repairs on account of bad construction and loss of durability', and his estimate was the same as the plaintiff's. The learned Judge deals with the claim as follows: 'It is not so easy to determine. The actual loss sustained must depend more or less on conjecture. It is the result of bad foundation, bad materials and bad construction. We have seen how it has permanently rendered it impossible almost to have a third storey. The Engineer estimates the loss at Rs. 5,000. From the nature of things it must be left more or less to Court's discretion. Having regard to all the circumstances of this case, and the worry and trouble defendant gave to plaintiff in trying to run her down by a series of cases as the learned Small Cause Court has observed I do not see why plaintiff should not have substantial damages on this head'. This is not convincing, and it is clear that the reference to other litigation is out of place, for this suit is concerned only with alleged defects in the building. I have already dealt with the matter of the third storey, and here I need only say that loss on that account is not one of the elements named by the plaintiff under this head. I have also referred in an earlier passage to the supply of materials, and held that the defendant was not responsible for the quality of the materials: he had to do his best with what was supplied to him. The learned Judge has imported matters not mentioned by t tie plaintiff. Her case is that there was bad supervision by the defendant, and that as a consequence the building is not as good as it should be and will not last so long as a good building should. I see no reason to doubt the Engineer's report that the building is inferior. The expert's view is endorsed by the Police tenants. The question, however, is whether this general defectiveness is due to want of skill, negligence, or misconduct on the part of the defendant. It is here that the plaintiff seems to fail. Before we begin to guess at the sum which will compensate her for 'loss of durability' she must satisfy us that it is the defendant who is responsible for the condition of the building. It was not he who supplied the materials and it would seem that the quality of the materials must go far to determine the quality of the completed building. The plaintiff interfered with him in the following of the plan. We cannot say at what precise point in the operations the defendant was dismissed.
24. In my judgment, therefore, we ought to hold that the plaintiff has failed to prove that the defendant is responsible for the building being of inferior quality. Consequently I think that nothing should be allowed son this head.
25. As I have come to the conclusion that the plaintiff is not entitled to recover damages under any one of the heads mentioned by her, it follows that in my judgment the appeal of the defendant should be allowed and that of the plaintiff dismissed, and the suit dismissed, with costs in both Courts. In this Court, the defendant will be entitled to costs in both the appeals but only one hearing-fee is allowed in the two appeals.
26. I agree.