1930   Present: Fisher C.J. and Akbar J.

PERERA v. FERNANDO

415-D. C. Colombo, 28,705.

Building contract-Plans supplied by plaintiff-Agreement to compensate for damage-Unskilful work-Supervision by plaintiff-Liability of contractor,

Where the defendant entered into an agreement to build a motor garage for plaintiff according to plans furnished by the latter, and further undertook " in case of breakdown within the period guaranteed to compensate any such damage ",-

Held, that the defendant was liable for damage resulting from unskilful work even if the building was constructed under the supervision of the plaintiff.

PLAINTIFF sued the defendant to recover damages for breach of a contract to construct a motor garage for the plaintiff according to plans furnished by the latter. Plaintiff alleged that the building was not constructed in accordance with the plan and that it was unfit for his purpose and that it. required a further

sum of money to make it reasonably safe for use. The defendant 1930 pleaded that the building was constructed under the daily super- Perera v. vision of the plaintiff and that he was not responsible for any defects Fernando in the construction or for the use of materials which was obtained with the approval of the plaintiff. The learned District Judge dismissed the plaintiff's action.

Hayley, K.C. (with Canjemanaden), for the plaintiff, appellant.- The agreement contains a guarantee by the defendant that the building shall be fit for the purpose for which it is intended. There is also a further undertaking by the defendant that he will compensate any damage caused by a breakdown. The defendant cannot, therefore, escape responsibility for the defective nature of the work. He is a skilled workman and owes a duty to the plaintiff to do everything necessary to make the building complete, even though the contract or the specification may not provide for details of the necessary work. (See Halsbury's Laws of England, vol. III., p. 186.)

There is another duty thrown on a contractor who makes a tender for the construction of a building. He must examine the specification carefully and obtain the advice' of an engineer if he cannot understand the details. He cannot be heard to say that the employment of an engineer would involve additional expense, or that he merely carried out instructions given him by the owner.

In Thorn v. The Mayor and Commonalty of London reported in 1 A. C. (1876) 120, the plaintiff contracted to build a bridge for the defendants according to plans and specifications prepared by the defendant's engineer. The plaintiff was to carry out the orders of the engineer, but part of the work became valueless owing to defects in the plans and a great deal of labour was thereby wasted. It was held that the plaintiff was not entitled to any compensation from the defendants for the loss caused to him.

B. F. de Silva (with Nihal Gunesekera), for the defendant, respondent.-The contract was to do the work in a particular manner. The defendant carried out the work in a manner to satisfy the plaintiff, as the plaintiff himself was present when the building was being constructed and issued instructions to the defendant from time to time. The defendant is not a skilled workman but only a servant employed by the plaintiff. The case reported in 1 A. C. (1876) will not, therefore, apply. The guarantee is expressed in vague terms. There is no period mentioned, and in view of the finding of fact no meaning can be attached to the words defining the guarantee. April 15, 1930.

AKBAR J.-

This was an action in which the plaintiff-appellant sued the defendant-respondent for damages sustained by him owing to the breach of a building contract dated January 5, 1928, by the

defendant, by which he contracted to construct a motor garage for the plaintiff according to plans furnished by the plaintiff. The plaintiff claimed a sum of Rs. 1,160 by