McGuire v. Fraser, (1908) 40 SCR 577

Supreme Court of Canada

McGuire v. Fraser, (1908) 40 S.C.R. 577

Date: 1908-10-06

McGuire v. Fraser.

1908: June 9, 10; 1908: October 6.

Present: Girouard, Davies, Idington, Maclennan and Duff JJ.

Builders and contractors—Responsibility for faults in construction -—Negligence—Latent defect—Installations in constructed building—"Automatic sprinkler system"—Damages by flooding—Injury sustained by subsequent purchaser—Right of action—Assessment of damages—Expertise—Arts. 1055, 1688, 1696 C.C.

Appeal from the judgment of the Court of King's Bench, appeal side[1], affirming the judgment of the Superior Court, Tellier J., District of Montreal, which maintained the plaintiff's action with costs.

The plaintiff's auteur employed the defendant to install an "automatic sprinkler system" in his building, (subsequently sold to plaintiff,) and, in executing the work, the defendant made insufficient connections with the city water-mains by means of a pipe already existing in the building. As the result of this fault in construction the pipes became disjointed and the plaintiff's goods, consisting largely of cases containing wines in labelled bottles, were damaged. The plaintiff notified defendant that he would hold him liable for the damages thus sustained and requested him to attend at an expert valuation to be made by fire insurance adjusters and valuators, but plaintiff disregarded the notification and did not attend. The experts assessed the damages, in the manner usually adopted in similar cases of damages caused by fire, at $3,397.11, and the plaintiff's action was maintained for this amount with amounts added for

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expenses incurred in repairs to the pipes, fees to the experts and costs of protest. The court below by the judgment appealed from[2] affirmed the judgment of the trial judge, Tellier J.[3], which maintained the action for the full amount demanded, and held that, under the provisions of articles 1055, 1688 and 1696 of the Civil Code, the contractor was responsible for the damages sustained, that the plaintiff, as subsequent purchaser of the building, had a right of action against the contractor as he was the person injured through the latent faults in construction, that the method of assessment of damages adopted was a proper mode to follow, under the circumstances, and that the repairs, experts' fees and costs of protest were items of damages which could properly be recovered in the action.

After hearing counsel on behalf of the parties, on the appeal, the Supreme Court of Canada reserved judgment and, on a subsequent day, dismissed the appeal with costs, Davies J. dubitante.

The following notes were delivered by the judges.

Girouard J.—Il s'agit dans cette cause plutôt de questions de fait que de questions de droit. L'intimé réclame des dommages de deux chefs; d'abord à raison de la garantie du constructeur en vertu de l'article 1688 du code civil: et en deuxième lieu à raison de la négligence du constructeur dans l'exécution de ses travaux en vertu de l'article 1055 du même code. Les tribunaux inférieurs sont arrivés à la conclusion que l'appelant était responsable des deux chefs pour des raisons amplement données dans leurs jugements et

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auxquelles j'adhère entièrement. Je suis donc d'avis de renvoyer l'appel avec dépens.

Davies J.—I entertain considerable doubt in this case but will not dissent from the opinion of the majority of the judges that the appeal should be dismissed.

Idington J.—I think, for the reasons assigned in the Superior Court and by Mr. Justice Bossé and Mr. Justice Trenholme in appeal, this appeal should be dismissed with costs.

Maolennan J.—I think that this appeal should be dismissed for the reasons given in the court below.

Duff J.—I agree in the reasoning of the learned judge, in the Superior Court, and in the opinions stated by Bossé and Trenholme JJ. in the court appealed from. I am of opinion that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Atwater K.C. and J. Wilson Cook for the appellant.

T. P. Butler K.C. and Lafleur K.C. for the respondent.