CERTIFICATES AND PAYMENT 149 



10. No action for negligence in granting certificate. The 

 engineer is not liable for negligence in granting certificates. 

 The facts of the case of Stevenson v. Watson, 1879, 4 C. P. D. 

 148, are most instructive in relation to the legal position of 

 an architect or engineer. That was a simple building 

 contract, under which the plaintiff, a builder, agreed that he, 

 and the directors of the company who employed him, would 

 " be bound to leave all questions or matters of dispute which 

 may arise during the progress of the works, or in the settle- 

 ment of the account, to the architect, whose decisions shall be 

 final and binding on all parties." The defendant Watson, 

 who was the architect, granted certificates from time to time 

 during the course of the work, and after completion, the 

 plaintiff sent in an account showing a balance due to him 

 of 1,615. The architect, without calling on the builder for 

 any explanation of the means whereby he arrived at the 

 figure, made out a certificate certifying that the final balance 

 due was only 251 14s. 4d. The builder then brought 

 this action against the architect claiming the difference 

 between 251 and 1,615, alleging that the defendant had 

 been negligent in not properly pricing out additions and 

 deductions, and that consequently the plaintiff had been 

 unable to recover the sum claimed from the building-owners. 

 It was held that he could not succeed. 



" This claim," said the Court, " is for that which has been 

 over and over again attempted without success. ... It is 

 an action against a man for the negligent performance of 

 a duty, in the doing of which the exercise of judgment or 

 opinion is necessary. ... I think this case is within the 

 authority of the cases cited (Pappa v. Rose, 1871, 7 C. P. 32 ; 

 Tharsis Sulphur Co. v. Loftus, 8 C. P. 1), which decide that 

 where the exercise of judgment or opinion on the part of 

 a third person is necessary between two persons, such as 

 a buyer and seller, and in the opinion of the seller, that 

 judgment has been exercised wrongly, or improperly, or 

 ignorantly, or negligently, an action will not lie against the 

 person put in the position when such judgment has been 

 wrongly, or improperly, or ignorantly, or negligently, 

 exercised." The case of Kellett v. Neiv Mills Urban District 

 Council, 1900, 2 H. B. C. 329, noted ante, Chap. V., 8, shows 

 that employers must not take improper advantage of the 

 refusal of the engineer to certify. 



