(1982)1982 June 2 [A. Loizou, SAVVIDES A N D STYLIANIDES, JJ.] NICODEMOS CHARALAMBOUS, Appellant-Plaintiff, v. LOUKIAKAZANOUANDANOTHER, Respondents-Defendants. (Civil Appeal No. 6145). Administration of Justice—Adjournments and delays in the hearing of cases undesirable. Findings offact made by trial Court—Basedoncredibility ofwitnesses —Nothing established entitling Court of Appeal to interfere with such findings ir.spite of the adjournments and delay in the 5 hearing of the case. Contract—Architect and employer—Architect preparing plans for a building on instructions of employer—Express condition that work should be capable of being executed for a fixed amount or thereabout—Condition notcomplied with by architect—Emplo- \0 yer entitled torepudiate thecontractandnolongeremploy architect who was not entitled to any remuneration. Contract—Architect and employer—Claim by architect for remuneration for plans prepared on instructions of employer—Contract repudiatedbyemployer becauseplans notcomplying withconditions \5 as to cost of building—Architect not entitled to remuneration on a quantum meruit basis because section 70 of the Contract Law, Cap. 149 applies where an act is done by one person at the express request of another. In November, 1971 respondent 1 instructed the appellant 20 to prepare architectural plans for the construction of a house on a building site of hers. In an action by the appellant for £1980 agreed remuneration for the preparation of the pians in question the trial Court, having accepted the version of the respondent that the cost ofthe building should be in the region 25 326 1 C.L.R. 5 10 15 Cbaralambous τ. Kazanou & Another of C£8,000, found that there was an express condition that thework should be capable of being executed for afixedamount or thereabout which condition was not complied with by the appellant; that, also, an opportunity was given to the appellant to remedy the situation by changing the plans and inviting new tenders and again the limitation regarding the cost was not satisfied. Onthesefindingsthetrial Court held thatrespondent was entitled to repudiate the contract and dismissed the action. The action was filed on 2.2.1974 and it was originally fixed for hearing on 9.12.1975. After three adjournments the evidence of the appellant-plaintiff was heard on the 10.2.1976. There followed ten adjournments, which were granted on the applica tion of either of the parties or of both, the hearing of the case commenced on 13.3.1979 and was adjourned to 15.3.1979 when it was concluded. Judgment was reserved and was delivered on 28.5.1980. ' Upon appeal by thi plaintiff it was mainly contended: 20 25 30 35 (a) That given that the hearing of the evidence of the plaintiff took place in February, 1976 and that of the defendants in March 1979 and the judgment was delivered in May, 1980, the appreciation of the credi bility of thewitnesses of thetwo sides andtheevaluation of their evidence is incompatible with the safe admi nistration of justice. (b) That the trial Judge wrongly found that there was a condition or prerequisite that the cost of building should be of a certain height. (c) That the trial Court wrongly has not found that the agreed remuneration of the plaintiff was on aquantum meruit basis. Held,
(1)that the issue of the adjournments is an issue that has to be examined in the context of the whole evidence that was adduced by both sides and not in the abstract; that this Court has come to the conclusion that, in spite of the adjournmentsandthedelay inthehearing of thecasefor which everyone involved in the case had his share of responsibility, nothing has been established to entitle it to interfere with the findings of fact made by the trial Judge and based on the credibility of 327 Cbaralambous τ. Kazanou & Another
(1982)the witnesses as they are duly born out by the totality of the circumstances of the case; and that, therefore, contention (a) should fail.
(2)Thatthefindingofthetrial Judge thai therewas acondition or prerequisite thatthecost of thebuilding should be of acertain 5 height was clearly born out by a number of circumslances inclu ding the financial position of therespondent; (pp. 336-7post); that where an architect is instructed to prepare plans for a building to cost approximately a certain sum and this condition is not complied with by the aichitect the employer is entitled 10 to repudiate the contract and refuse to pay the architect; thai since the trial Judge found that there was an express condition that the work should be capable of being executed for a fixed amount or thereabout, which condition was not complied with by the appellant; that, since, also, an opportunity was given 15 to the appellant to remedy the situation by changing the plans and inviting new tenders and again the limitation regarding the cost was not satisfied respondent 1 was entitled to repudiate thecontract and nolonger employ theappellant as her architect; that in the circumstances and as all possibilities of affecting 20 modifications to get down to the limitation imposed by the respondent had failed, it was correct to conclude that the appellant was not entitled to any remuneration; accordingly contention (b) should fail.
(3)That a question of quantum meruit does not arise in this 25 case because section 7l>* of the Contract Law, Cap. 149 does not apply where an act is done by one person at the express request of another; that the claim of the appellant as pleaded, and there was no alternative claim for quantum meruit, was oased on an express agreement; that taking it, as urged by 30 counsel, that no lump sum as remuneration had been agreed in advance but it would have betn assessed in the basis of per centages, again no question of quantum meruit arises, as the appellant in such a case would be entitled to reasonable remune ration, not under section 70 of the Contract Law, but because 35 Section 70 provides as follows: "70. Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered". 328 1 CX.R. 5 10 Charalambous τ. Kazanou & Another the request or agreement for the rendering of services by the appellant would have implied a promise to pay such reasonable remuneration; that moreover on the findings of fact made by thetrial Judge which were to theeffect thatthe agreement relied upon by the appellant contained a vital term which was found to have been breached by him, the appellant could not have a claim for remunerationfor what he did not do in accordance with the terms of the agreement between the parties and from which therespondents received no benefit; that therespondents have not refused to perform nor had rendered themselves incapable to performing their part of thecontractand therefore put it in the power of the appellant either to sue for a breach of it or to rescind same and sue on a quantum meruit for work actually done; accordingly the appeal should be dismissed. 15 Appeal dismissed. Observations regardingthe undesirability of adjourning cases and hearingthem piecemeal(pp. 332-5 post). 20 25 30 35 Cases referred to: Georghallides v. Theodoulou, 1962 C.L.R. 115 at p. 125; Tsiarta and Another v. Yiapana, 1962 C.L.R. 198 at p. 208; Ar.tonicu v. Elmaz
(1966)1 C.L.R. 210 at p. 213; HjiNicolaou v. Gavriel and Another
(1965)1 C.L.R. 421; Athanassiou v. Attorney-General of theRepublic
(1969)1C.L.R. 439; Edwards v. Edwards [1968] 1 W.L.R. 149 at p. 150; Kafieros andAnotherv. Theocharous midOthers
(1978)1C.L.R. 619 at p. 645; Efstathios Kyriacouand Sons Ltd. v. Mouzourides
(1963)2 C.L.R. 1; Charalambous v. Charalambous
(1971)1 C.L.R. 284; International Bonded Stores Ltd. v. Minerva Insurance Co. Ltd.
(1979)1 CX.R. 557; Kranidiotis v. The ship "AMOR"
(1980)1 C.L.R. 297; Dick v. Filler [1943] 1 All E.R. 627; Ottley v. Morris (Inspector of Taxes) [1979] 1 All E.R. 65; Kier (Cyprus) Ltd. v. TrencoConstructions Ltd.
(1981)1C.L.R. p. 30; 329 Cbaralambous v. Kazanou & Another
(1982)EsefecoLtd. v. OlymposToursLtd.,
(1981)1 C.L.R. 236; Columbus Cc. v. Clowes [1903] 1 K.B. 244 at p. 247. Nelsonv. Spooner
(1861)2 F & F613 at p.618; Appeal. Appeal by plaintiff against the judgment of the District Court of Nicosia (Papadopoulos, S.D.J.) dated the 28th May, 1980 (Action No. 1007/74) whereby his claim for agreed remuneration for the preparation of architectural plans for the construction of a house was dismissed. H. Solomonides for L. Fapaphilippou, for the appellant. K. Michaelides, for the respondent. 5 10 A. Loizou J. gave the following judgment of the Court. This is an appeal against thejudgment of a Judge of the District Court of Nicosia by which the claim of the appellant/plaintiff, 15 a qualified architect, for agreed remuneration for the preparation of architectural plans for the construction of a house was dismissed with no order as to costs. The first ground of law argued in this appeal is that "given that the hearing of the evidence of the plaintiff took place in 20 February 1976, and that of the defendants in March 1979, and the judgment was delivered in May, 1980, the appreciation of the credibility of the witnesses of the two sides and the evaluation of their evidence is incompatible with the safe administration of justice". Tlus ground was, as fairly conceded 25 by counsel for the appellant, the strongest of the grounds of appeal, inasmuch as the remaining grounds turn on the findings of fact made by the trial Judge on the basis of the credibility of witnesses. In support thereof, we have been referred in the course of 30 the hearing, and it wiil be useful to refer also in this judgment to the history of the events. The action was filed on the 2nd February, 1974, on a specially endorsed writ, and after the close of the pleadings an application to fix the case for hearing was filed on the 8th June,
- On the 18th October, 1974, Mr. 35 Papaphilippou on behalf of the appellant applied that the case be adjourned sine die as his client was abroad and there was no room for settlement, as he put it. There being no objection on behalf of counsel for the respondents, the application was granted. On the application of counsel for the respondents 40 330 1 C.L.R. Charalambous v. Kazanou & Another A. Lolzou J. the case was fixed for mention and directions on the 25th September, 1975,when in thepresenceof both counsel,thecase was adjourned for hearing on the 9th December, 1975, when on the application of both counsel it was once more adjourned 5 for hearing to the 25th February,
- On the 3rd February, 1976, counsel for the appellant applied that the evidence of theplaintiff betaken aspreparatory tothehearingoftheaction. Thiswasfixedonthe7thFebruary, andtheevidenceof plaintiff washeard as part of the plaintiff's case and not as preparatory 10 tothetrial onthe 10thFebruary,
- Then itwas adjourned for continuation to the 6th May, 1976, that is almost three months later. On the 5th May, however, an application in writing was made by counsel for the respondents—and counsel for theappellant recorded his'non objection to it—that thecase 15 be adjourned to the 15th October, 1976, for continuation of hearing with no reasons given. Onthe 15thOctober 1976,at 11.30a.m., thefollowing minute is recorded, with both counsel appearing: "Court; In view of the misplacement of the file which was found only a few 20 houis ago (the case is) adjourned to continue on 25.1.1977 for continuation 26.1.1977". On the 4th December, 1976, counsel for the respondents applied that the case which wasfixedfor hearing on the 25th and 26th January, 1977,be adjourned as he would be engaged 25 on that date before the Supreme Court. Counsel for theappellant recorded his non objection to the adjournment and onthe 25th Januaty, 1977, the Court granted the application and adjourned the case for hearing to the 17th May, 1977,to be changed later to the 21st May when in the piesence of counsel 30 and withnoreasons given, thecasewasadjourned by theCourt for hearing to the 26th October, 1977,onwhich date both sides applied for an adjournment as Mr. K. Michaelides wasabroad and Mr. Papaphilippou engaged in Civil Appeal
- The case then was fixed for hearing on 22.3.1978 on whichdate, 35 ontheapplication madeonbehalfofcounselfor therespondents and withnoobjection andnocostsclaimed on behalf ofcounsel for the appellant, the casewasadjourned to the 4th July,1978, for hearing,on whichdatetherecord ofthe Court isas follows: "Court: B.U. on 15.9.1978for a date of hearing to begiven". 40 Onthe 15th September the Courtfixedthe casefor hearing "to 331 A. Loizou J. Charalambous τ. Kazanou & Another
(1982)continue on the 9th December, 1978", on which date the record reads: "Court: Hearing to continue on 13.3.1979" on which date eventually the hearing of the case was continued and then adjourned after the hearing of one witness to the 15th March, 1979, when the hearing was concluded and judgment reserved, which in fact was delivered on the 28th May, 1980. 5 Counsel for the appellant referred us to a number of autho rities where the question of adjournments and hearing of cases piecemeal was examined by this Court and by English Courts. We find it useful to quote from some of them as there are 30 pertinent observations made therein to which we would like to draw the attention of all concerned with the good, which we firmly believe is interwoven with the administration of justice. In the case of Georghallides v. Theodoulou, 1962 C.L.R. 115, at p. 125, Josephides, J., had this to say: "Finally, we would like to observe that, as it is the consti tutional right of every person to have his case heard within a reasonable time, it is highly desirable that judgments reserved by Courts should, generally, be delivered without any delay. Moreover, in cases where legislation or other facts are likely to prejudice the rights of the parties it is the duty of the Judge to see that there is no undue delay in the hearing of the case and delivery of the judgment". Observations regarding the undesirabihty of adjourning cases and hearing them piecemeal are also to be found in the case of ChristodoulosSt. Tsiarta &Another v. KodrosKyriacou Yiapana & Another, 1962 C.L.R. 198, at p. 208, where Josephi des, J., on behalf of the then High Court said the following: 15 20 25 "A further word needs to be said with respect to adjourn- 30 ments. They producejustifiable dissatisfaction by litigants and their witnesses, and statistical records of this Court confirm the opinion there are far too many. If an action can proceed the first time it comes on for trial so much the better. When adjournments are necessary there should 35 not be more than one or two. After that there should be no more adjournments except in unusual circumstances as to which the Judge has to decide. Having made these comments it must be added these will be very unusual 332 1 C.L.R. Charalambous v. Kazanou & Another A. Loizou J. circumstances in which there may be many adjournments, but they should be few in number". in Antoniou v. Elmaz
(1966)1 C.L.R., 210, at p. 213, Vassiliades,J., oncemorereiterated the anxiety of the Court regarding 5 the proper prosecution of trials which includes the litigant's right to a hearing of his case within a reasonable time by the appropriate Court as declared in Article 30of our Constitution. For that purpose he referred with approval to what the then President of this Court, Mr. Justice Zekia said in the case of 10 HjiNicolaou v. Gavriel & Another
(1965)1 C.L.R. p. 421, at p. 431: 15 20 "Finally we desire to express once more our disapproval for the delays in the hearing of cases. In a recent judgment (Nicola v. Christofi and Another
(1965)1 C.L.R. 324 at p. 338) we had occasion to reiterate our previous observations deprecating the piecemeal hearing of cases and the delays in the delivery of reserved judgments. We also expressed the view that adjournments should, as far as possible, be avoided except in unusual circumstances, and that once a trial was begun, it should proceed continuously day in and day out, where possible, until its conclusion, (see also Tsiartas and Another v. Yiapana, 1962 C.L.R. p. 198 at p. 207)". He then went on and added at p. 214 the observations of the 25 Court he was presiding by saying "a mere look at the record is sufficient to show how this trial proceeded, and how the piecemeal hearing must have affected the findings of the trial Court resting on evidence taken in such manner". In Athanassiou v. The Attorney-General of the Republic 30
(1969)1 C.L.R-, p. 439, what was said by Sir Jocelyn Simon P., in the case of Edwards v. Edwards [1968] 1 W.L.R. 149 at p. 150, was cited with approval at p. 455 of the report: 35 " It is desirable that disputes within society should be brought to an end as soon as reasonably practical and should not be allowed to drag festeringly on for an indefinite period. That last principle finds expression in a maxim which English Law took over from the Roman Law: it is in the public interest that there should be some end 333 A. Loizou J. Charalambous v. Kazanou & Another
(1982)to litigation As long ago as Magna Carta, King John was made topromise not only thatjustice should not be denied but also that it should not be delayed; and there have been times in our history when various Courts have come under severe criticism for their procedural delays". 5 With regard to the undesirability of hearing of cases piecemeal pertinent observations were made by Malachtos, J., when delivering the judgment of the Court in Kafieros and Another v. Theocharous and Others
(1978)1 C.L.R. 619 at p. 645. 10 The question of adjournments by Courts and the legal principles governing the exercise of the discretionary power for such purpose and the grounds upon which the Supreme Court will interfere on appeal with the exercise of the judicial discretion of a trial Judge in granting or refusing an adjournment was 15 examined also in the case of Efstathios Kyriacou and Sons Ltd. v. Mouzourides
(1963)2 C.L.R. 1, where reference is also made to Charalambous v. Charalambous
(1971)1 C.L.R. 284; International Bonded Stores Ltd. v. Minerva Insurance Co. Ltd.
(1979)1 C.L.R. 557; Kranidiotis v. The Ship "AMOR"
(1980)20 1 C.L.R. 297, and a number of English authorities including Dick v. Filler [1943]1 All E.R. 627; Ottley v. Morris(Inspector of Taxes) [1979] 1 All E.R. 65. Also reference may be made to the case of Kier (Cyprus) Ltd. v. Trenco Constructions Ltd.
(1981)1C.L.R., p. 30, where 25 the position is once more reviewed and the Court had this to say at p. 39: " As such it has to be examined on the particular facts of each case and not in abstracto; whether an adjournment will be granted or not must always be considered in the 30 light of the right to a hearing within a reasonable time as provided by Article 30, para. 2, of our Constitution and Article 6, para. 1, of The European Convention on Human Rights of 1950, ratified by The European Convention on Human Rights (Ratification) Law 1962 (Law No. 39 35 of 1962)". This passage is also cited in Esefeco Ltd. v. Olympos Tours Ltd.
(1981)1 C.L.R., p. 236. 334 1 C.L.R. Charalambous v. Kazanou & Another A. Loizou J. Moreover, according to a statement of the Earl of Reading, C.J.
(1920)W.N. 34,thehearingofacasewillnot bepostponed or taken out of due order merely to suit the convenience of counsel. \He wasdealingwith an application for the postpone5 ment of the hearing and he said that such applications caused great difficulty in arranging the lists and he did not intend in future to grant any applications for the postponement of cases for the convenience of counsel except in very special circumstances, and he added that the practice of arranging 10 datestosuitcounselhadledtogreatembarrassmenttotheCourt. Inallfairness tothelearnedtrialJudgeand counsel appearing inthiscase,ithastobemadeclear that the situation highlighted inthisjudgment regardingadjournments andpiecemealhearings is not one to be found only in this case. It is a matter of fre15 quent occurrence in all jurisdictions, almost one of a general practicewhichhastobefacedinitsentiretyandbyallconcerned with unifoim, determined and concerted action. We have dealt at some length with the question of adjournments,ofpiecemealhearingsanddelaysinthetrialandconclusion 20 of cases and we have reviewed the cases containing judicial pronouncements on these most important aspects that go to the root of the good administration of justice. No doubt the essenceofitiscondensedintheoldsayingthat hasbeenrepeated so many times that justice delayed isjustice denied. We only 25 hope that what has been said in all the aforesaid cases should not be forgotten or ignored but should be followed earnestly for the benefit of all litigants, that come to Courts seeking their aid for the protection of their legitimate rights. Having said this we turn now to the case in hand that has 30 given rise to this point. It was argued that once the learned trial Judge decided the case on the credibility of witnesses due tothelonglapseoftimebetween 1976,whenheheard theplaintiff, and 1979-1980 when he heard the rest of the evidence and deliveredhisjudgment,hewasnotinaposition tohaveacorrect 35 recollectionofthedemeanourofthewitnessesunderexamination and that he preferred the evidence of the witnesses for the defendants/respondents, because it was more fresh in his mind and ignored completely the evidence of the appellant/plaintiff as he could not possibly have remembered his demeanour in 40 the witness box. 335 A. Loizou J. Charalambous v. Kazanou & Another
(1982)We do not subscribe to this argument. This is an issue that has to be and infact we did, examine in the context of the whole evidence that was adduced byboth sides and not in the abstract, and wehave come to the conclusion that, in spite of the adjournments and the delay in the hearing of the casefor whicheveryone 5 involved in the case had his share of responsibility, nothing has been established to entitle us to interfere with the findings of fact made by the trial Judge and based on the credibility of the witnesses as they are duly born out by the totality of the chcumstances of the case. This giound, therefore, fails and 10 together with it fail the two other grounds, the one challenging in particular the finding of the trial Judge that there was a condition or prerequisite that the cost of the building should be of a certain height, and the other one that the trial Judge ignored the fact that respondent 1 approved the plans prepared by the 15 appellant, by her signing and submitting herself an application to the appropriate Authority for a building permit. The former of the two findings was clearly born out by a number of circumstances, including the financial position of the lespondent and her prospects to finance it with a loan and 20 the changes in the plans that were effected because of their cost, though not successful in reducing the cost of the building to the agreed level. With regard to the latter ground it has to be noted that the application for a building permit was signed in blank by respondent 1 before she knew about the cost of the 25 construction of the building to be built on the basis of the plans to be prepared by the appellant and that her application was submitted to the respondent Authority by the appellant after himself completing it. The version of respondent 1 was that the building should 30 cost in the region of C£8,000.—because she had only C£6,000.— in cash and she had secured a loan of C£2,000.—from the Bank. Tt should be a simple house with three bed-rooms and the only special lequest was that it should have many cupboards. The version of the appellant was that the respondent had 35 asked him to make the plans of a unique conception and execution, original with no one like it in Cyprus. It should be of a luxurious construction with concealed lighting and provision for horizontal and vertical extension. 336 \ \ \ 1 C.L.R. Charalambous v. Kazanou ft Another A. Lolzou J. The learned trial Judge accepted the version of respondent 1 which he found to be consistent with her financial position and clearly supported by the testimony of two witnesses, Mr. and Mrs. Lambertides, who had no reason to lie to the Court. 5 Hefound thatherversionregardingherinstructionstotheappellant for the prepaiation of the plan was correct. Aswehavealreadysaid wehavefound noreason to interfere with these findings of fact. He then dealt with the legal aspect of the case and referred 10 to the legal position as summed up in Halsburfs Laws of England,4thEdition,Vol.4,para. 1352,andinHudson'sBuilding andEngineering Contracts, by Wallace, 9th Ed., p. 105, under the heading "Duty and Liabilities". The first extract from Halsbuiy's at para. 1352 reads as follows:15 20 25 "If thearchitect orengineer isauthorised toobtaintenders, he is entitled to payment of any expenses reasonably or necessarily incurred in connection therewith. Ifthearchitectisinstructedtoprepareplansfor abuilding or for works to cost approximately a certain sum, and all the tenders sent in are considerably in excess of the sum mentioned, it seems to be a question of fact whether the employerisentitledtorepudiate theemployment and refuse topaythearchitect,onthegroundthattherewasacondition that the woiks should be capable of beingconstructed for the sum, or approximately the sum, mentioned and that the buildings as designed could not be carried out for that sum or anything near it". The aforesaid passage comes from the case of Nelson v. Spooner
(1861)2 F &F 613,at 618,where Cockburn C.J. left 30 the following questions to the Jury: "
(1)whether it was an express condition that the works should be capable of being executed for the estimated sum; if not, then 35
(2)whether there was an implied condition that the work should be capable of being done for a sum reasonably near to the estimated sum; if so, then 337 A. Loizou J. Charalambous v. Kazanou & Another
(1982)
(3)was the estimate reasonably sufficient; and
(4)as to a claim for work and labour on the plans, etc., whether thelabour was bestowed or not under the special contract". The other passage referred to from Hudson's Building and Engineering Contracts,which in the 10th Edition is at page 144, is as follows: 5 "Excess of cost over estimates In the earliest stages of the employment of his architect or engineer, the employer will in practice usually indicate 10 or impose limitations on the cost of the proposed project. Even if no mention of this is made, it is suggested that an architect must design works capable of being carried out at a reasonable cost having regard to their scope and function. Therewill,therefore, in most cases be an express 15 or implied condition of the employment that the project should be capable of being completed within a stipulated or reasonable cost, and an architect or engineer will be liable in negligence if, in fact, the excess of cost is sufficient to show want of care or skill on his part. Thus, in Money- 20 penny v. Harland
(1826)Best C.J. said: Ά man should not estimate a work at a price at which he would not contract for it; for if he does, he deceives his employer If a surveyor delivers an estimate greatly below the sum at which a work can be done, and thereby induces a private 25 person to undertake what he would not otherwise do, then I think he is not entitled to recover*. Illustrations
(2)F. was instructed to prepare designs for a building not to exceed in cost £4,
- He prepared plans, and tenders 30 were invited; the lowest tender was £6,
- Held, that F. was not entitled to recover his remuneration for the work done: Flannagan v. Mate
(1876)2 Vict. L.R. (Law) 157.
(3)An architect estimated that a school building he had 35 designed would cost $110,
- He knew the estimate was for the purpose of preparing a by-law to raise the 338 1 C.L.R. 5 Charalambous v. Kazanou & Another A. Loizou J. \necessary funds. The lowest tender was for $157,
- He then eliminated forty per cent, of the cubic content of the school, and said the remainder could be carried out within the limit. The lowest tender was $132,
- Held, by the Court of Appeal of British Columbia, that he had been negligent, and was properly dismissed and liable\to pay damages: Savage v. Board of School Trustees
(1951)3 D.L.R.
(2d)39 (Canada)". It isfurther pointed out in Hudson's(supra),p. 145,that where 10 an architect has obtained tenders which are substantially in excess of the express or implied limitation—in our case we had an express limitation—he should noimally be given an opportunity of obtaining further tenders without expense to theemployer unless itisobvious that no tender islikelyto satisfy 15 the limitation or the breach is so serious as to justify the client in treating the contract as repudiated. In support of this proposition reference is made to what Wright, J., said, by analogy, in Columbus Co. v. Clowes [1903] 1 K.B. 244, at p. p. 247: 20 25 "It seems to me that the most the plaintiffs can get is the reasonable cost of making the plans good. But then comes the difficulty. The defendant himself would have made the plans good without any charge. Indeed he would have been bound to do so. If, however, the plaintiffs had called in another architect, he would in all probability have insisted on commencing the plans de novo, and would have refused to make any use of the defendant's plants. But would that have been a reasonable course to pursue? I do not think it would". 30 This passage is to be found relevant when an error in the design is discovered at an early stage in which case the building owner should normally, as part of the duty to mitigate damage, give the architect or engineer an opportunity to correct it. In our case, the appellant was given an opportunity to satisfy 35 the limitation with the assistance of a special Quantity Surveyor so that the cost of the building would be at the level at which the respondent 1was in a position to spend and had asked for. In fact, changes were effected, new tenders were invited but again the lowest tender was C£16,000.—and the respondent 40 gave up the idea of proceeding with the building. 339 A. Loizou J. Charalambous v. Kazanou & Another
(1982)It appears that in the present case the learned trial Judge found that therewas an express conditionthatthework should be capable of being executed for afixedamount or thereabout, which conditionwas not complied with by theappellant. Also anopportunitywas giventotheappellanttoremedythesituation 5 by changing the plans and inviting new tenders and again the limitation regarding the cost was not satisfied. Therefore, respondent 1 was entitled to repudiate the contract and no longer employ the appellant as her architect. In the circum stances and as all possibilities of affecting modifications to get 10 down to the limitation imposed by therespondenthave failed, it was correct to conclude that the appellant was not entitled to any remuneiation. The question of quantum meruit does not arise in this case as the prerequisites of section 70 of our Contract Law which 15 covers the cases where a person lawfully does anything for another or delivers anything to him not intending to do so gratuitously and such other person enjoys the benefit thereof, thelatterisboundtomakecompensationtotheformer inrespect of or torestorethethings sodoneor deUvered,are notsatisfied. 20 The argument advanced that the appellant was entitled to be remunerated on the basis of a quantum meruit since onthe evidence adduced it was established that he would be paid on the basis of percentage and notby a lump sum, does notstand. As pointed out in Mulla, Indian Contract and Specific Relief 25 Acts, 9th Ed., p. 499: "It is superfluous to add that the section does not apply where an act is done by one person at the express request of another. It (s. 70) will not apply where the goods are supplied pursuant to arequest. A contraryviewwas taken 30 in a Bombay case which it is submitted is erroneous (Β.N. Elias & Co. v. State of West Bengal
(1959)A. Cal. 247; Unionof Indiav. Ram Nagina Singh, 89 Cal. L. J. 342 reld.on; contra Ramakrishna v. Rangoobai
(1959)A.B. 519). An alternative claim under sections 65 and 70 35 becomesnugatory as soonas thecourtfindsavalidarbitra tion clause in a contract covering the subject-matter of dispute (Shalimar Faints v. Omprokash
(1967)A. Cal. 372; Rungta Sons (P)Ltd.v. Jugometal Trg.Republike, 63 340 1 C.L.R. \ 5 10 15 Charalambous τ. Kazanou & Another A. Lolzou J. C.W.N. 527;
(1959)A. Cal. 423; AndersonWrightLtd. v. Moron& Co.
(1955)A.S.C. 53;
(1955)1 S.C.R. 862 refd.\to). In MoselleSolomon v. Martin & Co. (62 Cal. 6; 2,621) (Lord Williams J.), Lord Williams J. held that the terms of section 70 are very wide and it is applicable even when the plaintiff can sue upon the contractexpiess or implied. Jack J. held the contrary, i.e. it is not appli cable where there is an express contract, which it is sub mitted is the correct view. Thus if a client engages a pleader to act for himin a case, and if no fee isfixed,the pleader is entitled to reasonable remuneration not under this section, but because the request implies a promise to pay suchremuneration(SibkisorGhosev. Manik Chandra
(1915)21 Cal. L. J. 618; 29 I.C. 453. The decision in Nathmanv. Sanitation Panchayat Committee,1935 A.N. 242; 160 I.C.301,cannotbe correct. See Ratanlal Hiralal v. Chandradutt, 1951 A.N. 431)". In our case the claim of the appellant as pleaded and there was no alternative claim for quantummeruit, was based onan 20 express agreement. Taking it, as urged by counsel, that no lump sum as remuneration had been agreed in advance but it would have been assessed on the basis of percentages, again no question of quantum meruit arises, as the appellant in such a case would be entitled to reasonable remuneration, notunder 25 section 70 of our Contract Law, but because the request or agieement for therendering of services by the appellant would have implied a promise to pay such reasonable remuneration. Moreover on the findings of fact made by the trial Judge which were to the effect that the agreement relied upon by the 30 appellant containeda vital termwhich was found to have been breachedby him,theappellantcouldnothave aclaimforremu neration for what he did not do in accordance with the terms of theagreementbetween theparties andfrom which therespon dents received no benefit. The respondents had not refused 35 toperform norhadrenderedthemselves incapableof performing their part of the contract and therefore put it in the power of the appellant either to sue for a breach of it or to rescind same and sue on a quantum meruitfor thework actually done. For all the above reasons we have come to the conclusion 341 A. Lolzou J. Charalambous v. Kazanou & Another
(1982)that this appeal should fail and is dismissed accordingly, with no order as to costs in view of the adjournment applied for by the respondents. Appealdismissed. No order as to costs. 342 5