Scottish Court of Session Decisions

In 1858 the defender Connel was in course of building a house in Glasgow, and agreed to sell it to the pursuer at the price of £1250, conform to minute of agreement and sale. This minute provided that Connell should paint and paper the house to the satisfaction of Mr Bell, architect, who was named arbiter, and should finish the whole work according to plan, schedules of work, and list of additional work appended, any difference between the parties being referred to Mr Bell. Certain differences arose as to extra and also as to unfinished work, and the parties had recourse to the arbiter, who, after various procedure, found that Fraser's claim for unfinished work was counterbalanced by Connel's claim for extras, and on the whole matter held Fraser liable in payment of a balance of £80. Fraser now sought to reduce the award, on the ground that it was ultra vires of the arbiter to pronounce his finding of compensation, no claim for extra work having been referred to him. The Lord Ordinary (Ormidale) reduced the award.

The defenders reclaimed.

Gordon and Scott for reclaimers.

Shand for respondent.

The Court unanimously reversed and assoilzied the defenders, holding that the extra work clearly fell within the submission, and was therefore competently included in the award; and that, if the parties had thought it did not, they should have so represented to the arbiter. They had not done so, although the arbiter had issued notes, in which he distinctly set forth that he proposed to put the one claim against the other, neither party interfered to remonstrate. The whole parties evidently proceeded on the footing that this matter was before the arbiter, and the decree-arbitral, pronounced seven weeks after the note was issued, rightly disposed of the whole matter. One of their Lordships was inclined to hold that, even if the parties had proposed to withdraw from consideration of the arbiter the matter of extra and unfinished work, he might justly have refused to allow that, and have gone on to dispose of the matter, so as to prevent more litigation between the parties,