Scottish Court of Session Decisions

This was an application by Alexander Simpson, clerk to the Road Trustees of Dumfriesshire, to obtain possession of a bridge and works which the respondent, Robert Johnston, contracted to erect over the river Annan at Shillahill. The bridge was commenced in March 1865, and the contract between the parties stipulated that it should be completed by August 1866. The road trustees allege that the works have been carried on in an unsatisfactory manner, owing to the contractor's negligence and incapacity; that from the first his operations were insufficient; and that the portion of the bridge which is erected is of an insecure and unworkmanlike character, and that it will require to be taken down. These statements were denied by the contractor who alleges, as a reason for the delay in completing the bridge, that a large amount of extra work was required by the trustees. The road trustees, however, had obtained from the engineer in superintendence two certificates testifying to the bad quality of the work done; and the arbiter under the contract had corroborated this view, and, in pursuance of a provision to that effect in the contract, had authorised the road trustees to take the works out of the respondent's hands. The contractor refused to hand over the works in obedience to this order, and raised two actions of reduction against the decree-arbitral and the certificates of the engineer. These actions of reduction being in dependence, the contractor maintained his right to keep possession of the works, and to carry them on to completion. The present application by the road trustees for interim possession was founded on the 42d section of the Judicature Act.

The Lord Ordinary ( Jerviswoode) granted the order craved, and the case came before the Court on a reclaiming note by the respondent Johnston. The Court expressed a desire to obtain information from a neutral person regarding the present condition of the works, and a remit was made to Mr Leslie, C.E., to examine the bridge and to report upon its state, and how far there is urgency for the work being immediately proceeded with. Mr Leslie visited the bridge, and reported that though the piers were built, none of the arches were covered or thrown, and that the timber centring is “very deficient, being very badly framed and insufficiently fastened, so as to be liable to sink, and they do show systoms of sinking by the opening of the beds of the archstones at the springings.” Mr Leslie also reported that the works in their present unfinished state might be endangered by floods, and that there appeared great urgency for the bridge being completed with the least possible delay.

The road trustees, alleging that the whole procedure prescribed by the contract had been observed, and founding also upon their right at common law to expel the contractor from the works at their discretion, subject to any claim of damages at his instance for non-implement of the contract, maintained a right to take the works out of his hands and to complete them at his expense, and with his tools and implements. The contractor argued that the circumstances did not warrant such a proceeding; and, moreover, that, under the Judicature Act, it was not competent for the Court to hand over the works to the trustees to the effect of allowing them to complete them, but that simple custody alone could be granted.

The Court to-day adhered to the interlocutor of the Lord Ordinary, and allowed the trustees to take the works out of the hands of the contractor and complete them by the means of tools and materials belonging to him; caution being found by the trustees for any damages which may result to the contractor in the event of his ultimately succeeding in the actions of reduction. Interdict was also recalled against Hunter, a new contractor whom the trustees had employed, and the works were permitted to be completed by him.