Scottish Court of Session Decisions

Pursuer entitled to remuneration for his work, on the principle of quantum meruit.

John Dickson, joiner, Junction Street, Leith, sued the Rev. Peter Grant, Roman Catholic clergyman, Dundee, and certain other parties, the surviving proprietors in trust of St Patrick's Roman Catholic Church, Edinburgh, for £167 odds, alleged to be the balance under a contract undertaken by the pursuer for carrying out certain alterations on the said church. The defenders offered £80 odds, and pleaded that under the contract Mr Coyne, the architect of the building, should decide differences between them. The pursuer then brought an action of reduction of the reference on various grounds, and repeated in his action his petitory conclusions. He concluded that the reference should be reduced in respect—“(1) that the alleged arbiter is legally incapacitated from adjudicating upon the questions at issue between the parties by personal interest, and by having already given his opinion thereon; and (2) that it is neither holograph nor tested, wants the names and subscriptions of witnesses, and is otherwise deficient in the solemnities required by law.” He further pleaded that the reference should be reduced in respect—“(1) that the pursuer in subscribing the same did not agree to refer the sums payable to him under the contract to an arbiter; (2) that he did not agree to refer the question of quantities, these being determinable by the measurement of competent persons (which Mr Coyne is not), and not being matters of opinion fitted to be left to the judgment of an arbiter who can or cannot measure ; and (3) that if the pursuer subscribed such a minute or clause of reference, he did so under essential error as to its true meaning and effect, induced through the misrepresentation of the defenders or of those for whom they are responsible.” There were other grounds of reduction. On the merits, he claimed for the fair value of his work, he having been employed by the defenders.

In that action the Lord Ordinary ( Jeeviswoode) allowed parties a proof of their averments—under which Mr Coyne was examined as a witness by the defenders—and ultimately repelled the reductive conclusions, appointing the case to be enrolled for further procedure as to the other conclusions. His Lordship ultimately pronounced the following interlocutor :—“The Lord Ordinary having, of new, heard counsel, and considered the debate, with the proof, productions, and whole process, finds that the several heads of the claim here made on the part of the pursuer under the petitory conclusions of the summons are embraced by and fall within the clause of the reference to the architect which is contained in the specifications, and is referred to in the fifth head of the condescendence for the pursuer, with the exception of the items which are referred to in the seventh head of the said condescendence: Finds that the sum of £150, which is referred to in the tenth head of the condescendence as having been paid on the part of the defenders to the pursuer, was and is sufficient to meet and to satisfy the claims of the pursuer, in so far as the same are ascertained, and do not form the subject of existing dispute or question between the parties : Quod ultra, with reference to the preceding findings, and without prejudice to any proceedings

Page: 318↓

which may be competent before the arbiter, under the clause of reference aforesaid, sustains the defences, dismisses the action, and decerns: Finds the defenders entitled to their expenses, of which allows an account to be lodged, and remits the same to the Auditor to tax and to report. .

“Note.—The questions embraced within the present action have formed the subject of elaborate and anxious discussion before the Lord Ordinary, at an expense to the parties, as he fears, which is much to be regretted ; but, at the same time, while the Lord Ordinary is conscious that the responsibility of this rests mainly with himself in consequence of his desire to possess adequate knowledge of the facts before he pronounced any judgment, he trusts it may be found, in any stages through which the process may hereafter pass, that the costs of the inquiry have not been altogether thrown away.”

The pursuer reclaimed.

Campbell Smith for him.

Mackenzie and Keir in answer.

The Court held that Mr Coyne, the architect of the building, was not at first excluded from being arbiter between the parties; but, in consequence of his subsequent examination as a witness in the cause, he was disqualified from now acting as an arbiter in the matter, as contended for by the defenders in their defences to the action of reduction ; and therefore that the jurisdiction of the Court was not excluded by the reference. There was nothing wrong in the architect of the building being the arbiter between the parties. Railway engineers acted notoriously in that capacity, and without saying that that was the most desirable thing, it was often a matter of necessity in the exigencies of the case. But matters were now completely changed. The parties had chosen to examine the architect as a witness. He had already expressed an opinion on the question in issue. The Court would not say that, in that respect the architect had not acted quite fairly and honestly, but it would be a mockery after what had taken place to allow him to act as an arbiter in a matter which he had prejudged. The defenders had themselves to blame for this result. On the merits of the case, which the Court thought they were in a position to decide, the pursuer was found entitled to a sum of £78 odds, on the principle of quantum meruit. On the matter of expenses, the Court decided (1) that the defenders should get one half of their expenses up to the date of the proof; (2) that neither party should get expenses of the proof; (3) that since the date of the Lord Ordinary's interlocutor the pursuer should have expenses, subject to modification by one-fourth.