Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0660.html
Cite as: [1870] ScotLR 7_660, [1870] SLR 7_660

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SCOTTISH_SLR_Court_of_Session

Page: 660↓

Court of Session Inner House First Division.

Friday, June 17 1870.

7 SLR 660

( Ante, vol. vi, p. 214.)

Fraser

v.

Connel and Crawford.

Subject_1Arbitration — Award — Ultra vires — Compensation.
Facts:

Circumstances in which held (affirming judgment of the Court of Session) that an arbiter had power to deal with a question of extra work, and to pronounce a finding that a claim for unfurnished work was counterbalanced by a claim for extras.

Headnote:

This was an appeal from a judgment of the First Division in an action for reducing a decree-arbitral pronounced by Mr George Bell, architect, Glasgow, on a matter in dispute between the appellant and respondent. The circumstances are these:—By a minute of agreement and sale, dated 22d February 1858, James Connell, accountant in Glasgow, sold to Alexander Fraser, merchant in Glasgow, an uncompleted house, No. 13 Hamilton Park Terrace, for £1250. By this minute Mr Connell was to paint and paper the premises in a suitable manner, and was to receive £750 on giving a good title to the house, and the remainder of the price in instalments of £100. Mr Bell was by this minute arbiter. Mr Fraser did pay the £750, but there still remained part of the price unpaid, and as to this the present dispute has arisen, Mr Fraser claiming a reduction in respect of unfinished work. The matter was then brought before Mr Bell as arbiter, and he pronounced a decree-arbitral, finding that Mr Fraser had paid in all £1170 of the price, and that Mr Fraser's claim in respect of unfinished work was counterbalanced by a claim which was made by Mr Connell for extra work done, and that therefore Fraser was due Connell £80. Mr Fraser then attempted to overturn this decree-arbitral, on the ground that the arbiter had no right to take into consideration this extra work, as it was a matter not within the submission. The whole question, therefore, turns upon the terms of the minute of agreement, and whether it gives Mr Bell power to deal with these extras. By that minute it is agreed that “any difference that may occur between the parties as to the furnishing, or generally under these presents, is hereby referred to Mr Bell.” And again, after narrating certain additional work to be done and paid for by Mr Connell, the minute goes on thus—“ Any further alterations or additions not herein enumerated are to be paid for by the said second party,” that is, by Mr Fraser. Mr Fraser pleads upon this that it was ultra vires of the arbiter to decide the case on the question of extras; but the Court of Session held that Mr Bell was entitled under the minute of agreement to do so.

Mr Fraser appealed to the House of Lords.

Lord Advocate and Mellish, Q.C., for him.

Gordon, Q.C., and Shiress-Will, for the respondent, were not called on.

At advising—

Judgment:

The Lord Chancellor said that the main question in the case was whether the claim set up by the respondent for extra work was within the terms of the submission to Mr Bell, the arbiter? The submission referred to Mr Bell arose out of the building and completing of a house sold by Mr Connell to Mr Fraser, and all differences that might arise between the parties as to the finishing, or generally under these presents, were referred to Mr Bell; and in the list of additional work it was added that any further additions or alterations were to be paid for by Mr Fraser. Now, this showed that Mr Connell was not bound to pay for the extra work that might be done; and if he had executed such work, it was clear that he was entitled to be paid for it. The consideration of this extra work seems, therefore, to be within the submission. The Lord Advocate had argued that it was a separate contract; but though Mr Connell himself seemed at first to think his claim would not be completely entertained by the arbiter, this was obviously a mistake. The arbiter ultimately entertained it; and though it was alleged by the appellant that he had no opportunity of going into the matter, at all events when the minutes or drafts of the award were sent to the appellant, he then had an opportunity of going into it. He failed to do so, and now it was attempted to go behind the decree. That, however, he could not now do, and the judgment of the First Division was right in holding the decrees binding. The appeal must therefore be dismissed, with costs.

Lord Chelmsfordconcurred, and said the value of the subject matter in dispute was £80, and it was perfectly lamentable to think of the enormous expense that had been incurred in these proceedings. There could be no reasonable doubt that the claim to extra work was competently entertained and disposed of by the arbiter, and that the appellant had an opportunity of objecting to it, and he now tried to set aside the findings of the arbiter.

Lord Westburysaid the clause for extra work was certainly included within the terms of the reference, which was comprehensive enough to include it. Nothing was more contrary to all principles of law than to allow parties who have agreed to refer their disputes to an arbiter to go afterwards

Page: 661↓

to a court of law, and attempt to take objections to the decision of the arbiter, on the ground of some irregularity in the proceedings. Courts will always, in such cases, give credit to the propriety of the proceedings before the arbiter. This litigation, after hanging on for some eight or nine years, had culminated in a point of very small value; and it would have only excited indignation in their Lordships' minds, if it were not that such frivolous litigation occurs in these appeals from Scotland day after day. If the people of Scotland only knew the miserable slavery to which they were subjected by the carrying on of this class of cases, and by the state of the law which permitted of it, they would probably think of some remedy.

Lord Colonsay also concurred.

Judgment affirmed, with costs.

Counsel:

Agents for Appellant— J. & R. D. Ross, W.S.

Agents for Respondents— D. Crawford and J. Y. Guthrie, S.S.C.
1870