Scottish Court of Session Decisions

By contract, dated in June and August 1870, Hutchisons & Weir, builders, Dunfermline, contracted to execute the mason work of a mansion-house which Mrs Beveridge, of Hospital Acres, was about to erect. The said contract provided as follows:—“Declaring that whatsoever additional work may be done beyond what is shewn on the said plans, and stated in the said specification, or whatever deduction there may be in consequence of such alterations, the same shall be ascertained and fixed, and the value thereof calculated according to the said schedule of prices, and that by the said Peter Maccallum or other architect for the time, whose calculation shall be held to be final and binding on the parties, and should any additional work be done which is not priced in the said schedule of prices, the said Peter Maccallum or other architect for the time, shall fix the price to be paid therefor, and his decision shall be final and binding on the parties.” By the said contract it was further provided as follows:—“And in case any difference or differences shall arise with respect to the true meaning of the present contract, or as to the execution of any part of the work, or as regards the implement or carrying into effect of the provisions herein contained, the whole parties hereto submit and refer such difference or differences to the determination of the said Peter Maccallum, whom failing, of such other architect as may be appointed by the said first party, as sole arbiter, and they hereby bind and oblige themselves, and their respective foresaids, to abide by and fulfil whatever he shall determine in the premises, in whole or in part, by decree or decrees arbitral, whether interim or final, to be pronounced by him.” Under this contract the mason work of the house was completed. But certain additional work beyond what was shewn on the plans was done, for which Hutchisons & Weir claimed additional

Page: 478↓

payment; while, on the other hand, certain parts of the work were not executed, and for these Mrs Beveridge claimed deduction of the price,—and in reference to these claims disputes arose between the parties.

In these circumstances Hutchisons & Weir presented a petition, in which Mrs Beveridge was respondent, to the Sheriff-Substitute, praying him “to decern and ordain the respondent instantly to deliver the said contract between the respondent, on the one part, and the petitioners, Hetchisons & Weir, and other parties therein named, on the other part, and that to the said Peter Maccallum, architect in Dunfermline, as the acting architect and sole arbiter nominated therein, to be retained by him so long as the same may be necessary, for the purpose of proceeding with and determining the claims of the petitioners, Hutchisons & Weir, under the submission therein contained between the respondent and the petitioners, Hutchisons & Weir.”

The Sheriff-Substitute ( Lamond) pronounced the following interlocutor:—

“ Dunfermline, 28 th February 1872.—The Sheriff-Substitute having considered the closed record and productions, and heard parties' procurators; Finds that the petitioners have not set forth facts relevant or sufficient to support the prayer of the petition, therefore dismisses the petition, and decerns; Finds the respondent entitled to expenses, of which allows an account to be lodged, and remits the same to the auditor to tax and report.”

The petitioners then appealed to the Sheriff ( Crichton) who adhered to the judgment of the Sheriff-Substitute.

The petitioners appealed to the Court of Session.

Rhind for them.

At advising—