Scottish Court of Session Decisions

This was a suit at the instance of the Trustees of Simpson's Asylum, against James Gowans, contractor, Edinburgh, for payment of a sum of £475, with interest, in respect of lordships in the freestone wrought and removed by the defender during the year ending at Candlemas 1874 from the quarry at East Plean held by him in lease from the pursuers. By tack, dated 10th May and 2d June 1864, the pursuers let to the defenders all and whole the freestone quarry in and under certain portions of the lands of East Plean. The lordship clause was as follows:—“For the whole freestone thereby let the sum of £200 sterling of fixed money rent yearly, or, in the option of the proprietors, the following lordships or royalties, videlicet, for each ton of ashlar or cubic stone a lordship or royalty of sixpence, and for each ton of rubble stone a lordship or royalty of one penny, and the proprietors shall declare their option of said fixed rent or alternative royalties at the term of Candlemas in each year for the year preceding such term, and the half-year's fixed rent payable at the term of Lammas preceding shall be held as payment to account, and at Candlemas the next half-year's fixed rent shall be paid, or, in the option of the proprietors, the lordships for the whole year bye-gone, under deduction of sum paid to account at term of Lammas preceding, beginning the first term's payment of said fixed rent at the term of Lammas 1864, and that for the half-year preceding that term, and the next term's payment of fixed rent or optional royalties as aforesaid, at the term of Candlemas 1865, and so forth half-yearly and termly thereafter during the currency of this tack.” The main question between the parties came to be whether stones classed as rybats, coursers, and scuncheons, sold by the defender at the quarry, were to be classed as ashlar, and charged for at a rate of 6d. per ton, or as rubble, and charged for at a rate of 1d. per ton.

The Lord Ordinary ( Shand) pronounced the following interlocutor:—

“ Edinburgh, 10 th August 1874.—Having considered the cause, Finds that the defender was due to the pursuers the sum of £380 at Candlemas 1874 in respect of lordships in the freestone wrought and removed by him during the year ending at that term, from the quarry at East Plean held by him in lease from the pursuers, and decerns against the defender for said sum, with interest at the rate of 5 per cent. per annum on £100 thereof from 1st August 1873, and on the balance, being £280, from 3d February 1874 till payment: Finds the pursuers entitled to two-thirds of their expenses: Allows an account to be given in, and remits the same, when lodged, to the Auditor to tax and to report.

Note.—The witnesses are all agreed that the clause providing for the payment of lordships in the lease entered into between the parties, which has given rise to the present dispute, is unlike any lordship clause they have previously known. The rent or lordship clause in such a lease usually provides for payment to the landlord for the stone excavated, according to its measurement in the ground, allowing so much for waste or unworkable quality of stone, or for payment of a certain percentage on the tenant's sales. The subject of the present lease is the freestone in the lands, and the royalties payable are ‘for each ton of ashlar or cubic stone a lordship or royalty of sixpence, and for each ton of rubble a lordship or royalty of one penny.’ The lordships are payable according to the weight of the stone sent off, without reference to the fact that the lessee of a quarry sells great part of the produce of the quarry not by weight, but at prices estimated by measurement, or in stones of a particular description, according to the numbers supplied, charging so much for each. The lease contains no rule by which the weight of the stones thus sold by measurement or by numbers shall be ascertained, and one of the various questions which have arisen in this and a former litigation between the parties, is as to the proper rates of conversion to be taken in fixing the weight of stones not sold by weight, for ascertaining the amount of lordship—a difficulty which is not lessened by the fact that the weight of all stones sent by railway is to be taken according to the railway company's books, and that each cart-load is to be taken as a ton.

As will be seen from the price lists for the sale of stone at the quarry, in addition to stone sold under the name of ashlar (including cube blocks) and rubble respectively,—the former being charged for by measurement, and the latter by weight,—the defender sells particular stones, known by those engaged in the business of quarrying and of building as rybats, coursers, and scuncheons. The main question which has arisen between the parties in the adjustment of the amount payable as lordships for the year ending at Candlemas 1874, is, whether stones sold under these respective names are to be classed as ashlar or rubble, and so to be charged for at 6d. or at 1d. per ton. If stones of these particular descriptions do not properly fall under either of these terms or divisions, and so have not been provided for by the lordship clause, then it becomes necessary, with reference to the rates of lordships which have been fixed, to determine what is a reasonable and proper rate for these particular classes of stone.

The gross produce of the quarry for the year, according to the evidence of Mr Bruce, taking his rates of conversion for stones sold by measurement and numbers, was 28,206 tons. The particular items making up this total amount are the following:—

	Tons.
Stone sold as rubble,	9,868
Founds admitted as rubble,	789
	10,757
Add 10 p. cent. for quarry allowance	1,075
Total rubble,		11,832
Ashlar,	3,641
Cube stones,	6,492
Rybats,	3,478
Scuncheons,	1,404
Coursers,	1,335
Backs,	24
Total charged as ashlar,		16,374
Gross produce of the quarry for the year,		28,206

Lordships, 1d. per ton on 11,832,	£49	6	0
… 6d. … on 16,374,	409	7	7
Making the sum claimed,	£458	13	0

The matter which formed the subject of dispute at the close of the proof was the classification of scuncheons, coursers, and backs. The last of these involves an amount of about 10s. a year, and the parties agreed that stones sold as backs (used

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for the backs of chimneys) might be treated as in the same category as scuncheons, which are used for the inside building of the corners of windows, and for other corners and arches inside of buildings. These stones are always covered up by the exterior masonry. The amount in dispute for scuncheons (taking Mr Bruce's rates of conversion) is about £29, and for coursers about £28, making in all about £57.

The lease, so far as regards the clauses relating to the ascertainment of lordships, has been very loosely expressed, and the questions to which these clauses have given rise are obviously better fitted for the determination of one or more men of skill as arbiters than for the Court. It is to be regretted that the parties have not been able to agree to a reference to some one of practical knowledge, who might settle not only the amount due for last year, but fix a rule to guide them during the future years of the lease. As the case has been presented to me on the proof, I can only say that I have found it to be attended with great difficulty, arising from the nature of the lordship clause, the great conflict of professional opinion, and the unsatisfactory reasons on which many of the opinions rested. The view which I have ultimately adopted, agreeing with that of Lord Gifford in the former litigation between the parties, is that the clause relating to lordships, which is singular and without precedent in its terms, has been adopted without due consideration, and while professing to exhaust all the produce of the quarry under the heads of ashlar stone and rubble stone, has omitted to provide for a class of stones to which neither of these terms is properly applicable.

If I could adopt the view of the pursuers, that everything which is not rubble (under which head they include founds, however,) is to be classed as ashlar, there would be little difficulty in the case; but this view is met with the contention on the other side, that everything not sold as ashlar or cube stones should be classed as rubble, which, in the statement of it, is prima facie equally reasonable. Each of these contentions presumes that the classification into ashlar or cube stone and rubble stone is exhaustive of the freestone, which forms the subject let. I am duly sensible of the importance of the view, that there is a very strong prima facie presumption that the parties meant to include all stone under one or other of these heads, and that if the expressions used will reasonably admit of this the clause should be construed as having that meaning and effect. But having regard to the evidence, I have come to the conclusion that certain classes of stones do not properly fall under either of the terms used, and that it would be unjust to one or other of the parties to hold that they do. Many of the witnesses explain that, according to their views, scuncheons and coursers are in certain points specified more like rubble than ashlar, or the converse, and rank them accordingly under one or other of these heads. The preponderance of the evidence, including the testimony of these witnesses, is, however, that such stones cannot in any proper sense be classed either as rubble or as ashlar; and it is only when pressed under examination to put them under one category or the other, that, guided by certain points, as to which they are often not very consistent either with each other or with themselves, they make a choice between the two classes. The Court is asked to consider these points, and so to classify each particular kind of stone accordingly. It appears to me, however, that this was not the meaning of the parties in entering into the lease, but that the truth is, that in the unusual terms they adopted they omitted to fix lordships which would really suit all the different classes of stones to be wrought, and be exhaustive of these; and if this be so, the parties cannot expect the Court to interpret the contract as if no such omission had been made.

The evidence has failed to supply any definition of ashlar and rubble stones respectively which admits of being reasonably applied to every class of stone sent off. The examination for the pursuers was conducted in the view of eliciting that all hewn stone—that is, stone dressed, however roughly, at the quarry—comes within the description of ashlar, but it cannot be said that the witnesses adopted this view. The evidence of Mr Clunas, architect, and Mr Wilson, builder, on which the pursuers must mainly rely for professional opinion, is not to this effect; and the views of these gentlemen are not in harmony with each other. Besides, if the mere fact that a stone had been dressed, however roughly, were a determining element, founds which are of considerable size would at times have to be classed as ashlar.

If it be assumed, or indeed held, as I think it may be in the view I take of the case, that the term rubble in the lease will properly cover only what is mentioned in the price lists as ‘large sized rubble’ and ‘common rubble,’ and sold at 1s. 6d. and 1s. 3d. per ton, I think it would be stretching the term ashlar or cubic stones beyond its true meaning to hold that it included not only stones sold under the names of ashlar and cube, but all other stones, though small in size, however inferior in quality, and whatever may be the purpose to which they are to be applied.

In the building trade, and consequently in the trade of the quarrier, with whom the builder deals, the purpose for which the stone is to be used seems to be the element which determines whether it is ashlar or not. A stone must be of a given size and of good quality to be ashlar: and so stones classed in the price list as ashlar, rybats, which are under the same class, and must in size correspond with ashlar, to be worked in with it, and which must be of good quality, suitable for outside and front work in building—and cube stones and blocks, are all ashlar. I am unable to hold with the pursuers that scuncheons, backs, and coursers, or any of them, are ashlar, either according to the understanding of the trade or in any proper sense. Scuncheons are no doubt roughly dressed or shaped; they are, however, entered in the price lists after ashlar stones of the different kinds have been enumerated, and immediately following rubble stone; are of much smaller dimensions; are used for the interior of buildings, and covered up, and so are not dressed as ashlar usually is; and, what is perhaps of as much importance as any of these considerations, they cannot, like ashlar, be rejected by the purchaser because of flaws or inferiority of stone. Such stones are often taken out of common rubble as supplied from the quarry; and it is not unimportant to observe the statement of Mr Bruce, that ‘some years ago’ (and so presumably at the date of the lease in question) ‘they were very often taken out of rubble,’ though not so often now. The observations just made all apply to

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coursers, with this exception, that these stones are used for outside work. I do not think that this circumstance makes them ashlar within the meaning of the lease.

If the evidence leads to the result I have now stated, I cannot adopt a different view because of the significations or definitions of the terms ‘ashlar’ to be found in certain English dictionaries, to which reference was made by the pursuers. The definitions or meanings of the words ashlar and rubble are by no means uniform, and ought not, I think, to outweigh the testimony of architects, builders, and practical men speaking to the known every-day use of terms in the trade in which they are engaged, and with reference to which the parties to the present lease must be held to have contracted;

Holding, therefore, that the lease does not provide a lordship for stones sold as scuncheons and coursers, it becomes necessary to fix a fair rate to be paid for such stones which have been wrought. They appear to occupy a middle position between ashlar and rubble, to differ from rubble sold in the mass, and so far to resemble ashlar, because they are roughly dressed and sold by numbers and measurement, and again to differ from ashlar in the particulars already mentioned, and so far to resemble rubble in their character and the uses to which they are applied. I think a lordship between that fixed for ashlar and for rubble respectively in the lease, viz., 3 1 2d. per ton, is a fair and proper lordship for such stone. I have accordingly taken that as the rate I have allowed. At Mr Bruce's rates of conversion, the result is, that for scuncheons, backs, and coursers, the return is about £40, in place of about £69.

As to (1) the amount to be estimated for quarry allowance, and (2) the rates of conversion, there is a conflict of evidence; and it would not, I think, be right to adopt Mr Bruce's rates as conclusive. On the whole, I am of opinion that justice will be done between the parties in fixing the total lordships for the year at £380, on the basis of a lordship of 3 1 2d. on the particular classes of stones above mentioned.

As to expenses, the defender made no tender or admission as to the sum due, and the different states given in by him bring out sums considerably below what has been allowed. The pursuers are thus entitled to expenses; but as they have failed in a material part of their contention, and as they, as well as the defender, are responsible for the loose terms of the lease, which have caused the litigation, I think the expenses should be modified to two-thirds of their amount.”

The defenders reclaimed.

At advising—