Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Lanarkshire against an interlocutor of the Sheriff assoilzieing the defender. The action was at the instance of James M'Clelland, chartered accountant in Glasgow, against Alexander Robertson, wright and builder there, and concluded for payment to the pursuer of the sum of £30, Os. 1d., being one-half of the expense of forming the sewer in Wilton Street, Glasgow, and cause waying and paving that street so far as it extends along certain subjects feued by the pursuer to the defender. The feu-contract was entered into in November 1873, and by it the pursuer feued to the defender, with entry as at March 1872, inter alia, two steadings on the north side of Wilton Street, adjacent to the New City Road. The contract contained an obligation that the defender should “pay one-half of the expense of forming and constructing such common sewers or drains as the first party may have already formed or which he or his foresaids may hereafter form in Wilton Street,” “as the amount of said expense shall be fixed by the first party's surveyor for the time;” “and in so far as the said streets (which expression includes Wilton Street) are already formed, the second party shall be bound to repay to the first party one-half of the expense of formation, as the same shall be fixed by the first party's surveyor for the time.”

The defender denied liability under the above clauses, on the ground that the work was not done by, nor at the expense of, the pursuer or his predecessors. In the year 1850 the pursuer and James Lumsden, merchant in Glasgow, were proprietors of portions of the lands of North-woodside, of which the subjects feued to the defender formed part; and John Bain of Morriston was proprietor of grounds situated to the west of and adjoining them. The said John Bain was desirous of acquiring a right of access between his grounds and the New City Road by the street or streets to be formed on the ground of the pursuer and the said James Lumsden, and offered, if they would grant such a right, at his own expense to construct and form or continue the common sewer, and level, form, and complete the street.” This proposal was acceded to, and an agreement was entered into by which the said James Bain bound himself, his heirs and successors whomsoever, at his or their sole expense, immediately to form, construct, or continue from his own grounds, through the grounds of the pursuer and the said James Lumsden, a common sewer, to be carried forward to the centre of the New City Road, and to form and complete the street, all as delineated on a feuing plan referred to in the said agreement. Under this agreement the said John Bain formed the sewer and the street now called Wilton Street, and in consideration thereof obtained the stipulated right of access to the New City Road, which has ever since that time been used and exercised.

The pursuer had in 1852 become sole proprietor of the ground originally belonging to him and the said James Lumsden, and by the feu-contract of 1873 he feued to the defender the parts therein described, which were thereby declared to be feued and conveyed always with the whole privileges and the whole burdens, conditions, provisions, and servitudes inter alia created by the said agreement between him and James Lumsden and the said John Bain.

The Sheriff-Substitute ( Erskine Murray) decided in the pursuer's favour, on the ground that as Bain did the work under an obligation incurred by him to the pursuer for a consideration granted by the pursuer, Bain's execution of the work must be held as pursuer's execution thereof, and that therefore the pursuer was entitled to charge therefor as done by himself.

The Sheriff, on appeal, recalled the judgment of his Substitute, and assoilzied the defender for the reasons stated in the following note appended to his interlocutor:—

“ Note.—The question here is one purely of law, the parties being agreed upon the facts, and the defender's procurator having admitted at the bar that if he is liable in any sum to the pursuer the amount sued for is correct.

The question is, whether under the defender's feu-contract he is bound to pay to pursuer a proportion of the expenses incurred by Bain in forming the street and sewer referred to. The pursuer makes his claim on the ground that the street and sewer were formed by himself, ‘or by others on his behalf,’ and the Sheriff-Substitute has adopted that view, holding that as Bain did the work under an obligation incurred by him to the pursuer for a consideration, his execution must be held as pursuer's execution.

The Sheriff is unable to take this view. Bain formed the street and sewer at his own expense, and no part of the expense thereof was incurred by the pursuer. No doubt Bain did the work under an agreement with the pursuer, and for a valuable consideration; but there are no data upon which the Court can estimate the comparative value of that consideration and of the work performed. In their nature they do not admit of comparison with regard to the present question. The benefit which Bain obtained as a consideration for doing the work may have been great, and the cost or value of that consideration to the pursuer was probably very trifling, if anything at all. If so, it could not be held that the work was done at the pursuer's expense. The truth rather seems to be that the making of the street and sewer were of material advantage instead of expense to the pursuer, as they contritributed towards opening up his property for feuing.

The words of the feu-contract as to the sewers are distinct, being that the defender should pay the expense of such sewers ‘as the first party (the pursuer) may have already formed;’ while as to the street the defender is bound to ‘repay to the first party one-half of the expense of formation’—an expression somewhat different, but with the same meaning, as one can only be repaid an expense which he has incurred. The Sheriff does not see how either of these

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clauses can be construed in a way so different from their natural and proper meaning as the pursuer maintains.

It would have been easy for the pursuer to have made the stipulation clear if it had been intended to bear such a construction. The ambiguity (so far as there is any) is caused by himself, and the defender is entitled to the benefit of it on the double ground that in dubio the deed, which was framed by the pursuer's agent, is to be considered contra properentum, and that the presumption is in favour of freedom.”

The pursuer appealed to the Court of Session.

At advising—