Scottish Court of Session Decisions

The Ayr Bridge Act 1877 provided for the removal of the bridge across the river Ayr, at Ayr, known as the New Bridge of Ayr, and the erection of a new one. Under this Act the Road Trustees for the district of Ayr were entrusted with the duty of having the necessary works executed.

Messrs Blyth & Cunningham, civil engineers, Edinburgh, on the employment and instruction of the Road Trustees, prepared the Parliamentary plans required for the obtaining of this Act, and after the Act was passed they were employed by the trustees to prepare the drawings, specifications, and schedules of measurement required for the removal of the former bridge and the erection of the new bridge, and to superintend the removal and erection. Messrs Blyth & Cunningham accordingly prepared the drawings, specifications, and schedules of measurement, and issued the same. The Road Trustees accepted the tender for the work of Messrs W. & T. Adams, contractors, Callander, and thereafter a contract was entered into between the Road Trustees and Messrs Adams, dated 5th, 10th, and 20th October 1877. By this contract Messrs Adams bound and obliged themselves to execute and complete the whole work, and to provide and supply all the materials required in the work, and that in a good and sufficient workmanlike manner, conform to drawings, specifications, and schedules of measurements prepared by Messrs Blyth & Cunningham, and signed as relative to the contract, and that to the entire satisfaction of George Cunningham, whom failing Edward Blyth, or of any other engineer to be appointed by the Road Trustees. The works were to be finished by 1st March 1879, the price to be £13,015, 19s. 6d., “under deduction of 10 per cent. upon each instalment, which shall be retained until the whole works are certified by the engineer as complete, and shall then be paid, without interest, within a month from the date of said certificate, under deduction of such sum as the engineer shall fix as a reasonable sum to be retained in security for the maintenance of the works during the period before mentioned, on the expiry of which, when the terms of the contract as to maintenance have been complied with, the balance shall be paid without interest.”

The specification incorporated with the contract contained the following clauses:—“ Excavations.

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—The excavation for the abutments and piers shall be cut to the depth shown on the drawings, or to such less or greater depth as shall be considered necessary by the engineer, and the stuff arising there from shall be removed from the works to such place as the engineer shall direct.” “ Foundations to be Approved.—No masonry shall be put in until the foundations have been carefully examined, and the engineer has approved of the same.” “ Work to be Substantial.—The whole works under the contract shall be done in a neat, careful, substantial, and workmanlike manner, and to the true intent and meaning of the specification. No advantage shall be taken by the contractor of apparent or inadvertent omissions or errors in the drawings or specification, and the works, with the whole material used and mode of their use, shall be to the entire satisfaction of the engineer.” “ Superintendence.—The works shall be carried on under the immediate charge of a resident engineer or inspector appointed by the engineer, whose directions in all points relative to the mode of carrying on the works, or workmanship executed, are to be received and acted on by the contractor; and the resident engineer or inspector shall have power to reject or condemn any materials or workmanship that he may deem unsuitable, and any material or workmanship so condemned and rejected shall be promptly removed and replaced by the contractor at his own cost to the satisfaction of the engineer.” “The contractor shall keep on the works an agent who shall represent him in his absence, and all instructions given to the agent shall be held and considered as given to the contractor.” “No person to whom the engineer shall object on account of improper conduct, or bad workmanship executed by such person, shall be employed by the contractor, or allowed to remain on the works.” “ Maintenance of Works.—The contractor shall be bound to keep and maintain in good and sufficient order and repair, and at all times open for traffic, the works under this contract for the period of one year from and after the time when the whole work under the contract shall have been wholly completed; and he shall then deliver these works to the Trustees in a good and sufficient condition, and that to the entire satisfaction of the engineer.” “The contract price shall be paid by monthly instalments as the work advances, and to such an extent as shall be certified by the engineer.”…

The bridge was finished in April 1879. On the completion of the work a final State was prepared by Mr George Cunningham, bringing out a balance due to the contractors of £466, 17s. 2d., being the sum appearing to be due to them on a final settlement of their accounts under the contract, less a sum of £100 retained to meet the contractors' obligation to maintain the bridge for a year after it was completed. Mr Cunningham accordingly granted a certificate for this sum in favour of the Messrs Adams on 23d May 1879. It was then paid, and Messrs Adams granted this receipt:—“Received from James M'Murtrie, treasurer, the within mentioned sum of £466, 17s. 2d., being fifteenth instalment of contract for new bridge. £496, 17s. 2d. Recd. payment for W. & T. Adams, C. W.A. 30/5/79.”

In April 1880 the bridge was finally taken over from the contractors, and on 23d of that month Mr Cunningham granted a certificate authorising the Road Trustees to pay the said sum of £100 to the contractors as a final payment under their contract, and the sum was paid, and this receipt granted for the same:—“£100—Received from James M'Murtrie, treasurer to the Ayr Bridge, the sum of £100 stg., being payment of the final instalment within stated.”

This action was raised in July 1882 at the instance of the Road Trustees for the district of Ayr against Messrs W. & T. Adams and Messrs Blyth & Cunningham, conjunctly and severally, for payment of £8750, made up as follows, viz., £1500 in respect the defenders Messrs Adams had been overpaid to this extent, because they had been paid for work not done, material not supplied, and for material superior to what they actually supplied; £5000, being the cost of remedial and protective works executed in order to remedy defects in the work alleged to be the result of the defenders' breach of duty; and £2250 in name of damages.

The averments in the action were as follow, viz., “(Cond. 8) It was the duty of the engineers to superintend the carrying out and execution of the said work, and to see that the same, both as to workmanship and material, was in every respect conform to the said contract, drawings, specification, and schedule. In particular, it was the duty of the engineers to see that the foundations of the abutments and piers of the new bridge were excavated to the contract depth; that the said foundations were safe and proper foundations; that the said piers and abutments were constructed properly and safely of the material and in the manner provided by the contract; and that the excavations round the piers and faces of the abutments were filled in with concrete, the concrete being to be composed as provided in the specification. It was also the duty of the engineers to ascertain and advise the pursuers of the work actually executed by the contractors, and to take care that the contractors were not paid for any work different from what was provided for in the specification, and actually executed, or in excess of what they had actually done. The said engineers all along professed and represented to the pursuers that they in every point attended to and carefully performed the whole duties incumbent on them in connection with the execution of the work in question, and particularly those set out in this article.” “(Cond. 9) In or about April and May 1879 the whole defenders concurred in representing to the pursuers that the whole work stipulated to be performed under said contract had, with the small exception after mentioned, been duly executed, and that the balance of the contract price was then payable by the pursuers. The only alterations represented by the defenders as having been made on the contract work were—(1) a deduction of ashlar saved in foundations of abutments and piers, 643 cubic feet at 2s. 6d., equivalent to £80, 7s. 6d.; (2) extra work in connection with a new parapet, £76, 11s. 8d.; and (3) extra work connected with alteration of accesses, £102, 2s. Relying upon the representations of the defenders as aforesaid, the pursuers paid the defenders (both contractors and engineers) the sums due to them in respect of their work and services as aforesaid. The said deduction of £80, 7s. 6d. was made at the

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settlement in respect of ashlar work not executed in consequence of the piers and south abutment not having been carried down to the contract depth. The contractors represented that all the piers had been founded at the contract depth except the south abutment and pier No. 3, which were represented as having been founded 6 inches above that level, and pier No. 2, which was represented as having been founded partly 3 inches and partly a foot above that level. In point of fact, as after mentioned, the defenders' representation above set forth as to the depth at which the piers had been founded was untrue, and known by the defenders Adams at the time to be untrue.” Answer for Messrs Adams—“The works were under the immediate personal charge of the pursuers' resident inspector, Mr John Haldane, who was in constant attendance and direction of the defenders' operations. They were also periodically examined and approved of by Mr Cunning ham, the pursuers' engineer, and Mr David. M. Westland, his assistant; specially the foundations previous to masonry being put in. Mr Charles Adam, C.E., was the manager and agent on behalf of the present defenders.” “(Cond. 10) In or about April 1881 the pursuers learned from their road surveyor that the condition of one of the piers of said new bridge (known as pier No. 3 from the south side) was in an unsatisfactory condition, and requiring immediate attention. This was not known, and could not before said month of April have been known by the pursuers, who till then believed that the bridge had been in every way built conform to contract, and was sound and stable. In consequence of this information the pursuers at once communicated with the engineers, and caused them to inquire into the matter. Having done so, the engineers on 8th June 1881 reported to the pursuers. In that report they stated, inter alia, that ‘the bed of the river Ayr at the new bridge consists through out of flat bedded sandstone rock, the abutments and piers of the bridge were all founded on solid rock at a depth of from 3 to 6 feet below the surface of the rock;’ and they recommended that an invert of strong Portland cement concrete should be constructed between piers 2 and 3, and for the whole breadth of the bridge, in order to prevent any evil consequences arising from a deepening of the channel between said piers, caused in their opinion, as they stated, by a crush of ice daring the preceding winter—a coffer-dam being to be constructed to allow the invert to be rapidly proceeded with.” “(Cond. 11) In September 1881 the engineers were again asked to report upon the work, and this they accordingly did on 22d September 1881. In that report the engineers (per Mr George Cunningham) said—‘I find that some of the Trustees are under the impression that the bridge was founded on concrete, and that this was of inferior quality; this is a mistake; there is no concrete under any of the piers, they were all founded on rock, and the concrete was only placed round them to fill up the spaces excavated beyond the actual size of the piers when founding them.’” “(Cond. 12) Thereafter the said remedial works were proceeded with as expeditiously as possible. It was not, however, till November 1881 that such progress had been made as enabled the true state of pier No. 3 to be seen. It was then found that the foundation thereof had not been excavated to the contract depth, or to the depth that had all along been represented to be its real depth by the defenders, and that the material on which the said pier was founded, and of which it was in part constructed, was very much inferior to and cheaper than what had been contracted for, and represented by the defenders as actually used and paid for by the pursuers. For a considerable length from the west end of the pier (which from cutwater to cutwater measures about 59 feet) the ashlar work rested on the original bed of the river at a height of between 3 and 4 feet above the contract depth, no excavation at all having been made. At another part there had been some excavation, but the trench had been partially filled with inferior concrete and rubbish on which the ashlar work rested at a height of between 4 and 5 feet above the contract depth. It was also discovered that a considerable portion of the pier had no solid foundation at all, the river running through below the ashlar work. Before any other progress was attempted with regard to such other remedial measures as should be considered necessary, the engineers recommended that a concrete apron in bag-work should be at once placed along the whole of the north side of this pier. The construction of the concrete apron was at once set about, and at the same time the completion of the concrete invert before mentioned, and the underputting of pier No. 3, which had also been resolved on in accordance with the views of the engineers as necessary for the safety of the bridge, were proceeded with by the pursuers as rapidly as possible.” “(Cond. 13) There after the pursuers made further inquiry into the condition of the foundations of the piers and abutments of said bridge. It was then found that though the defenders had concurred in re presenting to the pursuers that the excavations for the said foundations had all been carried down either completely to the contract depth, or to within one or two inches or thereby thereof, and that the whole of said piers and abutments had been constructed of the material and dimensions provided for in the contract, and had obtained payment from the pursuers of the sums respectively due to them on that footing, the said representations were entirely incorrect. Not one of the said excavations has been carried down to the depth contracted for or paid for…. The piers and abutments ought, in terms of the contract, to have been constructed throughout from the foundations of solid ashlar, and they were represented by the defenders as having been so constructed, and were paid for on that footing. In point of fact, considerable portions of all of them (with the exception apparently of pier No. 4 and the north abutment) consist of very inferior concrete, rubble, and rubbish. In particular, pier No. 3, for a length of about 20 or 30 feet from the east end, had been founded for a height of between 4 and 5 feet from the bottom of the excavation with inferior concrete, clay, and rubbish. The defenders also represented that the excess space in the excavations for the piers and abutments beyond what was occupied by the mason-work had been filled up with concrete as provided for in the contract, and they were paid on this footing. In point of fact this was done, and large spaces were left, particularly at the south abutment, and piers Nos. 2 and 3, which were not so filled up.

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The pursuers further averred that in consequence of these misrepresentations, and of the failures and deficiencies referred to, the defenders Adams had been overpaid to the extent of £1500; that if the bridge had been built in terms of the contract, and as the defenders represented to the pursuers it had been built, it would have been perfectly stable and safe, and there would have been no necessity for any protective works. In consequence, however, of the failures on the part of the defenders the bridge had become in secure, and protective works had been executed, and would require to be executed; that even after the whole of these works, which had cost £5000, and were necessary to remedy the said defects, the bridge would not be as good as it would have been if built in terms of the contract; that the damage on this ground sustained by the pursuers through the defenders' fault and fraud would not be less than £2250.

They further averred—“(Cond. 17) The defenders Adams were well aware all along that they had not executed the works in terms of their contract, in the several respects before mentioned. They concealed all of their said failures from the pursuers, and claimed and accepted payment of the contract price on the representation made by them and the other defenders that they had in every respect observed the conditions of the contract, and done all the work conform to contract measurements and of contract materials, except as regards the 643 cubic feet of ashlar before mentioned. Further, the said concealment was fraudulent on the part of the defenders Adams. If the defenders Adams had duly and properly performed their duties, the defects and failures now complained of would not have happened; the bridge would have been built conform to contract, and would have been good and stable in every respect, and none of the protective works, already executed and still requiring to be executed to make it safe, would have been necessary.”

Both sets of defenders lodged defences on the merits, and for the defenders Messrs Adams the following plea-in-law was stated—“(2) The said works having been executed under the superintendence and to the satisfaction of the pursuers, or those by whose acts they are bound, and transferred to and accepted by the pursuers, and the whole accounts both for erection and maintenance having been finally adjusted and certified in terms of the contract more than three years prior to the raising of the present action, and the balance paid to the defenders, the pursuers are not now entitled to open up these accounts or to insist in damages as claimed.”

The following facts were proved, viz.—Under the superintendence clause of the contract, quoted above, John Haldane was appointed resident engineer or inspector. Although by that clause his appointment fell to be made by the engineers, yet in point of fact he was appointed by the Road Trustees. He was at the time engaged in a similar capacity in the service of the Ayr Harbour Trustees, and the pursuers arranged with them that Haldane should inspect the bridge as well as the harbour works. This was done without the knowledge of Blyth & Cunningham. The agent appointed under the above clause by the defenders W. & T. Adams was Charles Adam. According to the specification he had to take his orders from the inspector, He was paid by salary, and the whole details of the work were left to him. In the course of the work concrete instead of ashlar was put into the foundation of pier No. 3.

Mr Haldane deponed:—“All the piers and abutments of the bridge, with the exception of No. 3, were made of ashlar down to the foundations. There was concrete put into one-half of pier No. 3. That was done because it was found impossible to keep the water out of the excavations.” Haldane further stated that as the contractors were desirous of trying concrete he agreed to let them put it in, and that it was put in with his sanction, but that he did not tell Blyth & Cunningham that he had sanctioned it. With regard to the information furnished by Haldane to the engineers as to the depths to which the foundations of the various piers had been carried down, he deponed that Charles Adam made no representation further than assisting in taking the measurements. “I don't believe he concealed anything from me. I had no suspicion of that at any time, and have not yet. I think he acted in good faith. Neither of the Messrs Adams had any communication with me upon the subject, either as regards the foundations or the quality of the work or anything else.” Charles Adam was not examined as a witness, being absent abroad.

With regard to the settlement of accounts, Mr George Cunningham, C.E., deponed:—“Messrs Adam had not rendered us any account. The account was made out by me upon Mr Haldane's information … Mr Adams made no representation to us whatever to enable us to make up the account.”

The Lord Ordinary ( Adam) decerned against W. & T. Adams for £1000, and assoilzied Blyth & Cunningham.

Note.—The first point to be determined is as to the nature of the materials used in the foundation of the east half of the pier No. 3.

It is not matter of dispute that this pier ought to have been founded at a depth of about 4 feet 6 inches below the bed of the river, and built throughout of ashlar, and that W. & T. Adams were paid on the footing that it had been so constructed. It is not matter of dispute that as regards about 25 feet of the east end of the pier, while the foundation was excavated to the requisite depth, it was not built of ashlar. The defenders say that the pier was founded up to the level of the bed of the river on excellent concrete; that this was a harder and better foundation than ashlar would have been; that consequently the cavity under it was not in any way due to the nature of the materials, but solely to its having been crushed out by ice; and that the bridge would probably have been in a worse condition or given way altogether if it had been built of ashlar.

Mr Cunningham and others think that the pier must have been founded on concrete, but of a very inferior kind, so that when the bed of the river was scoured out and the ice and water got access to it it was incapable of resisting. Mr Cowan and others think that the existing concrete was simply placed on the top of the sand, clay, and silt lying in the excavation which had been made for the foundation, and that when the water got access to it it simply washed it out, leaving the cavity which was found.

Now, as to the evidence on this point—We have only the evidence of one witness, Low, who

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professes to have been present at the founding of this pier. I thought when he was being examined, and I think still, that his evidence is not to be relied on. No doubt it is true that workmen engaged at such jobs as this may be difficult to find after two or three years; but then there was one witness, Charles Adam, who was W. & T. Adams' agent and representative at the works, upon whom they throw the whole responsibility, whose evidence might and ought to have been obtained, but he has not been examined. Haldane, the clerk of works, who was responsible to the pursuers and the engineers, and ought to have seen as to the matter, says, whether truly or not, that he was ill of lumbago at the time, and not able to get nearer to the spot than two arches.

In these circumstances, and in the absence of direct evidence on the subject, the Court is left to draw inferences from the state of matters disclosed when the foundation was exposed, and I am clearly of opinion that the only inference which can be drawn is, that if the pier had been founded on hard, solid concrete, as the defenders say, such a cavity as existed under the pier would not have been. Mr Cunningham is of opinion that the pier must have been founded on concrete, though of inferior quality, because if the existing concrete had been laid on the top of the sand, silt, &c., it would have been insufficient to support the superincumbent weight of the pier when settling, but that the concrete in being put in had got mixed with clay and other matters found in the cavity, which were quite sufficient to destroy good concrete, and to account for its being carried out when the ice and water reached it. Mr Cowan and others say that the appearance of the under surface of the existing concrete shows that it was simply spread on the surface of the sand, silt, and clay, and that the sand, silt, and clay being confined in the hole excavated for the foundation, were sufficient to afford support for the superincumbent weight of the pier, but that when the water got access to it it was at once washed away.

It appears to me that there is a good deal to be said for either view, but in my view of the case it is unnecessary to determine which is right, because it seems to come simply to a question of the decree of badness or insufficiency of the material on which the pier was founded, and because whichever view is taken, W. & T. Adams are equally responsible, —i.e. whether the concrete was originally good, but spoilt in consequence of the way in which it was put into the foundation, or whether there never was any concrete in the foundation at all.

But Mr Cunningham and Mr Cowan differ in opinion as to whether the existence of the cavity under the pier caused the bed of the river to be scoured away to the depth of 5 or 6 feet as it was, and this is important, because if it did, then W. & T. Adams may be liable for the expense of the protective works which that state of matters rendered necessary, but not otherwise.

I think it is not proved that the existence of the cavity had anything to do with the scouring out of the bed of the river. I think the crush of ice under the arch which occurred on that most exceptional winter, taken in connection with the formation of the bed of the river, is alone sufficient to account for the scouring out of the bed. It is admitted on all hands that the bed of the river must have been scoured out more or less before the water or ice could get access to the cavity which had been excavated for the foundation of the pier. And it appears to me that if this scouring process was once set up, it would probably go quickly on. And I do not see how there could be any such rush of water or ice into the cavity as to cause or contribute to the scouring of the bed of the river. Besides, it would appear to me that if the scour was caused by the cavity, we should have found the scour deepest where the water forced itself out of the cavity, —that is, at the west end of it, and thence downwards, and not upwards, as is the fact

It is not surprising that, after the disclosures made as to the state of the foundations of pier No. 3, the pursuers should have desired to ascertain how the rest of the bridge was founded and constructed. With that object they caused certain bores to be made through the piers and abutments, the result of which, they say, is to show that the piers and the south abutment are not founded to the depth contracted and paid for, and that the piers are not constructed throughout of solid ashlar, but partly of rubble and rubbish.

With reference to the depth ‘contracted for,’ it appears that by the contract it was declared that the excavations for the abutments and piers should be cut to the depth shown on the drawings, or to such less or greater depth as should be considered necessary by the engineer. In this case the engineer inspected all the foundations, and, excluding for the present pier No. 3, did and does consider that the piers and abutments as paid for were founded of a sufficient depth; and if they were founded to the depth paid for, that appears to exclude any liability on the part of W. & T. Adams on that ground. But were they excavated to a lesser depth than they were paid for? The proof of this rests on the evidence furnished by the bores. But it appears to me to be shown that these bores are not at all reliable. In particular, when the invert was being put in, the foundation of No. 2 pier was seen to exist at a depth where the bores showed that it did not exist.

On the same grounds I am of opinion that it is not proved that the piers were constructed otherwise than of ashlar in terms of contract.

But this does not apply to pier No. 3. With regard to the foundation of it, although Mr Westland [a civil engineer, and assistant to Messrs Blyth & Cunningham] does not particularly re member having done so, I think he must have seen and approved of it. It appears that he inspected the works on the 29th March 1878, and three days afterwards Mr Haldane reports to the pursuers that the foundation of No. 3 was ready for building. Mr Westland could only have seen the east part of the foundation excavated, but according to the evidence that was sufficient to enable him to judge of the whole foundation, and it was by no means necessary that he should see the whole area of it excavated—that being a matter for the inspector or clerk of works to see done. It now appears that it never was excavated. On the 29th November 1878 Mr Westland sent to Mr Haldane a plan asking him to mark thereon the exact depth of the foundations of the piers and abutments, and to mark wherever a step occurred across a pier. That plan was returned, showing pier No. 3 constructed entirely of ashlar to the

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depth to which the east end of the foundation had been excavated. Haldane now says that he kept no measurements, and that he and Adam had forgotten how pier No. 3 had been constructed. I do not at all believe that, and I believe that the plan was returned marked as it was to conceal what he had allowed to be done with reference to this pier. But the measurements so sent formed the basis of the settlement with W. & T. Adams, and in this way they have been paid for ashlar work which never was executed.

With respect to the claim for damages. This is founded on the ground that the bridge is not so good a bridge, even with the protective works, as it would have been if built according to contract, and that it would be more expensive to look after and keep in order. In my opinion, however, the bridge was built according to contract except in respect only of pier No. 3, and that the remedial works, for which I think W. & T. Adams are liable to pay, have made it as strong as it would have been if built as the engineers instructed and believed.

The protective works were suggested by Mr Cunningham as being desirable before the state of pier No. 3 was known, and were the result of the experience furnished by the winter of 1881. The bridge as designed and constructed, except pier No. 3, was perfectly sufficient, according to the opinion and knowledge of the engineer at the time it was constructed, and that being so, I do not see how Messrs W. & T. Adams can be made liable for the expense of these protective works.

Assuming, therefore, that the matter is open, I think that W. & T. Adams are liable in the expense of the remedial works, and to repay the price of the ashlar work which was not executed. But they say that the bridge was taken over by the pursuers, and all accounts closed and settled, and cannot now be reopened.

They deny all personal knowledge of the state of pier No. 3, and they throw the whole responsibility on Charles Adam. But Charles Adam was their agent and representative, and I think his knowledge must be taken to be their knowledge. They say, further, that the pier was founded on concrete by permission of Haldane. But Haldane had no authority to give any such permission, and Adam had no right to make such a deviation from the contract plans except by permission or order of the engineer. Besides, that would not justify either a charge for work not executed or the founding of the pier either on inferior concrete or on sand and clay.

They say further, that it was a reasonable thing to found the pier on concrete, because on account of a rush of water into the foundation it was impossible to found the pier on ashlar. I must say, however, that I do not believe in the alleged rush of water into the foundation. If there had been, Mr Westland would have seen it; besides, there was no such water when the pier was ultimately built entirely of ashlar. That the contractors were troubled by water I quite believe, and that it led to the founding of the pier on concrete—but then I believe that it arose from the insufficiency of their coffer-dam. Besides, that would not get over the difficulty that if concrete was used it was either inferior or improperly laid.

It is true that the final settlement did not take place on measurements furnished by the defenders, or on any direct representation made by them, but on measurements furnished by Haldane. But it appears to me that the defenders, by settling on the footing of these measurements, adopted them, and represented them as correct. If the settlement had been with their agent Adam, I do not see that it could have stood, because there is no doubt at all that he must have known that the measurements were false, and that he was taking payment for work which in his knowledge was never done. But if, as I think, his knowledge was W. & T. Adams' knowledge, then I think they are in no better position than he would have been. I do not think it is any sufficient answer to say that the pursuers settled on the footing they did, not in respect of any representations made by W. & T. Adams, but in respect of representations made by their own servant Haldane. That Haldane failed in his duty in this respect does not, I think, exoner the defenders.

It was said, further, that W. & T. Adams were not liable, because they should have been allowed to put matters right themselves. It appears to me, however, that the situation of the pier was a matter of great urgency, requiring to be put right without a moment's delay, and that the pursuers were in the circumstances perfectly entitled to do so themselves.

As regards the defenders Blyth & Cunningham, they were employed under no special terms or conditions. Mr Shaw simply intimated to them, by his letter of 16th May 1877, that he was authorised by the pursuers to request them to proceed with the plans of the bridge.

In these circumstances, the question arises, whether they gave that amount of supervision which the pursuers were entitled to expect?

Mr John Haldane was duly appointed inspector of works, and to him they were entitled to look that the work was carried out in terms of the contract. They were also entitled to trust to him for all measurements of work done. They repeatedly visited the works, and they inspected the foundations of the abutments and piers, and there is no doubt that they were safe and proper foundations. With reference to pier No. 3, Mr Westland saw enough of it to satisfy him that it was a safe and proper foundation, and the defenders were entitled to rely that it would be excavated and built upon in the manner provided by the contract.

I do not think, therefore, that there is any ground of complaint against them that they did not exercise a proper amount of supervision.

It is said, however, that the defects in the building would not have occurred but for the fault of Haldane, and that they are responsible for him. It is true that the defects in the bridge would probably not have occurred except for Haldane's neglect of duty, but I do not think they are responsible for him. He was appointed no doubt by the engineers, and was under their orders; but he was paid by, and was I think the servant of, the pursuers. He was there in their interest to see that the persons with whom they had contracted duly fulfilled their contract. No authority was quoted to me to the effect that the engineers are liable for the negligence of a clerk of works, and I do not think they are.

“But even if it had been otherwise, I think the acts of the pursuers would in this case have relieved the engineers of that responsibility.

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Haldane was engaged at a salary of £3 per week. He was to be subject to the orders of the engineers, and to give his whole time to the bridge. But without the knowledge of the engineers the pursuers arranged with him that he should also act as clerk of works at the works being carried on by the Ayr Harbour Trustees, and that each of these bodies should pay him £2 a week. They thus entered into a new contract with him, with which the engineers had nothing to do, and to which certainly they would not have agreed. He was engaged at the bridge under this new contract, and not under his original appointment by the engineers. They also, without the knowledge of the engineers, desired him to report as to the state of the works directly to themselves, and he did so. They also required him to attend various of their meetings. It seems to me that after such proceedings on the part of the pursuers it is out of the question to hold the engineers liable for any failure or neglect of duty on his part.

The result of my opinion, accordingly, is, that the defenders Blyth & Cunningham are entitled to be assoilzied, but that the defenders W. & T. Adams are liable—

1. To repay the pursuers for the work not executed by them, but for which they were paid—i.e. for the ashlar in pier No. 3, being a sum of £193, 4s.

2. That they are liable to the pursuers in the expense of the remedial but not of the protective works—that is, the expense of underbuilding No. 3 pier, and of the apron along the north side thereof, as that was a necessary part of the remedial works. I think they are also liable in the expense of protecting the foundation of the west end of pier No. 3, in respect that it was founded about 4 feet higher than it should have been. This is now effectually done by the invert, and therefore the defenders ought to pay a part of the expense of constructing that invert, but not to an amount exceeding the sum which would have been required to protect the pier if there had been no scouring.

“I think, also, that the defenders are bound to pay a part of the expense of the coffer-dam. I think the pursuers and defenders should each pay for the expense of it in proportion to the benefit they have derived from it—that is, in the proportion which the expense of the protective works (for which the pursuers are liable) bears to the expense of the remedial works (for which the defenders are liable), but not to an amount greater than would have been required if the only object had been to remedy the defects in the pier.”

The pursuers acquiesced in this interlocutor in so far as it assoilzied Messrs Blyth & Cunningham, but reclaimed against it quoad ultra.

When the case came to be argued on the reclaiming-note a question arose as to whether the respondents Messrs W. & T. Adams were entitled to make use, without having expressly adopted it, either (1) of the cross-examination of the pursuers' witnesses by Messrs Blyth & Cunningham; or (2) of the evidence led in chief by Messrs Blyth & Cunningham.

The Court disposed of this on 31st October at the commencement of the argument.

Lord President—Two questions have been raised here about the admissibility of evidence, between which I think there is a material distinction. The first question is, whether in a case where there are two defenders the cross-examination by one defender of the witnesses for the pursuer can be used for or against the other defender without its being expressly adopted by him as his cross-examination. I must say that, judging from my own experience, this is a question quite settled in practice. That experience is not recent, and I do not know what is the practice in the Outer House under the new mode of proof, but under the old system, in which the evidence was led before a jury, it certainly was a rule well settled that whatever was brought out by one defender was held to be evidence in the case to all intents and purposes, and available to all the parties represented before the Judge and jury. I think that was justifiable and convenient in itself, for if it was to be held that anything said in cross-examination could only be made available to the defender extracting it, and not to any other, the result would just be that each defender, if there were two or more, would have to go over precisely the same ground, and repeat each question and answer which was already before the Court or the jury. That I think would be unnecessary, or at least very inconvenient, and therefore the safest and best rule, and what I always understood to be the settled practice, is, that whatever is brought out by any one defender in cross-examination is available to any other defender.

The second question, which is a more difficult one, is, whether evidence led in chief by one defender is available to or can be used against another defender without his adopting it? If it were necessary to decide that question in the abstract here, I should have required time to consider it deliberately, but the conduct of this cause has been such as to dispense with the necessity of deciding it. It is plain, from the way in which the Lord Ordinary has disposed of the case, and from the record of the evidence kept, that the understanding upon which the parties proceeded was that the evidence led for one defender was to be used by the other. The Lord Ordinary uses the evidence led for Blyth & Cunningham both for and against Messrs Adams, and I cannot suppose that he would have done this unless on the footing that there had been such an understanding.

If we were driven to sustain this objection, the result would simply be that we should allow Messrs Adams to lead this evidence over again, and that without any payment of expenses. It therefore follows from what I have said, that Mr Robertson and his clients have no interest to insist in this objection.

Lord Shand—There is no doubt a distinction to be kept in view between cross-examination of the pursuers' witnesses and examination-in-chief of his own witnesses by one of several co-defenders, for in the case of proof-in-chief being led by one defender the other defender has no opportunity of cross-examination—in fact no right of cross-examination except by special arrangement. So, in such cases, it should be made clear that the examination-in-chief of the witnesses for each defender may be used as evidence in the whole cause, and for all purposes, and that this is agreed

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to by the parties, and this may be done either by a minute to that effect, or at least a statement by the counsel for the parties in presence of the Court. In this case it is clear that the Lord Ordinary, from the way in which the case was conducted before him, was satisfied that the parties proceeded on the footing that the evidence-in-chief for Blyth & Cunningham was to be taken as evidence in the whole cause, and I therefore agree in thinking that the proof should be so dealt with now. Even if the pursuers' objection were sustained it would only be to the effect of allowing the witnesses now to be re-examined by the other defenders, the result being that we should have the same evidence given over again, and in these circumstances the objection appears to me to lose all its force, for I do not understand that a re examination of the witnesses is insisted on if this be the result of sustaining the objection.

With regard to the question as to the evidence given on cross-examination of the witnesses, I think it is not uncommon, when counsel for one of two co-defenders has cross-examined a witness, for the counsel for the other to say that the Court should hold that cross-examination repeated on his behalf, and, strictly speaking, I think that is the correct practice. I have seen that occur repeatedly both in jury trials and in proofs, but I think it probable that as proofs have become so much more common the practice may not be so general as it used to be. I have, however, always understood in practice that unless something is said to the contrary cross-examination conducted for one defender is evidence in the whole cause. If the rule were otherwise the obvious inconvenience would arise that after a witness had been cross-examined, possibly at great length, by one defender, the other defender would require to have it repeated word for word. It may be true that the difficulty could be obviated by counsel for the other defender stating that he adopts the cross-examination of the first defender, but I think that the practice that has prevailed is as I have stated it. My view therefore is, that cross-examination by one defender must be held to be part of the evidence in the whole cause, and applicable for or against all the parties unless the other defender interposes and says that it is not to be so held. Then the Judge and the other parties are put on their guard. On the whole matter I concur with your Lordships.

Lord Deas and Lord Mure concurred.

Argued for the reclaimers—The amount awarded was too small, and the pursuers were entitled to expenses. A settlement of accounts was no bar when the contractor had grossly scamped his work.

Argued for the respondents—The test of the work in this case was completion to the satisfaction of the engineer, and the work having been taken over as complete by the person appointed judge by the contract, this settlement could not be opened up on the ground that the work was badly done, especially after the lapse of three years— Muldoon v. Pringle, June 9, 1882, 9 R. 915, 19 Scot. Law Rep. 668; Dunaberg and Witensk Railway Company v. Hopkins, Gilkes, & Company, 36 Law Times, 733; Houldsworth v. Brand's Trustees, May 18, 1875, 2 R. 683; Stevenson v. Watson, 4 C.P.D. 148; Wilson and M'Lennan v. Sinclair, February 12, 1829, 7 S. 401, and December 7, 1830, 4 W. & S. 398. There had been no fraudulent concealment—Story's Equity Jurisp. ii. (9th ed.), sec. 197; Gillespie v. Russell, February 28, 1856, 18 D. 677, and June 26, 1857, 19 D. 897; Broatch v. Jenkins, July 5, 1866, 4 Macph. 1030; Attwood v. Small, 6 C. & F. 232; Clarke v. Mackintosh, 4 Gifford's Ch. Rep. 134; Jennings v. Broughton, 17 Beavan, 235.

At advising—