Scottish Court of Session Decisions

In this action, which was at the instance of Mr William Marshall against the Callander and Trossachs Company and others, the pursuer asked for declarator that the defenders were bound to rebuild certain subjects which had been destroyed by fire.

The Lord Ordinary ( Kyllachy), on 1st March 1896 pronounced an interlocutor by which he ordained the defenders to rebuild the buildings, “and that to the extent necessary to maintain said buildings as of the total value of £15,000, said rebuilding to be commenced within three months of the date hereof, to be duly proceeded with to the satisfaction of John Dick Peddie, architect, Edinburgh, and to be completed to his satisfaction within two years from the date hereof; quoad ultra continues the cause.”

This interlocutor was affirmed by the First Division, and subsequently on 8th May 1896 by the House of Lords with consent of the defenders.

By a subsequent decision of the First Division it was held (reversing the decision of Lord Kyllachy) that the period of three months within which the work was to be commenced did not begin to run till the date when the interlocutor was affirmed by the House of Lords, viz., 8th May 1896.

Sundry correspondence passed between the parties and Mr Dick Peddie as to whether the new buildings which the defenders were in the course of erecting would be in conformity with their obligations under the interlocutor of 1st March 1895, and on 11th January 1897 Mr Dick Peddie reported on the subject to the Lord Ordinary.

The report contained, inter alia, the following statements.—“The plans and other documents in connection with the rebuilding which have been submitted to the reporter are not for rebuilding in the sense of providing a building on the lines of that which was destroyed, but are for a building of entirely different design and character.

“It is possibly open to question whether the terms of the interlocutor would be satisfied were a new building of entirely different design constructed, even assuming it to be well planned, substantially built, and of the required size to be of the market value of £15,000, but the reporter thought it unnecessary to ask for your Lordship's opinion on the point as the plans submitted fail to meet certain conditions which are alike essential in case of partial restoration of the old building, or the construction of a new one to take its place. The accommodation provided by the plans submitted is deficient, the arrangements are in many respects unsatisfactory, and the methods of construction proposed are not such as are fitted to produce a building which would have a value in the market of £15,000, an essential condition to that end being that the structure shall be of a substantial and durable nature.”

The reporter then proceeded to describe various items in the proposed buildings to which he objected.

Objections were lodged by the defenders to this report—“(1) The defenders object to Mr Dick Peddie's report in respect that it proceeds upon the assumption that the building to be erected by the defenders must be of the market value of £15,000. The defenders submit that this assumption proceeds upon a misinterpretation of the interlocutor of 1st. March 1896, and of the feu-charter. The defenders maintain that they will fulfil their obligation if they judiciously expend a sum of £15,000 upon the erection of a building suitable for a hydropathic establishment. In point of fact, the building which the defenders propose to erect will, as appears from the estimates, cost upwards of £20,000. The defenders maintain that the suggested test of market value is so vague and uncertain that it cannot have been contemplated

Page: 531↓

either by the Court or by the parties to the feu-charter, and that it is impossible to apply it practically. There are no means of knowing what sum would be obtained in the market on the sale of a hydropathic establishment…. (3) The defenders further object to the report in respect that it proceeds upon an erroneous view of the reporter's position and duties under the interlocutor of 1st March 1896. The defenders are advised that Mr Dick Peddie's duties under that interlocutor are merely ministerial, that he is appointed to see that the defenders lose no time in rebuilding, and that the work is properly executed, but that he is not constituted judge on questions of value, or in regard to the plans and design of the work.”

The pursuer lodged answers, in which he maintained that he was “entitled to have the buildings of the hydropathic establishment … rebuilt to the extent necessary to maintain the said buildings as of the total market value of £15,000…. The pursuer further submits that there is no difficulty in determining the market value.” He further maintained that the reporter's duty was not limited as alleged by the defenders.

The Lord Ordinary on 3rd February 1897 pronounced the following interlocutor—“Finds that upon the just construction of the feu-contract, and of the judgment of the Court affirmed by the House of Lords, the defenders are bound to erect in lieu of the building destroyed by fire a building suitable for a hydropathic establishment, which shall be of the value of at least £15,000—that is to say shall be capable of realising that value if put into the market along with the ground feued or so much thereof as may be necessary to its most advantageous disposal: Finds that it is sufficiently established by Mr Peddie's report that the building of which plans have been prepared, and which has been or is about to be commenced in accordance with those plans, is not a building which satisfies or will satisfy the above conditions: Finds, therefore, that the defenders have not commenced the erection of the building required by the judgment of the Court within three months from the date of the judgment of the Court or of the House of Lords: With these findings appoints the cause to be put to the roll for further procedure, and grants leave to reclaim.”

Opinion.—“I think the interlocutor which I have read perhaps sufficiently explains itself. But there are one or two points which are touched upon in the objections and answers, as to which I may say a word.

In the first place, it does not appear to me that Mr Peddie went at all beyond his province in examining the plans of the proposed building, and in reporting upon those plans as he has done. The judgment of the Court directs that the building shall be commenced within a certain time, and ‘duly proceeded with’ at the sight of him (Mr Peddie), and that being so, I take it that it was not only his right but his duty to ascertain and report whether the building was being proceeded with in due course—that is to say, in conformity with the judgment of the Court.

In the next place, although this point was not specially raised at the discussion, I see no reason why in a matter of this kind—a matter of skilled opinion and ultimately of valuation—the Court if satisfied as to the correctness of the reporter's principles, should not accept and proceed upon the reporter's conclusions. The alternative would of course be a proof with a number of skilled witnesses on either side, a procedure which I should deprecate. In point of fact neither party moved for a proof. If they should do so elswhere, the point will no doubt be considered.

In the third place, I see no reason why the requirement of the feu-contract, and of the judgment of the Court to the effect that the building to be erected shall be of a certain ‘value,’ should not be construed in its natural sense. The stipulation is not an unusual one in feuing transactions, and as at present advised I see no particular difficulty in working it out. The suggestion that ‘value’ means cost—that is to say, outlay judiciously expended—is not to my mind intelligible. I do not understand how money can be judiciously expended if what is produced is worthless or not worth the money expended.

It is a different suggestion that the primary obligation of the defenders is to rebuild—that is to say, to restore the building which was burned down—and that therefore it should be declared that the building to be erected shall not only be suitable for a hydropathic establishment, but shall also—so far as compatible with the allowed limit of value—be erected on the lines of the old building. But it being once admitted that the value to be restored need not exceed £15,000, I do not at present see that there is any practical object in making a declarator of that kind. It appears to me that the terms, and certainly the substance, of the Court's judgment will be satisfied if a building is erected which, if it had been the original building, would have satisfied the feuars' obligation.

As to what follows from the views I have thus expressed, I do not at present see how the conclusion can be escaped that the defenders have failed to commence the building required by the judgment of the Court within the time allowed. I have accordingly thought it proper so to find. Whether that being found involves as a logical consequence that I should repeat my interlocutor of 18th July 1896, which was recalled I am informed as premature, I do not think I am called upon to determine. I have not been moved to repeat that interlocutor, and I therefore do not in the meantime do so. If the case goes further that question may also be considered under the leave to reclaim, which both parties are agreed that I should grant.”

The defenders reclaimed.

The arguments submitted by the parties sufficiently appear from their objections to the report.

Page: 532↓

At advising—