Scottish Court of Session Decisions

Donald Sutherland, solicitor, Nairn, presented a petition in the Sheriff Court at Nairn, in which he called as defenders Robert Squair, mason, Nairn, George Leith, carpenter, Nairn, Alexander Reid, slater, Nairn, James Campbell, plasterer, Nairn, Francis H. Wink, plumber, Nairn, and George Lobban, painter, Nairn, who had severally contracted with the pursuer to perform the work appropriate to their respective trades required for a dwelling-house which was being built for the pursuer. In this petition the pursuer prayed the Court to remit to, authorise, and appoint W. E. Carruthers, architect, Inverness, or such other person or persons of skill as to the Court might seem proper, to inspect and ascertain the present condition of the house and pertinents, to report as to the amount of work done by each of the defenders under and in conformity with the said contract, and the value of such work, and also to report in like manner what remained to be done by each contractor for the completion of his part of the work.

The pursuer further craved the Court, on advising the said report, to authorise the pursuer to finish and complete the work at the expense of such one or more of the defenders as might appear from the said report not to have finished his part of the said work, at the sight of the said W. E. Carruthers, or other person of skill appointed by the Court, and on the completion of the work to find the pursuer entitled to retain from the said defenders respectively the cost of doing so out of the balance of the contract price.

The following statement of the circumstances in which the petition was presented is taken from the Sheriff's note:—“In February and March 1896 the pursuer entered into a contract with the defenders for the building of a dwelling-house, conform to plans and specification prepared by George Keillor, architect, Nairn. By the said specification, under the head ‘General Conditions,’ the employer, architect, or inspector were, inter alia, empowered to reject any materials which they considered unfit to be used in the work. The employer or architect were also empowered to make such alterations in or deviations from the plans or specification as they thought proper during the progress of the work, these alterations to be valued by the architect at fair current or schedule rates. It was also provided that any questions arising between the employer and contractors, or among the contractors themselves, as to the true intent and meaning of the plans and specification, shall be decided by the architect thereby appointed as sole arbiter agreed on by both parties, whose decision shall be final. And it was further provided that payments were to be made at the rate of 75 per cent. on the value of the work done at the time of payment, no payment to be made except on a certificate that the sum claimed was due, and the payments being made in two instalments, the last being paid when the works were duly certified by the architect as complete.

In regard to the mason-work, again, it was specially provided that the walls were to be ready for the roof by the 1st June 1896, under a penalty of 10s. per day beyond that date.

As to the carpenter-work, it was specially provided that the entire work was to be finished in two months time after the mason was ready for the roof, under a similar penalty.

As to the plaster-work, it was specially provided that the whole work was to be left perfect, to the satisfaction of the architect and employer, in one month after the building was ready for lathing, under a similar penalty.

As to the slater, plumber, and painter work, no time was specified for the completion of the work, and no penalty was imposed in the event of its not being timeously completed, but it was provided that it was to be executed to the entire satisfaction of the employer and architect.”

The pursuer averred, inter alia—“(Cond. 4) The said mason contractor was bound to have the house ready for the roof by the first day of June 1896, but in point of fact it was not ready for the roof until the 27th day of June 1896, from which date the carpenter contractor's time began to run, and in terms of his contract he ought to have had the whole carpenter—work completed and finished by the 27th day of August 1896, but notwithstanding this the said contractors have not yet completed the work of the said house, and have for some time past, notwithstanding all the pursuer's endeavours, ceased to do any work whatever thereon. (Cond. 5) The said George Leith, carpenter contractor, has not only ceased to execute his work under the contract, but interferes with and prevents the pursuer in the full enjoyment and possession of his said property, and even of access thereto, and the pursuer has suffered great loss and damage, and is suffering increasing loss and damage from the delay in the completion of his

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house, which should have been delivered over to him complete by the contractors at latest by the 1st day of October 1896.”

The Sheriff-Substitute ( Rampini) on 19th April 1897 granted warrant to cite the defenders on three days' induciæ.

Separate defences were lodged for (1) Squair, the mason, (2) Lobban, the painter, (3) Wink, the plumber, and (4) Leith, the carpenter, and Campbell, the plasterer.

Squair, the mason, averred that he did not get access to the ground immediately after his offer had been accepted, although he was ready and willing to proceed, but that it was three weeks later before the pursuer's arrangements enabled a start to be made, the pursuer having departed from the original plans and specifications; that the walls were ready for the roof as soon as could be, considering the time when the work was allowed to begin, and that no further progress could be made with certain parts of the mason-work until other contractors prepared the way for him, and with others till he received certain necessary instructions, which he had not yet received from the pursuer or his architect. He also stated that he had not received the first instalment of the price, and that he was willing to proceed when the other contractors made it possible to do so, and on receiving instructions and security for payment.

Lobban, the painter, averred that he had not been able to get access to the premises till long after the proper time; that the painter work was duly completed without any delay on his part so far as it was possible; and that he was ready to complete a small part of the work which remained to be done, subject to his claim of damages for the delay in getting access to the premises, as soon as the building was sufficiently advanced to admit of his doing so.

Wink, the plumber, averred that he commenced the plumber-work whenever the time arrived for him to do so, and that he obtained the architect's certificate for payment of an instalment of £60, but that the pursuer had failed to pay, although he admitted that he ought to do so; and that this defender having consequently made inquiries as to the pursuer's financial position, and found it to be unsatisfactory, refused to proceed with the work until the pursuer had found security for due payment of the balance of the contract price and any necessary extras.

Leith, the carpenter, and Campbell, the plasterer, averred that owing to the non-completion of the plaster-work, which in turn was due to the exceptional wetness of the season, the carpenter was prevented from completing his work till 9th November 1896, when it was all finished with the exception of a few trifling things in connection with the wash-house; that the plaster-work was also completed with the exception of some insignificant matters in the wash-house, which could only be finished when the other contractors were done; and that these contractors were prevented from completing the work in the wash-house owing to the pursuer having stored a quantity of furniture there. It was also stated that the pursuer had failed to pay the second instalment of the contract price for the carpenter-work, although the carpenter had got the architect's certificate that it was due, and, moreover, that the pursuer was insolvent, or at least vergens ad inopiam, and that the carpenter had consequently refused to complete what was left of the work until security was found for payment of the balance of the contract price and extras.

The pursuer pleaded, inter alia—“(1) The defenders, or some or one of them, wrongfully refusing and delaying to fulfil their or his said contract, the pursuer is entitled to warrant and decree as craved. (3) The statements of defenders are irrelevant and insufficient to support their pleas, and are no answer to the action.”

The defenders Squair and Leith and Campbell pleaded that the action was incompetent and irrelevant. The defender Lobban pleaded that the action was irrelevant. All the defenders also pleaded that the action was excluded by the clause of reference in the contract, and also stated various pleas on the merits founded upon the averments above set forth.

By interlocutor dated 4th May 1897 the Sheriff-Substitute refused in hoc statu the pursuer's motion for a remit to an architect to report ad interim.

Thereafter the Sheriff-Substitute, having heard parties' procurators, by interlocutor dated 25th May 1897 refused the pursuer's motion for a remit to an architect to inspect and report, and by interlocutor dated 29th May 1897 found the action relevant, and before answer allowed all parties a proof of their respective averments and the pursuer a conjunct probation, and of new refused the pursuer's motion for a remit to an architect to inspect and report, adding the following—

Note.—“The jurisdiction of the Court does not appear to the Sheriff-Substitute to be ousted by the clause of arbitration. He does not see what possible advantage could be obtained by a remit to an architect at this stage of the proceedings.”

The pursuer appealed to the Sheriff ( Ivory), who on 8th December 1897 issued the following interlocutor:—“Recals the interlocutor appealed against: … Finds that the pursuer's averments are not relevant or sufficient to support his application, or to entitle him to the remedy sought for: Therefore dismisses the action, and decerns: Finds the pursuer liable in expenses to the defenders according to the higher scale,” &c.

Note.—[ After stating the circumstances and summarising the pursuer's averments and the prayer of his petition as above set forth]—“It will thus be seen that the present summary application is presented not merely for the purpose of obtaining a remit to a person of skill to report on the

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present condition of the building, but that its main object is to take the execution of the contract entirely out of the hands of the contractors, and of the architect and arbiter appointed by both parties to see to its due implement, and to hand the work over to the pursuer himself and another architect nominated by him or appointed by the Court, that they may execute it at the defenders' expense. And the pursuer asks that all this should be done not only without the consent of the defenders, but against their will, and without their having been first called on to complete the contract themselves.

The Sheriff has been referred to no case in which such a summary application has been granted, and he entertains great doubt as to its competency. The usual course for enforcing fulfilment of a contract is to raise an ordinary action against the contractor, calling upon him to implement his contract, and only in the event of the call or decerniture against the contractor to go on being disregarded, to have the contract taken out of his hands and executed under the authority of the Court. But assuming that the present application is incompetent, there can be no doubt that strong grounds ought to be shown for such exceptional procedure before it is granted. But no such grounds are even averred in the present case. In regard to the mason-work, the only ground stated is that it should have been ready by 1st June, whereas it was not finished until the 27th of that month. That may be a good ground for claiming damages against the contractor, but if the mason-work was finished on 27th June it was no ground for making the latter a party to the present action for completion of the contract. As to the slater, plumber, and painter-work, no time was specified for the completion of the work, and there is no relevant averment of breach of these contracts.

As to the plaster-work, the pursuer no doubt avers that it should have been finished within one month after the building was ready for lathing, but he nowhere states at what date the building was ready for this purpose, or that the contractor culpably failed to finish his work within one month after that date.

As to the carpenter-work, the pursuer no doubt avers that it was to be finished in two months after the building was ready for the roof, that the building was so ready on 29th June, and the contractor ought to have had it completed by 29th August 1896, and that it is not yet completed.

[ The Sheriff then stated the substance of the defender Leith's averments as above set forth, and proceeded]—“Further, the defender Leith has stated various pleas-in-law founded on these statements, which cannot competently be disposed of under the present petition; and there are various averments made, and pleas-in-law stated by the other defenders in their defences which are in a similar position. On the whole, therefore, the Sheriff is of opinion that the pursuer's averments are not relevant or sufficient to entitle him to the remedy sought for, and he has dismissed the action on this ground. But apart from this, it appears to the Sheriff that the pursuer's application ought not to be granted on the following grounds:—(1) The case is not one requiring extraordinary despatch, and does not fall within the definition given in the Act of Sederunt 1839, section 137, of those cases in which application by summary petition may be made to the Sheriff. (2) The delay in presenting this summary application is of itself a sufficient ground for refusing it. The pursuer himself states that the house ought to have been delivered over to him complete by the contractors at latest by 1st October 1896, whereas the application was not presented until 19th April 1897. (3) The various disputed questions both of fact and of law raised by the parties in their defences cannot competently be disposed of without the consent of all parties, either by a person of skill under the remit proposed by the pursuer, or by the Sheriff himself on the report of such person. (4) These can only competently be disposed of either by the arbiter selected by both parties in terms of the contract (so far as they fall within the clause of arbitration contained therein), or by the Sheriff after both parties have been allowed a proof of their averments in the usual way.”

The Sheriff explained that, the contract not being duly stamped when the case was heard on appeal on 1st September, the pursuer's agent had undertaken to have it duly stamped before the case was forwarded to the Sheriff, but that the stamped contract was not received by the Sheriff-Clerk till 3rd December, and that this accounted for the Sheriff's delay in deciding the case.

The pursuer appealed to the Second Division of the Court of Session, and argued—This application was competent and expedient with a view to having the state of the work judicially determined— Lees' Sheriff Court Styles (3rd ed.), pp. 135 and 136; Soutar's Sheriff Court Styles (1859), p. 195; and Robson v. Butman, April 30, 1856 (not reported), per Lord Handyside, Ordinary, there referred to; Sykes v. Nicol, July 18, 1848, 10 D. 1499, per Lord Mackenzie at p. 1501; Dumfriesshire Road Trustees v. Johnston, July 18, 1867, 4 S.L.R. 197; Gordon's Trustees v. Melrose, June 25, 1870, 8 Macph. 906; Dickson v. Graham, May 12, 1877, 4 R. 717 (the two cases last mentioned being applications for remits with regard to the condition of farm buildings and fences at the conclusion of a lease); Act of Sederunt 1839, section 88, and Sheriff Court Act 1853, section 10. The Sheriff's objection that a summary application was not competent in this case upon the ground that it did not come within the definition contained in the Act of Sederunt 1839, section 137, was unfounded, that section being now superseded. There was no longer any distinction in form between summary and

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ordinary proceedings in the Sheriff Court-all actions being now commenced by petition, but in any case the Sheriff, if so advised, could shorten the ordinary inducise, as had been done in this case—Sheriff Court Act 1876, sections 6 and 8 (2). Nor should the petition be refused on the ground of delay. The Sheriff in upholding that objection had probably proceeded upon the case of Baird v. Mount, July 3, 1874, 1 R. 1119, but that case was distinguished from the present in respect that there the circumstances had so changed as to make it impossible to ascertain the facts by inspection, whereas here the house was still exactly as the contractors had left it, and no change whatever had taken place.

Counsel for the defenders and respondents were not called upon.