Scottish Court of Session Decisions

On the 15th November 1907 Messrs Boyd & Forrest, contractors, Kilmarnock, who had completed the formation of the Dalry and North Johnstone Railway for the Glasgow and South-Western Railway Company, brought an action against the Railway Company with a simple petitory conclusion for £106,688, 13s. 11d.

The pursuers, inter alia, pleaded—“(2) The pursuers having on the defenders' employment executed the work contained in the account sued for, and the prices charged therefor being fair and reasonable, the pursuers are entitled to decree as concluded for. (3) The contract founded upon by the defenders is inapplicable as the basis of charge for the work executed by the pursuers, and is no longer binding upon the pursuers, in respect ( a) that said contract was induced by the fraud of the defenders, ( b) that said contract was entered into by the pursuers under essential error induced by the misrepresentations of the defenders, ( c) that the work as executed by the pursuers proved to be entirely different from that contemplated by the contract, ( d) that said contract was by agreement of parties departed from as the basis of charge, and ( e) that the defenders are by their actings barred from founding on said contract as the basis of charge. (4) Alternatively, the pursuers having suffered loss and damage to the extent of the sum sued for, owing to the fraud, negligence, or breach of contract of the defenders as condescended on, the pursuers are entitled to decree as concluded for.”

The defenders, inter alia pleaded—“(3) The contract between the parties for the execution of the said work standing unreduced, the pursuers are barred from insisting in the present action. (4) The pursuers having agreed in terms of the contract libelled to execute the work specified in the account sued on for the lump price of £243,090, and the defenders having made payment to the pursuers of the said contract price, the defenders should be assoilzied. (5) Separatim — The work specified in the account sued on in so far as falling within the contract between the parties, having been included in the payment by

Page: 158↓

the defenders of the contract price, and in so far as consisting of extra work having been included in the additional payments condescended on, the defenders are entitled to absolvitor.”

The facts are given in the findings and opinion of the Lord Ordinary ( Johnston), who, after a proof which had been allowed the pursuers on their third plea-in-law, pronounced this interlocutor — “ Finds that by missives, dated 19th March and 12th April 1900, bearing reference to relative plans, specification, and schedule of quantities, and by formal contract dated 16th and 18th September 1900 following thereon, the pursuers contracted with the defenders to execute the works necessary for the construction of a line of railway from Dalry to North Johnstone; that the contract was a lump sum contract for execution of the work as detailed in the schedule; that as regards a material part of the work contracted for, the price was based upon calculations of quantities included in the schedule, and that these calculations were based upon the information alleged to be derived from certain borings, an alleged journal of which was submitted by the defenders to the pursuers before they made their offer; that the alleged journal of bores is thus the basis of a material part of the contract: Finds further, that as regards a portion of the line in question, this alleged journal of bores is not a journal in the ordinary acceptation of the term, and as contemplated by the specification, and therefore by the contract, and was not prepared by or issued on the responsibility of the borer; that for this portion of the line, which from the length and the nature of the operations necessary for its formation was a material portion of the line, the alleged journal of bores was constructed by the engineer of the defenders from information afforded by a servant of the defenders, who was not a trained or experienced borer; that such information was defective in itself, and further, was not adopted by the defenders' engineer as it was received, but was interpreted by him according to his personal impression or opinion of what his informant meant: Finds that the defenders' engineer, for whom they are responsible, so acted recklessly and with gross disregard for the interests of the pursuers and other intending offerers: Finds that the consequence of such actings was that the alleged journal of bores essentially misrepresented the nature of the strata through which the last-mentioned portion of the line was to pass; that said misrepresentation materially induced to the contract; that said misrepresentation though directly affecting only a part of the line, indirectly affected the execution of the whole contract; and that the contract so induced has in the execution of the work contracted for involved serious loss to the pursuers: Finds that in these circumstances the defenders are barred from founding upon the clauses in the contract intended to protect them from responsibility for inaccuracies in the information afforded to intending offerers and otherwise; and that the contract itself is not binding upon the pursuers, and does not fix the price to be paid by the defenders to the pursuers: Therefore sustains branches ( a), ( b), and ( e) of the third plea-in-law for the pursuers; and finds that the pursuers having on the defenders' employment executed the work contained in the account sued for, are entitled to reasonable recompense therefor, allowing for payments to account, either in name of quantum meruit or, which in the present case is substantially the same thing, of damages, as the same may be ascertained.”

Opinion.—“In form this action is a petitory action for £106,688, 13s. 11d., which is the difference between the sum alleged to be due by the defenders, the Glasgow and South-Western Railway Company, to the pursuers, Messrs Boyd & Forrest, contractors, under deduction of sums admittedly paid, for the construction of a short piece of line between Dalry and Johnstone, as per the account, which sets out the items in great detail, the ultimate result being as above—

Claim for work done	£378,658 13 11
Sum admittedly received	271.970 0 0
Balance, being sum sued for	£106,688 13 11

But while this is the form of the action, the real question at issue is, whether the contract under which the work was done is binding, and regulates the payment due by defenders to pursuers, in which case the pursuers have received more than the contract price, viz.—

Sum received	£271,970
Contract price	243.090
Excess of payments	£28,880

or whether the pursuers rightly demand that the contract be disregarded, and that they be paid a quantum meruit for their work. There is also an alternative claim for damages for breach of contract.

There is no question that the pursuers undertook a work enormously more difficult than was contemplated by either party to the contract, and that they have incurred a ruinous loss, but that of course does not entitle them to set aside the contract, and claim as if it had never been made. They base their main case upon the misleading misrepresentation, made to them in the journal of bores, which was the basis and the sole basis of the important part of the contract between them and the defenders, which was concerned with the cutting and embanking of the line. Unless they substantiate this misrepresentation they cannot succeed on this branch of their case, nor can they, except partially, on the alleged breach of contract. In my opinion they have substantiated it in point of fact. But the effect in relation to the special terms and circumstances of the contract has to be considered before judgment even in point of principle can be given for the pursuers. It would remain, even then, to ascertain the quantum meruit, for parties were agreed that the proof should be restricted to the constitution in point of principle of the pursuers' claim.

Page: 159↓

I do not at present touch upon the subordinate case of breach of contract.

The line in question was to be a loop or alternative line from Dalry via Kilbirnie, Lochwinnoch, Castle Semple, and Kilbarchan to the north side of Johnstone, where it was to form a junction with the Glasgow and South-Western's Greenock line. From Dalry to Johnstone it ran practically parallel to, and about 1 mile to 1 1 2 miles to the west of the Glasgow and South-Western main line. It was about 12 1 2 miles long.

As set out on the plan and on the ground, the line was divided into some 217 sections of 100 yards each, marked off by numbered pegs, No. 1 peg commencing at the south or Dalry end. For my purpose it is enough to explain at the outset that the formation of the line involved three main cuttings, known respectively as the Kilbirnie, the Whirlhill, and the Castle Semple cutting, taking them in order from the south cutting northwards, the rest of the work being generally speaking embanking. But as in every piece of railway contracting, the practical execution of the contract and the achievement of profit or realisation of loss, depended upon the relation of the cutting to the embanking, and the proper disposition or laying out of the work to be executed accordingly. This rudimentary fact goes to the root of the present case. It is one of common knowledge, though, if for form's sake that is necessary, it is amply proved by the evidence, and I regard it as necessarily fully in view both of the railway company's advisers and of the contractor, at the inception of the contract. If the basis on which the contractor is led to lay out and prosecute his work is disturbed, the whole operation is thrown out of gear, and his calculations of price are falsified. It is impossible to treat any one or more items of the work in isolation. They are all so correlated that each affects the price of the whole.

From peg 1 at Dalry to peg 45 going northward formation level was above the surface of the ground, and therefore it was all embankment.

From peg 45 to peg 67 was the Kilbirnie cutting, the serious part of which was from peg 54 to peg 66. In this latter section were situated, of the bores which were taken, bores Nos. 7 to 12.

Between pegs 55 and 56 the cutting for the intended line encountered the Paisley main water supply pipe, leading from the reservoir to the distributing system. The water pipe plays a large part in the alternative claim of damages, and was ultimately carried across the line by a bridge, not part of the scheduled works.

The Kilbirnie cutting ends at peg 57 with the viaduct crossing the Maich water, a considerable stream with steep banks.

The Whirlhill cutting commenced at the north side of the Maich and extended from peg 68 to peg 86. It contained bores Nos. 13 to 20.

The Castle Semple cutting commenced with peg 125 and extended to peg 135. It contained bores Nos. 26 to 29.

What I have now described composed what in working was known as the southern or Dalry section of the contract from pegs 1 to 137. The northern or Johnstone section, from pegs 137 to 217, was shorter and did not present any such marked features, and it is unnecessary to refer to it in detail. It contained bores Nos. 30 to 55. Its cuttings and enbankments were shallower and shorter, and presented in themselves comparatively little difficulty. The evidence is, generally speaking, concerned only with the work on the southern section.

Turning now to the contract. The line had been authorised by Acts of 1897, 1898, and 1899. But advertisements for tenders only appeared on 26th and 28th February, and 2nd and 5th March 1900, and it is essential to note—(1) That plans, sections, and drawings were to be seen, on and after Monday, 5th March 1900, at the office of the company's engineer in Glasgow, ‘where copies of the specification, schedule of quantities, and form of tender may be obtained.’ In point of fact the specification was not ready for issue till 5th March, for it bears that date. (2) That on 8th March an assistant engineer would meet contractors on the ground and accompany them over it to point out the site of the works. (3) That tenders must be lodged not later than Monday, 19th March 1900.

I think that it is an essential circumstance, which the Court is entitled and bound to consider when interpreting the contract, that whereas the company had been engaged off and on for four years in taking their bores and preparing their plans and other contract documents, contractors were given fourteen days at most, and a bare ten from the date of the visit to the ground, to master the details of the plans, sections, and drawings and relative specification, and to price the voluminous schedule with a view to their offers.

The pursuers, Messrs Boyd & Forrest, tendered on 19th March, and their tender was accepted on 12th April 1900. Their tender was ‘to construct and maintain the works comprised under the contract for the Dalry and North Johnstone Railway and Dalry Widening, in terms of the specification and according to the relative plans, sections, and drawings, and to the contract to follow hereon, for the lump sum of £243,090.’ Though work was begun on faith of the missives in April-May 1900 the formal contract was not signed until 16th and 18th September of that year.

The next point to note is that the contract was what is known as a ‘lump sum contract.’ The contractors bound themselves by the formal contract ‘for the lump sum hereinafter mentioned, which shall be held as covering everything requiring to be executed under the plans, sections, and drawings’ signed as relative to the contract and ‘the specification, appendix, and detailed schedule, a print of which’ was annexed to the contract and also signed as relative thereto, that they would well and substantially execute, complete, and maintain the whole works necessary for the

Page: 160↓

formation of the line authorised, ‘all as particularly specified and described in and conform to the said specification, appendix, and detailed schedule, and that on the terms and conditions specified in and also according to the true intent and meaning of the said specification, appendix, and detailed schedule and of this contract and according to the foresaid plans’ &c.

The works were to be completed within thirty months from 12th April 1900, under penalty of £10 a day's delay. In consideration thereof the company bound themselves to pay to the contractors ‘the lump sum of £243,090 sterling, being the agreed-on price for the construction, completion, and maintenance of the whole works hereby contracted for. And also to make payment’ to the contractors ‘of any such further sum or sums as may be fixed as the price or value of any extra work or works not embraced under the contract, which “the contractors” may be directed to perform, and shall perform, in terms of the said specification, but subject on the other hand to deduction for and on account of such portions as may not be required or which may be omitted to be done, or may have been withdrawn from the contract or dispensed with, and to deduction also for such alterations and modifications as are less expensive than the works specified.’ There follows a reference clause, as is usual in such contracts, but its consideration does not enter into the present question.

The only incidental provision in the contract which need be noticed, as it bears on the alternative damages claim, is ( Third)—The contractors ‘shall also be responsible for and shall at their own expense repair and make good any injury which may be done to any street, road, tramway, railway, pavement, causeway, drain, gas or water pipes, through their operations, to the satisfaction of the parties having charge of them, and shall also observe all police regulations in connection therewith, and free and relieve’ the company ‘of any liability arising from failure to do so.’

The specification is, however, the more important document in relation to the present case. It contained the following provisions:— ‘The contract shall include all excavations, embankments, forming, metalling, and finishing roads and platforms, bridges, culverts, drains, retaining and fence walls, fencing, &c., also raillaying and ballasting, together with all other works necessary for the completion of the formation of the railway and widening, all as specified herein

The whole works shall be executed according to the respective plans, sections, and drawings to this specification, and the contract to follow hereon. A list of the drawings is given at the end of the specification.

The plans, sections, and drawings are intended to show the extent and position of the work and the details of its construction; but neither they nor the specification are meant to show or describe every part or portion of the work. Should there be any things omitted, therefore, which may be fairly considered to be necessary for the completion of the work, they shall be held as included in the contract sum, and no advantage is to be taken by the contractor of any apparent or inadvertent errors or omissions.

‘ Cuttings and Embankments.

Bores have been put down at various parts of the line, the positions of which are shown on the small scale plan, and a copy of the journal of these bores may be seen at the engineer's office, but the company does not in any way guarantee their accuracy, or that they will be a guide to the nature of the surrounding strata. Contractors must therefore satisfy themselves as to the nature of the strata, as the company will not hold themselves liable for any claim that may be made against them on account of any inaccuracy in the journals of the bores.

The formation level in both cuttings and embankments shall be 1 foot 9 inches below mean rail level.

Of the probability of rock existing in any of the cuttings or other excavations to a greater extent than the quantity given in the detailed schedule, the contractor must judge, and also form his own opinion as to the nature of the strata of the material in the various cuttings or excavations and in the base of the embankments, and price the quantities in the detailed schedule accordingly, as no allowance whatever will be made over the lump sum in the detailed schedule for these, although the material may turn out to be different from what is calculated and given in the detailed schedule.

On the longitudinal section and cross-sections the hatched brown line shows the assumed surface of rock; where the journal of bores shows loose or broken rock, then the assumed surface of the solid rock is shown by a dotted brown line on the sections. The calculations of the quantities of the cuttings have been made in accordance therewith; all the material in the cuttings above the hatched brown line shown on sections is measured as soft cutting, and the contractor will only be paid for it as such

The material required to complete the embankments shall be obtained as may be directed by the engineer during the progress of the work, by flattening the back slopes of the cuttings, or from side cuttings, or from material supplied by the company in waggons, and emptied—either by the company or by the contractor—as may be instructed by the engineer.’

General Clauses.

The attention of contractors is directed to sections 18, 19, 20, 21, 22, 23, 46, 47, 48, 49, 50, and 51 of the Railways Clauses Consolidation (Scotland) Act 1845, and section 11 of the Glasgow and South-Western Railway Act 1897, as the contractor shall be bound to implement the whole obligations relative to watercourses, water and gas pipes, sewers and drains, roads and streets, ways and communications there laid upon the company, and he

Page: 161↓

shall be bound to free and relieve the company of all the penalties thereby imposed, as well as of all liabilities, damages, and expenses that may be incurred, and generally the whole consequences that may arise from his failure to implement such obligations.

With reference to the Acts above mentioned, the contractor shall provide all such pipes and execute all such works, whether permanent or temporary, as may be necessary to maintain the use of all watercourses, and water and gas pipes, sewers, and drains, during the construction of the works, and the contractor shall be bound to restore to their original line and level all such water and gas pipes, sewers and drains, or as near thereto as may be consistent with the construction of the railway and works

The contractor shall not be entitled to execute or begin to execute any extra or altered work, or work which he may consider or intend to claim payment for as such, without first having obtained a written order therefor signed by the engineer.… The contractor shall not be entitled to render any claims by time accounts, unless when these are specially permitted or ordered by the engineer during the progress of the works; and in that case the contractor shall be bound to render to the resident engineer, his assistants or inspector, fortnightly statements of said time accounts, and also a complete account for each extra piece of work on its completion; and whenever desired by the engineer, resident engineer, his assistants or inspector, the contractor shall produce his timekeeper's book for examination, and shall afford every facility to enable them to check the time

Contractors are required to state a lump sum for the whole work required under the contract, and a separate lump sum for the maintenance of the same, and to accompany their offers with a minutely detailed schedule. To assist them in doing this, detailed schedules of the work specified are provided, and which schedules are believed to be accurate, but at the same time are not warranted as accurate—and no claim of any kind shall be made or allowed though the same shall be found incomplete or inaccurate, the contractor being bound to satisfy himself as to their completeness and accuracy before making any offer; and it is hereby expressly stipulated that the contractor shall not be entitled to set aside the contract to follow hereupon in whole or in part, or to demand any extra price for all or any part of the said works, or otherwise, on the ground of any error in, or omission from, or discrepancy between, the specification, plans, sections, drawings, and detailed schedule, or any of them, or on the ground that the extent and nature of any of the works necessary to be performed in carrying out and completing and maintaining the work contracted for has not been correctly represented in the specification, plans, sections, drawings, and detailed schedule, or some of them. The prices in the detailed schedule shall be used by the engineer in regulating the monthly payments, and the price of any additions to, deductions, exclusions, and dispensations from, or alterations upon the works, whenever the said detailed schedule contains a price applicable to the description of work so added, deducted, excluded, dispensed with, or altered; but it shall be in the power of the arbiter after named—in case of dispute as to the amount of the monthly payments which should be paid, or as to the price proposed by the engineer of any works so added, deducted, excluded, dispensed with, or altered, and provided it shall not be found by the arbiter that the whole work, as specified, accurately measured, and valued by the prices in the said detailed schedule, shall amount to the lump sum in the tender, or that the prices have not been properly put, keeping in view the nature of the work and the lump sum of the tender—to fix prices in lieu of those in the detailed schedule, which will be used in regulating the amounts of the monthly payments, and the prices of additions to, deductions, exclusions, and dispensations from, and alterations upon the works specified.

The directors reserve full power, either by themselves or by the engineer, to alter, modify, or add to, exclude or dispense with, any part or parts of the work embraced under this contract, an addition to the lump sum in the tender being made for all additional works, and a deduction for all works excluded or dispensed with, and an addition to or deduction from the said lump sum for and on account of all altered works, according as the alterations may increase or diminish the expense of the works; but in no case shall any compensation for damage, injury, loss of profit, or otherwise, be allowed to the contractor for or on account of any works altered, excluded, or dispensed with, to whatever extent the directors may exercise the powers above reserved.’

It will be observed that a contract based on this specification was very stringent as regards the contractor, while relatively elastic as regards the Railway Company. For his lump sum price the contractor must do the whole work contracted for, and assumed to be scheduled, though the accuracy of the schedule is not warranted. Neither inaccuracy of the plans nor of the schedule gives him any claim for extra price or other relief. Yet he is liable to have his lump sum price reduced by the withdrawal from him of any part or parts of the work, calculated or valued at his schedule prices.

This in its bearing on the present question is well illustrated when one comes to examine the schedule.

It commences with this note—‘The particular attention of intending contractors is directed to the specification in regard to the following matters: The probability of slips in cuttings and embankments and sites of embankments. The probability of more or less rock or soft material having to be excavated, as no allowance will be made should the material

Page: 162↓

turn out to be different from what is calculated and given in this schedule.’ Now the first matter detailed in the schedule is the assumed amount of material in the cuttings, e.g. — cub. yds.

( a) Between peg 45 and peg 67, soft,	275,560
Do., rock,	41,765
This is the Kilbirnie cutting.
( b) Between peg 67 and peg 87, soft,	146,610
Do., broken or loose rock,	1,875
Do., rock,	60,830
This is the Whirlhill cutting.
( c) Between peg 125 and peg 137, soft,	80,260
Do., broken or loose rock,	21,060
Do., rock	39,105
This is the Castle Semple cutting. Now the contractor's price for soft was	1s. 2 1 2d.
Do. broken rock	2s.
Do. solid rock	3s.

and the price for cutting indirectly included that for embanking, as no separate price is stated for embanking, it being assumed that the operations of cutting and embanking were practically one, the amount of cutting being calculated substantially to provide the amount of embanking required, and the materials got by cutting being only to be disposed or got rid of by the embanking.

If, then, the ‘assumed surface of rock’ in say the Whirlhill cutting turns out to be totally erroneous and the figures to be reversed, so that there is found to be 60,830 soft and 146,610 rock in place of 146,610 soft and 60,830 rock, nevertheless if the contract is to receive its natural and full effect the contractors must do the extra rock cutting entailed without redress in price or otherwise.

Such has happened, not of course to such an extravagant degree as I have supposed, but still to a degree so substantial as entirely to upset the contractor's calculations, and to involve him in serious financial difficulty. The question to be solved is, can the Railway Company stand upon the stringent but express terms of their bargain, or can the contractor find any road of escape. I trust I do no injustice to either party if I say that hard as the contract is for the contractors, no blame is on the one hand to be imputed to the Railway Company's officials, who have their shareholders to consider and who are accustomed to trouble with contractors, if they make their contracts as stringent as contractors can be found to accept, and on the other hand that if contractors, in their competitive eagerness, will accept such stringent terms, blindly hoping that things will turn out all right, they have themselves to thank if they find themselves in the grip of such clauses as I have been at pains to quote. But railway companies cannot look for any benignant construction or application of such clauses, but must expect them and their incidents to be examined and applied, not with hostility indeed, but with that strictness which will give the contractor fair dealing and justice in the end of the day.

The contract price may be divided roughly into—

“(1) Cutting and embankment	£81,736
(2) Bridge and culvert building	93,873
(3) Sundries, including ballasting	67,481
	£243,090

One-third of the contract price therefore went in cutting and embanking. Not only then was cutting and embanking a very important part of the contract, but towards the success of the contract it was in my opinion a dominating factor out of proportion to the money involved. Moreover, one thing is beyond question, that herein lay the contractor's material risk, for it involved uncertain elements, whereas the rest of the contract was comparatively plain sailing.

Hence I agree entirely with Mr Clyde and his client Mr Forrest that the bores on which the calculation of quantities was made are the very basis of the contract. That they were grievously inaccurate wants nothing further to prove it than a reference to the longitudinal and progressive section. A handy and convenient way of ascertaining the general amount of inaccuracy is given in the tracings, which were taken by the pursuers for the purpose of illustration merely, from the above-mentioned authoritative documents—

Whereas the contract schedule called for rock in Kilbirnie	cub.yds.
cutting	41,765
and in Whirlhill cutting	60,830
Total	102,595
There was found according to	cub.yds.
Mr Forrest	76,009
and	86,242
Total	162,251

respectively, or an increase of 60 per cent.

I do not of course accept Mr Forrest's figures as absolutely accurate, though for my purpose I am satisfied that they are sufficiently so. For I think that it is futile for the Railway Company to attempt to gainsay them against the evidence of (1) the progressive sections of their own engineering staff, and (2) the so-called ex gratia payments made by them. I had the feeling throughout the evidence that on this and a good many other points Mr Melville and his subordinates were defending, not merely their company, but their own position, and I cannot say that their evidence impressed me so favourably as it might otherwise have done. Mr Melville is very hard put to it when, in the course of his cross-examination on the subject, he attempts to throw over his own subordinates, the contemporaneous evidence of level books and progressive section, and to meet the evidence against him by the assertion that ‘actual top of rock’ means no such thing, but only the actual top of what he ex gratia paid for as rock. I think that it would have been more to his credit if he had frankly confessed to an egregious blunder at the basis of his calculations, and taken his stand upon the freedom to blunder which the company maintain the contract gives them, for to that it comes in the long run.

Page: 163↓

If words could do it, the passages which I have quoted from the various documents which go to form the contract amply confer that freedom upon the company. But the pursuers maintain that the work as actually carried out was so materially different in character and extent from that contemplated, specified, and detailed as to render the original contract wholly in applicable — Smail, 9 D, 1043; Quin, 15 R. 776. Notwithstanding the terms of the contract, I do not think that this contention is so manifestly untenable that it would not require very careful consideration, from which, though the inclination of my opinion at present is against the pursuers, I confess that I am not sorry to escape. But the pursuers have another line of attack, whereby, in my judgment, they are able to prevail without pressing the wider question. They say that the bores, which I think were admitted on both sides to be, and I have already explained that I hold were, the basis of the contract, were not merely inaccurate but dishonest—that they were made fraudulently or so recklessly as to be equivalent to fraudulently, or in any view that they involved misrepresentation, for which the company was responsible, and that the essential error induced by this misrepresentation was one of the moving causes to the contract.

I acquit Mr Melville of intentional fraud, but I cannot acquit him of such recklessness as cequiparatur dolo. But apart from this recklessness, which amounts to fraud, he himself is, in my opinion, the responsible author of the misrepresentation founded on.

When a railway company bases its contract on calculations, and its calculations on a journal of bores, it must, if there is any regard to fair dealing, be implied that it tables the genuine journal of a responsible borer. It represents that bores were taken; that the journal of bores is the borer's record from day to day of his operations; and that from the information thus supplied their calculations are made. No disclaimer of responsibility for accuracy will absolve the company from the responsibility of presenting a concocted document which no borer ever saw, and which contains, not the information given by the borer, but the opinion of their own engineer seated in his office of what the borer must be assumed to have meant.

The specification says that ‘bores have been put down at various parts of the line, the positions of which are shown on the small scale plan, and a copy of the journal of these bores may be seen at the engineer's office.’ At an early period in the proof I asked to see the original of this journal, expecting to find it authenticated in some way by the borer. After some trouble I found that there was no such thing in existence as an original journal. Several typed copies were unearthed. But no one could tell exactly from what they had been taken. And all that could be said was that at any rate these typed copies had been laid ready in the engineer's office for intending contractors. But it gradually emerged that in reality the so-called journal of bores had been made up in Mr Melville's office under his instructions. This is sufficiently startling. But the situation is not improved by the history of the genesis of the document.

It appears that at first no professional borer was employed at all, but that the boring was confided to one of the company's own staff, a man of the name of William Cowan, who was nothing better than a way superintendent, with the assistance of ordinary platelayers, and that it was continued by him or by his son, who seems to have succeeded him in his post, until at any rate all the bores from No. 1 to the end of the Kilbirnie cutting were taken. I believe that he did make some further bores, extending into the Whirlhill cutting, including the important bore No. 16. But absolute precision on this point is not necessary for the purpose of my opinion. For the ground of my judgment it is enough to confine attention to the Kilbirnie cutting. Whether any change would have been made in the arrangements for taking the bores but for Cowan's death I do not know, but on that occurring a professional borer of the name of Brown was employed and took at any rate some of the bores of the Whirlhill cutting, and those in the Castle Semple cutting, and on to the end of the line at Johnstone. It is proved that Cowan had no proper training or experience as a borer. In fact Mr Melville himself says, ‘He had not a great experience, any further than putting down bores such as this; he was not a qualified mineral borer.’ And his sons, who were responsible for a number of the bores taken prior to Brown's employment, had still less experience. The sons were examined as witnesses, and proved to be honest, responsible men, quite suitable for their proper work, as superintendent surfacemen, but with no higher attainments.

Not only thus did the company take the responsibility of boring by unqualified members of their own staff, but these men made no journal of bores. What they did was to communicate to Mr Melville in jottings, and brief letters, certain information derived from their borings. These letters, but not the jottings, are produced, and are the most important evidence in the case. And even the scanty information thus derived Mr Melville did not record as it came from them, but, putting his own glosses on their statements, produced, so far as the first portion of the line, including the important Kilbirnie cutting, was concerned, a so-called journal of bores which was a combination of their statements and his own interpretation or conception of what they must have meant. To put the situation curtly. When they reported meeting with ‘black ban’ or with ‘hard black substance,’ Mr Melville first translated these expressions into ‘blaes,’ and then treated all that he so designated ‘blaes’ as soft material. These returns justify the condemnation of their capacity by the pursuers' skilled witnesses. And their employment

Page: 164↓

and his subsequent mode of dealing with their returns at his own hand, even to the discarding of information derived from occasional check bores, brings home to Mr Melville unaccountable recklessness in dealing with a matter so vital to the contract. As contended by the pursuers, a contractor in this relation takes his risk on the faith of honest information laid before him, but not on the interpretation which the company's engineer may choose to put on an untrained man's work. To present a document so compiled to contractors as a journal of bores, taken in the sense of the contract, was, as it seems to me, a fraud on intending offerers, and in itself such a misrepresentation as to bar the company founding on the clauses protecting them from responsibility for inaccuracy, if inaccuracy occurred. ‘It suffices to say that in my opinion the clauses before us do not admit of such a construction. They contemplate honesty on both sides, and protect only against honest mistakes’—per Lord Loreburn, Lord Chancellor, in Pearson v. Dublin Corporation (1907), A.C. 351, a very analogous case to the present. The learned Dean of Faculty maintained that Mr Melville may have been mistaken, but there was no conscious or intentional dishonesty, and therefore no fraud, founding on Bramwell's, L. J., classic opinion in Weir v. Bell, L.R., 3 Ex. Div. 238. But the argument ignores the fact that the absence of intentional dishonesty may be supplied by the presence of a reckless disregard of the interests of the opposite contracting party, where these interests must have been or must be held to have been known to be materially affected by the act in question. I refer again to what I have already pointed out, that upon the basis of these so-called bores a continuous line was drawn on the longitudinal section, which line was made by the contract the hard and fast division between soft excavation and rock. And as was provided in the introductory note to the schedule, there was to be no allowance ‘should the material turn out to be different from what is calculated and given in the schedule.’ On the basis of the bores, and of the line founded upon them, the rock in the Kilbirnie cutting was calculated at 41,765 cubic yards, and that figure was entered in the schedule, and for that and that only could the contractor get rock price. Though the contractor met with nearly double the rock in this cutting, he had to take the rest at the price of soft excavation. To support this contention on a journal of bores so constructed appears to me to be impossible, and I am prepared to sustain the pursuers' contention that the journal of bores was prepared in a fashion so reckless and so regardless of the fair interest of intending offerers that the contract thereby obtained cannot stand. But it is not necessary to carry the case so high, for there is no doubt that through the journal of bores so prepared an essential misrepresentation was made, for which the defenders are responsible, and which induced the contract.

I have confined my attention to the Kilbirnie cutting because that is such a material part of the contract in itself, and also so materially affects the scheme and execution of the work as a whole as to give a sufficient basis for my judgment. But if Mr Cowan's boring extended into the Whirlhill cutting, the situation is a fortiori of that which I am assuming.

As regards the rest of the bores, whatever their extent, the case is different. Mr Brown had been employed before by Mr Melville, whose experience of him had not been eminently satisfactory. Still he was an independent trained borer, and he did, I understand, give Mr Melville a formal journal of his bores, and though Mr Melville had not been fully justified in his choice, there is no ground for suggesting that he made more than an error of judgment, or was actuated by a corrupt motive in making it. Had therefore Mr Brown's handiwork only been in question. I think that, hard measure though it might be, the company would have been protected by the conditions of the contract, and the contractors would have taken the risk and would have had to bear the consequences of his inaccuracies.

In saying this I assume that as regards the part of the journal with which Mr Brown was concerned, the so-called journal of bores was honestly a mere transcript of his returns, though I must say that to me it appears incomprehensible that where the journal of bores played such an all important part in the calculations, which form the basis of the most material part of the contract, the journal should not be found to be a document compiled by the borer himself, given out on his responsibility and authenticated by him.

The conclusion to which I have been compelled to come on this matter is to my mind strongly supported by a consideration to which I have already adverted, but which I think it well to repeat. I do not think that Mr Forrest is to be gainsaid when he states that, notwithstanding the passage which occurs more than once in the specification to the effect that although the bores were put down and the journal supplied for the information of contractors, contractors must nevertheless satisfy themselves as to the nature of the strata, this was well understood to be a form of words merely, introductory to the protective clauses in favour of the company, and that it was perfectly well understood by all concerned that contractors would not, because they could not, do anything to verify the journal of bores supplied. As I pointed out, the bores, plans, and contract documents had been incubating for months in the office of the company's engineer, but when the time came for taking in tenders, ten days or at most a fortnight was allowed to intending offerers to do all that was necessary for them to make up their offers. When I say that the schedule contains the whole detail of no less than fifty-four bridges, I think it will be seen that an intending offerer had not much time to spare to test and check the work of the

Page: 165↓

borer. But what is more, if he had wanted to do so and to put down check or test bores of his own, the whole time at his disposal would have been utterly inadequate, and further, he would not have been allowed to do any such thing, for he had no right to go upon the ground. It was therefore well known to the company's engineer that the journal of bores and the calculations, of which they were the foundation, must and would be taken by intending offerers as substantially correct for the purposes of the contract, and that they would actually tender on the faith of the substantial accuracy of the bores and relative calculations. And this circumstance, were it necessary, must be held, I think, to throw an even greater responsibility upon the company's engineer to see that the bores were made and the journal prepared, not in the reckless fashion which was adopted, but with the most scrupulous attention to all the requirements of independent and accurate work.

The evidence has necessarily been extraordinarily lengthy and the production of documents, I should think, rarely paralleled—they run to nearly 6000 numbers—and I am not going to attempt any analysis of the proof either parole or documentary. I gave my best attention to it while it was being led, and I have since studied those parts which were thought most important, but the result has not been to displace the conclusion to which I had come at the close of the evidence. There are, however, some points to which I think it necessary to advert.

One of the great controversies in the proof centred round the terms ‘blaes’ and ‘black blaes.’ I do not think that anything in the case really turns upon the terms. ‘Blaes’ is not a definite substance in mining or geological science; it is really a working miner's term of very flexible application. In this case the use of the term means nothing, and it is the nature of the substance to which the term was loosely applied that is the important question.

Again, in dealing with the Castle Semple cutting there has been an unfortunate misuse of the word] conglomerate.’ What was there found was not the geologists' conglomerate, popularly known as pudding stone, but a bed of very dense and tenacious boulder clay, so tenacious that it could neither be worked with a steam navvy nor by hand, and that even blasting made small and slow impression upon it. That he should not have reported its presence is the chief blot on Mr Brown's boring.

In the next place it was contended that given that there was inaccuracy in the bores the only result was to increase the quantity of rock and to diminish the quantity of soft, and as the company has ex gratia paid as rock for all the rock excavated, the contractor has suffered no injury and loss. Mr Melville is not very successful in his explanation of these ex gratia payments. I must say that I think he honestly felt for the contractor in the difficulties into which the inaccuracies of the schedule had landed him, and that these payments for which he was responsible were a bona fide attempt, so far as he had power, to redress the injustice. But they do not go far enough. It was, I think, convincingly demonstrated that the mere difference between the prices for rock and for soft excavation was no criterion of the contractor's loss. It was proved up to the hilt that the execution of the contract and the orderly continuity of the work essential to a profitable result was entirely upset, and the whole engineering undertaking thrown out of gear by the difficulties which were thrown in the contractor's way by this unexpected mass of rock, and that consequently his loss has to be estimated on a very different basis than that merely of the relative prices of rock and soft cutting.

The Railway Company made great efforts by production of cross sections of the line of a very pictorial nature to disprove the existence of the borer's inaccuracies. I cannot say that I was impressed by this line of evidence, and preferred the contemporaneous evidence of the company's own engineers in their progressive longitudinal section and other documents of like nature.

I wish now to state that in coming to the conclusion that the contract price cannot in the circumstances regulate the pursuers' claim, I am far from satisfied that Messrs Boyd & Forrest will substantiate their demand in its entirety. In particular I am doubtful whether as the difficulties in which they were involved disclosed themselves they uniformly acted with the skill, discretion, and energy required to minimise the effects. One point in particular they seemed to me to have failed in, viz., in handling the water with which they were troubled at so many places.

I now come to a matter which has given me considerable trouble. As I have stated, the pursuers' grounds for getting behind the contract apply only to the southern portion of the line which includes the Kilbirnie cutting. This, however, if the full consequences were weighed, would justify I think de piano throwing over the whole contract and resorting to a quantum meruit, but that the whole history of the Kilbirnie cutting is mixed up with that of the Paisley water-pipe, a subject to which I have as yet only indirectly adverted. The main from the reservoir to the distributing centre crossed the proposed line at a point in the Kilbirnie cutting where ultimately bridge 12A was erected. The situation of the pipe had been known to the Railway Company, for it is noticed in their Parliamentary plans and book of reference, but when their engineers came to prepare the contract plans and schedule it was, to be plain, entirely forgotten and the contractor knew nothing about it. As a mere item in the contract what was necessary to supply the omission would be merely extra work for which a price would have been found under the contract. But it was not only in itself a very important work, but it proved a very dis turbing

Page: 166↓

element in getting through the Kilbirnie cutting, and directly and indirectly occasioned very much of the loss which that cutting entailed upon the contractor. These consequences the Railway Company endeavour to throw upon the contractor, but in my opinion unjustifiably. The original negligence of omitting to provide for the carrying of these pipes the company made no proper attempt to remedy. The contractor was told that it was his responsibility, and that it was his business to arrange with the local authority, and that the whole consequence of the delay which was occasioned was attributable to him and to the local authority. In my opinion this was not so. The contractor had no locus standi with the local authority, and it was the business of the company's engineers instead of wasting months, I might almost say years, in fruitless correspondence, to have redeemed their error and neglect by taking the matter promptly in hand, arranging matters with the local authority, and giving the contractor decided and definite instructions. In this whole matter the conduct of the Railway Company's engineers shows up badly, and apart from any question of the binding nature of the contract would have afforded the contractor a ground for damages. But then this is apart from the consequences of the inaccuracies in the bores, and consequently in the calculation of quantities, and it is difficult to disentangle the two things, for the consequences of the inaccuracies in the quantities are inextricably mixed up with the consequences of the original neglect, and the subsequent failure adequately to remedy that neglect, in regard to the means of carrying these main water-pipes. Still though I think it would be impossible to say how far the contractors' operations were affected purely by the inaccuracies in calculation consequent on the inaccuracies in the bores, I am satisfied that these latter were sufficiently material and essential to justify the contractors' contention that the misrepresentation vitiated the whole contract and debars the company founding upon its conditions, and that even though the company might have been safeguarded, which I do not think it necessary to determine, in relation to the other two cuttings had they only been in question.

Lastly, it was maintained that the contractor went on under, I think, very specious persuasions by Mr Melville, and completed the work under the contract, and that it is now too late for him to rescind.

It is necessary, therefore, to consider what is meant by rescission, what is necessary in order to rescind, and what is the result of rescission. Contracts are of such various kinds, and the question of rescission arises under such varied circumstances, that it is impossible to lay down one hard and fast rule which will meet every case. I think that the defenders' argument amounted to this—that to rescind a written contract you must reduce; that so long as the contract stands unreduced it is binding to the letter, and as the work has been contracted for, has been commenced, carried on, and even completed, and so matters cannot be restored, it is impossible to reduce, and therefore incompetent to rescind. I think that the idea of the necessity of reduction may be a good deal attributed to our system of registration, and is only really applicable to cases where the contract involves a registered title or something akin or analogous thereto. I do not think that it has really any place in relation to executorial contracts, unless in the special instance, and even that I doubt, of such contract not having been begun to be executed. Where the contract is executorial the ground of rescission is rarely apparent except as the work proceeds, and I think it is fully acknowledged in Scotland, as it certainly is in England, that where in the course of a contract one of the parties finds that he has been led into the contract by fraud, or under essential error induced by misrepresentation, he is not deprived of his remedy because he has commenced to execute the contract, nor is he bound to stop and take all risks of doing so, but is entitled to proceed, giving notice of his objection, and reserving questions till the end of the day. But I think that rarely in such cases does the objection arise so sharply in the execution of the contract that the contracting party imposed upon is able definitely to take up his position. In a case such as the present the true situation only evolves itself gradually as the work proceeds, and even then, though it may become apparent that there has been mistake, it does not always appear at once that the mistake can be chargeable to misrepresentation, still less to fraud. And the situation which then arises appears to me to be much more properly characterised as one for damages than for rescission. In the present case I think the pursuers gave ample notice during the currency of the work, and I particularly refer to the disputed telegram on the day of the late Queen's funeral, the defenders' attempt to explain away which was a signal and not very creditable failure, having regard to all that Mr Melville knew of the situation.

In the present instance the pursuers put their case thus—we have done work for the Railway Company, and for that work we are entitled to remuneration in quantum meruit. The defence to their claim is—you did the work under contract, you have been paid the contract price, and the contract is a complete answer to your action. The pursuers' reply is—you are debarred from founding on the contract, because you put before the contractor representations false in fact, made by your representatives fraudulently, or so recklessly as to be equivalent to fraudulently, or which in any view occasioned essential error on our part inducing to the contract. But I think that this statement of the case cannot really be distinguished from the pursuers' alternative claim of damages for fraud or misrepresentation inducing to a prejudicial contract. The

Page: 167↓

matter may admit of different statement according to the point of view from which it is approached, but in reality it is the same thing differently presented. Assume that the pursuers have been induced by fraud or misrepresentation to enter into an executorial contract, which, as it developed in execution, has proved to be inadequately remunerative, and indeed to involve them in ruinous loss at contract price. They claim, and I think justly, that the contract price be discarded, and a quantum meruit ascertained and awarded to them as the recompense of their labour and outlay. But assume, on the other hand, that they lay their claim simply for loss and damage occasioned to them by fraud or misrepresentation, the amount of this loss can, I think, only be ascertained on the same principle of quantum meruit. It appears to me, therefore, that the pursuers' alternative case is not truly alternative, but the same case differently stated.

I do not find in the Scotch authorities any direct precedent. The case of Smail v. Potts, 9 D. 1043, approaches very near to the circumstances, but it differs in this, that though as a minor alternative ground of action misrepresentation as to the nature of the strata to be encountered in the course of operations was averred, the main case for the pursuers was that things turned out so differently from what either party expected, that the contract had to be departed from and the work to be begun again, and that the work actually done was therefore not the contract work, and could only be remunerated by a quantum meruit. Moreover, as an authority the case only rests on the charge of Lord President Boyle to the jury, valuable as that charge is. The case of Quin v. Gardner & Sons, Limited, 15 R. 776, was also a case where, though it was averred that the work executed differed from the work contemplated, to such an extent that the schedule prices did not fairly apply to it, the explanation given of the difference was not the meeting of unexpected difficulties, or a position of matters inconsistent with what was represented, but such a change of plan as made the work a totally different work.

On the other hand, the case of Pearson v. Corporation of Dublin, 1907, A.C. 351, which, though arising in the Irish Courts, was ultimately decided by the House of Lords, appears to me to be a direct authority, not only for the purpose for which I have already applied it, viz., for the construction and application of the protective clause of the contract, but also for giving a remedy by means of damages.

Taking this view of the case, it is not necessary that I deal with the specific and separate question of damages for the defenders' negligence and breach of contract in relation to the carrying of the Paisley water pipes.

I therefore propose to pronounce an interlocutor containing the following findings, leaving the amount of the quantum meruit or damages to be subsequently ascertained.”

The defenders reclaimed, and argued — The pursuers had not asked reduction of the contract. It was an ordinary petitory action for payment of a sum of money. The proper course would have been to reduce the contract. The Lord Ordinary, however, left the contract standing, and held that it did not apply to charges. In so far as the case was one for reduction a contract could be reduced through (1) fraud or (2) innocent misrepresentation inducing the contract. As regarded innocent misrepresentation the defenders—as would be shown later—were absolutely safeguarded by the protecting clause in the contract. Accordingly the issue before the Court was an issue of fraud. The defenders were not liable unless they were fraudulent or guilty of such gross negligence as amounted to fraud— Derry v. Peek, 1889, 14 A.C. 337. There must be wilful misstatement— mala fides. To make a false statement carelessly was something different from fraud. It was not the law that a man who had no reasonable ground for making a representation, and yet made it, was fraudulent. It was necessary to go further. The Court must be satisfied that he knew he had no reasonable ground for saying what he did. He might be mentally culpable, i.e., stupid and uninquiring, but that was not enough unless he were shown to be morally culpable — Lord Herschell in Derry v. Peek, cit. sup., at pp. 359, 366, 369, 373, and 375; Weir v. Bell, 1878, L.R., 3 Ex. Div. 238, Lord Bramwell at 243; Brownlie v. Miller, &c., July 16, 1878, 5 R., 1076, Lord Shand at 1091, 15 S.L.R. 718, and June 10, 1880, 7 R. (H.L.) 66, 17 S.L.R. 805; Sharpe v. San Paolo Railway Company, 1873, L.R., 8 Ch. Ap. 597; Western Bank v. Addie, May 20, 1867, 5 Macph. (H.L.) 80, Lord Cranworth at 91, 4 S.L.R. 113. In Pearson v. Dublin Corporation, [1907] AC 351, and [1907] 2 I.R. 27 (cited by the Lord Ordinary), it was held that the contract protected against honest mistake, but that there was evidence upon which the jury might find that there was dishonesty, and that the case must go back to the jury—Lord Chancellor at [1907] A.C. 353, and Lord Ashbourne at 359. Pearson would be on all fours with the present case if dishonesty were proved here. The ratio decidendi both of Derry and Pearson was that there was protection against honest mistakes, but no protection against dishonesty. The question in this case accordingly was, did Melville really believe that the journal of bores was a fair representation of the bores that had been taken? If such was his honest belief it was not enough for the pursuers' case that he was careless or credulous, or that he deceived himself. As to honest mistake the protecting clause in the contract afforded the defenders a complete answer. If in an action for reduction on essential error induced by innocent misrepresentation there was a clause of relief in gremio of the contract, there would be no case to go to a jury. The contractor took the risk of all mistake short of fraud. Moreover, there was no averment of innocent misrepresen tation

Page: 168↓

on record. Plea (3) ( b) was merely a repetition of (3) ( a) in different language. Furthermore, no action to set aside a contract on the ground of innocent misrepresentation had ever been entertained after the contract had been executed, the misrepresentation having been known from the beginning. Pearson's case ( sup. cit.) did not touch this point; it was a question of fraud. The pursuers maintained, in the third place (plea 3 c), that the work executed by them was so entirely different from the contract as to render it inapplicable as the basis of charge. They based their argument, inter alia, upon the excess of rock found in the cuttings and the finding of the Paisley water pipes. If the pursuers had dealt with the water pipes in a business-like way, their difficulties would have been much less. This was a typical case of additional work over and above the contract, for which the pursuers were under the contract entitled to extra payment. It could not be maintained that all these elaborate provisions as to extras did not apply to anything important but only to trifles. It might be admitted that if the work done was something else than the contract work the contract price would not apply. But it was not said here that the pursuers had not executed the contract. The Lord Ordinary's observations upon this point were well founded. There was no authority in the law of Scotland for a party being relieved from a contract in respect of the work proving to be different from what he expected. The cases relied on by the pursuers were not in point. In Smail v. Potts, March 17, 1847, 9 D. 1043, it was not the contract work which had been executed. Quin v. Gardner & Sons, Limited, June 22, 1888, 15 R. 776, 25 S.L.R. 577, was only a decision on a point of process. In Bush v. Whitehaven Trustees — Hudson on Building Contracts (3rd ed.), vol. ii, p. 118—there was no law except for obiter dicta. The finding of the jury in that case was that the contract executed was so essentially altered that it was not the contract entered into. There was a complete change in the conditions under which the work had to be done. The pursuers must show, which they had not done. that the substratum of the whole contract fell. The principle, which was well recognised in shipping cases, was that the whole venture must be frustrated— Jackson v. The Union Marine Insurance Company (founded on in Bush's case), L.R., 8 C.P. 572, 10 C.P. 125.

Argued for respondents—If fraud in the legal sense was established, then the contract went. The defenders were guilty of fraudulent misrepresentations as regards the bores, for the following reasons—(1) the journal of bores given to the pursuers was not what was supplied to the defenders' engineers by the borers; (2) the defenders kept back material facts as to the bores which it was their duty to disclose; (3) the withholding of these facts made the engineers' representations dishonest and grossly misleading; (4) the misrepresentations as to the bores were made recklessly by the defenders' engineer, careless whether true or false. Derry v. Peek ( cit. sup.) was directly in point. It was there held that if fraud was proved, the motive was immaterial. The defenders had done enough if they could show that representations were made which were false. It was not asserted that the defenders' engineer intended to cheat the pursuers. Let it be assumed in his favour that he honestly thought his diagnosis of the bores fairly interpreted the symptoms he was describing, and that he honestly attempted to enter in the journal the information that he thought a competent borer would have supplied. It must be kept in view that he gave it to the contractors knowing that they took it as information really supplied by competent borers. Melville could not be acquitted of making false representations, and of having done so with complete recklessness as to whether they were true. With regard to plea 3 ( b), it was plain that the pursuers had not contracted themselves out of pleading essential error by the protecting clause. Negligent misrepresentation was clearly proved here. The protecting clause had no application to blunders such as the defenders made. It dealt only with inaccuracies, and assumed care on both sides. There did not seem to be any authority exactly in point, but the pursuers' argument that the protecting clause did not apply to errors such as the defenders' was sound in principle. As regards plea 3 ( c), the contract had turned out entirely different from what had been contemplated. It took five years to complete instead of two and a half. The variations were such that the contract as a whole could not be executed under the conditions contemplated when it was entered into. Bushy. Whitehaven Trustees ( sup. cit.) was absolutely in point. The pursuers also founded on Jackson v. Marine Insurance Company ( sup. cit.); Smail v. Potts ( sup. cit.); Quin v. Gardner & Son, Limited ( sup. cit.) (Lord M'Laren's interlocutor); Thorn v. Mayor and Commonalty of London, 1 A.C. 120, Lord Chancellor (Cairns) at 127. The pursuers were not too late to set aside the contract. The contract no doubt had been executed, but the defenders' fraud was not discovered—indeed was not discoverable—till the work was well under way. The pursuers were clearly entitled to payment quantum meruit.

At advising—