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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> IAN CUMMING v. MAYEN HOLDINGS LIMITED [1999] ScotSC 26 (11th November, 1999)
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Cite as: [1999] ScotSC 26
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IAN CUMMING v. MAYEN HOLDINGS LIMITED [1999] ScotSC 26 (11th November, 1999)

A328/98

JUDGMENT OF SHERIFF FIONA LENNOX REITH, Queens Counsel

in the cause

IAN CUMMING

Pursuer

against

MAYEN HOLDINGS LIMITED,

Defenders

__________________

Act: Upton, Advocate; Bennett & Robertson, Solicitors, Edinburgh

Alt: Tierney; Paull & Williamson, Solicitors, Aberdeen

 

PERTH, 11 November 1999

The Sheriff, having resumed consideration of the cause Finds in Fact:

  1. The pursuer is Ian Cumming. He resides at The Mill, Folda, Glenisla, Blairgowrie. The defenders are a company registered under the Companies Ordinance in Gibraltar and have a place of business at Mayen House, Rothiemay, Banffshire.

2. The pursuer is a self-employed builder who specialises in conservation work in relation to historic buildings.

3. Mayen House is owned by the defenders. Mr James McNeill is a director of the defenders. Mayen House is Mr McNeill's home in Scotland. Mr McNeill was the only representative of the defenders involved in the contracts for the works relating to Mayen House referred to below.

  1. Mayen House was built in about 1790. In addition to the main house, there are a number of outbuildings, including an outbuilding known as the Coach House.

5. Mayen House, including said outbuildings, was acquired by the defenders in about 1995. The defenders proposed to carry out a scheme of alterations and repairs ("the original project") in relation to Mayen House and a number of associated outbuildings, but not including the Coach House initially.

6. Messrs Bruce & Partners, Ellon, Aberdeenshire were appointed to be project managers. Messrs Bruce & Partners are Estate Agents, Property Managers and Project Managers. Mr William McLeod of Messrs Bruce & Partners dealt with the management of the original project. Messrs Douglas T Forrest, Architects, were engaged as Architects in respect of the original project. The original project was put out to tender. Barratt Construction Limited ("Barratts") were appointed to be the main contractor for the original project.

  1. The pursuer was thereafter engaged as a domestic sub-contractor to Barratts in relation to the original project. His sub-contract works involved lime harling (also known as "rendering") and lime washing of the buildings with which the original project was concerned ("the sub-contract works").

  1. Lime wash is a material made out of lime. It is mixed and applied as a finish. It can be coloured. It is an early form of paint. The carrying out of lime harling does not always involve the application of lime wash to it thereafter.

9 The original project and the sub-contract works were carried out by Barratts and the pursuer respectively in about 1995 and 1996. These works included the application of lime harling and lime wash to Mayen House and the other outbuildings which were the subject of the original project. These did not include the Coach House.

  1. In about April 1996 Messrs Bruce & Partners, acting behalf of the defenders, invited tenders for the refurbishment of and alterations to other outbuildings associated with Mayen House ("the further works"). These included works at the Coach House.

  2. The invitations to tender in respect of the further works enclosed inter alia a Schedule of Tender Information (comprising 6/5/2 of process). Said Schedule had been prepared by Messrs Douglas T Forrest, Architects. The fifth section of the said Schedule was entitled: " Specification and Drawing List". Number 6/1/2 of process is a copy extract from the document referred to in the said Specification and Drawing List as "NBS Specification Document" which accompanied the said Schedule. This Specification Document, including said copy extract therefrom, was also prepared by Messrs Douglas T Forrest, Architects. The said extract is entitled "Job No 315, Coach House, Mayen, render specification". This bore to be the render specification in respect of the Coach House. It largely consisted of passages taken from practical guides issued by a firm known as Mason Mortars, which detailed the methods of working with render and lime wash.

12 By letter dated 29 August 1996 (number 6/5/5 of process) Messrs Bruce & Partners, acting on behalf of the defenders, accepted, subject to certain qualifications, a lump sum offer from Barratts to carry out the further works, including those in respect of the Coach House, at a price of £399,900.00. This was said to be the final contract figure to complete in their entirety the works in connection with that contract "all in accordance with the tender drawings and specification". The specification there referred to was the said NBS Specification Document. The said render specification in respect of the Coach House, comprising number 6/1/2 of process, had been extracted from the said Specification Document. Barratts had accordingly been asked to include in their lump sum offer the works referred to inter alia in the said render specification. This render specification included reference to both lime harling and lime washing. The contract in respect of the further works was concluded by letter of 2 September 1996 from Barratts to Messrs Bruce & Partners, comprising number 6/5/6 of process.

  1. It was not proved that the said lump sum offer submitted by Barratts included the allocation of any specific sum in respect of the application of lime wash to the Coach House. Section 3f of the said Schedule of Tender information specified that the successful contractor would be required to provide at the time of acceptance a fully priced bill of quantities showing how the lump sum tender was built up. It was not proved that there was such a bill of quantities. It was accordingly not proved that the application of lime wash to the Coach House was included as a specific item in any such bill of quantities which may have been prepared by Barratts.

14. A number of potential specialist sub-contractors were suggested to Barratts in respect of the rendering. One of those suggested was the pursuer.

15. By Architect's Instruction No AD019 dated 28 February 1997 at item 2.0 Barratts were asked by Messrs Douglas T Forrest, Architects, to price for rendering the external walls of the Coach House using the mix and recommendations of an accompanying render specification. This was the same as the render specification comprising number 6/1/2 of process. Barratts were asked to price for two finishes, the first being for five coats of lime wash and the second being for the application of Keim mineral paint finish. This sought a price comparison as between the two possible finishes. The architect's instruction was sent to Barratts and was copied to both Messrs Bruce & Partners and the defenders.

  1. By letter dated 13 March 1997 (number 6/1/1 of process) Mr Sime of Barratts wrote to the pursuer inviting him to submit a quotation for the external rendering to the walls of two buildings on the Mayen House Estate, including the Coach House. The said invitation requested a quotation "all being in strict accordance with the enclosed five pages of Specification and attached Bill of Quantities". The five-page specification attached to the said invitation was the same as the copy render specification comprising number 6/1/2 of process. The bill of quantities was prepared by Mr Allan Robertson, a Quantity Surveyor employed by Barratts. Prior to being sent to the pursuers, paragraph 2 thereof was amended in handwriting by Mr Sime. It comprises number 6/1/3 of process.

    2. 17. The said bill of quantities detailed the items for which the pursuer was to submit a quotation. The bill of quantities which the pursuer required to, and did, price for did not clearly include the application of lime wash as a measured item to be quoted for.

  2. An earlier bill of quantities (comprising number 5/3/1 of process) sent by Barratts to the pursuer in 1996 in connection with the sub-contract works (referred to in Finding-in-Fact 7 above) had included the application of lime wash as a separate measured item. The price inserted in respect of said item at that point indicated that the charge for three coats of lime wash was to be £9.00 per square metre. This represented £3.00 per coat per square metre.

19. It is normal practice in the construction industry, if the application of lime wash is to be part of the contract works, to include as this as a separate measured item in the bill of quantities.

  1. The said render specification was not a proper specification for lime washing. It represented only a statement in relation to the method of application of lime wash. It did not define what the contents of the lime wash were to be.

    2. 21. After receiving the said letter of 13 March 1997, with enclosures, the pursuer telephoned Mr Sime to ask why lime wash was not included in the bill of quantities. Mr Sime responded to the effect that it was not included for the moment, as it was not decided what to do with it.

  2. In response to said letter of 13 March 1997 from Mr Sime, the pursuer then issued a fixed price quotation to Barratts by fax dated 21 March 1997 (comprising number 6/1/4 of process). Said quotation did not include any sum in respect of lime washing.

23. Said quotation from the pursuer was accepted by Barratts ("the further sub-contract") in terms of a letter from Mr Sime for Barratts dated 3 June 1997 (comprising number 6/1/5 of process). Thereafter, Barratts had no contact with the pursuer about lime wash, or about the number of coats to be applied, or the colour to be used, or when such work was to be started, or by when it was to be completed. Neither did they inspect the lime washing of the Coach House once completed.

  1. By May 1997 Mr McNeill had decided that he did not like the original colour of the lime wash which had been applied to Mayen House and the other outbuildings which had been lime washed by the pursuer in pursuance of the said sub-contract works referred to in Finding-in-Fact 7 above. Mr McNeill wished the colour of the finish to those buildings and the Coach House to be the same. Consideration was being given by him to the possible use of Keim mineral paint instead of lime wash. This was discussed at a site meeting on or about 7 May 1997 attended by inter alia the pursuer, Mr McNeill (part of the time), Mr Sime, Mr Forrest and Mr Douglas Johnston of Masons Mortar. A final decision was not reached by Mr McNeill at the meeting as to which finish was to be applied.

25. By letter dated 13 June 1997 (comprising number 5/3/5 of process) from Messrs Douglas T Forrest, Architects, to David Cochrane at Keim Mineral Paint Limited it was confirmed that Keim paint was still being considered as well as traditional lime wash.

  1. In about July 1997 the pursuer on the instructions of the defenders applied several sample panels of lime wash to Mayen House to enable Mr McNeill for the defenders to choose a colour for the lime wash to be applied as a finish to the buildings involved in the original project and the Coach House, which had not yet been lime washed at all. The defenders did not contract with Barratts for the application of a further lime wash finish to the buildings involved in the original project.

  2. The colour chosen by Mr McNeill for the application of a lime wash finish (a) to the buildings involved in the original project and (b) the Coach House was approximately flesh coloured. He decided that the buildings should all be lime washed with this rather than in Keim paint.

  3. In about July 1997 the pursuer met with Mr McNeill, on behalf of the defenders. They met on the driveway for Mayen House. By this time, the rendering of the Coach House was substantially complete. Mr McNeill told the pursuer that the walls of the buildings involved in the original project (namely Mayen House, the pavilion, Baillie's Cottage and the Gate House) and the Coach House were all to be lime washed in the same colour, which he had approved. The pursuer and Mr McNeill, on behalf of the defenders, agreed on a price of £2.50 per coat per square metre for the lime washing to be done by the pursuer direct for the defenders, provided that this was not to be through Barratts. If it had gone through Barratts, the price would have had to be greater. Mr McNeill also agreed to meet the necessary access costs for such things as scaffolding for the work. It was agreed between the pursuer and Mr McNeill that the pursuer would apply two coats of lime wash to the buildings involved in the original project and three coats of lime wash to the Coach House which had not as yet been lime washed. The Coach House was therefore also discussed in the course of this conversation. Mr McNeill at no time during said conversation indicated to the pursuer that the lime washing of the Coach House was not to be included in the direct arrangement between the defenders and the pursuer in respect of the lime washing. Mr McNeill also understood that the pursuer was to be lime washing the Coach House at the same time as the other four buildings and with the same squad of people carrying out the task. The pursuer thereafter proceeded to lime wash all five buildings, including the Coach House. They were subsequently inspected by Mr McNeill.

  4. Scaffolding was used to apply lime wash to the Coach House, as well to the other buildings including Mayen House.

  5. The pursuer's employees carried out the lime washing to all the buildings, including the Coach House, in about August and September 1997. The pursuer thereafter submitted an invoice (comprising number 5/1/1 of process) to Mr McNeill of the defenders dated 18 September 1997 for inter alia the work of lime washing all five buildings, including the Coach House, and for the hire of the scaffolding used in connection with the lime washing. The sum invoiced by the pursuer in respect of the lime washing to the Coach House amounted to £3,341.55, together with VAT thereon of £584.77. This brought out at total of £3,926.32 in respect of this part of the lime washing carried out by him.

  6. The pursuer has been paid by Barratts for the works carried out by him in respect of the further sub-contract. This payment did not include payment in respect of the lime washing of the Coach House.

  7. The defenders have refused to pay the pursuer in respect of that part of his invoice relating to the Coach House. The rest of the invoice, including that part of the invoice relating to the hire of the scaffolding, has been paid.

Findings in Fact and Law:

  1. A reasonable person would have been entitled to infer and conclude from the words used by the Pursuer and Mr McNeill of the Defenders in the course of their discussion on the driveway in about July 1997 that the application of lime wash to all five buildings, including the Coach House, was to be carried out under a direct arrangement or contract between the defenders and the pursuer.

  1. The application of lime wash thereafter carried out by and on behalf of the pursuer, including that in relation to the Coach House, was carried out in furtherance of this direct arrangement.

  2. The defenders and Barratts entered into a contract in terms which Barratts agreed to complete in their entirety the further works in accordance inter alia with the said render specification relating to the Coach House. Said render specification included inter alia reference to the lime washing of all harled surfaces.

  3. It is not proved that the lime washing of the Coach House was included in the further sub-contract between Barratts and the pursuer.

Finds in Law:

  1. The pursuer having provided the services contracted for in respect of the lime washing of the Coach House is entitled to payment from the defenders therefor in the total sum of £3,926.32.

Therefore sustains the third plea-in-law for the pursuer to the extent of £3,926.32; repels the first plea-in-law for the pursuer; repels the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth pleas-in-law for the defenders; grants decree for payment by the defenders to the pursuer of the sum of £3,926.32 with interest thereon at the rate of eight per centum per annum from 27 April 1998 until payment; finds the defenders liable to the pursuer in the expenses of the cause; allows an account of expenses to be given in and remits the same to the Auditor of the Court to tax and to report; further certifies that the proof, including preparation therefor, was suitable for the employment of Counsel.

 

 

 

 

 

NOTE:

The proof in this case was held on 5, 6 and 26 July and 2 September 1999. Mr Upton, Advocate, appeared on behalf of the pursuer and Mr Tierney, Solicitor, appeared on behalf of the defenders.

The pursuer's case on Record is, on the face of it, straightforward. He maintains that in about August 1997 he met with Mr McNeill, of the defenders, on the driveway of Mayen House and that he, the pursuer, was instructed to carry out lime washing to Mayen House and four other buildings, including a Coach House on the Mayen estate. He says that a price was agreed and that he then carried out the work. However, he maintains that, on rendering an invoice for all the lime washing, the defenders refused to pay that part of the invoice relating to the lime washing of the Coach House. The total amount said to be remaining to be unpaid is £3,926.32, inclusive of VAT. The crave over-stated this sum by £1,000.00 in error.

The defenders in their defences accepted that Mr McNeill of the defenders had instructed the pursuer to carry out lime washing to the buildings referred to by the pursuer, with the exception of any lime washing to the Coach House. The defender's position was that in about September 1996 they had entered into a contract with Barratt Construction Limited ("Barratts") inter alia for the reconstruction of the Coach House. They maintained that this contract with Barratts included lime harling and lime washing of the Coach House in accordance with a render specification which had been issued to Barratts in about May 1996 as part of the invitation to tender issued by Messrs Bruce and Partners. The defenders then aver that the lime washing to the Coach House carried out by the pursuer was carried in furtherance of a separate contract entered into between Barratts and the pursuer. This was following the issue of an invitation to tender sent out inter alia to the pursuer on 13 March 1997 by Barratts. A bill of quantities had been enclosed, together with the same render specification. The pursuer had issued a fixed priced quotation to Barratts in response. This further sub-contract between the pursuer and the defenders was concluded by letter of 3 June 1997 from Barratts. The pursuer then carried out the works in terms of this further sub-contract. He was thereafter paid by Barratts for this. The defenders therefore maintain that the pursuer is not entitled to any payment from them for this work, which they say included the lime washing to the Coach House.

The defenders also maintain on Record that the works carried out by the pursuer were in any event disconform to contract. This was put forward as both a substantive defence and a counter-claim. This was denied by the pursuers. I was informed on the first morning of the Proof that this second issue had been settled. The Proof was therefore only to concern the first issue, namely the question of with whom the pursuer had contracted in relation to the lime washing of the Coach House. In his submissions at the conclusion of the evidence, Mr Tierney confirmed that it followed that he was only asking the Court to sustain his third and fourth pleas-in-law.

In relation to the averments made on behalf of the defenders concerning the further sub-contract with Barratts, the pursuer maintained on Record that the bill of quantities upon which he tendered did not include any reference to lime washing. He was also advised by Mr Sime of Barratts that lime wash had been omitted as consideration was being given to using an alternative to lime wash.

Three witnesses were led on behalf of the pursuers. These witness were the pursuer himself, Mr Alastair Smith, who was a plasterer employed by the Pursuer at the material time, and Mr Douglas Johnston, a mortar manufacturer. He is also a Clerk of Works with experience in the pricing of bills of quantities.

Five witnesses were then led on behalf of the defenders. The first witness was Mr James McNeill, a director of the defenders. The other four witness for the defenders were Mr Douglas Forrest, Architect; Mr William McLeod, a partner in Messrs Bruce & Partners, project managers; Mr Norman Sime, technical director with Barratts, and Mr Allan Robertson, Chief Quantity Surveyor with Barratts.

At the conclusion of the evidence, the submissions for both parties were lengthy. However, at the end of the day, it seemed to me that both Mr Upton and Mr Tierney were at one in submissions to the effect, first, that the real question was whether a direct contract had been entered into between the pursuer and Mr McNeill of the defenders on the driveway of Mayen House in about July 1997 and, second, that the earlier contracts between the defenders and Barratts, on the one hand, and between Barratts and the pursuer, on the other hand, were of only limited relevance.

In my view, the question of the construction of the two contracts concerning Barratts is of very limited relevance to the determination of central issue in the present case. That issue concerns whether or not the pursuer and Mr McNeill, on behalf of the defenders, concluded a contract on the driveway of Mayen House in about July 1997 and, if so, what were its terms. Mr Upton invited me to hold that the defenders averments about that matter in Answer 2 were irrelevant and therefore that the pursuer's first plea-in-law should be sustained. Mr Tierney, however, accepted that to a large extent the question of the terms of the other two contracts was irrelevant to the issue to be considered by the Court in this case, but submitted that the evidence regarding these other two contracts shed light on Mr McNeill's beliefs at the time when he had the discussions with the pursuer on the driveway in about July 1997. They were part of the whole facts and circumstances surrounding the dealings between the pursuer and Mr McNeill of the defenders at that time. They were supportive of the contention on behalf of the defenders to the effect that the defenders were not contractually bound to the pursuer in relation to the Coach House works. He accepted that these averments did not raise a substantial defence, as it was accepted that the defenders could have ended up with two contracts for the same work, one with Barratts and one with the pursuer. In the circumstances, however, it was extremely unlikely that Mr McNeill would have got himself into such situation.

I was satisfied that, albeit that the averments in question did not raise a substantial defence, they could not however be said to be irrelevant to the question of the surrounding facts and circumstances against the background of which the dealings between the pursuer and the defenders fell to be viewed. On that basis, I have repelled the pursuer's first plea-in-law, which was directed to the relevancy of these averments.

I turn now to the principal issue, namely whether the pursuer has proved that the defenders did contract directly with him for the lime washing of the Coach House. It was notable that both Mr Upton and Mr Tierney were at one in submitting that there was no reason to think that either the pursuer or Mr McNeill were other than credible and reliable witnesses. Both Mr Upton and Mr Tierney made submissions to the effect there was no reason to think that either the pursuer or Mr McNeill were other than genuine in maintaining that they held the respective beliefs which they said they had about their respective contractual positions at the point when they met on the driveway in about July 1997.

Mr Upton's principal submission was to the effect that there was a direct contract between the pursuer and the defenders, not only in respect of the original four buildings but also in respect of the Coach House. This was on one of two possible bases. The first was on the basis of what he said was evidence from the pursuer to the effect that Mr McNeill had "instructed" him to lime wash all five buildings, including the Coach House. If, however, that was not expressly stated, the second possible basis for concluding that the direct contract also covered the Coach House was that this was nevertheless a natural inference from what had been said by the pursuer and Mr McNeill at the meeting in question.

I am not satisfied that Mr McNeill expressly "instructed" the pursuer to lime wash the Coach House in addition to the other four buildings. It is true to say that Mr Cumming did agree with the proposition put to him by Mr Upton in evidence in chief to the effect that Mr McNeill had instructed the pursuer to proceed to lime wash all the five buildings concerned, including the Coach House. However, this was in response to leading questions. I therefore did not feel that I could place as much weight on such answers as I might have otherwise felt able to do. Mr McNeill was also adamant that he had not "instructed" the pursuer to lime wash the Coach House, but only the other buildings. Although there was no evidence that Mr McNeill had had sight of the sub-contract between Barratts and the pursuer, I accepted his evidence to the effect that he believed that he had a contract with Barratts which covered the lime washing of the Coach House and therefore that he would not have "instructed" the pursuer to do the same thing. His position was that the only direct contract he had with the pursuer was therefore in relation to the lime washing of the other buildings.

Bearing in mind that the onus was on the pursuer to establish this aspect of the matter on a balance of probabilities, I was not satisfied that Mr McNeill had expressly "instructed" the pursuer to lime wash the Coach House. This would in effect have required me to disbelieve the evidence of Mr McNeill to which I have just referred. There was in my view no basis upon which I could do that. I took the view that Mr McNeill was a credible and reliable witness, subject to one matter to which I refer below in relation to which I believe that he was mistaken. He was a businessman who was forthright in his evidence, and it seemed to me to be extremely unlikely that he would have expressly instructed someone to do something which he had already contracted with someone else to do. In saying this, I should also make it clear that I accepted the pursuer as being a credible and reliable witness. In particular, I was entirely satisfied that he genuinely believed that his sub-contract with Barratts did not include the application of lime wash to the Coach House. Indeed, Mr Tierney made it clear more than once that he did not invite me to hold that the pursuer was other than a credible and reliable witness.

However, that is by no means an end to the matter as Mr Upton's further submission was to the effect that the pursuer's direct contract with the defenders nevertheless included the lime washing of the Coach House on the basis that this was a natural inference from what was said by the pursuer and Mr McNeill of the defenders at their meeting on the driveway in July 1997.

Mr Upton reminded me of the passage in Muirhead & Turnbull v Dickson (1905) 7F 686 at page 694 where Lord Dunedin said: "Commercial contracts cannot be arranged by what people think in their inmost minds. Commercial contracts are made accordingly to what people say". I had initially understood Mr Tierney to agree with that proposition. However, towards the end of his submissions, he rather gave the impression of departing from that position when he submitted that what was important was the "belief" of Mr McNeill. I have already indicated the extent to which I considered that that effected the issue, in that I considered it extremely unlikely that in those circumstances Mr McNeill would have expressly instructed the lime washing to the Coach House. That apart, however, in my opinion Mr Upton was correct in his submission to the effect that it was what was actually said that required to be considered, and what conclusions a reasonable person would have drawn from the words used. The question is what one party is entitled to accept from the words used by the other party in the circumstances. This can be a matter of inference, which requires to be viewed objectively.

I accepted the evidence of the pursuer to the effect that he was told by Mr McNeill that all five buildings, including the Coach House, were to be lime washed in the same colour. I also accepted his evidence to the effect that they agreed a price of £2.50 per coat per square metre of lime wash and that Mr McNeill agreed to meet the necessary access costs for such things as scaffolding for the work. The pursuer was insistent that all five buildings, including the Coach House, were discussed in the course of the conversation between them about lime washing on the driveway in July 1997. The number of coats of lime wash to be applied to all of the buildings, including the Coach House, was also discussed. There were to be three coats for the Coach House, which had not been previously lime washed, and two coats for the other four buildings. All of this is also against the background that in Answer 2 the defenders admitted that Mr McNeill instructed the pursuer to carry out lime washing to the walls of the other four buildings. I was entirely satisfied that the pursuer was to be believed when he said that the Coach House was also discussed in the context of this same meeting.

In the course of his evidence Mr McNeill said in evidence in chief that he and the pursuer had on the driveway only discussed the colour requirements for the buildings. He said: "I would have said presumably that the colour of the Coach House should be the same as Mayen House". However, in cross examination he accepted that, after discussing the question of colour, he and the pursuer had then moved on to the question of price and that the price referred to by the pursuer in evidence had been agreed upon. Mr McNeill said that he had agreed to pay for scaffolding and a cherry picker, but that they were only required for Mayen House itself. Mr McNeill also confirmed that he had understood that the pursuer was to be lime washing the Coach House at the same time and with the same squad of men as the other buildings. Mr Upton then put to Mr McNeill whether it was not possible that if all five buildings were discussed, and that they were all to be the same colour and that a price had been agreed, that the pursuer would have had the impression that this covered all five building including the Coach House. Mr McNeill responded "In the scene that you paint, yes". The scene painted by Mr Upton had included all of these matters.

I was satisfied, not only from the pursuer's evidence but also from the evidence given by Mr McNeill in cross examination, that the Coach House had featured in the discussions on the driveway in addition to the other buildings and that the pursuer was told that they should all be done in the same colour. The number of coats to be applied was also agreed upon.

For the reasons already given in relation to the question of express instruction, I consider it most unlikely that Mr McNeill would have expressly said that the price of £2.50 per coat would have applied to the Coach House specifically also. However, I accepted the pursuer's evidence that the question of price was discussed in the discussions between them about the lime washing to be done by the pursuer, which Mr McNeill accepted in cross-examination was the case. The position therefore was that I accepted that the lime washing of all the buildings, including the Coach House, was being discussed between the parties. The position also was that there was no evidence that Mr McNeill ever said to the pursuer that he considered that the lime washing to the Coach House was covered by his separate contract with Barratts and therefore that it was not to be part of the direct arrangement being discussed between them. I therefore took the view that, in all the circumstances, a reasonable person would have inferred and concluded from the words used that the Coach House was included in, and was not excluded from, the direct arrangement for which the pursuer was to be paid at the rate of £2.50 per coat.

This is also against the background of other surrounding facts and circumstances which I considered to be of some relevance. I am not only satisfied that Mr McNeill genuinely believed that his contract with Barratts covered the lime washing to the Coach House, but I am also equally satisfied that the pursuer genuinely believed that he was in effect was being asked by Mr McNeill to do all the lime washing, including that to the Coach House, as part of a direct arrangement with the defenders. I am satisfied that he genuinely believed that the sub-contract which he did have with Barratts did not cover the application of lime wash to the Coach House. After the sub-contract with Barratts was concluded by the letter of 3 June 1997 from Barratts, Barratts had no contact whatsoever with the pursuer about lime washing, including any inspection of the finished article. There was no evidence either that Barratts had told the pursuer that he should liaise directly with Mr McNeill on this matter, despite the sub-contract with Barratts.

So far as the issue of scaffolding is concerned, although Mr McNeill said that this was only required for Mayen House itself, I have to record, first, this was not put to the pursuer in cross examination and, second, more importantly, that Mr McLeod said in cross examination to Mr Tierney that, although the Coach House was generally speaking on one story, there was one wing which was one and a half storeys in height. When asked whether one could apply lime wash standing on the ground, he replied "not at all". He then said that there was definitely scaffolding on site at the Coach House. I accepted his evidence to this effect. I therefore think that Mr McNeill was mistaken in his recollection about this aspect of the matter. Mr Upton relied on the fact that the defenders had met that part of the pursuer's invoice relating to the hire of scaffolding. However, I have to say that I do not regard that as an admission by him that this indicated that there was a direct contract with him for the lime washing of the Coach House. I therefore placed no reliance on this factor.

In relation to this head of the pursuer's argument, Mr Tierney submitted that the pursuer had not discharged the onus of proving that there was a direct contract between the pursuer and the defenders for the lime washing of the Coach House, first, because Mr McNeill had not expressly instructed the pursuer to this effect and, second, because in any event, the evidence indicated that consensus in idem had not been reached between them. I have already indicated my view in relation to the question of express instruction.

On the question of whether consensus in idem was reached, Mr Tierney submitted that the pursuer and Mr McNeill had given differing evidence about what had been discussed at the meeting on the driveway in July 1997. He suggested that this was in contrast to the position in Muirhead & Turnbull -v- Dickson supra. He submitted that in that case, first, there had been clear evidence as to what had actually been said and, second, that there had been no dispute between the parties as to the words actually used. It had simply been a dispute as to the meaning of the words used. In the present case, however, Mr Tierney's submission was that the pursuer and Mr McNeill had each said that the contract itself was different and that it was therefore impossible for the Court to say that each was not honestly entitled to put his own meaning on it. Mr Tierney suggested that Mr McNeill's position in evidence had been that he had only instructed the pursuer to lime wash four out of the five buildings and that that was therefore the contract which he had had with the pursuers.

It is clear, however, from the approach taken in Muirhead & Turnbull that the correct approach is to consider what the parties did actually say to one and other at the time. In Muirhead & Turnbull the Court repeatedly pointed out that they were in some difficulties in that case because there was in fact rather less evidence as to what each party had said at the time then would have been desirable (See pages 693, 696, 697). In Muirhead & Turnbull the court did consider evidence as to what each party had had in mind at the material time, and what each party had thought he was contracted to do. Mr Tierney seemed to me to be suggesting a similar approach in the present case. However, it is that approach which was rejected in Muirhead & Turnbull. I have to consider the evidence of what I am satisfied on a balance of probabilities was actually said by both the pursuer and Mr McNeill at the time. Simply because Mr McNeill thought that he was only contracting with the pursuer to lime wash four out of the five buildings is not determinative if the position is, as I consider it to be, that the pursuer was entitled to take Mr McNeill as meaning that the Coach House was also to be lime washed, and that this was to be under the same direct arrangement which the defenders admit on Record was reached in relation to the other four buildings. It is clear that the Coach House was discussed in the context of the lime washing of the buildings, including the colour to be used, the number of coats to be applied and the means of access to the buildings. Mr McNeill could have made it clear, if he had wanted to, that the Coach House, although being discussed also, was not going to paid for by the defenders at the agreed rate of £2.50 per coat, but was to be paid by Barratts in view of the fact (of which the pursuer was unaware) that the defenders had a contract with Barratts to do the lime washing of the Coach House. There was no evidence that Mr McNeill did make that clear, or even say anything to this effect.

Further and in the event, there was no evidence that Mr McNeill was himself aware of the terms of any sub-contract between Barratts and the pursuer. This was likewise the position in Muirhead & Turnbull as remarked upon by the Lord President in that case at pages 694 and 695 and by Lord McLaren at page 696. If Mr McNeill had made the position clear, the pursuer would not then been entitled to infer and conclude from what had been discussed between them that the Coach House was included as part of the direct arrangement and contract with the defenders. However, that is not what happened. Neither was there any suggestion that the pursuer had said anything by way of acknowledging that the Coach House was not covered by the direct arrangement with the defenders.

Mr Tierney also sought to argue that, for there to be a concluded contract, an "acceptance" had to met the "offer": Gloag, Contract (2nd edition) at pages 39 and 45; McBryde, Contract at paragraphs 5.09, 5.10 and 5.79, and Gloag & Henderson, "The Law of Scotland (10th edition) at paragraph 5.3. He also referred to R & J Dempster Limited -v- The Motherwell Bridge & Engineering Company Limited 1964 SC 308 and May & Butcher Limited -v- The King [1934] 2 KB 1. This was in support of the proposition that, as a matter of the general law of contract, all the essentials have to settled. Mr Tierney submitted that Mr McNeill had been talking about four buildings whereas the pursuer had been talking about five buildings. They had therefore been speaking about different things. There had been no consensus between them as to what the subject matter of the contract was to be. That was an essential matter upon which agreement would have been required.

I did not accept that Mr McNeill had talked about only about the four original buildings. It was in my view clear from the evidence to which I have already referred that the Coach House was also discussed in the context of the discussions about lime washing. I therefore do not accept that they were talking about different things in terms of subject matter albeit that, as in Muirhead & Turnbull, the pursuer and Mr McNeill appear to have drawn different conclusions as to what each of them intended at the time. As the authors say in Gloag & Henderson supra at paragraph 5.3: " In most disputed cases, however, the question is to discover the parties' apparent, rather than their real, intentions. In matters of contract a party is generally entitled to act on the assumption that the other means what he says. The question whether the parties have agreed is to be decided not by proof of what each party really intended, but by considering what conclusion a reasonable person would draw from their words or acts". That seems to me to correctly summarise the correct approach to be taken in a case as such as the present one. It all depends on what conclusion a reasonable person would draw from the words and acts of the parties concerned.

It follows that I am satisfied, for the reasons given, that the defenders did contract directly with the pursuer for the lime washing to the Coach House in addition to the other four buildings. The pursuer is therefore entitled to payment of the agreed sum of £3,928.32 together with interest thereon.

In the circumstances, the question of the construction of the two other contracts, first, between the defenders and Barratts, and second, between Barratts and the pursuer, does not require to be decided. It is quite clear that Mr McNeill genuinely believed that the defenders had a contract with Barratts which included the lime washing of the Coach House. It is equally clear that the pursuer genuinely believed that his sub-contract with Barratts did not include the lime washing of the Coach House. The question of whether these beliefs were or were not actually accurate is irrelevant to the determination of the principal issue as to whether Mr McNeill, on behalf of the defenders, and the pursuer entered into a separate direct arrangement or contract which involved the lime washing of the Coach House in addition to the other four buildings.

However, in deference to the arguments which were presented, it may be helpful if I indicate what my views are about these two contracts as well. In first place, I considered it likely that the contract between the defenders and Barratts did include the lime washing to the Coach House. This is in view of the fact that the Schedule of Tender Information (number 6/5/2 of process) sent out with the covering letter (number 6/5/1 of process) seeking lump sum fixed offers was to be in respect of the works specified in the Schedule of Tender Information and accompanying documents. Section 5 of the Schedule referred to a NBS Specification Document. Number 6/1/2 of Process was a copy extract from that document. It was the render specification for the Coach House. Barratts were therefore being asked to include in their offer the works referred to in this render specification. This included not only lime harling but also lime washing, albeit that this took the form of a method statement only in relation to lime washing, rather than representing a proper specification. On this latter point I accepted the evidence of Mr Johnston. He is an experienced Clerk of Works. In that capacity he has extensive experience of dealing with bills of quantities and specifications. He is also a manufacturer of mortar. His business is known as Masons Mortars. This firm supplies lime products, including lime wash, for historic buildings. He therefore also has particular expertise in the area of rendering and lime washing. He was a very impressive witness who seemed to me to have a sounder and more extensive knowledge of these areas than did any of the witnesses for the defenders. In my view, his entire evidence on the question of rendering and lime washing, and in relation to the role and interpretation of bills of quantities and specifications, was therefore to be preferred to that of any of the defender's witnesses.

At all events, in terms of Section 3 of the Schedule of Tender Information, at paragraph "f" the successful contractor was to be required to provide at the time of acceptance a fully priced bill of quantities to show how the lump sum tender was built up. However, there was no reference in the evidence to any such bill of quantities provided by Barratts, if one ever was. It was therefore not proved to my satisfaction that Barratts did actually allocate any specific sum to the lime washing of the Coach House. It is true to say that, as a result of the exchange of correspondence (number 6/5/5 and 6/5/6 of process), Barratts did in about August 1996 make a lump sum offer of £399,900.00 to complete the whole works in accordance with the tender drawings and specification. The lime washing, which was referred to in that part of the specification relating to the rendering of the Coach House, was therefore part of the contract with the defenders. It did not however follow that Barratts had allocated a specific sum to the limewashing of the Coach House. There were also bald assertions, such as that in the evidence of Mr Robertson, to the effect that the lump sum offer from Barratts had included the lime washing. However, it was clear from his evidence that he was not even aware that lime washing was a separate process. Significantly in my view, he thought it was all part of the same process. Mr Sime was likewise unaware that there could be different types of lime wash. It was also clear that Barratts did not obtain any quotations from sub-contractors before submitting their own lump sum offer to the defenders. Mr Robertson said that the usual position was that, before submitting their own tender, Barratts would obtain tenders from sub-contractors so that they, Barratts, could then use these for their own quotations. It was Mr Robertson who drafted the bill of quantities (number 6/1/3 of process) which the pursuer was subsequently asked to submit a quotation in about March 1997. This was well after the lump sum offer made by Barratts had been accepted.

Albeit therefore that the contract between Barratts and the defenders in my view obliged Barratts to undertake the lime washing to the Coach House, I was not satisfied that Barratts had as a matter of fact actually allocated any specific sum to this particular item or process. In fact, in the circumstances, I consider it quite possible that they did not do so.

In relation to the sub-contract between Barratts and the pursuer, the position was in my view very much less than clear. The defenders raised the issue of the sub-contract in their defences. They maintained that it had some limited relevance to the principal issue in this case. At the end of the day, however, there was no evidence that Mr McNeill was, at the time of the discussions with the pursuer on the driveway, actually aware of the terms of this sub-contract between the pursuer and Barratts. The question of Mr McNeill's belief therefore extended only to the defenders' contract with Barratts. So far as the sub-contract is concerned, I have already indicated that I am satisfied that the pursuer did genuinely believe that the sub-contract did not include the lime washing of the Coach House. Whether it actually did is a different matter.

In my view, the onus was on the defenders to establish that it did include the lime washing of the Coach House. It was the defenders who raised this issue in their defences in an attempt, it appears, to defeat the claim by the pursuer in the action against them. The starting point was that the invitation to tender (number 6/1/1 of process) sought a fixed price quotation for the external rendering to parts of the Coach House and another building. The bill of quantities (number 6/1/3 of process) which had been drafted by Mr Robertson of Barratts was amended by Mr Sime of Barratts in handwriting. I accepted Mr Johnston's evidence, and that of the pursuer, to the effect that it is the bill of quantities which requires to be priced by a sub-contractor. This is because it is the document which sets out details, and measurements, of what is to be done. The function of a specification is however is to set out how the work is to done. Mr Johnston's opinion was that the pursuer was being asked to quote for lime harling but not for lime washing in addition. This was because lime washing was not included in the bill of quantities. It was in his opinion normal practise in the construction industry, if the application of lime wash was to part of the works concerned, to include this a separate measured item in the bill of quantities. It was a different material and was a different measured item. The carrying out of lime harling did not always involve the application of lime wash to it thereafter. An example of this was shown in the bill of quantities (number 5/3/1 of process). This was part of the bill of quantities in relation to the original project where lime washing was shown as a separate measured item. Further and in any event, the render specification number 6/1/2 of process was not in his view a proper specification for lime washing. It represented only a statement in relation to the method of application of lime wash.

As I have already indicated, I preferred the evidence of Mr Johnston to that of the witnesses for the defenders. Mr Robertson thought that lime wash was part of the same process as lime harling. I also felt that Mr Robertson, Mr Sime, Mr McLeod and Mr Forrest where somewhat defensive in their evidence about the sub-contract with the pursuer. They maintained in effect that it was clear that lime washing was included in the sub-contract with the pursuer. I did not agree with their evidence to this effect. I preferred the evidence of Mr Johnston in particular. It was certainly not included in the bill of quantities prior to the hand written amendment by Mr Sime. However, even after the hand written amendment had been made, the effect of the deletion made and the addition of the words "as attached specification" in my view hardly made it clear that what was intended by this was an instruction equivalent to the inclusion in the bill of quantities of lime washing as a measured item. It was not even a measured item in the render specification itself which, according to Mr Johnston's evidence, was not itself a proper specification in relation to lime washing. It seemed to me that, at best, the bill of quantities as so amended was ambiguous. That being so, I agreed with Mr Upton's submission to the effect that the contra proferentem rule applied: Gloag supra at page 400; Hudson's, Building and Engineering Contracts (11th edition), Volume 1 at paragraph 4.042.

Mr Tierney suggested that the contra proferentem rule only applied in relation to disputes between the actual contracting parties to the contract concerned. In this case the defenders were not a party to the contract under consideration as between the pursuer and Barratts. The contra proferentem rule therefore did not apply. However, he was not able to point to any authority in support of that proposition. If Mr Tierney were to be correct, this could result in a situation in which, depending upon the actual parties to the litigation in which the contract concerned was being examined, that contract could be interpreted differently. It did not seem to me that this was likely to be correct as a matter of principle.

Mr Tierney also suggested that the pursuer was the proferens in the present case as he was putting forward an "alternative explanation" of the sub-contract. I found it difficult to understand this submission. Mr Tierney confirmed that he could point to no authority in support of this proposition either. I did not accept it. In a brief reply on this point, Mr Upton referred to G A Estates Limited -v- Caviapen Trustees Limited (No 1) 1993 SLT 1037 in support of the proposition that the analysis of the contra proferentem rule put forward in Gloag, Contract was to be preferred to that put forward in McBryde supra at paragraph 19-26. Mr Tierney accepted this.

In connection with the pursuer's argument that his sub-contract with Barratts did not include lime washing of the Coach House, Mr Upton also founded on evidence given by the pursuer to the effect that, after he had been invited to tender for the sub-contract (number 6/1/1 of process and accompanying documents), he telephoned Mr Sime to ask why lime wash was not included and that Mr Sime had responded to the effect that this was because, for the moment, it was not decided what to do about lime wash. In the course of his evidence, Mr Sime said that he had a telephone conversation with the pursuer but that this had been after the pursuer had returned his quotation (number 6/1/3 of process with his fax of 21 March 1997 comprising number 6/1/4 of process). However, Mr Sime said that the issue of lime washing was not discussed at that point. In cross-examination, Mr Sime was quite adamant that the pursuer had not telephoned him to ask about lime washing having been omitted from the bill of quantities. He was then asked in cross-examination whether it was not the case that there had already been a discussion between the architect and Barratts that lime washing might not be used. He said that the believed that there might have been discussions with Barratts but that the first time he heard of this had been at the meeting on 7 May 1997. I have to say that I found this surprising in view of the Architect's Instruction (number 6/4/6 of process) dated 28 February 1997 asking for a comparative price to be given for both lime wash and Keim mineral paint. This had been sent to Barratts, and had been copied to both Messrs Bruce & Partners and the defenders. Mr Robertson of Barratts confirmed of having seen this. Mr Sime however maintained that he had not seen it. It did seem to me to be surprising that from 28 February right through to 7 May 1997 Mr Sime had been totally unaware of the fact that an alternative finish to lime washing was being considered. I do not think for a moment that Mr Sime was deliberately lying about this or in relation to the telephone conversation with the pursuer. However, I did wonder just how reliable his recollection was. I have to say that I did not have the impression that the pursuer was lying about the timing and content of his telephone conversation with Mr Sime either. He gave his evidence about this in an apparently frank and straightforward manner, and in his own words as opposed to being in response to leading questions. In relation to the possible reliability of Mr Sime's recollection, I noted that he was equally adamant, even when two questions were put by Mr Tierney in leading form in the course of evidence in chief, that Barratts had not been given the names of sub-contractors who were to be invited to tender for the rendering works, one of the names being that of the pursuer. He was asked about this twice and said that he was certain that names had not been suggested to Barratts. It is however clear that he must have been mistaken about this. In the first place, Mr McLeod of Messrs Bruce & Partners, whose evidence on this I accepted, confirmed that the pursuer's name had been put forward as a specialist sub-contractor. In the second place, this could in fact be seen in black and white from the Schedule of Tender Information number 6/5/2 of process at section 6 entitled "Specialist Contractors". I therefore considered it more likely than not that Mr Sime was likewise mistaken in his recollection in relation to his telephone conversation with the pursuer and just when it was that he had first learned that there might be an alternative finish to lime washing.

In relation to that part of the render specification (number 6/1/2 of process) concerning lime washing, which the defenders contended was part of the pursuer's contract with them, it is perhaps of some note that there is reference to the application of five coats of lime wash whereas the pursuer only ever applied three coats of lime wash to the Coach House. This was consistent with the discussion to this effect with Mr McNeill on the driveway. There was no evidence that it had ever been suggested to the pursuer that he was in breach of his contract with Barratts in having failed to apply five coats instead of three coats. This was in my view therefore a further factor in favour of the contention on behalf of the pursuer.

Overall, therefore, I was not satisfied that the defenders had proved that the lime washing of the Coach House was something which pursuer had been specifically sub-contracted to do for Barratts.

Having regard to the fact that I considered it likely that the defenders did contract with Barratts for the lime-washing of the Coach House, it is certainly unfortunate from the defenders' point of view that it was not then seen to that the sub-contract between Barratts and the pursuer included this as a specific item. The position therefore is that the defenders did in my view end with two contracts for the same work. This would not have happened if Barratts had made it clear in the bill of quantities sent to the pursuer that his quotation was to cover the lime-washing of the Coach House also. That could have been achieved quite simply by including this in terms as a specific measured item in the bill of quantities sent to him for completion and return when submitting his quotation.

Parties were agreed that expenses should follow success. Mr Upton also moved for sanction for the employment of Junior Counsel. This was in view of what turned out be the complexity of the case. This had resulted from the complexity of the arguments sought to be introduced by the defenders in the light of the other contracts with Barratts to which they referred in their defences. Instruction of Junior Counsel had therefore he said been justified. Mr Tierney opposed this. He told me that he was aware that there were reasons why Counsel had been instructed which were to do with the availability, or unavailability, of the partner in the firm instructing him which did not have to do with the complexity or merits of the case. Having said that, he then went on to say that he suspected that the true test was whether the case warranted the employment of Junior Counsel, whatever the reasons might have been for his actual employment. His submission was that the present case was not one which would normally have been appropriate for the use of Junior Counsel.

I agree with Mr Tierney's apparent acceptance that the true test was whether the case warranted the employment of Junior Counsel, whatever the reasons might have been behind that. I am satisfied that in present case the employment of Junior Counsel in relation to the preparation for and conduct of the Proof was entirely justified. This is particularly in the light of the complexities which were introduced by the defenders themselves in their defences. As a result of this, the evidence was far more wide ranging, with quite a number of relatively complex legal issues being raised, than it would have been had the action taken the straightforward form which the pursuer had pled in the first place.

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