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Cite as: 15 ScotLR 777, [1878] UKHL 777

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SCOTTISH_SLR_House_of_Lords

Page: 777↓

House of Lords.

Tuesday, June 4. 1878.

[Before the Lord Chancellor, Lord Hatherley, Lord Blackburn, and Lord Gordon.]

15 SLR 777

Tharsis Sulphur and Copper Company

v.

M'Elroy & Sons.

[Ante, p. 115, Nov. 17, 1877, 5 Rettie 161.]

Subject_Obligation — Construction of Written Contract — Parole Proof — Acquiescence.
Facts:

A building contract contained the following clause:—“ Twelfth, The Company reserve power during the progress of the work to make any alterations, additions, or deductions, or to vary from or alter the plans or materials
Page: 778↓
as they may consider advisable, without in any respect vitiating this contract. This shall only be done under a written order from the Company's engineer, and allowance will be made for such alterations at the rates in the schedule. The contractors shall not at their own hand, or without a written order from the Company's engineer, be entitled to make any such alterations or additions, and no allegation by the contractors of knowledge of acquiescence in such alterations or additions on the part of the Company, their engineers or inspectors, shall be accepted or available as equivalent to the certificate of the engineer, or as in any way superseding the necessity of such certificate as the sole warrant for such alterations or additions.” In a claim for payment on account of greater weight of metal in certain iron girders than was specified in the contract, where it was contended that there had been verbal consent and acquiescence on the part of the employers, and that the extra weight had been certified under the certificates of the defenders' engineer— held [ rev. judgment of majority of Court of Session] that the terms of the contract excluded any such claim as was made, looking to the circumstances of the case, and to the fact that the forms of certificate by the engineer did not in any way bear out the view that there had been a ratification.

Headnote:

The question involved in this case arose out of a contract by M'Elroy & Son, the respondents, to erect certain works for the Tharsis Sulphur and Copper Company at Cardiff. The contract expressly provided that no extras should be allowed for unless ordered in writing by the appellants or their engineers. Some iron girders were made much thicker, and about £1000 more expensive, than the specification required, and the respondents brought an action against the appellants, inter alia, for the price of their alleged acquiescence on their part in the alterations, and sanction by their engineer's written certificate. The Second Division [ diss. Lord Gifford— revg. Lord Curriehill] gave decree in this branch of the case in favour of the pursuers, ante, Nov. 17, 1877, p. 115, 5 Rettie 161.

The Tharsis Company appealed.

At delivering judgment—

Judgment:

Lord Chancellor—When once the facts are fully understood there is no difficulty in disposing of this case. The respondents have undertaken to construct buildings and to do iron work, including certain cast-iron girders. According to the contract the respondents are to supply the material and work according to certain written specifications, and the various obligations are very clearly set forth in the contract. In particular, it is expressly stated that no extra work is to be paid for unless there is a written order for the same by the appellants' agent or engineer. Now, in casting certain iron girders, owing to the unequal cooling of the iron, it was found difficult to make the girders of the precise thickness specified. So far as the Company were concerned they had no interest in having the girders made thicker. On the contrary, the lighter the girders were so much the better. At all events, if the girders could not be made of the precise thickness specified, that was a matter which the respondents ought to have known beforehand. The question now is, whether the evidence shows that when a variation was made for the convenience of the respondents, that was authorised by the Company? I confess that I cannot find a single word uttered which can bear the interpretation that the Company promised to pay for the extra thickness of this metal, nor is there a word to encourage or induce the respondents to make the girders thicker than the contract. So far as the evidence goes there is no mention of any written order, nor is there any ratification afterwards. The form of certificate by the engineer of the Company does not in any sense bear out the argument that there was any such ratification. Such certificates were all of a provisional character, and equivocal. I I am of opinion that the decision of the majority of the Second Division was wrong, and must be reversed. The Judges, including the Lord Ordinary, were in fact equally divided. The order of the House will be to reverse the judgment, and to require the respondents to pay the costs of the appellants in this House.

Lord Hatherley concurred.

Lord Blackburn—I concur. It is said that the law of Scotland, following the civil law, releases one from an obligation to do what is impossible. But that rule refers to a natural impossibility. Here all that is shown is that it requires greater care to cast the girders of the thickness specified in the contract than it would require to cast them thicker. In fact it would have been by no means difficult to cast the girders of the required thickness if the right course had been taken. I agree with Lord Gifford and the Lord Ordinary rather than with the majority of the Second Division.

Lord Gordon concurred.

Interlocutor of Court of Session appealed from reversed, and appeal allowed, with costs against the respondents.

Counsel:

Counsel for Appellants— Lord Advocate [Watson]— Benjamin, Q.C.— Darling. Agents— Clarkes, Rawlins, & Clarkes, solicitors.

Counsel for Respondents— Southgate, Q.C.— Rhind. Agents— Smith, Fawdon, & Low, solicitors.
1878