United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Kirkcaldy and District Railway Co. v. Caledonian Railway Co. [1901] UKHL 579 (10 May 1901)
URL: http://www.bailii.org/uk/cases/UKHL/1901/38SLR0579.html
Cite as: 38 ScotLR 579, [1901] UKHL 579

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_House_of_Lords

Page: 579↓

House of Lords.

Friday, May 10. 1901.

(Before the Lord Chancellor (Halsbury), and Lords Ashbourne, Shand, Davey, Brampton.)

38 SLR 579

Kirkcaldy and District Railway Company

v.

Caledonian Railway Company.

( Ante, June 22, 1900, 37 S.L.R. 820.)

Subject_Contract — Construction — Agreement to Contribute to Expenses of Promoting Railway Bill — Relief or Primary Obligation — Railway.
Facts:

The Caledonian Railway Company, being anxious to obtain direct access into the county of Fife, agreed with the Kirkcaldy and District Railway Company that the latter should promote a bill for the construction of four railways. it was agreed between the parties that, in the event of the bill authorising the construction of the railways not receiving the Royal Assent from any cause other than the withdrawal therefrom of the support of the Caledonian Railway Company, that company should “contribute towards the expense of the said bill (1) two-thirds of all outlays incurred in connection with the promotion of the bill; (2) one-third of the professional charges … in connection with such promotion.” the House of Lords held the preamble not to be proved so far as it related to the three railways Nos. one, two, and four included in the bill. These three were the only ones in which the Caledonian Railway Company was interested. The preamble was held to be proved as regards railway No. 3.

In an action at the instance of the Kirkcaldy Railway Company against the Caledonian Railway Company for payment of the proportionate amount of expenses connected with the bill, in accordance with the agreement between the parties, the defenders maintained—(1st) that the bill had in fact received the Royal Assent, and that on a sound construction of the agreement they were not liable for any portion of the sum claimed, and (2nd) that their obligation was one of relief only, and that as the whole expenses bad been paid by the North British Railway Company and not by the pursuers the claim of relief must fail.

Held ( aff. judgment of the First Division) that under the agreement the defenders were liable in the sum sued for.

This case is reported ante ut supra.

Headnote:

The defenders, the Caledonian Railway Company, appealed to the House of Lords.

At delivering judgment—

Judgment:

Lord Chancellor—But that we have heard for some short but not unreasonable time the two very able arguments which have been addressed to your Lordships on behalf of the appellants, I should have

Page: 580↓

thought that in all good sense this case was unarguable. The question is not what we should consider it would be likely that the parties would do—what would satisfy that which in a loose sense may be called the justice of the case; the question is what the parties have said by their agreement, and I really find myself wholly unable to deal with the words in any other sense than that in which the Courts below have dealt with them. It seems to me that the words are much more plain as they stand than anything that I can say upon the subject.

I take the words themselves, and I think they require no very long exposition. Everybody should approach the construction of an agreement with a knowledge of the circumstances in which it was made, in order to construe the words if there is any doubt about it. But what doubt is there here? The parties here have expressly pointed out that certain provisions are to come into effect in certain events. The events have not happened. Then what in the world have we to do with what might have happened in different circumstances? What does it matter whether it has been described as a “Bill” or an “Act”? We can only look at the words which we have got before us, and I must say to construe an Act by reference to something which the parties would be likely to do would be to unsettle the law with regard to the construction of written agreements. If a great deal has been omitted that might have been said, and that the parties would have been likely to have agreed upon, what have we to do with that? We cannot make the agreement for the parties. No Court can supply that which the parties have left unprovided for. It is burning daylight to suggest that these words are susceptible of any other construction than that which the Courts below have given to them.

For these reasons I move that the interlocutors appealed from be affirmed, and this appeal dismissed, with costs.

Lord Ashbourne—I quite concur.

Lord Shand—I also concur.

Lord Davey—The only question is the construction of an agreement the validity and binding effect of which are not disputed. I agree with what has been already said, that the construction of the agreement is free from any doubt whatever.

Lord Brampton—I agree.

Appeal dismissed and interlocutors appealed from affirmed.

Counsel:

Counsel for the Pursuers and Respondents— Dean of Faculty (Asher, K.C.)— Ure, K.C. Agent— John Kennedy, W.S., for Dundas & Wilson, C.S.

Counsel for the Defenders and Appellants— Lord Advocate (Graham-Murray, K.C.)— Cripps, K.C. Agents— Grahames, Currey, & Spens, for Hope, Todd, & Kirk, W.S.
1901