Scottish Court of Session Decisions

Patrick Jamieson, mason, Port-Glasgow, offered upon 1st June 1883, conform to estimate, with relative specification and offer annexed, to perform the digger, mason, and brick work in connection with a tenement to be erected for Duncan M'Innes.

The schedule of prices contained this item:—“18” Brick walls and gables, pointed and drawn, or left rough where required, measured net, daylight size of through-going openings only are deducted, Roods 10, 16, @ 234/, £89, 14s.” The schedule was prepared by a measurer employed by M'Innes, and £286, 10s. 8 1 2d. was the total estimated cost of the various items specified, as calculated by Jamieson. There were notes appended to the estimate, which contained the following clause—“The work to be measured when finished, and charged at the schedule rates, or others corresponding thereto, as also in proportion to the slump sum in the letter of offer.” The letter of offer therein referred to was addressed to M'Innes, and was in these terms—“Sir,—hereby offer to execute the digger, mason, and brick works of the tenement you propose to erect in Bay Street, Port-Glasgow, agreeably to plans thereof, now shown, and to the extent of this schedule, for the sum of two hundred and eighty-six pounds ten shillings and eightpence halfpenny.”

M'Innes accepted the offer. The measurer afterwards went over the schedule, and altered the calculated cost of three items, and the total sum, making the latter £319, 2s. 5d., instead of £286,10s. 8 1 2d., appending this note—“Off errors in calculation of schedule, £32, 11d. 9d.,” and bringing out the total of £286, 10s. 8 1 2d. Jamieson

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offered to take £5 off the price agreed on, which was accepted, and this also was noted by the measurer as a deduction, making the agreed—on price £281, 10s. 8 1 2d. In terms of the contract the work was measured when finished, and a new schedule prepared by the measurer, which gave the whole work done, and the calculated cost, as amounting to £308, 8s. 5d. From this was deducted £1, 10s. for old material, making the total £306, 18s. 5d. From this the measurer deducted £31, 6s. 10J. for errors in calculation of the schedule, in the proportion of £32, 11s. 9d. on £319, 2s. 5d.

This was an action under the Debts Recovery Act in the Sheriff Court at Greenock at the instance of Jamieson against M'Innes to recover£38, 15s. 5d., the unpaid balance of the contract price. The defender admitted liability for £7, 8s. 7d. The sum in dispute was the deduction of £31, 6s. 10d.

The pursuer pleaded—“(3) The deduction of £31, 6s. 10d. made by the measurer to bring out the balance stated by the defender is incompetent.”

The defender pleaded—“(2) That the measurement founded on by the pursuer brings out the net sum payable by the defender for the work there specified at £267, 8s. 7d., of which the defender has paid, and the pursuer admits having received £260, leaving a balance of £7, 8s. 7d., which the defender is and has always been ready and willing to pay to the pursuer. (3) The account sued for having undergone the triennial prescription, the constitution and resting-owing of the debt can only be proved by the writ or oath of the defender.”

The case was treated as one to which the triennial prescription applied, and the case was referred to the oath of the defender.

On 10th June 1887 the Sheriff-Substitute ( Nicolson) found the oath affirmative of the reference, and decerned in terms of the conclusions of the summons.

“ Note.—… According to the measurer's calculation the pursuer's estimate of the cost should have been £319, 2s. 5d. instead of £286, 10s. 8 1 2d., but why he should therefore receive £31, 6s. 10d. less than the sum found due to him on a calculation of the work actually done does not appear. He offered to do the work for the sum he had calculated, and the offer was accepted. To mulct him in £31, 6s. 10d. because he had erred in his calculation and under-estimated the cost appears highly unreasonable, the error, if there was one, being in favour of the defender and not of himself.”

On appeal the Sheriff ( Moncrieff) pronounced the following interlocutor:—“Sustains the appeal and recals the interlocutor of the Sheriff-Substitute of 10th June 1887: Finds that the defender admits in his defences liability for the sum of £7, 8s. 7d.: Quoad ultra, for the reasons stated in the following note, finds the defender's deposition negative of the reference: Therefore decerns against the defender for the said sum of £7, 8s. 7d. sterling: Quoad ultra assoilzies the

defender; finds him entitled to the sum of £4, 1s. 6d. expenses, and decerns for the same against the pursuer.

“ Note.—This is a case of some difficulty. It has been treated, and I think properly, as one to which the triennial prescription applies, see Chalmers v. Walker, Nov. 19,1878, 6 R. 199, and accordingly the pursuer has referred the whole case to the oath of the defender. The defender denies liability, except to the extent of £7, 8s. 7d., which he has all along admitted. Now, I agree with the pursuer in thinking that the defender is not, in the circumstances, the sole judge of whether any balance is due to the pursuer. He is bound to state his reasons for his opinion, and the Court is entitled to consider those reasons and to decide whether they are well founded in law. The defender's case is simply this. By estimate, No. 7 of process, the pursuer undertook to execute the work specified in the schedule for the sum of £286, 10s. 8d., and by a subsequent letter he reduced his offer to £281, 10s. 8 1 2d. The defender at the same time got an offer from a firm of M'Bride & Co. to execute the work for £289, 4s. The pursuer's offer was accepted, being the lowest, and the defender says (and of this there can be little doubt), that if he, the defender, had known that the pursuer's offer should really have been to do the work for a lump sum of £320, instead of £281 odds, the contract would have been given to M'Bride & Co., and not to the pursuer. The pursuer, however, maintains that he is not bound by the lump sum brought out in his offer. One of the items in the schedule, as filled up by the pursuer, stood thus:—‘18“brick walls, gables, … etc. Roods, 10, 16, 234, £89,14s.’ Now it is plain that if the rate is correct, the sum entered in the money column is incorrect. The sum should have been £122, 4s., instead of £89, 14s., making a difference of £32, 10s. The pursuer broadly maintains that the rate must rule, and not the sum set against it. No doubt the estimate No. 7 of process must be construed as part of the defender's oath; but on the evidence before me, I think the balance of considerations is against the pursuer. The original fault undoubtedly lay with him. Even if the defender ought, as a matter of prudence, to have checked the schedule before accepting the pursuer's offer, the greater fault was that of the pursuer. The purpose of filling up the money column and offering to do the work for a lump sum, presumably is to enable the customer to decide between competing offers; and if, through the carelessness of the offerer, too small a sum is brought out, it is only fair that he should bear the loss, and not the customer, who could have got the work done more cheaply by another con tractor.

No doubt the rate and the sum set against it cannot stand together. But why should the rate prevail, and why is it to be presumed that the rate is right and the sum wrong? The rate and the sum have no apparent relation to each other; the error is not merely clerical, such as the substitution of a 3 for a 5, and I fail to see why, if a mistake has been committed, the rate should be taken as binding on the defender.

The Sheriff-Substitute speaks of the error as one made by the pursuer against himself. But if he were now entitled to have it corrected, it would prove to be in his favour, because in that case he would, through his own mistake, have obtained the contract over the head of a lower offerer, and would at the same time have secured his own price.

At one time I thought that a proof might be allowed of the value of the item in question, on the footing of quantum meruit, although the pursuer

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did not ask that this course should be taken but maintained that the full rate should be allowed. But on consideration I can see no legal justification for this middle course.”

The pursuer appealed, and argued that the contract was not one for a lump sum, but for a sum to be calculated at fixed rates.

The respondent argued that he had made the contract upon the faith of the lump sum contained in the offer, and that otherwise he would have accepted an offer which, though apparently higher, in reality proved to be lower than the pursuer's.

At advising—