Scottish Court of Session Decisions

This was an action at the instance of Mrs Agnes Donaldson or Quin, sole trustee and executrix of her husband the deceased Peter Quin, contractor, Springburn, against James Gardner & Sons

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Limited, coalmasters, Kirkintilloch, concluding for payment of £1924, 15s. 1d. as the balance due upon a contract entered into between her deceased husband and the defenders.

The terms of the offer to execute the work were contained in a letter dated 17th December 1885, written by the deceased Peter Quin to the defenders:—“I hereby offer to execute the work required, to make a line of railway and sidings from the Campsie Branch of the North British Railway, on the lands of Luggiebank, to your No. 2 pit at Meiklehill, in conformity with the plans and specification signed by me as relative hereto, for the slump sum mentioned below, or, in your option, at the several prices named in the annexed schedule, and you shall be at liberty to accept the whole of my offer, or only such other parts thereof as you may decide upon. The whole of the operations undertaken by me shall be carried on and completed with the utmost expedition, and to your entire satisfaction. Should you agree to accept my offer for the whole work detailed in specification, I hereby bind myself to finish the same so as to permit the working of your traffic thereon within three months from date of your acceptance; and further, I agree to maintain the whole line, and its several parts and connections, in good repair for a period of six months after completion for a sum of eleven hundred and eighty-six pounds, sixteen shillings and eightpence sterling, £1186,16s. 8d.”

The defenders replied to this letter on 26th December 1885 as follows:—“We have your offer of 17th inst. for the construction of aline of railway to connect our collieries with the Campsie Branch of the North British Railway, and we hereby accept of same, subject to the following stipulations:—The operations embraced by your offer are to begin immediately after the New Year holidays, and be carried on in conformity with plans and specification, and to be completed so as to permit, the safe working of our traffic along the line by the first day of April 1886. We shall have power during the progress of these operations to make, such changes in the plan and extent of the work detailed in specification as we may deem necessary. The whole operations shall be carried on and completed to our entire satisfaction, and, in particular, you undertake to construct the bridge and fences to the satisfaction of John Brand, Esq., engineer, Glasgow. The whole quantities of work done shall be measured on the completion of the contract, and paid for at the rates entered in schedule of prices which accompanies your offer, with the exception of the fencing, the rate for which, as verbally arranged, shall be 2s. 2d. per lineal yard. Kindly hand us your confirmation of this, and favour.”

To this letter Quin replied on 23rd January 1886, stating that “the work shall be carried on as directed.”

The work was commenced on 4th January 1886, and Quin died on 1st August 1886. The work was completed after his death.

The pursuer averred that after the commencement of the work the defenders entirely altered the line and levels of the railway, so that the work actually done was of an entirely different nature and extent from what was originally contemplated, or covered by, or included in the contract; and that prior to Mr Quin's death his foreman and clerk had from time to time pointed out to the defenders that there had been a complete substitution of one scheme for another, and that the schedule rates originally contemplated were no longer applicable. They stated that the whole price of the work and material, charged at fair and reasonable rates, amounted to £3374, 15s. 1d. To account of this the defenders had paid £1450, leaving a balance of £1924, 15s. 1d. still due to the pursuer.

The defenders averred that the alterations upon the railway were in contemplation and known to Peter Quin before the contract was entered into; that the defenders proposed to delay accepting Quin's offer until certain consents were obtained which were necessary before the alterations could be given effect to; but that as Quin was very anxious to begin work at once, he urged the defenders to accept his offer, but guard themselves by taking power in their acceptance to alter the extent and plan of the work; and that they accordingly did so in their acceptance of 26th December, quoted above. Further, that the last receipt granted by Quin bore to be “to account of contract price of railway,” and that he never intimated that the contract rates were insufficient or inapplicable.

There was also a counter claim for loss of traffic in respect of delay in the completion of the work.

The pursuer pleaded, inter alia, that as the defenders had abandoned the work originally contemplated and included in the contract, and required other and more expensive work to be done, they were bound to pay therefor quantum meruit.

The defenders pleaded, inter alia, (2) that the alterations being within the terms of the contract, the work fell to be paid for according to contract rates; and (3) that the alterations being within the knowledge and contemplation of the contractor when he concluded the agreement, the work fell under the contract.”

On 17th May 1888 the Lord Ordinary ( M'Laren) pronounced this interlocutor:—“Remits to George Miller Cunningham, Esq., C.E., to inspect the private railway in question, and to call for documents and explanations, and to report his opinion on the question whether the railway, as executed, is covered by the contract contained in the missives dated 17th and 26th December 1885 and 23rd January 1886, and relative schedule and specification, or whether the railway, as executed, differs from the work contemplated in the missives, schedule, and specification, in whole or in part, and that to such extent and degree that the schedule prices cannot be fairly applied to the work as executed, and quoad ultra continues the cause.

“Note.—If the referee should find that there is any question of facts on which it is necessary that witnesses should be examined on oath, he may apply to the Lord Ordinary for further powers. After counsel have been heard on the subject of the present remit, it will be open to the Lord Ordinary to make a second remit to the same or a different referee to report as to the sum payable by the defenders to the pursuer.”

The defenders reclaimed, and argued—The remit made by the Lord Ordinary, if not incompetent, was most undesirable. It was a remit of

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only a portion of the cause, and in order to deal with the matters remitted, the referee would require to consider questions of law. There was no case in which a remit had been made in circumstances like the present without the consent of parties. The proper course was to allow parties a proof under such limitations as to the Court should seem proper.

Argued for the pursuer—The question between the parties stood upon the agreement, and it was impossible to bring in the communings of parties to modify this. The object of the remit was to see if the work fell fairly within the scope of the contract; in such circumstances a remit was competent without consent— Lord Blantyre v. Glasgow and Greenock Railway Company, February 1, 1851, 13 D. 570; Smith v. Scott, March 17, 1875, 2 R. 601; Nisbet v. Mitchell Innes, February 20, 1880, 7 R. 575. The advantage of a remit was that if the report was unfavourable for the pursuer, the case was at an end; while if it was against the defenders, it was still open to them to plead acquiescence.

At advising—