Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. XII.

Where a Builder upholds his Work. - Periculum between Master and Servant.

George Clerk and George Irvine, Esqrs
v.
Alexander Lawrie

Date: 1 August 1775
Case No. No 82.

Periculum found to lie on the undertaker, bound by contract to uphold a bridge for seven years, which had fallen in the fifth year.

Click here to view a pdf copy of this documet : PDF Copy

In the year 1761, the Gentlemen of Lanarkshire came to a resolution of building a bridge over the Clyde, near Elwanfoot. Mr Clerk and Mr Irvine, the chargers in this action, were empowered to enter into agreements for building that bridge, and to receive the proposals of tradesmen. Upon this occasion, Alexander Lawrie, mason, presented a plan and estimate of the bridge, and was preferred to the other workmen, who had, at the same time, given in their proposals.

Matters, however, lay over for some years, when, in December 1766, a contract, agreeable to the estimate 1761, was executed between the chargers and Lawrie; in consequence of which, he proceeded to build the bridge, and completed it within a reasonable time. However, in November 1772, the bridge fell down, when it had only stood for five years; and, as seven years was the time stipulated for the undertaker to uphold it, application was made to him by the chargers to rebuild the bridge, at his own expenses, as soon as convenient. But finding him reluctant, a charge was given him for that purpose, which he brought under suspension; and a proof having been led, and a visitation of the foundation of the bridge made by authority of the Lord Ordinary, the case was taken to report.

The reason of suspension was, that the suspender had implemented the contract on his part; and having implemented it, the chargers have no further claim against him; for though it is true, that, by the contract, he became bound to maintain and uphold the bridge for the space of seven years after it should be finished and found sufficient, and, in fact, it was destroyed at the end of five years, yet that accident is nowise imputable to him; for, being the effect of an uncommon speat, which it was impossible to resist or secure against, it can be viewed in no other light than if the bridge had been demolished by lightening, or thrown down by an earthquake; in either of which cases, the suspender would not have been liable, as he had done every thing in his power to implement his contract, and the work had been destroyed by an accident, which neither human power nor human prudence could provide against.

As to the obligation in the contract, founded on by the chargers, argued, All such obligations are to be interpreted according to the ideas suggested by right reason; and no law whatever will push their force the length of absolute absurdity. They will never be construed into an obligation to resist all powers, human and divine. If the work should be destroyed by the devastations of an enemy, no law will oblige the builder to restore it, far less will it oblige him to warrant it against the strokes of Providence, excited through the extraordinary efforts of nature, whether in the way of earthquake, of lightening, or of extraordinary and preternatural floods. In short, every extraordinary event that, in the common course of human affairs, could not be expected, is considered as barred in all contracts of this nature; for, as human prudence could not foresee them, it cannot be expected, from human care, that they should be particularly enumerated so as to be barred.

Answered on the part of the chargers; That the river rose higher, when the bridge fell, than what the suspender alleges he had been informed, can be no defence to him; because the bridge should have been sufficient to resist the flood, and he should have planned it so as to have made some allowance for accidents. But allowing the fullest force to the suspender's evidence, it appears in the proof, that the flood rose but a few inches higher than those floods, according to which the suspender pretends to have formed his plan; and that the suspender likewise acknowledged, that, if the foundations had not given way, the strength of the flood was not sufficient to have done any damage to the bridge.

High floods cannot be considered as extraordinary and unforeseen, as accidents of thunder or earthquakes; because, in building a bridge, a great allowance should be made for accidental floods, which may happen to be higher than any of which information can be got before the bridge is built.

The suspender might have some shadow of equity in his case, had the flood which happened when the bridge fell, brought down any extraordinary quantity of wood or ice along with it. But there is but little wood in that country growing above the bridge; and when it fell, there was no ice nor snow upon the ground.

Again, clauses, such as that upon which the suspender is charged, are necessary in all contracts of the nature of that under determination. Buildings may be constructed in such manner as to appear externally sufficient, whilst, at the same time, there are concealed defects of the most important nature.

In buildings, their standing or falling must be considered as the only criterion of the sufficiency or, insufficiency of the work. When, therefore, the chargers received the bridge from the suspender, as a sufficient bridge, they did not receive it as intrinsically sufficient, but as apparently so only. They could find no fault with the external appearance of it; but the sufficiency of the work was to be determined only by its standing in good repair for seven years, the time stipulated in the contract.

Two witnesses only pretend to give any conjectural measurement of the height of the flood. The first witness says, that the flood, when the bridge was destroyed, rose about nine inches higher than a great flood he had observed about twelve years ago. The other witness says, that it rose nine or ten inches higher than what he had seen it; and these are the only witnesses who pretend to give any idea of the perpendicular rise of the flood.

There is not the smallest evidence that the fall of the bridge was owing to the force or pressure of the water. The true cause of its fall was the improper manner of laying the foundation of its pillars, which is evident from the gradual manner in which it was wasted by the floods, and the situation in which its foundations were when it fell.

Floods are the natural cause of the damage of every bridge, and must always be supposed to be circumstances particularly guarded against. Besides, the price which is to be paid for building depends very much upon the insurance to uphold it, and the length of the time specified. By such an insurance as the one in the contract, the suspender is certainly bound to insure against all accidents and misfortunes natural to bridges. In the case of a question about recovering insurance, would it be any defence to the insurers, that the fire had been communicated in an uncommon or extraordinary manner? or that the storm, which destroyed the ship at sea, had been the greatest known for many years? These are the natural misfortunes which the insurers against fire, or sea hazard, are bonnd to make up to the losers. By the same rule, floods are accidents natural to bridges, and which cannot excuse the workman from rebuilding, who contracts in this manner, and upon these conditions receives a certain price.

The Court were clear, upon the general principles, to give judgment against the suspender, in consequence of his obligation to uphold the bridge for the number of years therein stipulated; and likewise seemed convinced, by the proof, that the foundation of the bridge was originally faulty.

The Lords repelled the reasons of suspension.

Reporter, Auchinleck. Act. Geo. Clerk. Alt. Crosbie. Clerk, Tait. Fol. Dic. v. 4. p. 61. Fac. Col. No 191. p. 121.