Scottish Court of Session Decisions

This was an appeal arising out of a petition in the Sheriff-court on an agreement entered into between the parties in 1868 by which inter alia Todd agreed to pay to Wallace— “First, the whole expenses incurred by him in the submission, as these may be taxed, if necessary, and that by bill at three months from the last date of this agreement; second, to supply to the said William Wallace, as he may require the same, and that continuously, as much good dross as he may require for the engines to pump the water from the workings in Solsgirth, and that until access to the working faces shall be obtained, declaring always that the said William Wallace shall be bound to use all due expedition in getting said access, and that in any event the obligation to supply said dross and pay said wages shall cease whenever coals are put out from the said pit, being No. 2 Solsgirth, and third, to pay to the said William Wallace weekly, the wages of the enginemen during the foresaid operations.” Wallace in return to be held bound, on the full implement of the agreement, to assign formally to Todd his claim in the sequestration of James Gardner, coalmaster, under certain specified exceptions.

Page: 58↓

The petitioner averred that he had as soon as possible commenced, and with all due expedition carried on, the pumping operations, and that the defender after repeated delays in fulfilment of the second and third clauses of the agreement, ceased entirely either to supply the dross or pay the wages from Nov. 16, 1868.

The defender, in a minute of defence dated 18th Dec. 1868, stated that the petitioner had over estimated the amount of dross required weekly and also the wages of the men. He denied that proper pumping apparatus was used, or that there was due expedition in so much as the short stroke of 11 strokes per minute had been worked in the engines in place of 20 strokes per minute, and this moreover despite his complaints. Further, defender asserted—“That the petitioner had always been most negligent and slack in supplying additional pipes for the pumping, as they were from time to time required, and there had been always great delays in his so doing, and frequent complaints on the defender's part, which have been invariably unheeded. That several days before the 16th November last, the petitioner had pumped the water out, as far as the pipes put in by him extended, and, nevertheless, he continued for several days pumping away on air, without attempting to supply additional pipes to enable the pumping to be continued, notwithstanding the defender's repeated remonstrances and threats to stop supplying dross till he were in a position to begin pumping. No attention having been paid to these remonstrances and threat, the defender ceased supplying dross and paying wages. Since that date the petitioner has got access to the working faces, and has been putting out coals for some time from both pits. That the 10-inch pipes supplied by the petitioner are insufficient to keep down the growth, even with the engine working full stroke and speed, and can make no impression on any accumulation of water there may be on the workings. That the defender has offered, and is willing, to continue supplying dross and paying wages till the questions at issue between the parties be judicially determined, under protest that he is not bound to do so, and under reservation of his claim for repetition of the value of the dross so supplied and the amount of wages so paid; but the petitioner has refused to accept dross or payment of wages under any reservation whatever.”

After a voluminous proof, extending from March 1869 to November 1871, the Sheriff-Substitute, by interlocutor of 12th January 1872, dismissed the petition; on appeal the following interlocutor was pronounced, April 20th 1872, in which the Sheriff-Depute ( Bell) finds that—“by minute of restriction, No. 15, the pursuer, in respect access to the working faces of the pit in question was obtained on 14th June 1869, restricted the conclusions of the petition to the reservation therein asked, and to the craving for expenses: Finds that the original conclusions of the petition, which was presented on 7th December 1868, were founded on the terms of the mutual agreement No. 7/1; finds that the defender had ceased to supply dross to the pursuer, as stipulated for in said agreement, from about 16th November 1868, that is, for about three weeks before the action was raised: Finds, however, that for about a fortnight before that period, the pursuer, in consequence of the subsidence of the water in the pit through the pumping operations, was able to take out coal to keep the pumping engine going, not from the working faces which were still under water, but from a part called the ‘lodgment,’ where a considerable amount of coal remained unworked: Finds that, in these circumstances, the defences stated were two-fold,— first. That the defender's obligation to supply dross was at an end before the action was brought, in respect of the output which had become available, and was actually taken by the pursuer; and second, that he (the defender) was justified in ceasing to furnish any more dross a few days before the output was begun, in respect of the untradesmanlike and dilatory manner in which the pumping operations were being conducted by the pursuer: Finds, as regards the first of said defences, that it is well-founded, seeing that it is made an absolute condition of said agreement. that ‘in any event, the obligation to supply said dross and pay the said wages shall cease whenever coals are put out from the said pit,’ which words cannot be construed as referring only to coals put out from the working faces, but must be held as extending to coals put out from any part of the pit, especially if sufficient for the supply of the pumping engine, which it is not denied the coals taken from the lodgment were, the reasonable interpretation of said agreement being, that the pursuer's right to exact dross from the defender was to cease as soon as its place could be supplied by coals from the pit: Finds, as regards the second of said defences, which it is now necessary to consider only as affecting the question of expenses, that a proof at large of the averments on which that defence is founded was allowed by the interlocutor of 22d January 1869, and a voluminous proof was thereafter led accordingly; finds that the said proof, though it does not establish to their full extent the defender's averments, nevertheless establishes that, even if there had been no output of coals from the pit, the defender would have been justified in stopping the supply of dross until the pursuer made arrangements to conduct the pumping operations with greater expedition, and with less imperfect and inefficient apparatus, so as to save the extension of the defender's obligation over an unnecessarily protracted period, contrary to the spirit of the agreement: Therefore, upon the whole case, sustains the defences, and finds that, had the primary conclusions of the petition been insisted in, the defender would have been entitled to absolvitor, and said petition falls now, at all events, to be dismissed simpliciter, and dismisses the same accordingly: Finds, as regards the question of expenses, that the Sheriff-Substitute, whilst finding for the defender on the merits, has held him entitled to only one-fourth costs, on the ground that, while the pursuer was willing to agree to a remit being made to a person of skill, as suggested in the note to the Sheriff's interlocutor of 22d January 1869, the defender refused to consent to such remit, thereby rendering a long proof necessary; but finds that although a remit might have had the effect of shortening procedure, it is doubtful that it would have altogether superseded the necessity for proof, and, at all events, so large a modification of the expenses to which the defender would have been otherwise entitled seems too high a penalty for merely exercising his discretion in refusing to assent to a remit; therefore alters the interlocutor appealed against as regards expenses, and finds the pursuer liable in expenses to the defender, subject to modification to the extent of one-fourth of the taxed amount.”

The petitioner appealed.

At advising—