Scottish Court of Session Decisions

This was an action by Robert M'Alpine, contractor, Glasgow and Kilwinning, against the Lanarkshire and Ayrshire Railway Company, concluding for payment of £23,644, 1s. 9d. as the balance alleged to be due by the defenders under two contracts executed by him.

The first contract, which was called “The Barrmill and Kilwinning Railway Contract,” was for a small railway about six miles in length between Barrmill and Kilwinning.

Contract No. 2, in connection with which the present question arose, was an extension of contract No. 1, and carried on the line from Kilwinning to Ardrossan.

With reference to contract No. 2, after stating the value of the works the measurements of which had been adjusted, the pursuer averred as follows—“(Cond. 13) The balance, amounting to £7556, 1s. 2d., is due to the pursuer in respect of the defenders' failure to furnish him timeously with plans and drawings as the works proceeded, and of alterations upon plans made while the pursuer was in course of executing the work, and of the defenders ordering him to stop part of the works while in an uncompleted state, and ordering him to employ a number of additional men in the mixing of concrete for the works who were not required for the performance of the work, but whom the pursuer was forced to employ and pay for needlessly, and in various other respects. As has been already stated, the defenders had not matured their plans before commencing operations on this contract, and did not furnish the pursuer timeously with the usual plans and information necessary to enable a contractor to arrange his work upon the contract advantageously, even after all allowances are made for the time necessary to enable the defenders to adjust and prepare the plans after the contract was begun, but, on the contrary, gave the pursuer instructions and supplied him with plans piecemeal, and did not give him the advantage of the permanent works of the contract as is usual and requisite for the proper performance by a contractor of his work. Repeatedly, for months in succession, the defenders' engineer failed to furnish the necessary plans, and in order to prevent the work coming to a stand-still, and the enormous loss which would have thereby resulted, the pursuer was forced, in order to carry on the works, to erect temporary bridges, and perform other temporary works at great cost, which but for the culpa of the defenders or their said engineer would have been rendered wholly unnecessary. Further, the defenders' said engineer, in consequence of a petty quarrel with the Police Commissioners of Ardrossan, stopped the works there for several months at enormous loss to the pursuer. A detailed statement of the said claims is contained in the said accounts, and is referred to. The expense incurred, and the loss and damage sustained by the pursuer as above stated, is moderately charged at the said sum of £7556, 1s. 2d. The pursuer during the course of the contract intimated his intention to make these claims.”

The defenders pleaded—“(1) The pursuer's averments are irrelevant. (3) The action is excluded by the arbitration and reference clauses; et separatim, in any event decree should only be pronounced for such sums, if any, as the arbiter or engineer shall find to be due.”

The specification for contract No. 2 contained the following provisions:—“19. The schedule measurements are only assumed. The whole of the works when finished shall be re-measured and paid for at the schedule rates. Any other description of works ordered shall be measured and paid for at rates to be fixed by the said engineer, and no reference shall be made to any arbiter to fix such rates for additional or altered work, the engineer's decision being final and binding on all parties with respect to the character, description, execution, and measurement of the works to be executed under this contract, and the rates to be paid therefor.”

“34. Should any dispute arise as to the true intent and meaning of this specification, or as to the adjustment and terms of the contract deed to follow hereupon, or as

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to what may be considered ‘usual and necessary clauses’ in the said deed, or as to any other matter connected with this contract to follow hereon (except as to maintenance or matters otherwise specially provided to be settled by the engineer solely), the same shall be referred to the decision of the said John Strain, civil engineer, Glasgow, whom failing to M'Taggart Cowan, civil engineer, Glasgow, and the award of either arbiter shall be final and binding on all parties.”

The clause of arbitration in contract No. 2 was in these terms—“And it is hereby specially provided and declared that all disputes and differences in any way connected with, or arising out of, the execution of or failure to execute the works hereby contracted for, except such matters otherwise provided to be settled by the engineer of the first party solely, shall be submitted and referred to the amicable decision, final sentence, and decree-arbitral of John Strain, civil engineer in Glasgow, whom failing M'Taggart Cowan, civil engineer there, and whatever the said arbiter shall direct or decide by any decree or decrees-arbitral, interim or final pronounced by him, the said parties hereto respectively bind and oblige themselves and their foresaids to execute, implement, and abide by under the penalty above mentioned.”

On 6th September 1889 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—“Finds that the pursuer's claims under the Barrmill and Kilwinning contract No. 1 … fall within the arbitration and reference clauses of the said contract: … Finds that the pursuer's claims under or connected with contract No. 2 or Ardrossan contract other than the alleged claims of damages specified in the 13th article of the pursuer's condescendence fall within the arbitration and reference clauses in the said contract: Finds that the pursuer has not relevantly averred any claims of damages as distinguished from claims in respect of extra work, or other claims which may be open to him under the said contract No. 2, and to that extent sustains the defenders' first plea-in-law without prejudice to the pursuer claiming before the arbiter any of the alleged items of damage which he can instruct to be due in respect of extra work or other matters for which he is entitled to remuneration or allowance under the contract: Therefore supersedes procedure in hoc statu in order that the pursuer's claims under the said contracts may be referred to Mr M'Tag-gart Cowan, C.E., Glasgow (the arbiter second named in contract No. 1), and Mr John Strain, C.E., Glasgow, respectively, reserving to the pursuer to apply for interim decree for the said sum of £1218, 11s. 2d., and the defenders' answer to such application; meantime reserves all questions of expenses, and grants leave to reclaim.

“ Note.—… These being the provisions of the specification and contract, the pursuer now complains (1) that the defenders did not timeously furnish him with additional plans, and that in consequence he was obliged to erect and perform expensive temporary works; and (2) that he was unnecessarily ordered by the company and their engineer to employ additional labour, and also to stop the works from time to time, and was thus put to much needless expense, and sustained loss for which he claims damages. The items of damage are set forth in detail in his claim. I think that averments of fault much stronger and more specific than those here made would be required to support such claims.

No obligation is laid on the defenders, either in the specification or the contract to supply additional plans, although they have power to do so if they please.

Again, as to the stoppage of the works and the ordering of additional works or labour, the widest discretion is given to the engineer, and it would be contrary to the whole spirit of the contract if, after the work was completed and in great part covered up, a court of law were to be called upon to review the decision or conduct of the engineer in every minute detail. A perusal of the various items of damage in No. 19 of process shows how unsuitable the questions are for determination in a court of law. There seems to be no reason why the greater part of the work executed should not have been treated in the same way if the pursuer considered that he had been unduly obstructed by the company or their engineer.

It was clearly in contemplation when the contract was entered into that there were risks of various kinds which the contractor must be content to run, and among them was the risk of detention and the expense of temporary works which might be rendered necessary by the unforeseen exigencies of the undertaking and the orders of the engineer.

It may be, however, that the pursuer may be able to satisfy the arbiter that he is entitled to remuneration or allowances under the contract for some at least of the items which he includes under the head of damages. While therefore I am of opinion that the pursuer has not stated any relevant claim of damages, I do not intend to foreclose him from claiming in the reference remuneration for such items, not as damages, but as allowances for extra work and other allowances to which he may be entitled under the contract.”

The pursuer reclaimed.

After a short discussion the Court observed that the averments in condescendence 13, supra, were not sufficiently specific, and the pursuer was allowed to amend his record, and the defenders to answer the amendments.

The pursuer accordingly lodged a minute of amendment in the following terms—“In particular—1. The defenders failed timeously to furnish the plans for bridge No. 10. This was the largest bridge of the contract, and from its position in the centre of the contract it formed the key to the rest. In ordinary and proper course the building of the bridge ought to have been begun in August 1885, when the other works under the contract were commenced, or at latest by the middle of October 1885, so as to allow time for the bridge to be built before

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the embankment reached it; but the plans for it were not furnished till 27th May 1887. i.e., twenty-two months after the contract was obtained, and only nine months before the expiry of the contract time. The pursuer had to convey more than 100,000 tons of material across said bridge, and when the contract was entered into neither party contemplated the necessity for the erection of a temporary bridge across the Glasgow and South-Western Railway at this place, and no allowance or estimate was made therefor; but in consequence of the defenders' failure to furnish the plans foresaid a temporary bridge and embankments became absolutely necessary. The defenders further failed to furnish plans for permanent bridge at peg 64, which ought to have been supplied at least by the end of March 1886, but were not received till 14th July 1886. This delay caused the necessity of a temporary bridge where no such bridge was contemplated by either of the parties when the contract was entered into. They also failed to give instructions for the building of a cattle creep at peg 68, until within a day or two of the embankment reaching the spot, thus requiring the erection of staging and other unnecessary expense to the pursuer, detailed in statement No. 22 of process. Other temporary bridges, including those at pegs 22, 24, 77, 78, and 95, required to be kept up and maintained for long periods in consequence of the defenders' delay in furnishing plans for those bridges. The defenders' delay in furnishing plans for those bridges extended from six to fourteen months. The loss and damage sustained by the pursuer under this head is specified in items Nos. 1715, 1719, 1721, 1729, 1732, and 1733 of the detailed statement, No. 22 of process, and items Nos. 1, 2, 5, 6, and 7 of the statement of increased claims, No. 16 of process, and amounts in all to £2935, 8s. 10d.

“2. The defenders also failed timeously to furnish plans and give instructions for carrying off the water arising between pegs 86 and 90, also the water from the intercepted drain near peg 91, and the water from the stream at peg 94. It was the duty of the defenders to furnish these plans and instructions; and in the ordinary course of the operations they ought to have been furnished at least ten months before they were received. The cutting was completed at the site of the new outlet for the water arising between pegs 86 and 90 early in August 1886, but instructions for the disposal of the water were not received until 29th March 1887, and it required at least two months after that to execute the work. The water from the built drain at peg 91, which crossed the railway, was also allowed to flow into the cutting for ten months before instructions were received for its disposal. A permanent aqueduct required to be built for carrying the stream at peg 94 across the railway, and plans for it ought to have been, in the ordinary course of such work, furnished in the beginning of May 1886, but were not furnished till 31st August 1886. By this time the cutting had approached so near the stream that a temporary aqueduct and diversion of the stream were required. Great additional expense was thus caused to the pursuer entirely through the fault of the defenders; and the items falling under this branch of the claim are items 1724, 1725, 1726, and 1727 of detailed statement No. 22 of process, and item No. 3 of No. 16 of process, amounting in all to £1950.

3. The slopes of the cutting between pegs 17 and 23 had been cleaned up and partly soiled for months before the order for drains had been received from the defenders. This order, through the fault of the defenders, was not received till 10th February 1887, whereas it ought to have been received at latest by August 1886. The additional cost thus caused to the pursuer forms item No. 1716 in the detailed statement, No. 22 of process amounting to £30.

4. The cutting at peg 24 was completed in December 1885, and the water-pipe for the town of Irvine required to be carried across the cutting by means of a temporary bridge. The necessity for this bridge was caused through the fault of the defenders not timeously preparing and furnishing a plan for the permanent bridge, which ought to have been furnished at latest by the middle of December 1885, but was not received by the pursuer until 10th March 1887. This delay also caused additional loss to the pursuer in carrying ballast and other traffic below the temporary bridge. The expense thus caused is claimed under items Nos. 1717 and 1718 of the detailed statement, No. 22 of process, and amounts to £50.

5. The pursuer also claims £900, being item No. 8 of the statement No. 16 of process. This expense was caused through the fault of the defenders in not arranging for the opening of the Glasgow Street Bridge, Ardrossan, in consequence of a dispute between them and the Ardrossan Corporation. The defenders ordered the pursuer to stop his cutting at peg 98, which necessitated the removal and afterwards bringing back of his whole plant and other material. The work stood idle at this place for about fifteen months. The pursuer had over 100,000 cubic yards at this time to excavate from the cutting, a portion of which went to form the embankment at Paisley Street, Ardrossan, to which the pursuer could not get access until Glasgow Street had been re-opened; and another

portion to form the embankment of Ardrossan station, the plan of which station ought, in ordinary course, to have been furnished to him at latest by February 1886, but no plan was received until 15th July 1887.

6. The defenders also in various instances furnished plans, and the pursuer executed portions of the work according to these plans; and the defenders thereafter, and after long delay, and the removal of the pursuer's service rails, and other plant, furnished other plans of an entirely different nature from those originally furnished, and required the work to be reconstructed accordingly. The items falling under this

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branch of the pursuer's claim are Nos. 1720, 1722, 1723, and 1731 of the detailed statement No. 22 of process, and No. 4 of the statement No. 16 of process, and amount to £207, 9s. 8d.”

The defenders' answers took the form of a general denial of the pursuer's statements, and especially of the necessity of any of the temporary works erected by the pursuer.

Argued for the pursuer — The present dispute did not fall under the clause of arbitration. It arose through the failure of the defenders' engineer to supply the pursuer with the necessary plans so as to enable him to proceed with his work. The pursuer had suffered damage by the actings of the defenders' servant, and they were liable to him in damages therefor. It would be unreasonable to refer to the company's engineer a question of his own negligence. The pursuer was bound to complete the works within a specified time, and therefore the defenders were bound to cause no delay in the furnishing of the plans, and their contention that the time within which the plans were to be handed to him was a matter entirely within their own discretion was absurd. The arbiter was not entitled under the contract to assess damages, and the pursuer's claim being essentially one of damages, he was entitled to a proof of his averments.

Authorities—On the clause of arbitration — The Aberdeen Railway Company v. Blaikie, January 28, 1851, 13 D. 527; M'Cord v. Adams, November 22, 1861, 24 D. 75; Tough v. Dumbarton Water Commissioners, December 20, 1872, 11 Macph. 236; Kirkivood v. Morrison, November 6, 1877, 5 R. 79; Howden v. Dobbie, March 16, 1882, 9 R. 968; The Saville Street Foundry Company, March 20, 1883, 10 R. 821; Mackay v. Parochial Board of Barry, June 22, 1883, 10 R. 1046; Beattie v. Macgregor, July 5, 1883, 10 R. 1094; Levy & Company v. Thomsons, July 16, 1883, 10 R. 1134; Adams v. Great North Railway Company, June 21, 1889, 16 R. 843.

Argued for the defenders—The clause of reference was framed in the most comprehensive terms with a view to include disputes like the present. The works which the pursuer had to make fell under the provisions regarding extra work, all questions regarding which were, it was arranged, to be determined by Mr Strain. The pursuer knew when he asked that contract No. 2 should be given to him that none of the plans were prepared, and he ought to have foreseen that there would have been delay before they were ready and prepared accordingly. It was a matter in the discretion of the defenders' engineer when the working plans were handed to the pursuer, who was not entitled now to rear up a claim of damages for necessary delay which he ought to have provided for— Jones v. St John's College, L.R., 6 Q.B.D. 115; Willesford v. Watson, L.R., 8 Chan. Div. 473.

At advising—