Scottish Court of Session Decisions

In May 1890 Messrs Mayor & Coulson, electric light engineers and contractors, Glasgow, entered into a contract with Henry Grierson, Craigend Park, Liberton, to light his house by electricity at the cost of £1100. This sum was exclusive of mason and joiner work in the engine and battery-house, foundations for engine and dynamo, and of fittings.

The accounts rendered by Messrs Mavor & Coulson for the value of goods supplied and work done amounted to £1471, 14s. 9d. Of this amount Mr Grierson paid £1302, 14s. 2d. in successive payments, the last of which was made on 11th December 1890. Mr Grierson refused to pay the balance of the account until he had inspected the items with Messrs Mavor & Coulson, and got explanations from them, as he held that the work had not been executed in terms of the contract, that it had not been carried out in a satisfactory and workmanlike way, and that part of it was still unfinished.

After a long correspondence between the parties, Messrs Mavor & Coulson raised an action against Mr Grierson for the payment of £169, 0s. 7d., the balance of their account. The summons was signeted on 22nd May 1891.

On 24th June 1891 the defender made an offer of £155 in full of the pursuers' claim. This offer the pursuers refused to accept.

On 15th July 1891 the defender offered to pay the pursuers the whole amount sued for if they would satisfy him that there were 150 electric lights in his house as charged for in the account. The pursuers on 30th July sent to the defender a list showing 150 lights. On 6th August the defender wrote the pursuers stating that an expert had informed him that 18 more lights were charged for than really existed, and asking for an explanation. The only reply to this was a letter dated 11th August 1891 from the pursuers' agents that the pursuers had instructed them to call the summons on the first box-day.

The defender lodged defences, in which he made the following tender—“In order to avoid litigation the defender tenders to the pursuers the sum of £50 in full of their claims in this action.”

A proof followed, and on 14th April 1892 the Lord Ordinary (Low) decerned against the defender for payment to the pursuers of the sum of £128, 4s. 2d. with interest, and found the defender liable in expenses, subject to modification.

The defender reclaimed, and on 16th May the Court recalled the interlocutor of the Lord Ordinary and decerned against the defender for payment to the pursuer of the sum of £44, 13s. 1d.

Counsel were then heard on the question of expenses.

Argued for the pursuers—No expenses should be awarded to the defender. His extrajudicial offer of £155 had not been repeated on record, and therefore could not be looked at, while the offer of £50 in the defences was not accompanied by a tender of expenses down to date, and was therefore of no avail in a question of expenses— Critchley v. Campbell, February 1, 1884, 11 R. 475; Gunn v. Hunter, February 17, 1886, 13 R. 573.

Argued for the defender—The Court was entitled to act according to their discretion in the matter of expenses. They could look at the reasonable or unreasonable conduct of the parties to the action and award expenses accordingly—Lord President M'Neill's opinion in Aitchison v. Steven, November 24, 1864, 3 R. 82. The cases

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quoted by the pursuers did not interfere in any way with the discretion of the Court in deciding such questions as the one raised here; in fact these cases were in favour of the defender's present contention. Here the defender's conduct throughout had been most reasonable, and the pursuers had been found entitled to over £100 less than they had been offered by the defender at first. The defender should therefore get his expenses.

At advising—