Scottish Court of Session Decisions

This was an action at the instance of Alexander Wilkie, joiner, Lamb Street, Hamilton, against the Hamilton Lodging-House Company, Limited, incorporated under the Companies Acts 1862–1898, and having its registered office at 47 Almada Street, Hamilton, in which he sued, inter alia, for a sum of £150, being part of a balance which he alleged to be due under a contract for joiner work done by him.

The facts in the case were as follows:—In 1900 the defenders resolved to build a lodging-house on a piece of ground belonging to them in Hamilton, and plans and schedules were prepared therefor by an architect in Hamilton and a firm of measurers in Glasgow. The pursuer amongst others was supplied with a schedule for the joiner, glazier, and ironmongery work. He filled in the rates at which he was prepared to execute the work, adding a calculation of the total cost of each item, and of the

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whole work which he was prepared to do. He returned the specification and schedules filled in, along with an offer to execute the work for a certain sum named, being the total of the various items in the schedule. This offer being the lowest by about £100 was accepted by the defenders.

The schedule supplied to the pursuer contained the following stipulation:—“Full power is reserved to make alterations, and to increase, lessen, omit, or relet such parts of the work as may from time to time be thought fit. The work will be measured and charged at the schedule rates, and for alteration by others strictly in conformity therewith, and all subject to revision and correction by measurers, and to any addition or deduction which may be made by contractor in filling up his offer.”

The pursuer's offer was in the following terms:—“ July 1900.

The Hamilton Lodging-House Co. Ld.

Gentlemen,—I hereby offer to execute the wright work, &c., at the model lodging-house you propose to erect in Hamilton, agreeably to plans by Gavin Paterson, Esq., I.A., now shown in conformity with and to the extent of the foregoing estimate for the sum up: Thirteen hundred and thirty pounds sterling, and will enter into a stamped minute of agreement to have the whole work complete within a time to be determined and entered in said agreement.—Your acceptance of this offer will be binding on, Gentlemen, your obedient servant, “ pro Alexr. Wilkie.

£1330, 0s. 0d. Alf. E. Wilkie.”

A minute of agreement was thereafter entered into between the pursuer and defenders. This agreement proceeded on the narrative that “Whereas the company are about to erect a model lodging-house in Church Street, Hamilton, conform to plans and specifications prepared by Gavin Paterson, architect, Hamilton, and the second party has offered to execute the carpenter, joiner, glazier, and ironmongery work thereof conform to the plans and specifications thereof for the sum of One thousand three hundred and thirty-three pounds three shillings and fourpence sterling, which offer has been accepted by the company: Therefore”…

The agreement provided, inter alia, as follows:—“ First, The second party further obliges himself to carry on and complete the work in a tradesmanlike manner in conformity with the said plans and specifications.… Third, The company bind and oblige themselves to pay to the second party the said sum of One thousand three hundred and thirty three pounds three shillings and fourpence, and that in the following instalments, viz.—Four hundred pounds on the completion of the roof, Three hundred and fifty when the floors and windows are put in, and Four hundred pounds when the work is completed, and the balance when it is measured.”

One of the items in the specification was to supply 1100 square yards of pitch pine dressed and jointed lining. This item was thus entered in the estimate—“240. Fittings in Dormitories—1 1 8 Pitch pine dressed and jointed, tongued and grooved lining, enclosing berths, sq. yds. 1100, 3s. £13, 15s. 0d.” The pursuer thus inadvertently calculated this item at 3d. per yard instead of 3s., bringing out £13, 15s. as the price instead of £165. The result was that his offer was £152 lower than it ought to have been.

In these circumstances the pursuer brought the present action in the Sheriff Court of Lanarkshire at Hamilton, in which he claimed, inter alia, this sum of £152 as part of the balance due to him.

He averred that the rate was correctly entered in the specification, and that the defenders and their measurers should have noticed the error if they had used ordinary care, and that the working copy of the specification, with which he was provided, and which he used while executing the work, did not contain either the rates or prices; and that he had no opportunity of noticing the error, and was not aware of it until it was brought to his notice by the architect after the work had been completed.

The defenders averred that the first notice of the error they got was in a letter from the architect after the work was finished; that if this mistake had been discovered in time the pursuer's offer would not have been the lowest, and consequently would not have been accepted; and that if the work had been executed by the next lowest offerer a saving of £100 would have been effected; but that as they did not wish to take advantage of the pursuer's mistake, they had offered, and again thereby offered, to pay to him the price at which that piece of work would have been done by that offerer—without prejudice, however, to the written contract.

The defenders pleaded, inter alia—“(2) The contract between the parties being for a lump sum, the pursuer is not entitled to resile from it and claim detailed prices.”

On 24th May 1902 the Sheriff-Substitute ( Davidson) pronounced this interlocutor—“Finds that the pursuer undertook to do the work specified in the schedule for the slump sum of £1333, 3s. 4d.; that he is entitled to be paid for any extra work at the rates named in the aforesaid schedule; quoad ultra allows to both parties a proof of their averments, and sends the case to the roll of 3rd June next to fix a diet.”

Note.—“I have found this case attended with some difficulty. The history of the dispute commences with an offer by the pursuer to do certain work according to specification and at schedule prices. This offer the defenders accepted. The specification was passed by their architect, and the work practically finished, when the pursuer discovered that by an error in the transcription of a single item his offer was £152 lower than it ought to have been. Had there been nothing further I should not have been able to distinguish this case from that of Jamieson ( 15 R. 17). But subsequent to the offer and acceptance the parties entered into a new and separate contract, to which I can attach no other meaning than this, that all the work described in the specification was to be

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done for a slump sum. In the third article of that agreement there is a reference to measurement, which I take to mean that anything over and above the work specified will be charged for as provided in the specification.”

The pursuer appealed to the Court of Session.

Any question as to the competency of the appeal, which was brought under the Judicature Act, was waived by the defenders, and on that footing the Court allowed the case to proceed.

Argued for the pursuer—This was not a contract for a lump sum, but a “specification contract.” The minute of agreement proceeded on the narrative of the specification, which it incorporated. The case fell within the rule of law laid down in the case of Jamieson v. M'Innes, October 19, 1887, 15 R. 17, 25 S.L.R. 32.

Argued for the defenders—The Sheriff-Substitute was right in holding that this was a contract for a lump sum. The case was distinguishable from the case of Jamieson v. M'Innes, October 29, 1887, 15 R. 17, relied on by the pursuer, and was governed by the case of Seaton Brick and Tile Company, Limited v. Mitchell, January 31, 1900, 2 F. 550, 37 S.L.R. 400.