United Kingdom House of Lords Decisions

Lord Chancellor—When once the facts are fully understood there is no difficulty in disposing of this case. The respondents have undertaken to construct buildings and to do iron work, including certain cast-iron girders. According to the contract the respondents are to supply the material and work according to certain written specifications, and the various obligations are very clearly set forth in the contract. In particular, it is expressly stated that no extra work is to be paid for unless there is a written order for the same by the appellants' agent or engineer. Now, in casting certain iron girders, owing to the unequal cooling of the iron, it was found difficult to make the girders of the precise thickness specified. So far as the Company were concerned they had no interest in having the girders made thicker. On the contrary, the lighter the girders were so much the better. At all events, if the girders could not be made of the precise thickness specified, that was a matter which the respondents ought to have known beforehand. The question now is, whether the evidence shows that when a variation was made for the convenience of the respondents, that was authorised by the Company? I confess that I cannot find a single word uttered which can bear the interpretation that the Company promised to pay for the extra thickness of this metal, nor is there a word to encourage or induce the respondents to make the girders thicker than the contract. So far as the evidence goes there is no mention of any written order, nor is there any ratification afterwards. The form of certificate by the engineer of the Company does not in any sense bear out the argument that there was any such ratification. Such certificates were all of a provisional character, and equivocal. I I am of opinion that the decision of the majority of the Second Division was wrong, and must be reversed. The Judges, including the Lord Ordinary, were in fact equally divided. The order of the House will be to reverse the judgment, and to require the respondents to pay the costs of the appellants in this House.

Lord Hatherley concurred.

Lord Blackburn—I concur. It is said that the law of Scotland, following the civil law, releases one from an obligation to do what is impossible. But that rule refers to a natural impossibility. Here all that is shown is that it requires greater care to cast the girders of the thickness specified in the contract than it would require to cast them thicker. In fact it would have been by no means difficult to cast the girders of the required thickness if the right course had been taken. I agree with Lord Gifford and the Lord Ordinary rather than with the majority of the Second Division.

Lord Gordon concurred.