Scottish Court of Session Decisions

In 1866 and 1867 the pursuers, clay merchants at Stourbridge, supplied the defender Borron, glass and bottle manufacturer in Glasgow, with clay for pots for manufacturing glass. Disputes arose as to the quality of the clay, whereupon the parties referred to Little “all claims, disputes, questions, and differences presently depending and subsisting between them.” “Whatever the said arbiter shall determine in the premises, whether interim or final, to be pronounced by him within one month from the last date thereof.” Little received claims, heard the parties, and then found that Perrens & Harrison claimed from Borron the sum of £126,14s. lid. for a quantity of clay supplied by the former to the latter on 2d and 4th April 1867, at the price of £116, 9s. 2d.; further, that Borron pleaded that he is not indebted in the said sum of £126,14s. lid., or any part thereof, in respect, (1) that the clay in question was of a very inferior quality, and not of the quality contracted for or required for his business, and it having been timeously objected to by him, he has suffered damage to an extent exceeding said sum; and (2) that, in any view, he is entitled to set off against said sum a claim of damages amounting to £683, 10s., which he pleads against the said Perrens & Harrison, in respect of the inferior quality of certain clays supplied by them to him between the months of May 1866 and April 1867; further found it proved that the clay, the price of which is so claimed for, and the clay in respect of which damages are claimed as above mentioned, was ordered and sold as of the best quality, and for the purpose of making pots in which to manufacture glass bottles; further, that the claimants, Perrens & Harrison, had failed to prove that the clay supplied to them on 2d and 4th April 1867 was of the best quality, but in respect Borron had used the whole of the said clay by making it into pots, a number of which have not yet been used, and in respect he had not offered to return the clay from which the unused pots were made, but has reserved all claim of damage competent to him in consequence of their alleged defectiveness through the bad quality of the clay, found Perrens & Harrison entitled to the price of the clay claimed by them, being £116, 9s. 2d., but reserved to Borron all claim of damages competent to him in respect of the unused portion of said pots Further, found it proved that the clay in respect of which the claim of £683, 10s. is made, was of bad quality, and not conform to order; and that Borron has suffered loss and damage thereby, for which the said Perrens & Harrison are responsible, and assessed the same at the sum of £460 sterling; further, found that Borron is entitled to set off this sum against the foresaid sum of £126, 14s. lid., and that this sum being deducted from the said sum of £450, Perrens and Harrison are indebted to Borron in the sum of £323, 5s. Id., and accordingly decerned and ordained Perrens & Harrison to make payment to Borron of the said sum of £323, 5s. Id.

The pursuers were also found liable in expenses; and Borron's claim, in respect of the unused clay, was reserved.

The pursuers now sought reduction of the decree, on this ground among others—that it did not exhaust the reference. The Lord Ordinary ( Ormidale) repelled the plea, on the ground that the submission expressly bore that the parties bound themselves to acquiesce in, implement, and fulfil whatever the articles should determine in the premises, in whole or in part, by decree or decrees arbitral, whether interim or final.

The pursuers reclaimed.

Scott for reclaimers.

Watson for Borron.

Guthrie for Little.

The Court adhered, but holding that it was unnecessary to go on that clause of the deed. A general submission is limited by the claims of the parties. Borron's claim contained that reservation which the arbiter had given effect to, and no objection had been taken in the answer to that claim by the pursuers, who were thus barred from founding on the omission by the arbiter to dispose of a claim which had not been brought before him, and which might never arise. A submission could not be held unexhausted simply because a possible claim was not disposed of. The case was accordingly remitted to the Lord Ordinary for argument on the other grounds of reduction.