BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Savile Street Foundry Co. v. Rothesay Tramway Co. [1883] ScotLR 20_562 (20 March 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0562.html Cite as: [1883] ScotLR 20_562, [1883] SLR 20_562 |
||
[New search] [Printable PDF version] [Help]
Page: 562↓
[
A minute of agreement for the construction and supply of tramway cars contained a clause of reference providing that in the event of any difference of opinion arising as to its meaning, or as to the manner of construction of the cars, or the materials employed therein, or the implementing of the provisions of the contract, such difference should be submitted to arbitration. After the cars had been delivered to the purchasers and used by them, a dispute arose as to whether the cars were conform to specification. Held that such a clause of reference was, according to the ordinary rule of law, intended to be confined to questions arising during the progress of the work, and did not exclude an action for payment of the contract price after delivery had been taken.
By minute of agreement dated 20th March 1882, the pursuers, the Savile Street Foundry and Engineering Company (Limited), carrying on business in Sheffield, undertook to make and supply to the defenders, the Rothesay Tramway Company (Limited), eight open and four closed tramway cars, conform to specification annexed to the said agreement. The price of the cars was to be £1120, and payment was to be made on delivery, or in the option of the defenders by bill at three months from the date of delivery. It was also specified by the minute of agreement that the whole of the eight cars were to be delivered on the tramway lines at Rothesay on the 29th May 1882 under a penalty of £1 per car per day in case of failure. The minute contained the following clause of reference:—“In the event of any difference of opinion arising as to the true intent and meaning of these presents, or as to the manner of construction of the foresaid cars, or the materials employed therein, or as regards the implementing or carrying into effect of the provisions herein contained, both parties hereby submit and refer such difference or differences to the determination of John Macrae, civil engineer, Edinburgh.” The minute of agreement provided that the defenders should have the right of inspecting the work during the building of the cars. After the cars had been delivered, a dispute arose between the parties as to whether or not they were conform to specification, and payment was withheld by the defenders, in consequence of which this action was raised, concluding for payment of a sum of £1301, 8s. 8d., the contract price of the cars and the price of certain “extras.” The pursuers also concluded for the price of iron-work and fittings supplied to two cars not embraced in the contract.
The defenders averred that the cars had not been delivered at the time agreed upon, and that when delivered they were found to be disconform to specification, the iron-work being defective and the castings having numerous flaws which were partially concealed by paint. The cars were also said to be too weak, and their condition was said to cause great dissatisfaction to the public.
The defenders further averred that in terms of the clause of reference above quoted, the matters in dispute were now depending before the arbiter, who had accepted the submission.
They pleaded, inter alia:—“(1) The action is excluded by the submission contained in the minute of agreement, and ought to be dismissed.
The Lord Ordinary repelled this plea-in-law, and before answer allowed the parties a proof of their averments.
The defenders reclaimed, and argued—The clause of reference contained in the minute of agreement applied to the present dispute. This case did not fall under the category of cases like M'Cord v. Adams, 24 D. 75, and Kirkwood v. Morrison, 5 R. 79, where the clause of reference was held to apply only to questions arising during the progress of the work contracted for. Here the clause included a reference upon all questions relating to the construction of the cars or the material used therein, and the present dispute having arisen upon those points an ordinary action was excluded.
Counsel for the pursuers were not called upon.
At advising—
Now, the rule of law in cases such as this is, that the clause of reference is to be confined to questions arising during the execution of the contract. Is there, then, anything in the words of the contract to take this case out of the ordinary rule? As far as I can see there is not—any question which was to arise as to the mode of construction of these cars, or as to the material which was to be used, ought clearly to have arisen during the execution of the contract, and had any such question arisen as to the mode of construction or as to the quality of the material used, it could easily have been determined by the arbiter. It would have been an easy matter also for the defenders to have overlooked the construction of these cars, and to have availed themselves of the right of continuous inspection, provision for
Page: 563↓
The cars have been built, delivery has been taken, and the price is now payable, unless the defenders can give some satisfactory explanation why payment is to be withheld.
The words of the clause of reference to which our attention was specially directed, viz., “as regards the implementing or carrying into effect of the provisions herein contained,” clearly refer to “the provisions” as to the construction of the cars. I can see therefore nothing in this case to take it out of the ordinary rules, and am for adhering to the Lord Ordinary's interlocutor.
The Court adhered.
Counsel for Pursuers— W. C. Smith. Agents— Hope, Mann, & Kirk, W. S.
Counsel for Defenders— Trayner— Lang. Agents— Paterson, Cameron, &Co., S.S.C.
