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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gledden v. Moncrieff and Gowans [1869] ScotLR 7_33 (26 October 1869) URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0033.html Cite as: [1869] SLR 7_33, [1869] ScotLR 7_33 |
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Page: 33↓
A reference was made to an arbiter of the true meaning and intent of an agreement for the construction of a viaduct. In the course of constructing the viaduct an accident happened, in consequence of which an action was
Page: 34↓
raised against one of the contracting parties. Pending the action they enlarged the submission by referring to the arbiter the claim for relief of the damages sued for in the action in question. The result of the action was an absolvitor of the defender. Held (per Lord Barcaple, and adhered to) that the reference as enlarged did not include the claim for the parties own expenses in successfully defending the action for which he had got decree but had been unable to recover.
This was an action brought by Daniel Gledden, contractor in Dalkeith, against William Moncrieff, contractor, Edinburgh, and James Gowans, arbiter under a sub-contract between the pursuer and Moncrieff for the construction of a certain viaduct. The object of the action was to have Gowans interdicted from entertaining a certain claim made by Moncrieif in the reference. The claim was for relief of expenses incurred by Moncrieff in defending himself against an action brought by the representatives of a party who was killed through defects in the scaffolding supplied by Gledden for the execution of the viaduct mentioned. It was maintained, on the part of Gledden, that this was a matter which did not fall within the reference.
The minute of agreement was in the following terms :—“In the event of any difference between the said parties hereto, in regard to the said work or this agreement, or the true intent and meaning thereof, the same shall be referred and submitted to the final decision of James Gowans, contractor in Edinburgh, without appeal to any court of law.” The defender had incurred a sum of £208, 17s. 3d. in defending himself against the action in question, and he lodged a minute in the reference to Mr Gowans in which he claimed these expenses and the dues of extract. This claim was entertained by the arbiter, who, after hearing parties, pronounced the following order:—“The arbiter has considered the minute for Mr Moncrieff, claimant, and answers for Daniel Gledden, respondent, dated respectively 8th and 12th December 1868; and proposes to find that the items of claim referred to in the minute for Moncrieff fall under the present reference, and ordains the parties to state within six days whether they are agreed as to the various amounts in the items of claim submitted.”
The pursuer further states:—“The said claim does not fall within the reference or submission to Mr Gowans contained in the foresaid minute of agreement, and he has no power to deal with or determine the same, as he proposes to do. The reference to him in the said minute of agreement, under which he is now acting, embraces only differences between the parties in regard to the work mentioned in the agreement and relative specifications, or the said agreement itself, or the true intent and meaning thereof. The said claim does not fall within any of the matters agreed to be submitted to Mr Gowans, and it was neither submitted nor was it meant to be the subject of reference to him under the said submission. Notwithstanding this, Mr Gowans has held, or intends to hold, that the claim is within the reference, has appointed parties to proceed on that footing, and intends to adjudicate upon the merits of the claim. The pursuer finds it therefore necessary to institute the present action, in order that it may be judicially determined that the said claim is not within the reference, and that the arbiter may be interdicted and prohibited from further dealing with or taking cognizance of the same.” This is denied by the defender, who founds on the following joint-minute lodged in the submission by the parties pending the action in question:—“Both parties agreed that all questions in relation to the accident which happened at the Victoria Viaduct on the 31st May 1867, embraced in the 9th and 11th items of the claim, shall be reserved until the decision of the question of loss or solatium to the representatives of the man killed by the accident, either in Court in the action at the instance of Robert Scott against the claimant, William Moncrieff, or by an arrangement of the parties to this reference, after which the arbiter shall proceed to investigate and dispose of their claims.” Explained further, that the 9th article of the claim so reserved is in the following terms:—“In respect of the service roadway on the top of the staging breaking down, the delay to building operations, and throwing the claimant's workmen out of work for nearly six days, and, further, the accident having caused a panic among the claimant's men, and prevented him from geting men as easily as before the accident occurred, caused a loss to him of £10, exclusive of inspection and survey of staging by Mr Bruce, C.E. It is assumed file arbiter will allow expenses of Mr Bruce, C.E., for inspecting and surveying staging after the accident for the safety of workmen;” and that the 11th claim so reserved is as follows:—“The claimant claims to be relieved by the respondent from all claims of damages and expenses, at the instance of the relatives of the workman killed, on or about the 31st of May 1867, or at the instance of the other workmen injured at the same time, by the breaking of the cross-beam on the staging or service roadway on said bridge. It is explained that the accident happened from a latent defect in the beam, and that the superincumbent weight on it at the time was not sufficient to cause the accident, except for such defect.”
The Lord Ordinary (
“Edinburgh, 29th March 1869.—The Lord Ordinary having heard counsel for the parties, and considered the Closed Record and whole Process, Repels the defences; and Finds and Declares, and Interdicts, Prohibits and Decerns, in terms of the conclusions of the libel: Finds both the defenders liable in expenses; Allows an account thereof to be given in, and, when lodged, remits the same to the Auditor to tax and report.
“ Note.—The Lord Ordinary would have had no hesitation in holding that the clause of reference in the contract did not, by itself, give power to the arbiter to deal with the claim for relief of the damages and expenses claimed from the defender by the relatives of the workmen killed by the falling of the staging; but he thinks that claim was clearly imported into the reference by the proceedings in regard to it before the arbiter, and especially by the joint minute, by which they reserved all questions in relation to the accident, embraced in the 9th and 11th items of the defender's claim (the 9th item being the claim for relief), until the decision of the question of solatium to the workman's representatives, ‘after which’ the minute bears that ‘the arbiter should proceed to investigate and dispose of ‘their claim.’ The question is, whether this addition to the original scope of the reference includes the claim now made for the defender, for his own expenses in successfully defending the action of damages brought against him by the man's father, which he got decree for, but has been unable to recover ?
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“The 11th item of the claim, which was reserved, is for relief from all claims of damages and expenses at the instance of the relatives of the workman killed. If the action of damages had resulted in a judgment against the defender, the arbiter would have been entitled to deal with his claim to be relieved from the consequences of the decree, both as to damages and expenses. It would have been a different question whether, in that state of the case, the expenses incurred by the defender to his own agent in defending the action, might not have been held to be imported into the reference, as a necessary incident of the action raised against him? On that point the Lord Ordinary expresses no opinion, except that it appears to him to be in principle very different from the question on which the parties are now at issue,—as to the defender's claim to be relieved of his expenses in successfully resisting the claim for damages made against him, for which he has got decree against the pursuer of the unsuccessful action.
“If the defender had been found liable in damages, he would have been in a position to contend that the successful claims at the instance of the representatives of the workman, for the consequences of an accident, caused, as he alleges, by the fault of the pursuer, had involved him in liability for the damages found due, and the expenses of the action on both sides; and that, on a fair construction of the 11th item of his claim in the submission, these must all be held to be included within it, and therefore imported into the reference. It is unnecessary to consider whether such a contention could have been successfully maintained. The claim for relief now insisted in is necessarily of quite a different description. It does not proceed on the footing of any claim at the instance of the relatives of the workman having been sustained, or having legally existed against the defender. They are very different questions,—whether, on the one hand, the pursuer is bound to relieve the defender of any claim of damages which might be sustained against him, with all its incidents? and, on the other hand, whether he is bound to relieve him from the consequences of an unfounded claim, viz., the expenses incurred in de-fending the action, and his inability to recover them from the opposite party? It is quite conceivable that the pursuer might have been willing to leave the former question to be decided by the arbiter, while he would have declined to make him judge in the latter, which involves legal considerations of a very different kind, quite independent of the construction or due execution of the contract. The Lord Ordinary sees no reason to think that any such question was in the contemplation of the parties, and he cannot hold it to have been imported by implication into the reference, to the proper subject matter of which it is entirely foreign.”
The defender reclaimed.
A. Moncrieff and Lancaster for them.
Mackenzie and Strachan, in answer.
The Court adhered.
Agents for Pursuer— J. S. Mack, S.S.C.
Agents for Defenders— Wilson, Burn & Gloag, W.S
