Mackintosh v The Great Western Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1864 |
| Date | 01 January 1864 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 881
HIGH COURT OF CHANCERY
Observed upon, Hill v. South Staffordshire Railway Company 1874, L. R. 18 Eq. 155. See London, Chatham and Dover Railway Company v. South-Eastern Railway Company [1892], 1 Ch. 128; [1893], A. C. 442.
[683] mackintosh v. the great western eailway company. June and July, 1864; Feb. 20, June, 1865.. [Observed upon, Rill v. South Staffordshire Railway Company 1874, L. E. 18 Eq. 155. See London, Chatham and Dover Railway Company v. South-Eastern Railway Company [1892], 1 Ch. 128; [1893], A. C. 442.] Where on the investigation of a complicated demand for work and labour done and other matters, or performance of work under a contract with a railway company for works of enormous extent, the Chief Clerk's certificate, after a laborious examination, ascertained the amount, the Court will not allow the amount so certified to be varied as to the whole or any part of it, unless a case of clear mistake or manifest abuse is shewn. In such cases the certificate should not be varied on any ground which would not be a ground for moving for a new trial, or setting aside the verdict of a jury. Where by a contract a sum of money is payable at a time certain, and upon a sum to be ascertained on certain data, but a dispute occurs as to the amount which is settled by the Court interest is payable under the statute 3 & 4 Will. 4, c. 42. This bill was filed in 1847 by the original Plaintiff, David Mackintosh, contractor, against the Great Western Eailway Company; Mr. Saunders, their secretary; and Mr. Brunei, their engineer. The case has been repeatedly before the Court (2 De G. & Sm. 758; 2 M. & G. 174; 14 De G. & Sm. 544; 3 Sm. & G. 146), and several of the parties to the original suit are dead; the suit has been subsequently revived against their representatives so far as it was necessary. The original Plaintiff, David Mackintosh, had entered into seven principal and other subordinate contracts for the construction of the railway works near Slough, and part of the line between Bristol and Bath, and claimed over and above what had been paid large sums as due on the contract. On the 30th May 1855 the Court referred it to Chambers to enquire and certify whether anything and what remained due to the Plaintiff in respect of the works executed and materials supplied under the several contracts in the pleadings mentioned, having regard to the terms of the contract respectively, and to the circumstances under which the Plaintiff carried on the works. In pursuance of the direction the Chief Clerk made his certificate, by which he found a gross sum due to the Plaintiff, but, the company being dissatisfied with the decision on the ground that the items were not specified, appealed to His Honour, who approved the certificate. [684] The company appealed against this decision, and the Lords Justices allowed the appeal and directed the Chief Clerk to amend the certificate by stating the details. The Chief Clerk, in pursuance of the order, certified that a sum of nearly £200,000 was due from the company. To this the Defendants moved to vary this certificate as to more than 900 items. The Plaintiff also moved to vary the certificate, objecting to the disallowance of certain sums for ashlar work, and other matters amounting to upwards of £ 100,000. The case also came on for further consideration. The Chief Clerk had allowed interest at 4 per cent. This question, and that of the costs of the suit, were also raised. the attorney-general and Mr. F. J. Millar appeared for the Plaintiffs. They supported the certificate, but further submitted that if the Defendants' exceptions were allowed the Plaintiff's counter exceptions must be allowed also, though otherwise the Plaintiff would be contented to take the certificate. 882 MACKINTOSH 1). GEE AT WE8TEEN RAILWAY COMPANY 4GIFF.685. On the subject of interest they cited-Davis v. Smyth (8 M. & W. 399), Fare v. Ward (3 M. & W,, 25), Mildmay v.Methuen (3 Drew. 91), Ashwell v. Staunton (30 Beav. 52), Swynfen v. Scawen (1 Ves. sen. 99), Lowndes v. Collens (17 Ves. 27), ZTpfow v. lore? ^mrs (5. Ves. 800), Marshall v. Poole (13 East, 98), Lucas v. 2"wj9fe (9 Ves. 300), Fenton v. CricMt (3 Mad. 496), £AeweM v. Jones (2 Sim. & St. 170; 3 Russ. 522), Ee Catlin (18 Beav. 508), Alsop v. Lard Oxford (1 M. & K. 564). As to interest on a building contract they cited-Hyde v. [685] Price (8 Sim. 578; S. C. 6 L. J. 358); 3 & 4 Wm. 4, c. 42, s. 28. They also claimed the costs, on the ground that the Defendants had been guilty of vexatious conduct in delaying the settlement of the Plaintiff's claim. Mr. Bacon, Mr. Malins and Mr. T. Stevens appeared for the company. They submitted, first, that the Court had no jurisdiction to entertain the suit. They cited Parker v. Hutchinsm (3 Ves. 133), Young v. Walter (9 Ves. 364). Secondly, they contended that the decision of the Chief Clerk could at most be regarded as the award of an arbitrator, who was bound to decide according to the rule of law. Thirdly, on the question of interest, they contended, first that, there being no decree for interest, the Court had no power to give it: Creuze v. Hunter (2 Ves. 157). And, secondly, that there being no agreement to pay interest, and the money not being payable on a day certain, no interest could be given : Higgings v. Sargent (2 B. & C. 348), Hare v. Richards (7 Bing. 254), Bushnan v. Morgan (5 Sim. 635), Foster v. Weston (6 Bing. 709), Rhodes v. Rhodes (Johnson, 653), Tew v. Lord Winterton (1 Ves. 451), Gallon v. Bragg (15 East, 223), Gordon v. Swan (12 East, 419), Cameron v. Smith (2 B. & Aid. 305). And, lastly, on the question of interest, they contended that the Plaintiff having claimed excessive prices, ought not to be allowed interest: Duchess of Marlborough v. Strong (1 B. P. C. 175). On the question of costs they contended that the Plain-[686]-tiff, by having claimed enormous sums beyond what was allowed, had, in fact, occasioned the litigation and ought to pay the costs of the suit, or, at all events, ought not to be allowed costs. June 28, 1865. the vice-chancellor [Sir John Stuart]. There is now before the Court a motion by the Defendants to vary the Chief Clerk's certificate as to more than 900 items. Each of these items has been the subject of argument. The evidence on which all this must be disposed of, and the arguments upon that evidence, have been separately considered, and this Court has now for the fourth time to deal with them. If it had appeared at the hearing of the cause that the Court could have disposed of the case without further investigation, the proper decree on the frame of the bill would have been for the payment by the Defendants to the Plaintiff of one single gross sum due to him for the construction of the works. In matters of account there is a concurrent jurisdiction at law and in equity. But this being a suit by a contractor to recover the amount due for work and labour and materials supplied, and not a bill for an account properly so called, the Defendants have disputed the jurisdiction of this Court. No doubt the nature of the investigation and of the evidence would differ much from what is usual in a decree for an account. The authorities, however, shew that this Court has entertained such cases; and Lord Cottenham, in the case of The North-Eastern Railway Company v. Martin (2 Phill. 758), held that where circumstances seemed to make it convenient this Court ought to exercise the jurisdiction. Whether the remedy be at law or in equity, the proper [687] course must be to determine by a proper investigation the reasonableness of the Plaintiff's demands. Neither in this Court nor at law can it be the...
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