Mathieson Gee (Ayrshire) Ltd v Quigley
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1952 |
| Date | 06 March 1952 |
| Docket Number | No. 5. |
| Court | House of Lords |
HL
Lord Normand. Lord Reid. Lord Tucker. Lord Cohen.
Administration of JusticeFunction of CourtContractConsensus in idemAction for payment of sum due under contractDefender admitting existence of contractPower of Court to find no consensusProcessRecordGround of defence not pleaded.
In an action for payment of a sum alleged to be due under a contract for the removal of silt from a pond, the defender did not dispute that a contract had been entered into for that purpose; and he had already paid 300 to account. The Lord Ordinary granted decree for a further sum of 350. On a reclaiming motion, the First Division (Lord Carmont dissenting) increased the sum decerned for to 800. Lord Carmont took the view that, owing to the absence of consensus in idem, no contract had been concluded, and that the action should be dismissed. The defender appealed to the House of Lords, and contended that the Lord Ordinary's award should be restored or, alternatively, that Lord Carmont's view should receive effect.
Held (rev. judgment of the First Division) that the action fell to be dismissed, in respect that no contract had been concluded, and that it was competent so to hold although this ground of defence had not been pleaded.
Dictum of Lord Loreburn, L.C., in Houldsworth v. Gordon CummingELR, 1910 S. C. (H. L.) 49, at p. 52, [1910] A. C. 537, at p. 543, applied.
(In the Court of Session 8th December 1950.) Mathieson Gee (Ayrshire), Limited, brought an action against Dr James F. Quigley for payment of 1229, 10s. 5d. as being the sum due and resting-owing to them under a contract between the parties, the defender having already paid 300 to account.
The defender pleaded:"(1) The pursuers' averments of verbal negotiations prior to the contract of 2nd-3rd March, being irrelevant, should not be admitted to probation. (2) The pursuers, being in breach of their contract with the defender, are not entitled to payment as concluded for. (3) The pursuers' averments, so far as material, being unfounded in fact, the defender is entitled to absolvitor. (4) The sum sued for being in any event excessive, decree should not be pronounced therefor. (5) The pursuers having failed adequately to supervise the work on the said contract and excessive time having been taken as a result thereof, the sum sued for should be reduced accordingly."
On 18th November 1949, after a proof, the Lord Ordinary (Birnam) sustained the fourth and fifth pleas in law for the defender and granted decree for payment by the defender to the pursuers of 350.
The pursuers reclaimed, and on 8th December 1950 the First Division (Lord Carmont dissenting) recalled the interlocutor of the Lord Ordinary, sustained the fourth plea in law for the defender, and granted decree for 800.
The following summary of the proceedings in the Court of Session is taken from the speech of Lord Normand:"The appellant and defender is the owner of a property in Renfrewshire. He is also a busy medical practitioner. Early in 1948 he decided that the mould deposited in a large pond on his property should be removed and he approached the respondents, a private limited company carrying on business as plant hirers, civil engineers and building contractors in Kilmarnock. Negotiations took place between the parties, and on 2nd March 1948 the respondents wrote to the appellant the following letter:We refer to our visit on Monday last and confirm that we are prepared to supply the necessary mechanical plant for the excavation and removal to point indicated of the mould at present deposited in your pond. This plant initially will consist of a dragline excavator and three-cubic-yard dumper, and all charges will be in accordance with normal S. R. & O. rates and conditions. We are in a position to have this plant available for your use during the latter...
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