North British Railway Company v Wilson
| Jurisdiction | Scotland |
| Judgment Date | 16 March 1911 |
| Date | 16 March 1911 |
| Docket Number | No. 98. |
| Court | Court of Session |
Lord President, Lord Johnston, Lord Skerrington, Lord Kinnear, Lord Mackenzie.
Contract—Construction—Arbitration Clause—Contract for making railway siding—Clause referring amount due to determination of engineer of maker—Question whether maker absolved from necessity of rendering detailed account of claim.
Arbitration—Reference to man of skill—Power of arbiter to determine questions without taking evidence or hearing parties.
In a contract providing for the construction of a railway siding, entered into between a Railway Company and a quarry-master, it was stipulated that the Company should construct certain works and that the quarry-master should thereafter pay to the Company (1) the cost of the labour expended on the works, and (2) interest on the value of materials used in connection therewith, as such cost and interest should be determined by the engineer of the Company. The Company having rendered an account of sums said to be due under the contract, certified by their engineer, in which the cost of labour and the value of the materials employed were stated as lump sums and without details, the quarry-master refused to pay the account, and the Company brought an action to enforce payment.
The Court dismissed the action as premature, on the ground that the pursuers had made no proper demand under the contract, holding that, although the contract made the engineer the final judge of the amount due, this did not absolve the Company from the necessity of giving particulars of their claim.
Held further, by the Sheriff and approved, that, as the reference to the engineer was a reference to him as a man of skill, he was entitled to arrive at his determination by whatever methods he chose, and was not bound to take evidence or hear parties.
The North British Railway Company brought an action in the Sheriff Court of Lanarkshire at Glasgow against William Wilson, quarry-master, 34 West George Street, there, in which they claimed payment of certain sums alleged to be due to them by the defender under a contract between the parties, which provided for the construction of a railway siding and other works.
The pursuers averred;—(Cond. 1) ‘By agreement entered into between the pursuers and defender, dated 5th and 13th December 1906, it was arranged that certain works on the Edinburgh and Glasgow Railway of the pursuers at Croy Station should be made. Under said agreement the defender was to execute the excavations necessary for the construction of a siding, and make the lands required therefor available for the construction of the permanent way, and should provide the stones required for the building of the necessary retaining wall. The pursuers were thereupon to construct the permanent way of the said siding and connection.’ (Cond. 2.) ‘On the completion of the works the defender undertook to pay the pursuers the cost of the labour incurred by them and interest on the cost of the permanent-way materials and of the drain and of the retaining wall at the rate of 41/2 per cent per annum, payable said interest half-yearly at Whitsunday and Martinmas in each year during the currency of the agreement, as the amount of such cost and interest should be determined by the engineer of the pursuers.’ (Cond. 3) ‘The pursuers further undertook to execute certain work shown on a plan signed as relative to the agreement, and the defender undertook to pay them interest on the cost thereof as determined by the engineer at the rate of 41/2 per cent per annum, payable such interest at Whitsunday and Martinmas in each year during the currency of the agreement, as the amount should be determined by the said engineer.’ (Cond. 4) ‘The amount expended in wages on the siding and alterations at Croy, which were duly completed, amounted to £187, 9s. 1d., as certified by the engineer. The balance due in respect of said cost and interest amounted as at 30th November 1909 to £29, 12s. l1d., all as detailed in the account appended to the writ, and payment thereof has not been made. …’ (Cond. 5) ‘The value of the materials used in connection with the siding and...
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British Glanzstoff Manufacturing Company, Ltd, v General Accident, Fire, and Life Assurance Corporation, Ltd
...14 S. 41; Board of Trade v. Employers' Liability Assurance CorporationELR, [1910] 2 K. B. 649. 8 North British Railway Co. v. Wilson, 1911 S. C. 730. 9 Ex parte Young, In re KitchinELR, 17 Ch. D. ...