Pashby and Another v The Mayor, Aldermen and Burgesses of the Borough of Birmingham
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1856 |
| Date | 25 April 1856 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1262
IN THE COURT OF COMMON PLEAS.
COMMON BENCH REPORTS. CASES ARGUED and DETERMINED in the COURT of COMMON PLEAS, and in the EXCHEQUER CHAMBER, in Easter and Trinity Terms, and Trinity-.Vacation, 1856. By JOHN SCOTT, Esq., of the Inner Temple, Barrister-at-Law. Vol. XVIII. London, 1856. [1] cases argued'and determined in the court op common pleas and in the exchequer chamber, in easter term, in the nineteenth year of the eeign of victoria. The judges who usually sat in banco in this term, were,-Jervis, C. J., Cresswell, J., Crowder, J., and Willes, J. memoranda. In the Vacation preceding this Term, Gillery Pigott, Esq., George Hayes, Esq., and Mordaunt Lawson Wells, Esq., all of the Middle Temple, were called to the degree of the coif. They gave rings with the following motto,-" Cedant arma togse." On the first day of this Term, Charles Jasper Selwyn, Esq., of Lincoln's Inn, and Hugh M'Calmont Cairns, Esq., of the Middle Temple, who had been appointed Her Majesty's Counsel learned in the law, took their seats within the Bar. [2] pashby and another v. the mayor, aldermen, and burgesses of the borough of birmingham. April 25, 1856. By a contract for the building of a borough gaol, it was provided, amongst other things, "that no alterations should be made without the written authority of the architect, by whom the value of such alterations should be ascertained; and that no allowance for alterations should be made, unless the value of the same was ascertained at the time the work was done, and entered in a book, such entry to be submitted to and approved of by the architect,";-that no payments should- be made to the contractors, except on the production of a certificate from the architect that a certain amount of work had been done; and that the architect should deliver his certificate thereof at the end of every fourteen days,"-and "that the contractors should be entitled to receive at the end of every fourteen days the amount for which the architect should have given his certificate; the amount of such certificate to be less by certain varying proportions than the value of the work done, until 90 per cent, of the whole should be completed; and that no further payments should be made to the contractors until within three calendar months after the architect should have certified the completion of the whole work to his satisfaction, when one half of the remainder should be paid, and the balance at the end of twelve months from the _date of the architect's certificate of completion :"-Held, that the architect's certificate of final completion was sufficient, without mentioning the amount remaining 18C.B.3. PASHBY V. THE MAYOR, ETC., OF BIRMINGHAM 1263 due.-By the -contract it was further provided, that, if any dispute or difference should arise with the contractors in any way relating to the contract, or if any question should arise between any of the several contractors relating to the proposed building, such dispute, difference, or question should be settled by the architect, whose decision thereon should be absolute and final:-Held, that this condition applied only to disputes as to the mode of carrying on the several works, and not to differences between the contractors and the corporation as to their claim for extras. This was an action brought by the plaintiffs, who were builders, against the defendants, to recover a balance of 44611. 19s. 8d. claimed to be due from the defendants to the plaintiffs in respect of the building of the gaol at Birmingham. The cause came on to be tried at the Warwick Spring Assizes in 1855, when the cause and all other matters indifference between the parties were referred to arbitration, with power for the arbitrator to state a special case, including all matters of law that might be raised before him, as well as those already raised by demurrer; such special case to be stated and disposed of before the arbitrator entered upon any question of amount. In pursuance of this power, the arbitrator stated for the decision: of the court the following case :- The declaration in this cause contains a count on the special contract hereinafter mentioned, and also a count for work and materials. [3] The following are the particulars of the plaintiffs' demand :- "1847. To general work done by the plaintiffs for the £ s. d. defendants at the borough gaol . . . 9,209 18 1 To skylights. . .. .. . 600 To pump well . . . . . . 28 17 9 To iron bars....... 146 2 5 To model . . . . . . . 8 10 0 To whitewashing . . . . . 296 0 0 To shelving . . . . . . 153 10 0 To bridge inclosing same . . . . . 15 12 0 To main ventilation flues ..... 2,083 17 2 Today-work . . . . . . 1,077 6 8 To fittings . , . . . . . 140 11 10 To amount of work done under the contract mentioned and set forth in the declaration in this cause . * 33,469 11 5" The plaintiffs claimed a balance of 44611. 19s. 8d. To the declaration there were various pleas and subsequent pleadings, raising several questions of law and fact; and, for the purpose of guiding the arbitrator in the determination of these issues, and of other questions raised before him upon the reference, he stated the following facts for the opinion of the court:-ò On the 27th of October, 1846, a contract was entered into between the plaintiffs and defendants, of which the following is a copy :- "This indenture, made the 27th day of October, 1846, between Thomas Pashby and Charles Henry Plevins, both of the borough of Birmingham, in the county of Warwick, builders and co-partners, of the one part, and the Mayor, Aldermen, and Burgesses of the said borough, of the other part: Whereas, public notice having been given that persons desirous of contracting to complete the work of the 'Birmingham Borough Gaol, [4] and to supply the necessary materials and labor for that purpose, were to send sealed tenders to the town-clerk of the said borough at the time and in manner in the said notice mentioned; and notice was also given that plans, drawings, and specifications of the works to" be performed, were prepared, and might be inspected at the office of D. E. Hill, of the said borough, architect, where copies of the conditions might be obtained on which the tenders for the completion of the works would be ' accepted, by persons desirous of undertaking the same : And whereas the said Thomas Pashby and Charles Henry Plevins, by a tender under their hands, dated the 17th of October, 1846, offered to perform the whole of the several works required in the completion of the said gaol according to the said conditions, specifications, and drawings, for the sum of 33,4691. 11s. 5d.: And whereas the said conditions, arid the said tender under the hands of the said Thomas Pashby and Charles Henry Plevins, and the schedule of prices, drawings, and specifications in such conditions and tender referred 1264 PASHBY V. THE MAYOR, ETC., OF BIRMINGHAM 18 C. B. 5. to, are annexed by way of schedules to these presents : Now this indenture witnesseth, that they, the said Thomas Pashby and Charles Henry Plevins, do hereby jointly, for themselves, their heirs, executors, and administrators, and each of them doth hereby severally, for himself, his heirs, executors and administrators, covenant and agree with the said Mayor, Aldermen, and Burgesses, their successors and assigns, that they, the said Thomas Pashby and Charles Henry Plevins, their executors and administrators, shall and will well and effectually do, execute, and perform all the works, acts, matters, and things whatsoever by the said tender under the hands of the said Thomas Pashby and Charles Henry Plevins annexed by way of schedule to these presents offered, proposed, or agreed to be done, according to the true intent of the said tender, and the [5] conditions, specifications, and drawings therein referred to, and also annexed by way of schedule to these presents: And the said Mayor, Aldermen, and Burgesses, do hereby covenant and agree with the said Thomas Pashby and Charles Henry Plevins, their executors and administrators, that they, the said Thomas Pashby and Charles Henry Plevins, their executors or administrators, well and truly performing, fulfilling, and keeping the covenants and agreements on their and his parts hereinbefore contained, they the said Mayor, Aldermen, and Burgesses, or their successors, shall and will pay unto the said Thomas Pashby and Charles Henry Plevins, their executors and administrators, the several amounts and sums of money which the said Thomas Pashby and Charles Henry Plevins, their executors or administrators, shall from time to time be entitled to receive according to the terms of the said conditions in this behalf, at the respective times, and according to the true intent and meaning of the same conditions. In witness, &e." The following is a copy of the conditions referred to in the said contract:- " Borough of Birmingham. " Conditions to be observed by persons contracting with the Mayor, Aldermen, and Burgesses of the borough of Birmingham, in the county of Warwick, for the completion of the new gaol in the said borough, on a piece of ground situate at Winsor Green, in the said borough, according to the drawings and specifications prepared by Mr. D. E. Hill, architect, and which said drawings and specifications are numbered from 1 to 24 A., both inclusive. " Immediately on possession being given up to the contractor or contractors, all temporary fencing, gates, and other provisions required for inclosing and protect-[6]-ing the site and the properties adjoining, and for the prevention of trespass or injury, and for the proper drainage of the land while the works are in progress, are to be made by the contractor or contractors, who shall also indemnify and hold harmless the said Mayor, Aldermen, and Burgesses of the said borough of Birmingham against any damage caused by the...
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