Scottish Court of Session Decisions

This is an advocation from Lanarkshire. Mr M'Intyre sues Mr Wolski for the balance of the contract price of building the Ladies' Institution in Bath Street, Glasgow. Mr Wolski defends on the pleas (1) that the building is not finished according to plan, and that damages are therefore due; and (2) that certain deductions fall to be made from the account. The pursuer admits that the buildings are not exactly according to plan, but avers that he had the architect's sanction for the deviations, and he denies any right to the deductions claimed. In the building contract there is a clause of reference of “all disputes and differences” to Mr Salmon, the architect of the building. The pursuer, in suing for the balance of the contract price, urged upon the Sheriffs that the questions raised by the defender properly fell to be decided under the clause of reference. The defender, Mr Wolski, on the other hand, moved that a proof should be allowed. Sheriff Bell held the arbiter disqualified personali exceptione, and allowed a proof. On appeal, Sheriff Alison altered, held the submission operative as to the questions raised, and, notwithstanding the defender's opposition, remitted to Mr Salmon to decide. The pursuer went before Mr Salmon, but the defender refused to appear. Mr Salmon, in the defender's absence, reported to the effect that the building was not according to plan, but that the deviation did not, in his opinion, lessen the intrinsic value of the building. He did not say that he had authorised the deviation. Sheriff Bell refused to give decree upon this report, holding that if the questions fell under the submission the action should have been dismissed. Sheriff Alison, on appeal, gave decree for the balance sued for. Mr Wolski, the defender, now brought this advocation, and moved that the Sheriff's interlocutors should be recalled, and that a proof should be allowed. After hearing junior counsel on each side the Court to-day advocated the cause, recalled the interlocutors in the Court below, and ordered issues, in order that the whole case might be proved before a jury. The Court held that the clause of reference was a merely ancillary or executorial clause for the decision of practical difficulties during the execution of the contract, and that a claim of damages such as the defender set up did not fall under such a reference. They found Mr Wolski, the defender, entitled to expenses in the Court of Session and also in the Sheriff Court, from and after the interlocutor of Sheriff Alison remitting to the arbiter.