Collen Brothers v The County of Dublin and Others

• Jurisdiction: Ireland
• Court: Chancery Division (Ireland)
• Judge: Ross, J.
• Judgment Date: 30 July 1908
• Date: 30 July 1908

Collen Brothers

and

The County Council Of The County Of Dublin and Others.

Ross, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1908.

Mistake — Rectification — Local Government — Limitation of time for payment of debt — Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37, s. 51(7)).

Held, that the mistake could be rectified so as to carry out the real intention of the parties.

The Local Government (Ireland) Act, 1898, sect. 51 (7), enacts that every debt, claim, or demand, which is directly or indirectly payable out of the poor rate, shall be paid within the half-year in which the same was incurred or became due, or within three months after the expiration of such half-year, but not afterwards.

The plaintiffs, misled by incorrect figures in certain reduced bills of quantities, tendered, in 1896, to the Commissioners for general control and superintendence and directing the erection of asylums for the lunatic poor in Ireland, for certain works connected with the building of an asylum. The tender was accepted by the Commissioners, all whose rights, powers, and liabilities, on the passing of the Local Government (Ireland) Act, 1898, became vested in the defendants. The works were completed, and the architect's certificate obtained prior to 1905. The plaintiffs, in April, 1906, commenced an action for rectification and recovery of the sum due on the rectified contract:—

Held, that the word “due” in section 51 (7) of the Local Government Act, 1898, means “recoverable by any legal process,” and that the action was barred by the application of the said section.

Action brought by the plaintiffs, a firm of building contractors, claiming to have a deed bearing date 29th August, 1896, and made between the plaintiffs and the Commissioners for general control and superintendence and directing the erection, establishment, and regulation of asylums for the lunatic poor in Ireland, rectified, by having the contract price for the erection of the Richmond Lunatic Asylum at Portrane raised from £167,000 to £167,830.

The statement of claim stated, inter alia:—

1. In the year 1896 the plaintiffs tendered for certain works connected with the building of an asylum for the lunatic poor at Portrane in connexion with the Richmond District Asylum. These works consisted of several sections, the male and female wards for each separate class of inmate constituting a separate sub-section. Plaintiffs' tenders for the several sections were based upon bills of quantities furnished under the orders and instructions of the architect to the Commissioners of general control and superintendence and directing the erection, establishment, and regulation of asylums for the lunatic poor in Ireland.

2. These bills of quantities were priced by the plaintiffs, and the aggregate amount for all the sections and sub-sections was £199,700.

3. The Commissioners, coming to the conclusion that the said sum was more than they deemed advisable to spend on the said asylum, directed their architect and quantity surveyor to prepare bills of reduction. These bills of reduction were prepared by the architect and quantity surveyors, and the items therein were priced by the plaintiffs, the total price for each section and sub-section being brought out as separate items. From the costs of the several sections and sub-sections as set forth in the bills of reductions it appeared that the aggregate cost of the said works would be £169,556 9s. 8d.

4. Upon the faith of the representation so made, and in the belief that the entire of the reduced works so priced could be executed as separate items for an aggregate sum of £169,556 9s. 8d., the plaintiffs, in consideration of obtaining the entire contract, tendered to construct all the said sections and sub-sections for one bulk sum of £167,000.

5. This tender was by deed bearing date 29th August 1896, duly accepted by the Commissioners; and the works were begun and carried on by the plaintiffs to the satisfaction of the architect.

6. In the year 1900, the plaintiffs, in making up their accounts of the work actually done to date, with a view of obtaining the architect's certificate, for the first time became aware that there must have been some error in the total cost as appearing from the bills of reduction; and it was, after a very prolonged and careful investigation...