Kinlen, Appellant; Ennis Urban District Council, Respondents

• Jurisdiction: Ireland
• Judgment Date: 09 November 1915
• Date: 09 November 1915
• Court: House of Lords (Ireland)

Kinlen,

Appellant

and

Ennis Urban District Council,

Respondents (1).

H. L.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Contract — Construction — Reference to prior Document — Building Contract — Right to refer to Tender not incorporated in Contract — Architect's Certificate — Certificate work completed with exception of a Wall — Wall held not to be included in Contract — Sufficiency of Certificate.

The respondents had adopted a scheme for the erection of artisans' dwellings, and had, for the purpose of obtaining tenders, prepared a specification with a form of tender attached. The appellant sent in a tender on the form attached to the specification, and his tender was accepted. Subsequently, a contract under seal was entered into between the appellants and the respondents. This contract, after reciting the tender, the specification, and certain drawings, and expressly incorporating the specification and drawings, provided that the works should be constructed agreeably to the specification and drawings.

Held, the contract being unambiguous in itself, that the tender could not be referred to for the purpose of showing that a certain wall at the rear of the dwellings was included in the work to be done.

The contract provided for a certain amount of the contract price being retained by the respondents until their architect had given his certificate of the satisfactory completion of the contract; and also that any disagreement connected with the quality of the materials, execution of the works, or meaning of the plans should be decided by the respondents' architect, whose decision should be final. The specification provided that the respondents' architect should be the sole arbitrator between the council and the contractor as to the quality of the materials and workmanship, or any other matter, should a dispute arise, and that his decision should be final. The respondents' architect had given a certificate that the appellant had completed the contract to his satisfaction, with the exception of building the wall in question.

Held, a sufficient certificate to entitle the appellant to recover.

Appeal from an order of the Court of Appeal in Ireland reversing an order of the King's Bench Division that judgment be entered for the plaintiff (the appellant in this appeal) for the sum of £235 8s. 2d., over and above a sum of £310 lodged in Court, and in lieu thereof ordering judgment to be entered for the defendants (the respondents herein) with costs.

The action was brought by the appellant, as plaintiff, against the respondents, as defendants, to recover a sum of £380, balance due on foot of a contract between the plaintiff and the defendants for the erection by the plaintiff of thirty artisans' dwellings in the town of Ennis, together with a sum of about £1000 for extras, and £500 for certain damages claimed. The main dispute between the parties Avas as to whether or not the plaintiff was bound by the contract to erect a wall at the rear of the houses along a boreen.

The action was tried before Madden J. and a special jury of the City of Dublin on the 15th June, 1914, and following days, when the following matters were proved or admitted:—

The defendants had adopted a scheme for the erection in the town of Ennis of artisans' and labourers' dwellings, and had advertised for tenders for their erection, and prepared a specification, with a form of tender attached. This specification was headed:— “General Conditions of Contract and Specification of Work and Materials to be Employed in the Erection and Completion of Eight Blocks of Workmen's Dwellings for the Urban Council of Ennis.” This was followed by another heading:— “Conditions and Specification of Materials and Workmanship to be Employed in the Erection and Completion of Workmen's Dwellings for the Urban Council of Ennis.” The specification contained (amongst others) the following provisions:—

“The tenders to be on the forms attached at the end of this specification, and must state separately the cost of the several alternative details embodied in same.”

“It is proposed to erect under present contract thirty cottages for artisans on plot opposite the Court House, having a frontage on the Gort Road, and which will be referred to in this specification, where necessary to define the work not applying to labourers' cottages, as Design ‘A’; and it is proposed to erect forty-six cottages for labourers on the Clare Castle Road site, and which will be referred to as above as Design ‘B.’”

There was a provision that the works were to be carried out as might be directed by the engineer of the Urban Council or other competent person appointed by them, and to his entire satisfaction.

Under the heading “Specification for Road, Water Supply, &c., Separate Estimate,” it was provided: “Construct wall at rear of Design ‘A’ along Boreen, 540 feet long by 6 feet by 18 inches, of rough rubble masonry. Put semi-circular concrete capping to same.”

The last two paragraphs of the specification provided:—

“The whole of these works to be carried out to the requirements of the engineer. The conditions of contract and specification for the cottages are applicable to this contract in every respect.”

“The engineer to be the sole arbitrator between the council and the contractor, or contractors, as to the quality of the materials or workmanship, or any other matter, should any dispute in connexion with them arise from time to time, whose decision on all matters shall be final and binding on all parties.”

The plaintiff sent in a tender, dated the 7th August, 1911, on the form attached to the specification. The portions of this tender, so far as material to the present report, were as follows:—

“Tender for works to be done in erecting and completing the proposed blocks of Artisans' and Labourers' Dwellings for the Urban District of Ennis.

“I propose and agree to execute the above works in strict conformity with plans, specification, conditions of contract, and such further drawings, instructions, and conditions as may be given, finding all necessary labour and materials, for the several sums set forth as under:—

“(1) To erect and complete three blocks, of ten each, artisans' dwellings, yards, out-offices, sewerage, water connections from service pipe, rear wall, demolish old houses, &c., as per Design “A” for the sum of £5880.”

“(3) To erect and complete the dwellings, yards, out-offices, sewerage, and water connections from service pipe in connexion with each block, as follows:—(A) Block No. 1, on Design ‘A,’ for the sum of £1960. (B) Block No. 2, on Design ‘A,’ for the sum of £1960. (C) Block No. 3, on Design ‘A,’ for the sum of £1960.”

“(4) To demolish old houses and build wall at rear of Design ‘A’ for the sum of £270.”

The plaintiff's tender to execute the works comprised in Design “A” for the sum of £5880 was accepted by the...