Mansfield v Doolin

• Jurisdiction: Ireland
• Judgment Date: 07 June 1869
• Date: 07 June 1869
• Court: Queen's Bench Division (Ireland)

Q. Bench.

MANSFIELD

and

DOOLIN.

Milner v. FieldENR 5 Exch. 829.

Elliott v. The Royal Exchange Assurance CompanyELR L. R. 2 Ex. 237.

Scott v. AveryENR 5 H. L. C. 811.

Wellington v. MackintoshENR 2 Atk. 569.

Cumber v. Wane 1 Smith, L. C. 6th ed., 312.

Roper v. LendonENR 1 E. & E. 825.

Horton v. SayerENR 4 H. & N. 643.

Scott v. AveryENR 8 Exch. 487; 5 H. L. 811.

Thompson v. CharnockENR 8 T. R. 139.

Scott v. Avery 5 H. L. 843.

Horton v. SayerENR 4 H. & N. 650.

Roder v. LendonENR 1 E. & E. 825.

Scott v. AveryENR 8 Exch. 487.

Horton v. SayerENR 4 H. & N. 650.

Tredwin v. HolmanENR 1 H. & C. 72.

Braunstein v. The Accidental Death Insurance Company 1 B. & Sm. 783.

Scott v. AveryENR 5 H. L. C. 484.

Harris v. Reynolds 7 Q. B. 71.

Roper v. LendonENR 1 E & E. 824.

Arbitration Clause in Contract Reference of Matters in dispute to Arbitration Condition precedent to Suit or Action.

VoL. IV.] COMMON LAW SERIES. 17 MANSFIELD v. DOOLIN. Arbitration Clause in Contract-Reference of Matters in dispute to Arbitra tion-Condition precedent to Suit or Action. A building contract contained a clause that, in ease of difference between 1869. the contractor and his employer, the award in writing of the architect in all June 7. matters connected with the works, or the execution thereof, or the value of entire work, or reductions, or the meaning of the plans or specifications, should be final and conclusive, so far as the law permitted, and such award should be a condition precedent to any proceeding whatever at Law or in Equity in reÂÂspect of any matter or thing which could or might be the subject of such award. Held (dissentiente O'BRIEN, J.), that the architect's award was not a conÂÂdition precedent to an action by the employer against the contractor for not completing the buildings, and for leaving them unfinished. Scott v. Avery (5 H. L. C. 811), discussed. DEMURRER. The first count of the writ of Summons and Plaint stated that, in consideration of a sum of 1608 108. to be paid by the Plaintiff to the Defendant, the Defendant promised the Plaintiff to execute and complete for the Plaintiff certain, to wit, building works within a period, and of a quality, kind, and description, and composed of certain materials then mutually agreed upon between them. Averment, that, although the Plain tiff was always thence hitherto ready and willing upon his part to fulfil his said agreement, and although all conditions were fulfilled, &c., necessary to entitle the Plaintiff to have the said promise of the Defendant fulfilled on his part ; yet the Defendant in breach of his said promise had since neglected and refused to fulfil the said promise upon his part ; and the said works still continued in complete and unfinished, to the Plaintiff's damage of 1000. Second count-That, in consideration of a sum of 492 to be paid by the Plaintiff to the Defendant, the Defendant promised the Plaintiff to execute and complete for the Plaintiff certain building works within a period, and of a quality, kind, and deÂÂscription, and composed of certain materials then mutually agreed upon between them. Averment, that, although the Plaintiff was VoL. IV. THE IRISH REPORTS. [I. R. always thence hitherto ready and willing upon his part to fulfil his said agreement, and although all conditions were fulfilled, &e., necessary to entitle the Plaintiff to have the said promise of the Defendant fulfilled on his part ; yet the Defendant had since neglected and refused to fulfil the said promise upon his part, and the said works still continued incomplete and unfinished. Third count-That the Defendant, in consideration of certain moneys to be paid to him by the Plaintiff, according to a certain scale of prices and measurements, and according to certain general particulars, plans, and specifications then agreed upon, promised the Plaintiff to execute and complete for the Plaintiff certain building works in a style and manner, and of a certain quality, kind, and description then mutually agreed upon between them. Averment, that, although the Plaintiff was always thence hitherto ready and willing, upon his part, to fulfil his part of the said agreement, and although all conditions were fulfilled, &c., necesÂÂsary to entitle the Plaintiff to have the said promise of the DeÂÂfendant fulfilled on his part ; yet the Defendant had since, in breach of his said promise, neglected and refused to fulfil the said promise upon his part, and the said works still continued incomÂÂplete and unfinished. Fourth count-That in consideration of certain moneys then agreed upon to be paid by the Plaintiff to the Defendant, the Defendant promised to execute certain building works for the Plaintiff, and to have same completed on or before the 15th day of October, 1865, unless same should be suspended in manner then mutually agreed upon. Averment, that the works were not suspended as by said contract they might have been ; and although all times elapsed, &c., necessary to entitle the Plaintiff to have the said contract fulfilled by the Defendant, and the said works completed on or before the said 15th day of October, 1865 ; yet the Defendant failed to perform and fulfil his said contract in this, that he failed to complete the said works on or before the 15th day of October, 1865 ; but, on the contrary thereof, failed to comÂÂplete same for a period of eight weeks subsequent to said 15th day of October, 1865. Fifth count-That the Defendant upon the 20th of January, 186.5, by an agreement in writing under his hand, agreed with VOL. IV.] COMMON LAW SERIES. the Plaintiff to execute the whole of certain works then set forth on certain plans and specifications accompanying same, according to the said plans and specifications, and subject to the several conditions and provisoes contained in certain general particulars annexed thereto, to which said agreement referred, and on which the Plaintiff and the Defendant had endorsed their names, for a certain sum of money to be paid by the Plaintiff to the Defendant as therein agreed upon. Averment, that by said general particuÂÂlars it was, amongst other things, provided that the Plaintiff and his architect should, during the progress of said work, have power to make any alteration or substitution in addition to, or reduction from, the works as set forth in said plans and specifications, and that the value of same should be added to or subtracted from the amount to be paid on foot of the contract as the case might require. Averment, that the Defendant afterwards, by a further agreement in writing under his hand, and bearing date the 12th September, 1865, agreed to execute certain further and additional works therein mentioned, in connexion with, and extension of, the said works in said first-mentioned agreement, and in accordance with the said specification, in consideration of a further sum of money then agreed upon. Averment, that, in pursuance of the said power in that behalf contained, the Plaintiff made certain alterations and substitutions in reduction of the said works ; and he also, in purÂÂsuance thereof, made certain other alterations and substitutions in addition to the said works. Averment, that by said two written agreements, and as afterwards altered as aforesaid, the Defendant, for the considerations therein mentioned, made with the Plaintiff one entire contract for the rebuilding and decorating of two houses, known as Numbers 89 and 90, Grafton-street, in the city of Dublin, to be built as shops, warerooms, and photographic galleries, and for other purposes. Averment, that by his said contract the DeÂÂfendant, for the considerations aforesaid, promised the Plaintiff to execute the said works, amongst divers other provisions of said specification, in manner following, that is to say. (Here thirty different things, not necessary to be here specified, were set out.) Averment, that although all times elapsed, &c., necessary to entitle the Plaintiff to have the said contracts performed by the Defendant in the said particulars, and to entitle the Plaintiff to maintain this C2 THE IRISH REPORTS. [I. R. action for the breach and non-performance thereof ; yet in respect of each and every of the portions of the said contract hereinbefore particularly specified and numbered, the Defendant neglected and refused to complete said contract, and has thence hitherto left each and every one of said parts, incomplete, unfinished, and undone. Averment, to save prolixity, that the Plaintiff relied upon the non-performance of each and every one of said parts of said conÂÂtract as a separate and distinct breach. Prayer, that this count might be read as if thirty separate and distinct breaches in the said several parts were averred in respect of said contract. And the Plaintiff hereby in respect thereof declared upon each of the above numbered thirty items, and assigned the non-performance of each of them as separate and distinct breaches of the said contract ; and by way of special damage to the first, second, third, and fourth counts, and to the breach thirdly assigned in the fifth count, the Plaintiff averred that he, the Plaintiff, in the construction of the said works desired to have them so constructed, and the plans and specifications accordingly provided that they should be so conÂÂstructed as to enable the Plaintiff or occupiers of the said houses at any time to be able, if so minded, with safety to the rest of the buildings, to remove the walls upon that floor dividing the said two houses, so as to throw the shops of the two houses into one ; and by means of the said breaches of contract the said walls could not be so removed as intended, whereby the said shops and buildÂÂings are of greatly less value than they would otherwise have been. First defence to the first count-That the building works therein mentioned were executed under a special contract, dated the 20th January, 1865, made between the Plaintiff and the Defendant...