Kuppusami Naidu vs Smith and Company

Subramania Ayyar, J.—The plaintiff Coopooswamy Naidu sues the defendants Messrs. Smith and Company for the sum of Rs. 21,984-13-

4 said to be due to him in consequence of their having broken the contract entered into by him with them on the 23rd August 1893, with reference

to the construction of their new premises on which he had been working from October 1893 till May 1894 when he stopped building. The

defendants deny the breach alleged and their liability to pay the amount claimed. The main questions for determination are (1) Did the defendants

break the contract? (2) What amount, if any, are they bound to pay? These questions involve the decision of certain subsidiary points which will be

dealt with in their proper place under the respective heads. Now as to the first question the facts, so far as they are material to it, appear so clearly

in the written communications, which passed from time to time between the parties and between one or other of them, and Mr. Pogson appointed

as the architect of. the building that for a clear comprehension of them I need scarcely do more than set out the correspondence quoting the words

of the particular communications when necessary and add my own observations as to the two or three circumstances about which there is some

dispute.

It is sufficient to begin with what occurred since February 1894. In that month, certain iron columns which had been ordered by the plaintiff

arrived at Madras. Though according to the contract the defendants were not bound to pay the plaintiff any money except for work actually

executed or materials laid down upon the site of the building and certified to by the architect, yet, at the instance of Mr. Pogson, the defendants

advanced to the plaintiff on the 16th February Rs. 1,000 to enable him to pay for the said columns. That the amount was to be adjusted at the time

of the next certificate is admitted by both parties, although there is a dispute as to the particular mode in which the adjustment was to be made. On

behalf of the plaintiff it is sought to be established that Mr. Pogson was to give credit for the said amount and give a certificate for the balance,

whilst on behalf of the defendants it is urged that the understanding was that they themselves should deduct the amount when payment on account

of the next certificate is made. Oral evidence has been adduced in support of these respective contentions. But I am not inclined to accept either

version. My opinion is that at the time the advance was made neither party thought it necessary to define that in adjusting the amount the procedure

was to be the one or the other. And considering that the adjustment was to take place without much delay, it is hardly likely that the parties felt any

necessity for being so precise in the matter as they are now anxious to make out. If any distinct arrangement was entered into about the money,

some writing would have passed stating the exact understanding which would not have been left to depend upon mere memory. I believe there was

no definite agreement in the matter, a view which is confirmed by Mr. Pogson''s letter of the 15th February, wherein he asks the defendants to pay

the amount on account as well as by Exhibit 41, the plaintiff''s receipt for it dated the 16th, in which the payment is endorsed in similar terms.

The next certificate previously spoken of was granted on the 4th April 1894, Exhibit C, and was presented by the plaintiff to the defendant, who

paid him on the 6th Rs. 200 and on the 7th Rs. 3,500. They appear to have postponed further payment pending the receipt of some information

for which they had applied to Mr. Pogson. He says that he sent them Exhibit DD which is headed ""items of works comprising the third instalment

of payment"" and which shows that, after deducting Rs. 10,226 received by the plaintiff up to the 4th April including the Rs. 1,000 paid on the 16th

February for the iron columns, the balance due to him was Rs. 7,082-8-0. The defendants say that Exhibit DD never reached them, but it seems to

me they are wrong in saying so. I think that this is the enclosure referred to in Exhibit CC written by the defendants to Mr. Pogson on the 9th April

and which runs: ""With reference to the enclosure and at the request of Mr. Cormac (the clerk of the works appointed by the defendants) we have

to return the certificate and to ask that you will be so good as to alter the amount to Rs. 5,385."" For these figures appeared to have been arrived at

by deducting from Rs. 7,082-8-0, the sum of Rs. 1,000 and the 10 per cent, (a deduction provided for under paragraph 13 of the contract) on the

balance Rs. 6,082-8-0. The exact sum would be Rs. 5,374-8-0 instead of Rs. 5,385. What the small difference of Rs. 10-8-0 consisted of does

not appear, but the language of Exhibit 00 clearly points to the enclosure being different from the certificate which the defendants wanted to be

modified. However this may be, on the very next day Mr. Pogson addressed the defendant Exhibit EE which ought to be quoted. He writes: ""I

measured up the works and send you the bill of quantities (Exhibit FF). The present value of the works is Rs. 19,491, accordingly the certificate I

granted for Rs. 7,600 is quite reasonable and fair. I trust, under these circumstances, you will pay the amount certified for. I went over the amount

with Mr. Cormac here yesterday and this morning my measurements show that my certificate valuation is below the value."" On the 14th April the

defendants paid the plaintiff Rs. 2,140, which brought up the total payment to Rs. 5,840. On the same day they wrote to Mr. Pogson: ""We have

paid to Mr. Cooppoosawmy as per your certificate. We have done this under protest, there being several items in the bill (FF) that will have to be

adjusted on your return to Madras."" In making the statement '' we have paid Cooppoosawmy as per your certificate,"" the defendants seem to have

ignored the fact that Mr. Pogson had already included the Rs. 1,000 paid in February in the Rs. 10,226 for which he gave credit to the defendants

in arriving at the balance in Exhibits DD and FF, and to have thought that they were entitled to treat that amount as a payment towards the amount

of Exhibit C. For otherwise the defendants would have had to pay the plaintiff Rs. 6,840, i.e., the amount of the certificate less 10 per cent. The

plaintiff, however, was not satisfied and he wrote to the defendants on the 21st April complaining that he had not received full payment (Exhibit D).

The defendants'' reply to this dated the same day runs : ""In reply to your docket we consider the amount of Mr. Pogson''s certificate has been fully

paid. As regards the Rs. 1,000 advanced you for iron work, Mr. Pogson at the time said it was to be deducted from your next bill; this we have

done; until Mr. Pogson''s return we can do nothing in the matter."" On the 28th April the plaintiff wrote to Mr. Pogson that he had received only Rs.

5,840, and asked him to give a fresh certificate to enable him to get full amount for works done up to that date. In forwarding the said letter, Mr.

Pogson wrote on the same day to the defendants thus: ""I herewith enclose a letter from your contractor, wherein he says that he has only received

part of the payment of my certificate. I cannot understand this, for on the 21st instant you write to me and say that you have paid him the full

amount of Rs. 6,700 (? 7,600) less of course 10 per cent, as per agreement. I think there must be some misunderstanding, so kindly explain."" The

defendants do not appear to have answered Mr. Pogson at once. They, however, wrote to him on the 14th May (Exhibit JJ.) wherein after taking

objection to several items mentioned in the bill of works conclude with the observation that they had deducted out of the amount of the certificate

Rs. 1,000 advanced for the iron work. On the 7th May, Mr. Pogson replied by Exhibit KK, in which he enters into an explanation as to the items

objected to by the defendants, which it is unnecessary to repeat. But his observations as to the Rs. 1,000 ought to be quoted. He says: ""In regard

to the Rs. 1,000 advance for iron works, the figure your clerk gave me from your ledger was Rs. 10,226, which included this advance. In

consideration that I granted only Rs. 7,600, in lieu of the actual amount of Rs. 9,265-9-11, I fail to see why you should dispute my certificate at all.

The contractor complained bitterly, because I would not grant him the full amount of Rs. 9,265-9-11 and says it is impossible for him to advance

the works unless his dues are paid in whole; however, I refused to listen to his pleadings. You may fully depend upon me that I will not be too

lenient in granting him excess payment as I fully know and feel that I am responsible for all money spent. On the other hand, I must ask you to

remember the terms of the agreement, wherein it says that the architect shall decide the amount due to the contractor and that his decision shall be

final and binding and without appeal. See Clause 17. The keeping back of the payments on certificate beyond fourteen days exposes you to the

contractor''s enforcing Clause 16 and breaking the agreement, and this is what I seriously wish to avoid."" But the explanation had no immediate

effect upon the defendants, and the plaintiff on the 21st May gave notice to the defendants that he suspended work and asked for a settlement of

all his accounts within ten days (Exhibit G). On the next day Messrs. Barclay, Morgan and Orr replied on behalf of the defendants stating that the

latter had committed no default (for which a reason is assigned by the solicitors which I shall consider later on) and calling upon the plaintiff to

proceed with the works at once, and on his failing to do so, that will be treated as a breach of his agreement and the contract put an end to. On the

31st May, the plaintiff answered by Exhibit J, wherein he insisted upon compliance with his previous demand. The defendants relented and wrote

to Mr. Pogson asking him to tell the plaintiff that they would pay him Rs. 1,000 less 10 per cent, if he would call on them (Exhibit K). But the

plaintiff on the 1st June wrote to Mr. Pogson that he wanted to be paid the full amount as per bill of works FF. On the 5th June the defendants

wrote to the plaintiff that, if he delayed in proceeding with the work for 28 days, they will take possession of the premises and proceed to

complete the work. The plaintiff, however, took no notice of the communication. On the 6th July the defendants offered through Mr. Pogson to

pay the plaintiff Rs. 2,500 on condition he resumed work at once. On the 9th July, the plaintiff replied to say that the matter was in the hands of his

solicitors, Messrs. Branson and Branson (Exhibit P). This was sent by Mr. Pogson to the defendants on the 11th, and they took possession on the

12th.

Having thus stated, though at some length, nearly all that appears to me to be necessary for the proper understanding of the question under

consideration, I shall now proceed to deal with the points at issue.

Now the plaintiff''s contention is that the defendants broke the contract by withholding payment of the Rs. 1,000 required to make up the Rs.

6,840 due to him under the certificate (Exhibit C) less 10 per cent., and secondly by taking possession of the premises on the 12th July and

proceeding with the work. I shall first take up the former contention. The answer of the defendants to this is that, according to the proper

construction of the 14th paragraph of the contract, the plaintiff was not entitled to claim in any one month payment of more than Rs. 5,400, i.e., Rs.

6,000 less 10 per cent. The portion of the said paragraph material for the present purpose runs: ""When the value of the works executed and

materials laid down upon the site for use in executing the works and not included in any other former certificate shall, from time to time, amount to

the sum of Rs. 3,000, but not exceed Rs. 6,000 per mensem at the architect''s reasonable discretion, the contractor shall receive payment at the

rate of 90 per cent, upon such value certified by the architect until the value of the works actually executed shall amount to 50 per cent, of the full

amount of the contract."" The manifest and immediate object of the clause is to point out how the architect should, in granting certificates during the

progress of the building, distribute the value of the work done or materials laid down upon the site over the period that may elapse between the

commencement of the work and the time when the value of the works actually executed comes up to 50 per cent, of the full amount of the

contract, as is unquestionably shown by the existence in the clause of the term ""per."" That the above is the correct interpretation of the term will

appear from the judgment of Lord Selborne in Pryce v. Monmouthshire Canal and Railway Co. L.R. 4 App. Cases 216 where in construing the

words ""per ton per mile not exceeding"" the following passage occurs: ""And I agree with Lord Justice James that the Latin preposition per,'' as it is

adopted into our popular language and as it is here used, properly and primarily signifies the distribution of the charge over the whole aggregate

weight of goods for the whole aggregate distance that they are conveyed, tons and miles being mentioned only as common measures of weight and

distance convenient for the measurements which this maximum scale would necessarily require."" And it is hardly necessary to say that the term has

the same meaning when it is used, as it here is, with reference to a word denoting time, as it has when it governs words indicating quantity or

distance as it did in the case above referred to.

To illustrate my meaning, suppose the plaintiff had laid down upon the premises, in the very first month he commenced to work, materials of the

value of Rs. 12,000. The architect would have had to distribute the amount over that and the next month, and give to the plaintiff, if he applied for

it, one certificate for half the amount in the former and another for the remainder in the latter month. But suppose the plaintiff had chosen to wait

and asked at the end of the two months one certificate for the whole amount, could the architect have refused to comply with the request? On the

face of the clause in question, I fail to see anything to prevent the grant of such a certificate. And considering that, by multiplying the maximum

mentioned in the clause by the number of months which have expired since the commencement of the work, the defendants could ascertain the

possible limit of their liability to the contractor, I do not see what reasons there are for thinking that they were not expected to be ready to meet

such liability. If, however, the intention was as alleged on behalf of the defendants that whatever the amount of a certificate or certificates granted in

accordance with the rules laid down for the architect''s guidance may be, the defendants had not to pay more than a certain amount in any one

month, why was that not stated in plain and unambiguous language? A few words such as ""provided Messrs. Smith and Company shall not be

liable to pay in any one month a sum exceeding"" would have aptly conveyed the alleged intention. But why, instead of that simple course, this

round-about and to my mind almost unintelligible way of expressing the alleged intention was adopted, I find it difficult to understand. It is quite true

that the direction to the architect to distribute the amounts to be certified in the manner prescribed would, in some measures, affect the amounts, to

be paid until the 50 per cent, limit is reached. But that would be only as an indirect result of the provisions which were inserted for a different

purpose. The construction suggested on behalf of the defendants makes what would thus be consequential and secondary the primary object and

involves a serious modification of the sense of the clause according to its ordinary and grammatical interpretation. Moreover the conduct of the

defendants themselves shows that the construction suggested on their behalf is an after-thought. During the cross-examination of the plaintiff the

learned Senior Counsel for the defendants wanted to be allowed to prove by oral evidence that the words ""but not exceed Rs. 6,000"" in the

paragraph in question were inserted for the express purpose now alleged. If this were a fact one would expect that the defendants would have

taken the present objection the moment the certificate (Exhibit C) was presented for payment. But singularly enough in none of the letters to the

plaintiff or to Mr. Pogson is there a word about it. It was left for their solicitors to make the discovery for the construction in question is first

suggested in their letter to the plaintiff, dated the 22nd May 1894, Exhibit H, already referred to. I have therefore no hesitation in holding that the

defendants'' contention is unsustainable, and that in refusing to pay for more than fourteen days allowed by the contract the Rs. 1,000 due to the

plaintiff under Exhibit C even after it was pointed out by Mr. Pogson that the advance for the iron columns had been included in Rs. 10,226 for

which he had given the defendants credit in framing the certificate, they broke one of the terms of the contract.

The second point is whether there was a further breach of contract on the part of the defendants in their having entered into possession in the

middle of July for the purpose of taking steps to complete the works, which had been at a standstill since 22nd May. The contention of the plaintiff

is that in consequence of the defendants'' failure to pay the Rs. 1,000 he suspended the work, but temporarily under paragraph 16 of the contract

and that the defendants'' interference during the period of suspension was not lawful. The contention on the other side is that the suspension was

not merely temporary that there was a complete cessation of work and recission of the contract and that their taking possession was lawful. I agree

with the defendants on grounds which I shall now consider seriatim.

In the first place I am of opinion that the plaintiff did not merely suspend the work for a time, but that he, in consequence of the defendants''

default, rescinded the contract as he was empowered to do under the paragraph referred to, which after providing that the plaintiff may suspend

the work and demand payment of moneys due to him adds ""and in such case the contractor shall not be bound to proceed further with the works.

That the plaintiff did enforce this clause is clear from Exhibit G, wherein on the 21st May he wrote to the defendants ""I beg you will take notice that

I have suspended all works connected with your new building as you have failed to fulfil several considerations written in the agreement, dated 21st

August 1893, and I am also afraid to continue the work further as you have more than once interfered with me against the agreement, and I

therefore beg you will be pleased to settle all my accounts connected with the above work within ten days from this day, after which I am not

responsible for the loss or damage sustained by your property in the new premises."" Even if I were in error in inferring from the said letter that the

plaintiff intended to enforce the clause of paragraph 16 quoted above, it seems to me that the letter coupled with his subsequent conduct brings the

case within the latter part of the rule laid down in Mersey Steel and Iron Co. v. Naylor Benzon and Co. L.R. 9 App. Cases 434 where Lord

Selbourne states it thus: ""According to the authorities, and according to sound reason and principle the parties might have so conducted themselves

as to release each other from the contract and that one party might have so conducted himself as to leave it at the option of the other party to

relieve himself from a further performance of the contract."" Admittedly subsequent to the date of G the plaintiff was requested several times to go

on with the work; but he ""persistently refused to Comply with the demand. The fair inference to be drawn from it is that he treated the contract as

at an end in consequence of the default of the defendants, who though, of course, liable to pay him according to the contract what was till then due

to him, were, however, thereby released from liability to future performance. Another ground on which the resumption of possession is justified is

that the defendants being dissatisfied with the suspension of the work gave the plaintiff under paragraph 13 of the contract notice (Exhibit N) on the

5th June calling upon him to go on with the work, and as the plaintiff did nothing for more than the 28 days specified in the paragraph, the

defendants had every right to enter into possession, which they accordingly did. These facts are admitted and the provisions relied upon in my

opinion entirely support the defendants'' contention. Should it, however, be thought that paragraph 16 of the contract must be read independently

of 13 and that the provisions of the latter are inapplicable to suspension under the former, even then it cannot, I think, be rightly argued that the

plaintiff was entitled to stop the work as long as he pleased, simply because paragraph 16 specifies no time during which such suspension may last.

For ""the fact that time is not specified or not so specified as to be of the essence of the contract does not affect the general right of either party to

require completion on the other part within reasonable time and give notice of his intention to rescind the contract if the default is continued.

Pollock on Contracts, 6th edition 488 Green v. Sevin L.R. 13 Ch. D. 599. Moreover it having been held that the Court way infer from the nature

of a contract, even though no time be specified for its completion, that time was intended to be of its essence to this extent, that the contracting

party is bound to use the utmost diligence to perform his part of the contract, Macbryde v. Weekes 22 Beav. 533 having regard to the fact that

any delay in cases like the present would prove detrimental to the building owner and taking also into consideration that in cases falling within

paragraph-13, delay for more than four weeks after notice is expressly made improper, I think the refusal by the plaintiff to go on with the work

from 22nd May to the middle of July was, according to. the authorities, such as to entitle the defendants, to rescind the contract and enter into

possession. I accordingly hold that there was no breach of contract on the part of the defendants in having done so.

The next question is as to the amount to which the plaintiff is entitled. The claim for Rs. 12,000 stated to be the damages due-to the plaintiff in

consequence of the defendants having taken possession in July fails, as I have arrived at the conclusion that the resumption of possession was

rightful.

The remaining question is what is the amount due to the plaintiff by the defendants on account of their failure to pay the Rs. 1,000, the balance

due under the certificate (Exhibit C) and the consequent breach of contract. The plaintiff''s right in this respect is clearly defined in paragraph 16 of

the contract itself, which entitles him only to payment for all works executed and for all materials laid down on the site and for any loss which he

may sustain upon any goods or materials purchased for the works."" These explicit provisions, however, have, for some reason or other, not been

attended to in framing the plaint, the schedule to which does not state the value of work done or the materials laid down upon the site or loss

sustained; but instead gives the prices of materials alleged to have been purchased and details of other expenses said to have been incurred by the

plaintiff in connection with the building in general. And nearly half the time taken up by the trial was spent in investigating the question of the truth

and correctness of the statements in the said schedule. In thus departing from the plain directions of the contract the plaintiff has followed an

entirely erroneous course and consequently I refrain from discussing the evidence adduced with respect to this part of the case. I would only

observe that, even if I were of opinion that the claim thus made by the plaintiff were regular, I should hesitate very much to allow it without

considerable reductions, since the oral evidence in support of it, which is chiefly that of the plaintiff, has to be received with great caution as his

cross-examination clearly shows, and since the accounts (Exhibit 2 series) produced to corroborate the oral testimony appear to be books not

kept in the usual course of business, but prepared in view to this litigation. (His Lordship, after discussing the evidence for plaintiff, as to the amount

due and declining to act upon it, continued as follows):

I now pass to consider that of Mr. Stephens, called on behalf of the defendants. I am unable to accept this either, except as to the items appearing

at the end of Exhibit 44, and amounting to Rs. 2,960-12-7, the correctness of which I see no reason to question. In coming to this conclusion, I am

not to be understood as in any way doubting Mr. Stephens'' veracity; for he appeared to me to be a disinterested and straightforward witness. But,

as observed by Denman, J. in Stevenson v. Watson L.R. 4 C.P.D. 161 ""it frequently happens that there will be skilled architects called on one side

and on the other, who very often honestly differ as to the proper mode of measuring up and disagree to the extent of hundreds of pounds as to

what is owing under a bill of quantities."" Further, the evidence of architects as to valuation is in truth expert testimony, which the Court has little

means of testing except perhaps where the conduct of the parties interested furnishes some sort of guide to forming an opinion in the matter as, I

think, is the case in the present instance. Testing it in this way, though Mr. Stephens'' measurements appear to be very accurate, his rates, I

conclude, are lower than they should be. For if, as Mr. Stephens thinks, that up to the 10th April the work executed and materials laid down upon

the site amounted to only about Rs. 13,600 in round numbers, it is scarcely likely that the defendants who, from the correspondence produced in

this case, appear to have exercised great watchfulness over the works, notwithstanding the employment by them of Mr. Pogson and a competent

clerk of the works, Mr. Cormac, lately an Assistant Engineer in the Public Works Department, would not only have paid the plaintiff over Rs.

15,000, but also consented to give him the further sum of Rs. 2,500, which they offered through Mr. Pogson on the 6th July (Exhibit O).

It remains for me to deal with Exhibit FF, dated the 10th April, submitted by Mr. Pogson in his capacity of architect under the contract to the

defendants in consequence of the objections taken by them to Exhibit DD and the certificate (Exhibit C) and which (FF) was clearly intended to be

a decision (see Exhibit KK) under paragraph XVII of the contract, whereby the architect''s decision ""with the respect to the amount, state and

condition of the works actually executed or in respect to any and every question that may arise concerning the construction of the present contract

or the said plans or drawing specification, bill of quantities for or in anywise relating thereto shall be final and binding and without any appeal."" The

defendants impeach this valuation on the ground of collusion between Mr. Pogson and the plaintiff. The only allegation made in support of the plea

of collusion is that there was, unknown to the defendants, a contract between Mr. Pogson and the plaintiff, that the latter was to pay the former

2� per cent, on the estimated value of the buildings for his services as a quantity surveyor and that such contract gave Mr. Pogson an interest

which rendered him incompetent to give a binding decision. On behalf of the plaintiff the existence of the alleged agreement is denied. But assuming

for argument that there was such an agreement, I fail to see how it was likely to render Mr. Pogson partial to the plaintiff as against the defendants

who were under a contract to pay Mr. Pogson at the rate of 5 per cent. On the contrary, I should think the alleged agreement would only go to

reduce somewhat the ""unindifferency"" as it was called in Banger v. Great Western Railway Co. H.L.C. 88 that Mr. Pogson would otherwise, upon

the defendants'' theory, have shown to them. Be this as it may, the point is whether, supposing that Mr. Pogson acquired in consequence of the

alleged contract an interest as stated, it affects the validity of his decision as contended on behalf of the defendants. In this connection their counsel,

during the argument, treated Mr. Pogson as if he were an arbitrator. The authorities on this point are not however very decisive as will be seen

from a few to which I shall refer. In Scott v. Corporation of Liverpool 3 DeG. & J. 368 Lord Chelmsford, L.C. observes ""But where the contract

provides for the determination of the claims and liabilities themselves of the contractor by the judgment of some particular person this would be

incorrectly called a provision for submission to arbitration, as he dispute can exist in such a case as everything being dependent upon the decision

of the individual named and till he has spoken, no rights can arise which can be enforced either at law or in equity.

In Wadsworth v. Smith L.R. 6 Q.B. 336 Cockburn, C.J., says: ""I am of opinion that in Section 17 by ''an agreement or submission or

arbitration by consent'' is meant an agreement by which it is intended by the parties that the matter shall be submitted to a judicial enquiry before a

person chosen between them instead of being left to the ordinary proceedings of a Court of law and not merely left to the uncontrolled and offhand

decision of some architect or surveyor to be appointed by one of the parties only. Here the clause in question gives the defendant power to put an

end to the agreement if there is unreasonable delay or unsatisfactory conduct on the part of the plaintiff, such delay or unsatisfactory conduct to be

ascertained and decided in writing by Messrs. Scargill and Clarke, the defendants'' architects, for the time being, against whose decision there shall

be no appeal. I am by no means disposed to say that this amounts to a submission to arbitration, although it is certainly wider and different from

many of the ordinary clauses as to the certificates of architects which have occurred in cases under building contracts and which have been

determined to be binding on the builder and not to be clauses of arbitration."" Blackburn, J., remarks: ""Where by an agreement the right of one of

the parties to have or do a particular thing is made to depend upon the determination of a third person, that is not a submission to arbitration nor is

the determination an award; but where there is an agreement that any dispute about a particular thing shall be enquired of and determined by a

person named, that may amount to a submission to arbitration and the determination though in the form of a certificate be an award."" Hannen, J.,

says: ""I think this is not an agreement or submission to arbitration. The clause in question seems to me no more than an extension of the ordinary

clause in building contracts, that the certificate of the architect shall be conclusive as to the work done and the mode of doing it."" Perhaps the

statement most favourable to the contention put forward on behalf of the defendants is a dictum of Denman, J. in Stevenson v. Watson L.R. 4

C.P.D. 161 already referred to, wherein the architect''s duties are stated to be ""very analogous to the duties of an arbitrator"" but this is qualified by

the statement ""I do not intend to hold that he is to all intents and purposes an arbitrator."" But supposing that the being interested is necessarily a

disqualification in arbitrators in the strict legal sense--a question on which I express no opinion--it does not follow that the same is true with

reference to persons occupying the position which Mr. Pogson occupied here. In support of this view it is sufficient to refer to the observations of

Baron Bramwell in Ellis v. Hooper 3 H. & N. 767 in which, a dispute having arisen as to the result of a horse race, the stewards (who by the rules

of the course were to be arbiters of all disputes) decided against a horse against which one of them had made a bet, it was held that the decision of

the stewards was not invalid on the ground of one of them being an interested arbitrator. Baron BRAMWELL said ""the question put by my

Brother WATSON in the course of the argument seems to be decisive, viz., is there any implied condition that the appointed arbitrators or judges

shall be without power if one of them becomes interested in the event of the race? If none exist, then, is there any general proposition of law that

whenever a dispute referred to one or several persons, his or their power shall cease if any of them becomes interested on the event. I know of no

such rule. When the parties agree to refer a matter they may, if they please, insert a condition to that effect; but if they do not why should we make

such a condition for them? "" Ellis v. Hooper 3 H. and N. 767. And these observations were referred to with approval by Muttusami Ayyar, J. in

The Secretary of State for India v. Arathoon ILR 5 Mad. 181. Since in the contract here, there is no condition that Mr. Pogson should not be

interested, the agreement set up cannot take away his power to act or in any way render his decision not binding. Though such is the conclusion at

which I have arrived with reference to the legal aspect of the question, I wish to add that in point of fact no such agreement has been proved. It is

quite true that Mr. Pogson says he is entitled to receive, in addition to what he gets from the defendants, 2� per cent; from the plaintiff, in

consideration of the latter making use of the bill of quantities prepared by him (Mr. Pogson). He, however, does not base his right to this

remuneration on any express promise by the plaintiff, but in an indefinite way refers it to a usage prevailing in England which, Mr. Pogson thinks,

has been adopted in Madras also. The usage relied on [upheld by Mathew and A.L. Smith, JJ. in North v. Bassett 1 Q.B.D. (1892) 336 and the

contract implied in consequence of it are ""that the builder pays the quantity surveyor and puts the amount of the fees upon the amount of his tender.

First of all the building owner agrees to hand over the money for the quantity surveyor''s fees to the builder and the builder agrees to hold it for the

quantity surveyor and the latter agrees that he shall hold it."" In the present case there is really no evidence to show that the above usage has been

imported into and prevails in this city and as to whether the plaintiff''s tender contained any reference to the 2� per cent, in question, there is an

irreconcilable conflict of evidence which makes it difficult to determine what the truth is. But even assuming that the usage and the tender in

accordance with it have been made out, I fail to see how they help the defendants. For, as pointed out in the case cited, the contract to'' be implied

from those facts is a tripartite contract which brings all the parties--the builder, the building owner and the surveyor--together and to which

consequently defendants would necessarily be parties; but not, as alleged here, an arrangement entered into behind the back and without the

knowledge of the building owner. The charge of collusion therefore fails, and Exhibit FF must be held to be binding upon the defendants, subject to

an unimportant modification with reference to the item of Rs. 526, which includes a sum allowed for stained glass admittedly not delivered upon the

premises, a modification that is permissible, since the architect''s certificate can be attacked not only for fraud but for evident mistake also

Hennessy v. Metzger 43 American State Reports 270.

Even if my view as to the conclusive character of Exhibit FF be wrong, I am inclined to hold that the amount therein mentioned represents the

cost of the work done and materials delivered at the site more correctly than either the subsequent valuation of Mr. Pogson or that of Mr.

Stephens and Exhibit B prepared by the plaintiff about the time of Exhibit FF and checked by Mr. Cormac goes to confirm my view, because,

even after making allowance for one or two items not checked by Mr. Cormac, there is not much difference between the amount of Exhibit B and

that of Exhibit FF. No doubt Mr. Cormac did not take any accurate measurements when he checked the amount, but considering his long

experience as an engineer of some standing and the zeal which he appears to have throughout displayed in the interest of his employers, I am

inclined to think that the figures in Exhibit B, as altered by Mr. Cormac, substantially corroborate those in Exhibit FF which, accordingly, I adopt

subject to the disallowance on account of the stained glass, not supplied, of Rs. 263, which in the absence of any evidence on the point is, in my

opinion, the proper amount to deduct, being a moiety of the sum allowed for the stained glass windows. With reference to the loss sustained on

articles purchased for use in the defendants'' premises, there is no satisfactory evidence, as I entirely disbelieve what the plaintiff says as to the

amount alleged to have been advanced to Chander Singh, which is possibly the only item that can be said to fall under this head, though even that is

extremely doubtful.

Upon these findings the amount to which the plaintiff is entitled is Rs. 6,992, as shown below:

Rs.

Total amount specified in FF ... ... 19,491

Deduct ... 263

_____________

Balance ... 19,228

Add the amount at the end of Exhibit 44 ... 2,960

_____________

Total ... 22,188

Deduct the amount already received by

the plaintiff ... ... ... 15,196

_____________

Balance ... 6,992

_____________

There will be a decree for the plaintiff for the sum of Rs. 6,992, with interest at six per cent, per annum from the 31st July 1894, the date of the

plaint, to the date of payment.

As to costs, the plaintiff on the one hand has failed to establish the breach alleged to have taken place in July and his claim to the Rs. 12,000

said to be damages sustained by him in consequence of such breach. Further, the course adopted by him in putting the other portion of his claim on

a footing different from that on which it ought to have been put has led to the irrelevant enquiry which took up a considerable time. On the other

hand, there was a breach of contract on the part of the defendants who, moreover, have not succeeded in proving the plea of collusion. In these

circumstances, the proper order to make is to direct that the plaintiff pay his own costs and the defendants theirs.