A plasterer undertook to do the rough casting at certain premises for a certain price. On the completion of the work his employer expressed his dissatisfaction with it, and a submission was made to a master plasterer as arbiter to determine whether the work had been satisfactorily done, and particularly whether it had been executed in a manner recognised by and in accordance with the custom of trade, not only as regards material but also as regards quantities, quality, and solidity of the work done. The arbiter in order to ascertain whether the employer had authorised the use of certain materials questioned two of the contractor’s employees out with the contractor’s presence but in the presence of the employer. He then examined the employer’s manager out with the presence of both parties. In his award the arbiter while finding in favour of the contractor as to whether the employer had authorised the use of the materials in question, held that the work had not been properly executed. The contractor thereupon brought an action for the reduction of the award on the ground, inter alia, that the evidence in the arbitration proceedings had been taken in the presence of the defenders only and out with the presence of the pursuers. An additional objection, which, however, in the opinion of the Lord Ordinary was not very clearly if at all raised on record, was also argued, viz., that the arbiter had misconstrued the terms of the submission, inasmuch as he had not applied his mind to the question, ‘What is the custom of the trade as to the number of coats to be given when there is no specification in the offer?’ The Lord Ordinary’s decision reducing the award on this ground having been reversed by the First Division and the defenders assoilzied, the pursuers appealed. Held (1) that in taking the steps he did to ascertain what was the custom of trade the arbiter had not acted extra fines compromissi or failed to apply his mind to the true question submitted to him, and (2) that as regards the other ground of challenge, viz., that a witness had been examined out with the presence of one of the parties, the procedure followed had not in this instance violated the principles of justice, especially where, as here, the arbiter had decided in favour of the party challenging the award, and appeal dismissed.
Where a pursuer elicits from a defender in the course of his evidence something which suggests a new cause of action altogether or a different foundation for his action, he should only be allowed to proceed upon averments and pleas properly inserted in the record, and upon payment of the expenses incurred up to that point.
Judges:
Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Phillimore, and Lord Blanesburgh
Citations:
[1923] UKHL 26, 61 SLR 26
Links:
Jurisdiction:
Scotland
Arbitration
Updated: 31 January 2022; Ref: scu.633268