M. R. 1871 KIMBERLEY v. DICK. amount mentioned in the estimate and contract; and this, according to the Plaintiff, was partly owing to the fact that the quantities in the detailed working drawings prepared by White, and appended to the contract, considerably exceeded those given to the Plaintiff as the basis of his estimate. The Defendant White refused to certify for the payment of such extra works. At the beginning of the year 1869, the Plaintiff for the first time discovered that the Defendant White had given a promise or guarantee to the Defendant Dick that the whole cost of the works comprised in the contract should not exceed £15,000, including the architect's remuneration and the salary of the clerk of the works. The Plaintiff alleged that White had thereby a personal interest in keeping down and reducing the amount justly payable to the Plaintiff, and that it was inequitable that any of the matters in question should be left to his adjudication. The Defendant Dick refused to pay the amount claimed by the Plaintiff for extra works, and the Plaintiff accordingly filed his bill against the two Defendants, praying that it might be declared that, in addition to the said contract price of £13,690, he was entitled to be paid by measure and value for all quantities of work executed by him beyond the quantities included in the Plaintiff's estimate of the 29th of March, 1867; that an account might be taken of what, on the footing of such declaration, was due to the Plaintiff from the Defendant Dick in respect of the works included in the estimate, and the extra works executed by the Plaintiff; and that the Defendant Dick might be ordered to pay what should be found due. The Defendant Dick declined to enter into the question between the Plaintiff and White, and relied entirely on the Plaintiff's tender and contract; and stated that he was ready and willing to pay whatever might be due to him under the contract as soon as he obtained the requisite certificates of the amount. He denied that White, while acting as his architect, was his agent. He admitted that the basis of his employment of White was, that the sum of £15,000 was to cover every expenditure, as stated in the letter of the 27th of March, 1867, and submitted that the bill ought to be dismissed with costs. The Defendant White's grounds of defence have already been. M. R. 1871 v. DICK. partly stated. He, by his answer, went fully into all the transactions, for the purpose of shewing that he had treated the Plaintiff with good faith; that the Plaintiff had full opportunity of pre- KIMBERLEY paring his estimate; that the price mentioned in the contract ought not to stand for the quantities and works stated as the basis for the Plaintiff's estimate; and that the Plaintiff ought not to be paid by measure and value for the excess in the quantities and works executed by him; but that the contract was binding on the Plaintiff, and ought to be strictly adhered to, and that it was not now open to the Plaintiff to raise any question as to alleged discrepancies between the quantities in his estimate and those in the contract plans and specifications. He further stated that he had not given any personal guarantee to Dick that the total cost should not exceed £15,000, and that he had not thereby any personal interest in keeping down that cost. Mr. Southgate, Q.C., and Mr. Begg, for the Plaintiff : The Plaintiff in this case is entitled to an account of all extra works done and executed by him in pursuance of the tender. The tender and the contract must be taken together, and as the contract was executed by the Plaintiff without sufficient materials being furnished to him by the Defendant White, and when he could not give the time which was necessary to enable him sufliciently to consider it, he cannot be strictly bound by it wherein it differs from the tender. Besides, the evidence shews that the real contract between the parties differed materially from the written. contract; and parol evidence may be adduced to shew what the actual contract is. The Defendant White must throughout these transactions be regarded as the agent of Dick, and Dick must be held responsible for his acts. It appears that Dick had been assured by White that the whole expense should not exceed the sum of £15,000. This promise or undertaking was never disclosed to the Plaintiff; and on this ground we contend that the arbitration clause in the contract providing that "all questions between the parties touching the matters relating to the contract shall be left to the sole determination or award of the architect," cannot be enforced; for it has been held that where there is any circumstance calculated to bias M. R. 1871 KIMBERLEY v. DICK. the mind of an arbitrator unknown to either of the parties who have submitted to his decision, that is a sufficient ground for the interference of the Court. Thus, in Kemp v. Rose (1), where a builder, by his contract, bound himself to abide by the decision and certificates of an architect as to the amounts to be paid for the work, not knowing that the architect had given an assurance to the employer that the cost of the building should not exceed a certain sum, although he refused to guarantee that amount, the Court did not consider the decision of the architect made under such a bias as binding, but gave directions so as to ascertain, under the authority of the Court, how much remained justly due to the Plaintiff. That case is a direct authority in the Plaintiff's favour. The same principle was recognised in Scott v. Corporation of Liverpool (2), where, however, as the builder was aware of the agreement between the architect and his employer, and of the fact of the architect's interest in consequence, the builder's case failed. In Pauley v. Turnbull (3) the Court, on being satisfied that there had been unfair conduct towards a builder, on the part of an architect whose decision was by the terms of the contract to be final, decided that the builder must be relieved from all penalties by reason of the non-completion of the contract, and declared the architect's decision not binding. On these authorities we contend that the arbitration clause in the contract here must be set aside. That being so, the question arises whether the Plaintiff is to be left to his remedy at law. We submit that this Court has full jurisdiction to deal with it. Where, as here, the account is a very complicated one, and can be more conveniently taken in a Court of Equity, then such an account will be ordered to be taken, as in McIntosh v. Great Western Railway Company (4) and Taff Vale Railway Company v. Nixon (5). Mr. Jessel, Q.C., for the Defendant Dick :— Where fraud is charged by a bill which the Flaintiff fails to establish, then he cannot succeed unless he has some other equity M. R. 1871 V. DICK. distinct from that based on the allegations in the bill. The case of Kemp v. Rose (1), relied on by the other side, is not law. It is inconsistent with the decision of the House of Lords in Ranger V. KIMBERLEY Great Western Railway Company (2), where a contract was entered into between a railway company and a contractor, and in case of dispute between the contractor and the chief engineer before the completion of the works it was agreed that the decision of the engineer should be final, and the contractor subsequently discovered that the engineer was a large shareholder in the company. Disputes having arisen he filed his bill to have the accounts taken, but the House of Lords held that the ground above stated formed no ground of relief. So in Hill v. South Staffordshire Railway Company (3), where payments to a contractor were to be certified by the engineer of the railway company, he was held not to be disqualified from so doing, on the ground of his having become lessee of the company at a rent depending on the amount so certified for. In Bliss v. Smith (4) Kemp v. Rose was cited, but disregarded by the Court. In Scrivener v. Pask (5), where an owner employed an architect to prepare plans and a specification for a house, and to procure a builder to erect it for him, the architect took out the quantities, and represented to the builder that they were correct, and the builder thereupon made a tender which was accepted. The quantities proved to be incorrect, and the Plaintiff expended upon the building a much larger amount of materials than he contemplated. It was there held that there was no evidence that the architect acted as the agent of the owner in taking out the quantities, or that the owner guaranteed their accuracy; and that therefore the builder could not recover more than his contract price. The same principle is applicable here, and Dick cannot be held to have guaranteed the correctness of White's quantities. Mr. W. Pearson, on the same side: By the terms of the contract the Plaintiff could not be allowed (1) 1 Giff. 258. (2) 5 H. L. C. 72. (3) 11 Jur. (N.S.) 192. (4) 34 Beav. 508. (5) 18 C. B. (N.S.) 785; Law Rep. 1 C. P. 715. M. R. 1871 v. DICK. for extra works, except where authorized by the architect. By the case of Scott v. Corporation of Liverpool (1), it appears that such KIMBERLEY a contract is as much binding in equity as at law. The Plaintiff claims under the contract, by which he virtually adopts it, and he also claims to set aside the contract. He contends that the quantities were not fairly represented to him by White, and that he signed the contract on the footing of such representations, which were, he says, adopted by Dick. But, even if he was so misled, that would not affect White, unless he were Dick's agent, which cannot be established. As regards an architect's authority to bind his employer, he cannot bind him for extra works, except under the contract, and then only by orders in writing: Rex v. Peto (2); Cooper v. Langdon (3). It is settled law that an architect is only the agent of an owner for the purpose of seeing that the plans are adhered to, and that if a builder, on the authority of an architect, makes alterations, his only remedy is against the architect. He cannot recover for anything beyond the contract, except by special authority from the owner. In Coker v. Young (4), which was a case on a building contract, providing that extra works were to be allowed for at amounts to be named by the surveyor, it was held that the contractor could not claim for work as in excess of the quantities on which it was based, nor for any additions beyond the amount allowed by the company. The Plaintiff's remedy, if any, is at law; and there is no equitable construction of such a contract distinct from that which is legal. This appears from the case of Scott v. Corporation of Liverpool. The bill is framed on the ground of equitable fraud; but even if that were established, the contract would not be void, but voidable where redress could be obtained at law. Lastly, if the Plaintiff seeks to set aside the contract he cannot do so in the present suit without filing a bill to have the contract rectified. |