(N.S.) C.P. 166; s. c. Law Rep. 1 C.P. 336, where parol evidence was admitted to shew that the defendants undertook to convey some cattle. to a station beyond that named in the voucher signed by their agent; Morgan v. Griffiths, 40 Law J. Rep. (N.S.) Exch. 46; s. c. Law Rep. 6 Exch. 70, where a tenant, holding under a lease, was allowed to give parol evidence of a collateral contract by the lessor to kill off the rabbits on the land; and Bold v. Hutchinson, 25 Law J. Rep. (N.S.) Chanc. 598; s. c. 5 De Gex, M. & G. 558, where under a deed expressed to be made, in pursuance of an agreement, the agreement was held to prevail over the provisions of the deed, without the necessity of rectification. In THE MASTER OF THE ROLLS.-This suit is instituted by a builder, residing at Banbury, in Oxfordshire, against Mr. Dick, member of Parliament for the county of Wicklow, in Ireland, and Mr. White, an architect, residing in London. In the beginning of 1867, Mr. Dick employed Mr. White, as an architect, to build a mansion for him at Humewood, in the county of Wicklow, and Mr. White employed the plaintiff to execute the necessary works. The plaintiff insists that besides the contract price he is entitled to be paid for extra works, which were not included in the contract. terms this would not be contested, but the parties differ as to what works are or are not so included. The plaintiff disputes the meaning and effect of the contract, which, as he contends, entitles him to be paid by measure and value for all quantities of work executed by him in excess of the quantities included in his estimate, upon which, and having exclusive relation to which he maintains the contract, was founded, and ought to be construed. Mr. White takes issue upon these facts. denies any liability except under the contract, and asserts that all is provided for by the contract, which is to be construed strictly. Mr. Dick says that this is a matter with which he has no concern, and He that the plaintiff and Mr. White must fight it between them; for he entered into a contract with Mr. White to build or cause to be built the house in question for 15,000l., including everything, and that he has paid, or has always been, and is now, ready and willing to pay every part of such 15,000l. on receiving the certificates of Mr. White stating the propriety of paying them and certifying that the work has been done. It is necessary for the purpose of disposing of this case to ascertain in the first instance how far Mr. White was the agent of Mr. Dick, and also how far Mr. White acted, and how far he assumed to act, as such agent. In order to enable the Court to do so it is necessary carefully to examine the facts which are established in this case. In 1866 Mr. Dick being desirous of erecting a new mansion and stables in the county of Wicklow, and having previously made the acquaintance of Mr. White in Wales, caused Mr. Fenton, his solicitor and agent in Dublin, to write to Mr. White a letter, which was to this effect: "As Mr. Dick has never been engaged in any building operations, and is, in some measure, ignorant of the conditions on which architects usually enter upon an undertaking such as he contemplates, he is desirous to know the terms, to prevent any misunderstanding hereafter. It would be well if you named the conditions, both for completing the entire building, or for merely coming to Humewood, and nothing more to be done, which is very unlikely." Mr. White sent an answer, and was desired to prepare plans and elevations. On the 27th of February, 1867, Mr. White sent, in pursuance of these instructions, plans and elevations, and a letter to the following effect: "Dear Mr. Dick, I am sending you the plans, with the elevations of the front. On the other side I give you a summary of totals, which I feel sure may be relied upon as a guide to the costs. Upon hearing from you I shall be prepared at once to go on with the plans and specifications, and to produce a builder who would, I have no doubt, enter into a contract for the amount named." Then it specifies the various items which are set down here (2). On the 28th of the same month, Mr White applied to the plaintiff to ascertain if he would undertake such a contract, and after some correspondence an appointment was made for the plaintiff to attend at the office of Mr. White, in London, to arrange as to the probable amount for which the plaintiff would undertake the work. Accordingly, on the 26th, 27th, and 28th days of March, 1867, the plaintiff attended at the office of Mr. White, and went into the matter with him. On this occasion certain documents were produced to enable the plaintiff to come to a conclusion as to the estimate of expense to be made by him, on which he might make a tender for the works. The accounts given by the plaintiff and defendant of what then occurred are very different. It is, however, admitted that no working drawings were produced, nor was any full specification of the work intended to be made; but the defendant insists that what was produced was quite sufficient to enable the plaintiff to come to a just estimate, and one sufficient to enable him to make a proper tender. The drawings and other documents are themselves given in evidence, and are produced to me, and I have carefully examined them. To me they appear to be extremely rough and undefined, so much so as, without much concomitant explanation, to convey no accurate idea of what was required or intended to be done; certainly not to an unprofessional mind, and, judging from the evidence, I should conclude that (2) These items were as follows:Shell of house Fireplaces, bells, and other finishings Clerk of works Architects Travelling expenses House Shell Fittings. Other expenses Stables £10,000 1,800 480 nearly the same result would occur to a professional mind. It must, however, be always remembered that in technical and professional matters of this description, with which the Court is not familiar, and in which it is only assisted by such explanation as counsel can afford, and which assistance is for the most part received from their clients as occasion arises, much that seems obscure to the Court might be clear and distinct to a professional eye. What did take place was this: the plaintiff, on the 29th of March, after having gone into the details, and taken out the quantities on the three previous days, with such assistance and explanation as he could obtain from the defendant, Mr. White, and his clerks, signed a tender addressed to Mr. Dick, which was to this effect: "I hereby undertake to erect and complete the proposed house and offices finished and fitted complete, with stabling and fittings, at Humewood, in the county. of Wicklow, Ireland, in accordance with the plans and particulars prepared for the same, and fully explained to me verbally by William White, F.S.A., architect, for the sum of 13,6907. as enumerated below. And I hereby agree and undertake to enter into a proper contract for the same, in accordance with the general form submitted to me, which accompanies this tender, so soon as the working plans and specifications shall be ready for the same. And I will engage to submit to the sole adjudication of the said architect all questions relating to the same, completing the whole of the works to his entire satisfaction by the end of June, 1869, but having the back wings and offices ready for your occupation by the end of June, in the year 1868, and the remainder of the house by the end of September in the same year, with the exception of decorative fittings: £120 360 j £12,280 620 60 £12,960 Total-say 13,000 10,200 1,690 0 0 0 Stables. £2,000 11,890 0 0 0 1,800 0 "Finishings and fittings "All the materials to be the best of their respective kinds; the woodwork to be well seasoned; the joinery to be outand-out, and the whole of the timbers delivered on the spot immediately upon the signing of the contract." Having regard to what subsequently occurs, it is proper to observe that this document states that the explanations of Mr. White, on which the estimate was founded, and which were most essential for enabling anyone to form a just estimate, were given verbally. But, at the same time, Mr. White informed the plaintiff that he would not be responsible, either on his own behalf, or on behalf of his client, for the correctness of the quantities; but at the same time gave him to understand that, if the plaintiff should not see his way to accepting the contract finally at the amount agreed upon, he, Mr. White, would be willing to revise the plans and specifications, or that he would endeavour to get Mr. Dick to increase the amount, or that he would procure payment to be made to him for such work as he might have executed prior to the refusal to sign the contract. This is his statement set out in page 9 of his answer :"On the morning of the 28th or 29th the further question arose in conversation as to what must be done in case the working plans and specification, which I expressly stated should form the sole basis of the contract, should be found so far unduly to exceed the original quantities as to create difficulties in the plaintiff's signing the formal contract. This was agreed by us to be very unlikely, and the plaintiff expressed himself satisfied that a liberal spirit had been shewn in the estimate, and that he should not be over nice about small matters. The plaintiff well knew that I never had been and never would be responsible, either on my own behalf or on behalf of my clients, for the correctness of the quantities, and that I never had received and never would receive any consideration for assisting a builder in taking out quantities; but I gave him to understand that if he should not see his way to accepting the contract finally at the amount agreed upon, I should be willing in revise the said plans and specification to detail, or that I would endeavour to get Mr. Dick's consent to increase the amount, and at the worst (which was most unlikely) that I must procure that payment should be made to him by Mr. Dick for such work as he might have already executed prior to the refusal to sign the contract, with liberty to myself on Mr. Dick's behalf to enter upon negotiations with other builders." And in the estimate on which the tender is founded, it is proper also to notice that the only subject-matter, of which the quantities were taken out on these three days, was the house, and that without any fittings; the laundry and courtyard were lumped in at 6401., the finishings and fittings were in like manner set down at a lump sum of 1,6907., and the stables and fittings complete were similarly estimated without any details at 1,8007. In respect, therefore, of every part of the work, with the exception of the bare house itself, the plaintiff, in making the tender, relied on the estimate Mr. White thought proper to suggest. The matter was so far considered as settled that, though no formal contract was then executed, it was mutually understood between them that the plaintiff was to begin the work at once, subject to Mr. White and himself being able afterwards to come to a binding and definite arrangement. Accordingly, within a week from this time, on the 4th of April, 1867, the plaintiff sent his son and his foreman to Ireland. They engaged workmen and began to make the preliminary works and arrangements; they continued working there, though without any proper working drawings, till June following, when the contract in question was signed. The circumstances connected with the signature of the contract are as follows:During the months of April and May, and until the 5th of June, 1867, Mr. White was preparing the specifications and plans and the contracts, and submitted them to Mr. Dick. On the 5th of June Mr. Frost, who was Mr. White's principal clerk, wrote to the plaintiff to this effect: "Mr. White desires me to say that Mr. Dick and Mr. Fenton have now been through the specification, and he hopes to have it back tomorrow, so that it, the plans, and the contract, will probably be ready for the signatures by Saturday next, but Mr. White will let you know by letter or telegram when to come up. Would it suit you, supposing he could so arrange it, to come up on Monday afternoon on your way from Bletchley? P.S. Since writing the above, it has been decided that the contract, &c., shall be signed on Monday afternoon, therefore be so good as to be here by that time." At this time the plaintiff was lying ill in bed of quinsey, which increased in intensity until the 10th of that month, when, the tumour having burst, he gradually and slowly recovered. It was of course impossible for him to go to London, and in consequence of this being so, on the afternoon of the 12th of June, Mr. Frost went down to the plaintiff's residence at Banbury with the contract and specification. He there had an interview with the plaintiff, who at this interview signed the document in question. There was much discussion, and some conflicting evidence given respecting the signature of the contract and what then occurred, and which, though I think it necessary to refer to it, as it has been much commented upon, does not, in my opinion, materially affect the principal question which arises in this suit. The first matter in dispute was the time which this interview at Banbury lasted, and the opportunity which was afforded the plaintiff of examining the documents which he then saw for the first time, and then signed. Mr. Frost, in his evidence, says that he was engaged with the plaintiff for more than one hour on the business; that after it was over he took tea, and returned to the station, and there he had, as he says, nearly half an hour to spare before the return train left. The daughter of the plaintiff says that the interview lasted twenty minutes and no more. The times of the arrival and departure of the trains set down in the railway time table seem rather to support the evidence of the plaintiff's daughter, but I do not think the time that the interview lasted is very material. The plaintiff unquestionably had not time, according to any statement of the time which elapsed, to go through the contract and specification with any pretence to accuracy; but on the other band this is certain, that no false representations were made to him at the time, and if he did the whole thing in a hurry, he must take the consequences of his haste, however much that haste may have been occasioned by a desire on his part to assist the convenience of Mr. Dick, to enable his agent to return to Dublin on that day. If he thought fit to enter into a contract under such a state of circumstances and under such conditions, it is his affair, and he must take the consequences. It is always to be borne in mind that this is not a suit to set aside the contract, nor is it a suit to resist the specific performance of the contract, but it is a suit to take the accounts of what is fairly due to the plaintiff under the contract then signed, having regard to all its modifications, taking into consideration the works already executed by the plaintiff under the direction of the defendant, Mr. Dick, through his agent, Mr. White, and also taking into consideration to what extent, if any, this contract is to be construed with, or to be affected by, the estimate of the plaintiff made in March previously. I therefore proceed now to examine the contract itself, and then I shall consider what works were then and have since been executed by the plaintiff under the direction of the defendant, Mr. White. This raises the question of the character in which Mr. White is to be considered; in deciding this case, and in doing so, I am of opinion I must treat Mr. White as the agent of Mr. Dick generally for all purposes connected with the building, and that without any limitation as to price or anything else. After careful examination I can find no evidence to satisfy me that the plaintiff was informed that Mr. White's authority as agent was by any contract between himself and his employer Mr. Dick, distinctly or otherwise limited to the expenditure of 15,000l. and no more. I am of opinion that, however Mr. White might exceed that amount, the plaintiff had not any notice that as between him and Mr. Dick such excess would not have been recoverable from Mr. Dick by the plaintiff, or that whatever would have been the advantage derived by Mr. Dick from the original or extra works, the amount the plaintiff could recover was limited to 15,000l. It might be that as between Mr. Dick and Mr. White, Mr. White may not have been able to charge him with more than 15,000l., and that Mr. White may have bound himself, that no person employed by him should make any such charge against Mr. Dick; but unless distinct notice of such contract was given to a third person so as to bind him, and assuming as I do that the agency between Mr. Dick and Mr. White is established, then I am of opinion, that the third person so employed is entitled to be paid what is really due to him from Mr. Dick, whatever, as regards Mr. Dick and Mr. White, may be the rights between them. These rights, if they should arise here, being matters between co-defendants, are such as I am unable to deal with in this suit, at least at this stage of the suit. According to the evidence before me, it was not till the 1st of January, 1869, that the plaintiff became aware of the fact that a contract existed between the defendants, that the total expense of the building and of all fittings and accessories was not to exceed 15,000l. And I now come to examine the contract signed by the plaintiff on the 12th June, 1867. It is made between the plaintiff of the first part, and the defendant Mr. Dick of the second part. It recites the undertaking to enter into a contract, which undertaking was signed on the 29th of March, 1867, as I have already stated, and after further reciting that the present contract was in the usual form, it is stated that the specification annexed and the working plans had since been submitted to the plaintiff and approved of by him, and embodied in and considered part of the contract. The contract is set out at full length in the bill. It would take me too long to read it, but there are two or three passages in it which I wish to state. "The architect is held and considered to have the power of ordering any alterations, additions, or omissions, during the progress of the works, without in any way vitiating this contract, and such alterations shall be thereupon carried out by the said contractor. And it is hereby further agreed, that in case any difference of cost be caused by such alterations, a formal order for the same, signed by the architect of the said Mr. Dick, and bearing date and number, and amount to be allowed, shall be sent by post, or otherwise delivered to the said contractor, whose proceedings to carry out such works shall be considered as a due acceptance of the same, and in case of instructions or directions given for the alterations of works not being accompanied by such order, or being accompanied by such order for an amount deemed by the said contractor to be insufficient, then he shall claim or demand such sufficient order before incurring any such additional cost or expense. And the said contractor hereby assents and agrees, that no actual or pretended excess, whether in construction, materials, or manner of detail, shewn by the subsequent working drawings, shall in anywise be made or considered as a claim for extra charges, except as herein provided.” Then there is a proviso, directing that it should be lawful, in case of his becoming bankrupt or compounding with his creditors, for Mr. Dick to employ other persons and to deduct the amount, and there are various other clauses which are usual in such a contract. The most marked and material clause is this:"And it is hereby further agreed, that all questions between the said parties," that is, between the plaintiff and Mr. Dick, "touching the matters relating to this contract, shall be left to the sole determination or award of the said architect, and the said parties hereto respectively shall and will abide by, and perform and keep the said determination or award made in writing under his hand and seal, delivered to the said parties respectively, direct. And it is hereby further agreed, by and between the said parties, that the submission hereby made shall, at the option and at the expense of either of the parties requiring the same, be made a rule of her Majesty's Court of Queen's Bench at Westminster. The said Albert Kimberley doth hereby for himself, his executors and administrators, covenant and agree with and to Mr. Dick, his executors, administrators, and assigns; and Mr. Dick, his execntors, administrators, and assigns, doth covenant and agree with and to Mr. Kimberley, his executors and adminis |