THE CIVIL ENGINEER AND ARCHITECT'S JOURNAL, 



23 



MEETINGS OF SCIENTIFIC SOCIETIES. 



Royal Society, Somerset House, Thursdays, at 8A p.m., 10, 17, 24, and 30. 



Society of Antiquaries, Somerset House, Tiiuridays, at 8i p.m., 10, 17, 

 and 24 . 



Institution of Civil Engineers, 25, Great George-street, Westminster, 

 Tuesdays, at 8 P.M., 8, lo, and 29. 



Koyal Institute of British Architects, 16, Lower Grosvenor-strcct, Mondays, 

 at 8 P.M., 7, and 21. 



Architectural Society, 3i), Lincoln's-inn-fields, Tuesday, at 8 p.m., 1. 



Society of Arts, Adelphi, Wednesdays, at 8 P.M., 9, 16, 23, and 30. 



LAW PROCEEDINGS. 



ALLEGED BREACH OF CONTR.^CT. 



The following case, relative to contracts, is so important to the profession, 

 that we recommend it to their especial notice : — 



VICE-CHANCELLOR'S COURT— Dec. 7, 8. 



RANGER V. GREAT WESTERN RAILWAX COMPANY. 



Mr. K. Bruce, Mr. Jacob, and Mr. Stevens appeared on hchalf of thr Great 

 Western Railway Couipany, in support of a demurrer put into a bill^ tr/iich the 

 plaintiff'^ who is a larfje couiractor with the eompani/., had ^filed against them, to 

 obtain relief under certain eontraets he luid entered into icith them, prineipal/i/ 

 with reference to work^ at the Bristol end of the tine. The learned counsel said 

 the demurrer had been filed on two grounds — multifariousness and want of 

 equity. Before reading the prayer, however, it would be necessary to give 

 the court a short outline of the case ou which it was founded, as well as to 

 make the alternatives it contained intelligible to the court. The plaintiff, 

 Willianr Ranger, had entered into four contracts with the company for the 

 prosecution of works on various parts of the line. The contracts knov/n in 

 the pleadings by the letters B 1 and B 2, and the supplemental or extension 

 contract, all related to portions of the works on the Bristol end of the line. 

 They were not connected together, but all had reference to a neighbouring 

 district of the country. The fourth contract, distinguished in the pleadings 

 as L 8, from its relating to the London end of the line, referred to works in 

 tlie neighbourhood of Reading, and was materially distinguished from the 

 other three. In the course of making these contracts the plaintiff found it 

 necessary to obtain sureties to join with him in his contracts with the com- 

 pany. The sureties to the three first contracts were James Cordy and 

 Richard Ranger only, and to the last James Cordy. Richard Ranger, and 

 George Ranger. These sureties and the company were the defendants to the 

 suit. The contracts contained provisions similar to those which were familiar 

 to the court, from having occurred in the Popish chapel case at Hereford,* 

 where the contracting parties submitted to refer every dispute as to the suf- 

 ficiency of the work to the decision of the architect. The only dift'erence in 

 this case was that the superintending engineer, instead of the iirchiteet, was 

 to be the absolute judge of the fitness of the work, and as to the payments to 

 be made from time to time on certificates under his own hand. Nothing 

 could be more absolute than the powers given by these provisions ; they 

 were, nevertheless, generally adopted in contracts of this description, and 

 though it might excite some wonder how parties would willingly submit 

 themselves to them, still they had not yet been found in practice to be ordi- 

 narily attended with inconvenience. Independently of this power the contract 

 contained a stipulation that the company should be empowered to resume pos- 

 session of the works, in case the plaintiff made any default in its execution. 

 Under the provisions of this contract tlie works had proceeded from time to 

 lime to a very considerable e.-itent, when, after various disputes and defaults 

 (as the company alleged) on the part of the plaintitf, tlie company at length, 

 in exercise of their powers, had taken possession of the plants, works, 

 materials, &c., which were situate in that part of the Bristol end of the lim 

 comprehended in the contracts B 1, B 2, and the extension contract. Of tlie 

 works comprised in the other contract in the neighbourhood of Reading pos- 

 session had not been taken, but they were now in progress and diligent 

 prosecution by the plaintift'. This brief abstract of the case would enable 

 the court sufficiently to understand the prayer of the bill, with this .additional 

 observation. In the course of the works the company, at Ranger's request, 

 made payments to him which, as they represented, exceeded the amount of 

 what was justly due to him, whereon they took certain security on the plant, 

 materials, &c., as a kind of mortgage, without taking possession, and of the 

 reserved funds of 20 per cent, in the hands of the company. These matters 

 being all fully set out, the principal portions of the prayer were that the 

 company might elect whether they would permit the plaintiff to continue and 

 complete the several works which on the 2nd of July last he was in the course 

 of completing, or whether they would discharge the plaintift' from tlie further 

 execution of them, the plaintiff offering to accept either alternative, on being 

 paid the amount justly due to him on the footing of his contracts and agree- 

 ments, or otherwise on such terms as the court should think fit to direct. 

 And in case the company should elect to permit the plaintiff to continue and 

 complete the works, then that they might be directed to reinstate the plaintift' 

 in the possession of such of the works and of the plant and materials thereon, 

 of which they had taken possession, and to pay him such amount as, upon a 

 just account to be taken as after prayed, should be found to be justly due to 



* Reportea in Jputmii H<>, S, i>, SOI, 



moneys paid to him or for his use, and all moneys which the company 

 should be entitled to deduct or retain by way of a reserve fund or under 

 their mortgage deeds or otherwise, during the progress of tfce works, 

 and tliat all proper accounts might be taken for ascertaining such 

 balance, and that all proper directions might be given for ascertaining 

 the quantity and price of the contract works. And in case the com- 

 pany should elect to discharge the plaintift', then that he might be wholly and 

 completely exonerated from all future liability to see to the execution of the 

 works, and from all responsibility to arise therefrom ; and that thereupon all 

 accounts in relation to the contract and works, or such of tliera from which 

 the plaintift' should be discharged, might be taken, and that the company 

 might pay the balance, deducting therefrom the amount due on the footing of 

 their mortgage securities, the plaintift' offering, in case a balance should be 

 found due from him, to pay the same, and that the company might be decreed 

 to deliver up to him the plant, engines, &e.,of which they had taken possession, 

 and permit him to remove that portion of which they had not taken pos- 

 session ; and that it might be declared the plaintiff' was not subject to or was 

 entitled to be relieved in equity against any penalties or forfeitures under his 

 contracts ; and that the company might be restrained from retaining or with- 

 holding from the plaintiff the possession of his plant, &e., of which they had 

 taken possession, and from doing any act whereby he might be prevented 

 from completing the works or from removing off the ground, or otherwise 

 altering the situation of the plant and materials already upon the ground. 

 The court would thus see the relief piayed turned upon the rigtit of 

 the company to make their election which course they would take, no offer 

 being made to redeem the mortgages, nor any question of account raised, 

 except on this imaginary right to have an election. He should now proceed 

 more in detail with the case made upon the bill. It set out with a statement 

 of the act of Parliament of the 6th of the late King, incorporating the company, 

 and setting forth their powers, under which any three directors might enter 

 into written contracts, which would be binding on the company. It then 

 stated subsequent acts under the several provisions of which, taken together, 

 they had entered into the four contracts with the plaintift', which it was alleged 

 were signed by the plaintiff', and under the common seal of the company, or 

 otherwise executed on behalf of and assented to by them. The first contract 

 (B 1), diited March, 1833, related to the erection of earth work, tunnelling, 

 building a bridge over the river Avon, &c., stipulated the works should be 

 done to the satisfaction of the company, and of their principal and resident 

 engineer, clerk of works, surveyor, and inspector, and declared that all dis- 

 putes were to be referred to the exclusive arbitration of the principal engineer 

 for the time being, and the instalments for works done were only to be paid 

 on a certificate under his handwriting. It then contained the usual powers 

 to tlie company, requiring a sufficient number of workmen to be emploj'ed, 

 and preventing sub-contracts without the consent of five directors. Then 

 followed a clause, that in case the contractor should become bankrupt or 

 insolvent, or should neglect or otherwise become incapable to proceed with 

 the works, the company should have power to give him notice in writing 

 to proceed, and if default was made for seven days after such notice, the 

 company were at liberty to employ others to proceed with the works, and 

 any previous payments were to be considered as the full value of any works 

 already done. 



With reference to the nature of the engagement into which the defendants 

 had entered, they were found to exist in all trades and professions. The 

 direction being absolute, the company had taken possession on a breach of 

 the contract, and, if they had taken wrongful possession, an action of trover 

 or ejectment was the proper proceeding. The learned counsel concluded by 

 observing that no fraud was alleged either against Mr. Brunei or the com- 

 pany. The plaintiff only disagreed with Mr. Brunei on questions of time 

 and other calculations : he only attacked his skill, or accused him of negli- 

 gence, but nowhere complained of fraud. In one place he said he was 

 unfairly dealt with ; and, as it had been decided in the Hereford case a 

 charge of fraud was necessary, and was nowhere to be found in the present, 

 it could not be relieved against in a court of equity. On all these grounds, 

 therefore, the demurrer must prevail. 



Mr. Sergeant Wilde, Mr. Wakefield, and Mr. Girdlestone, severally ad- 

 dressed the court in support of the bill. The learned counsel dwelt upon 

 the importance of the case to the plaintiff', whose property, to the value of 

 100,000/., was arbitrarily seized by the company, and himself left to the 

 mercy of his creditors, whose money he had expended in purchasing that 

 property. The contract, it was contended, was so manifestly unrighteous, 

 and the use made of it was so unjust, that the court was bound to interfere. 

 The plaintiff' contended there was no forfeiture. The company, it was 

 charged, was labouring to create one by inequitable means, and this manner 

 of acting, both prior and subsequently to the notice, bore out the imputation 

 of the fraudulent motives which dictated the notice; and when the plaintiff" 

 was earnestly praying for some specific information as to the causes of com- 

 plaints, the defendants were as cautious in concealing them. Upon the point 

 of multifariousness, the decisions of the present Lord Chancellor showed that 

 was a question of convenience, and the company, at least in this instance, 

 had no reason to complain that one bill, rather than four, had been filed, 

 against them. 



During the discussiou, which occupied the whole day, his Honour asked 

 whether the vaUdity of such contracts of forfeiture as these had been dis- 

 cussed in courts of law '^ 



Mr. Sergeant Wilde did not recollect any instance in which the question 

 had been tried. 



liim, under the contracts or otherwise in respect of the contract works and 

 e.%tra iidditioni^l AUer«4 works and extension works, After deducting all 



