ch.D A. ROBERTS & CO. v. LEICESTERSHIRE 0.0. 545 A. ROBERTS & CO., LTD. AND ANOTHER ». LEICESTERSHIRE COUNTY COUNCIL. [Caancrry Drvisron (Pennyouick, J.), April 18, 19, 20, 21, 25, 26, 27, May 3, 1961.) Mistake—Rectification—Unilateral mistake—Hstoppel—Building _contract— Time for completion of building specified in plaintiff's tender as eighteen months—Contract drawn up by defendants specifying thirty-month period for completion—Plaintiff executed contract believing that eighteen-month ‘period for completion specified therein—Defendants knowing of plaintiff's mistake did nothing to correct it—Whether plaintiff entitled to rectification. In Decomber, 1953, @ county council published an advertisement for tenders for the erection of a school. A company put in a tender leaving blank the period for completion of the works, The council resolved to accept this tender subject to a reduction of price, The company sent the council a revised tender containing a lower price and specifying that it would complete the works within seventy-eight weeks of instructions to proceed (ie, on Sept. 30, 1955). After a discussion, two officers in the county architect's department docided that the period for completion to be inserted into the contract should be thirty months, not eighteen. The alteration was for the benefit of the council and not of the company. A memorandum was sent from the county architect to the clerk of the county council asking for contract documents to be prepared giving the date for completion as Sept. 30, 1956, and a letter was sent to the company saying that its tender had been accepted and instructing it on arrangements for completing the contract and starting to build. No officer of the council ever called tho company’s attention to the fact that the period for completion to be included in the contract diffored from the period specified in tho tender. When tho seal of the company was affixed to the contract on Mar. 24, 1984, it was not noticed on the company’s behalf that the date for completion was entered as Sept. 30, 1956, but at all relovant times the directors and officers of the company were under the belief that the date for completion of the works was Sept. 30, 1955, which allowed seventy-eight weeks for the work. Before the council executed the contract, two meetings took place between officers of the company and of the council. At the first, on Mar. 30, 1954, an officer of the company stated that the company intended to complete in eighteen months and was warned by S., the officer of the county architect’s department then having conduct of the matter, that the council’did not think that the company would be able to complete in this time. At the second, on Apr. 5, 1954, a progress schedule was produced by the company showing a period of seventy-two weeks for completion which was seon by 8. ‘The council executed the contract on Apr. 12, 1954, and work on the building then began which, after encountering delay with sub-contractors nominated by the council, the company completed early in 1956. In an action by the company for rectification of the contract by altering the date for completion from Sept. 30, 1958, to Sept. 30, 1955, Held: on the facts, 8. knew at latest on Apr. 8, 1954, that the company believed the period, for completion of the work to be eighteen months; accordingly, when the council executed the contract it knew that tho company was mistaken as to the date for completion entered therein, and, as the council then stood by and took no steps to draw the attention of the company to the mistake, the company was entitled to have the contract rectified by substituting Sept. 30, 1955, as the date for completion, [As to rectification generally, see 26 Harssury’s Laws (3rd Edn.) 914, para, 1698; and for cases on the subject, see 35 Draxsr 127-130, 282-304. ‘As to contract where one party by conduct leads the other party to believe546 ALL ENGLAND LAW REPORTS 1961] 2 AU E.R. that he assents, see 26 Harspury’s Laws (3rd Edn.) 900, para. 1666, and 15 Harspury’s Laws (3rd Edn.) 169, para. 338.] Cases referred to: Cohen (George), Sons & Oo., Ltd. v. Docks and Inland Waterways Executive, [1950] 84 Lloyd’s Rep. 97. North Thames Gas Board v. Sunbury-on-Thames Urban District Council, (1955), unreported. Smith v. Hughes, (1871), L.R. 6 Q.B. 697; 40 L.J.Q.B. 221; 26 L.T. 329; 35 Digest 107, 125. Whiteley v. Delaney, [1914] A.C, 132; 83 L.J.Ch. 349; 110 L.T. 434; 35 Digest 129, 297. Action. In this action the plaintiffs, A. Roberts & Co., Ltd. and A. Roberts & Co. (Holdings) Ltd., claimed against the defendants, Leicestershire County Council, rectification of a contract under seal dated Apr. 12, 1954, and made between the second plaintiff and the defendant; damages for breach of the contract or alternatively £16,437 2s. 10d., being money due to the second plaintiff in accordance with the terms of the contract. The facts appear in the judgment. J.8. Daniel, Q.0., and A. J. Butcher for the company. J. L. Arnold, Q.0., and D, A. Thomas for the council. Cur. adv. vult. May 3, PENNYCUICK, J.: By this action the plaintiff, A. Roberts & Co,, Ltd, and A. Roberta & Co. (Holdings) Ltd. claim against Leicestershire County Council rectification of a contract under seal dated Apr. 12, 1954, and made between the second plaintiff and the defendant; damages for breach of the said contract and alternatively £15,437 28. 10d., being money due to tho second plaintiff in accordance with the terms of the said contract, Tho action has been heard before me on tho issue of rectification only. The second plaintiff at all relevant times carried on the business of contractors under the name now borne by the first plaintiff, but as the result of a reconstruc- tion in 1956 it became a holding company with its present name, and the first plaintiff was incorporated as a trading company to take over its business, Tho second plaintiff was the party concerned in all the proceedings to which this action relates and the first plaintiff may be disregarded for the purpose of this judgment. I shall henceforth refer to the second plaintiff as “ thé company ”” and to the defendant as “ the council”. The action has been heard before me on the issue of rectification alone. I shall proceed to state the facts as they appear from the documents and as I find them on the oral evidence of the witnesses called before me, being for the most part officers of the company and the council respectively. There was also read evidence given on commission by a former officer of the council now in Ghana. On Dev. 23, 1953, the council published an advertisement for tenders for the erection of a school to be known as the Hinckley Burbage Secondary Modern School. It was important to the council that work on the school should begin before Mar. 31, 1954, since otherwise it would not qualify for a grant for the year 1953-54 from the Ministry of Education. On Jan. 30, 1954, the company put in @ tender in the following terms: “ Leicester County Council. Hinckley Burbage Secondary Modern School —Erection. Form of Tender. To the Leicester County Council. We the undersigned do hereby tender and undertake to carry out the above- mentioned works in accordance with the conditions of contract, drawing and bills of quantities and to the satisfaction of the county architect, for the sum of (in words) one hundred and sixty five thousand nine hundred and ten pounds only. Amount of tender £165,910. We agree to maintain in complete repair the whole of the new works executed for a period of sixCh.D. A, ROBERTS & CO. . LEICESTERSHIRE C.C. (Pawwxovrox, J.) 547 months after the certified date of completion. If this tender is accepted we ‘agree to enter into an agreement for the due performance of the works, and to complete the works within . . . of the date of instructions to proceed. ‘As witness our hand this thirtieth day of January, 1954. Signature E. B. Cruse, Technical Director. A. Roberts & Co., Ltd.” It will be observed that in this tender the period within which the company agrees to complete tho works is left blank. On Feb, 5 the tenders sub-committee of the education committee of the council resolved that the company’s tender be accepted, subject to a reduction being negotiated to bring the cost within the figure authorised by the ministry. On the same date Mr. Collins, the county architect, wrote to the company as follows: “ Hinckley Burbage Secondary Modern School. I have to inform you that your tender for the erection of the above-named school is among the low ones receiving consideration. I enclose a copy of the bill of quantities and shall be glad if you will price this in and let me have it back again by Monday, Feb. 15, 1954.” . On Feb. 9, 1954, Mr. Collins wrote to the company as follows: “ With reference to my letter of Feb. 5, 1954, I shall be grateful if when you forward the completed bill of quantities you will give me a list of recent contracts which you have carried out and the extent of these.” On Feb. 12, 1954, the company replied complying with these requests. On Feb. 22, 1954, Mr. Collins wrote to the company in these terms: “T have to inform you that the committee has recommended for accept- ance your tender for the erection of the above-named school, subject to the tender being reduced by the adjustment of P.C.’s and the omission of certain items, by £28,000 approximately, and to the approval of the Ministry of Education. It is hoped that this approval will be received within the next fourteen days. In the meantime would it be possible for you to make preliminary arrangements for the contract guarantee bond in a sum of 10 per cent. of the amount of contract, and let me have a letter from your guarantors that they will be propared to act as surety and that there will be no delay when the contract documents are forwarded for completion. This information is required to ensure that the work is started before Mar. 31, 1954.” ‘The company obtained an assuraneo from its bank that the bank would be pre- pared to join in performance bond and so informed Mr. Collins. ‘On Mar. 8, 1954, the company sent to the council a revised tender in which the figure of £138,399 9s. 3d. is substituted for the figure of £165,910. ‘The revised form of tender contains a further important departure from the original tender in that it proceeds to specify the time within which the company agrees to com- plete the works, namely, seventy-cight weeks of the date of instructions to proceed. A day or two after receipt of this tender Mr. Thornton, the progress officer in the architect’s department of the council, asked Mr. B. D. Smith, the assistant county architect for the education section who, under Mr. Collins, had the handling of the matter, whether the date for completion under the contract should or should not be seventy-cight weeks, i.e., the period mentioned in the revised tender as the period from the date of instructions to proceed to the date of completion. As the result of this question Mr. Smith had a discussion with Mr. Collins at which they decided that the period for completion to be inserted in the contract should be not eighteen months, but ¢ whole year longer, namely, thirty months. The date was altered for the benofit of the council and not that of the company. There is a direct relationship between price and contract period, and if the company had made ite tender on the basis of a thirty-month548 ALL ENGLAND LAW REPORTS [1961] 2 AU E.R. period the price would have been higher. Mr. Collins and Mr. Smith have posi- tively deposed to the deliberate selection of the thirty-month period. Mr. Thorn- ton deposed that he was instructed by Mr. Smith that the period was to be thirty months. I accept the evidence of these three officers on this point, however difficult it is to understand how in the circumstances Mr. Thornton came to write the letter dated Mar. 13, 1954, mentioned below. ‘At this stage Mr. Collins personally drops out of the picture, leaving the matter in the hands of Mr. Smith. It is accepted by the council that Mr. Smith acted throughout with the authority of Mr. Collins, Mr. Smith in tum gave instructions to Mr. Thornton to take the next steps in the matter. Mr. Thornton proceeded to make certain important communications, On Mar. 11, 1954, he sent @ memorandum over the signature of Mr. Collins to the clerk of the council to th following effect: “ Memorandum from county architect to the clerk of the county council. Mar. 11, 1954. Hinckley Burbage Secondary Modern School. I shall be grateful if you will arrange for the preparation of the contract documents for the erection of the above-named school. Particulars you require are as follows—[I need not read (a) and (b)]—{c) Amount of tender: £138,399 9s. 3d., (d) Amount of bond: £13,839, (e) Name, address and status of contractors: A. Roberts & Co., Ltd., 79, Eccleston Square, Victoria, London, 8.W.L., (£) Date for possession: Mar. 25, 1954, (g) Date for completion: Sept. 30, 1956.” On Mar. 13, 1954, Mr. Thornton, again over the signature of Mr. Collins, wrote a letter to the company in the following terms: “ Dear Sirs, Hinckley Burbage Secondary Modern School. Ihave to inform you that the committee has accepted your tender amounting to £138,309 95. 3d. for the erection of the above-named school. The official order No, CA/A.2623 is enclosed. Working drawings will be forwarded to you in due course. The contract documents will be sent by the clerk of the county council within the next few days. I am inserting in the contract a provisional starting date of Mar. 25, 1954. Will you kindly note that the work must not be started until the contract documents have been completed and returned to the clerk. When the contract documents are received I shall be glad if you will deal with these as quickly as possible as it is imperative that the work be commenced as near as possible to the date given in the contract and in any case not later than Mar. 31, 1954, I shall also be glad if you will en- deavour to have the contract guarantee bond completed as expeditiously as possible. When you are in @ position actually to commence the work, will you kindly inform me by letter when I will arrange for my representative to meet you on the site.” With that letter was included what is described as an official order addressed to the company and containing the following terms: “ Please execute the work stated below, in accordance with your tender 8/3/54 @ £138,399 9s. 3d. The whole of the work to be done in a thoroughly workmanlike manner and to my entire satisfaction, ‘The enclosed posteard(s) are to be sent to me on commencement: and/or completion of the work. All goods to be despatched to: Burbage Secondary Modern School. Erection as per plans and bills of quantities. See letter attached.” None of the officers of the council at any time called the attention of the company to the fact that the period for completion to be included in the contract differed by a whole year from the period specified in the tender, and the letters which T have just read were well calculated to divert the attention of the company from that matter. Apparently neither Mr. Smith nor Mr. Thornton considered that he was under any obligation to call the attention of the company to this change in the date for completion under the contract. Mr. Collins admitted in evidence A D EB Ch.D. A. ROBERTS & CO. v. LEICESTERSHIRE C.C. (Pzwwyoutox, J.) 549 that it would have been better to have done so, as did Mr, Hurst, then an assistant architect to the council and now in Ghana, On Mar. 17, 1964, the clerk of the council wrote to the company enclosing a form of contract in respect of the proposed work. This document, which is the document sought to be rectified in this action, is, eo far as now material, in the following terms: “ Articles of agreement made Apr. 12, 1954. Between the Leicester County Council . . . (hereinafter called ‘the employer’) of the one part and A, Roberta & Co., Ltd. . . . (hereinafter called ‘ the contractor ’*) of the other part. Whereas the employer is desirous of erecting a secondary modern school (hereinafter called ‘ the works ’) at Burbage, Hinckley in the county of Leicester and hes caused drawings and bills of quantities showing and describing the work to be done to be prepared by or under the direction of Tom Anderson Collins A.R.I.B.A. . . . (hereinafter referred to as ‘the architect ’) And whereas tho said drawings numbered one to fourteen inclusive (hereinafter referred to as ‘the contract drawings’) and the said bills of quantities have been signed by or on behalf of the parties hereto: Now it is hereby agreed as follows: 1. For the consideration hereinafter mentioned the contractor will upon and subject to the conditions annexed hereto execute and complete the works shown upon the said drawings and described by or refarred to in the said bills of quantities and conditions. 2. The employer will pay to the contractor the sum of £138,399 9s. 3d. (here- inafter referred to as ‘ the contract sum ’) or such other sum as shall become payable hereunder at the times and in the manner specified in the said conditions. 3. The term ‘the architect ’ in the said conditions shall mean the said ‘Tom Anderson Collins . . .” There followed twenty-seven conditions which I understand are in a common form and an appendix by reference to certain of the conditions which includes these words: “Date for possession: Mar. 2, 1954. Date for completion: Sept. 30, 1956.” On or about Mar. 24, 1954, the common seal of the company was affixed to this document in the presence of Mr. Frank Johnson and Mr. E. B, Cruse as directors and Mr. A, D. Munrow as secretary of the company. At all relevant times, in- cluding the date when the seal was so affixed, the two directors and the secretary were under the belief that the period for completion specified in the contract was eighteen months. Mr. Munrow failed to notice that the date specified was 1956 and not 1956, and the directors did not at this stage read the contract. None of the three officers of the company discovered until a much later time, the date in fact specified in the contract. ‘These facts appear from the whole tenor of the evidence given by Mr. Cruse and Mr. Munrow and are borne out by the circumstances leading up to the execution of the contract by the company, and also by the subsequent conduct of the company’s officers acting on the instructions of the board. Mr. Cruse was not asked a direct question on his belief as to the length of the period for completion under the contract, but I do not think that there is any real doubt on this point. Mr. Johnson, the other director of the company in 1964, suffers, I understand, from high blood pressure and was not called as a witness; but it is accepted on behalf of the council that he should be treated as confirming the evidence of Mr. Cruse on matters within his own knowledge. ‘The contract was returned by the company to the council on Mar. 25, 1954, but the council did not execute the contract for over a fortnight. Before such execution two important meetings took place, On Mar, 30, 1964, there met, first at the council’s architect's office, and later on the building site, Mr. Smith, Mr. Hurst, Mr. Cruse, Mr. Mottram (then area control manager of the company) ‘and Mr. Corby (then area manager of the company). A number of matters concerning the building project were discussed, including the preparation of a550 ALL ENGLAND LAW REPORTS [1961] 2 Al E.R. progress schedule for the erection of the building. Mr. Cruse mentioned an eighteen-month period, but was probably referring to the period in which the company hoped to complete rather than to the period for completion mentioned in the contract. Mr. Corby said that he intended to finish the work in eighteen months. Mr. Smith warned Mr. Corby that he did not think that the company would be able to complete in eighteen months. On Apr. 1, 1954, Mr. Corby wrote to the county architect a letter opening with the following paragraphs: “We confirm the meeting at your office and on site on Mar. 30, between Mr. Smith and Mr. Hurst, Mr. E. B. Cruse (technical director) Mr. Mottram and the writer. We take this opportunity of thanking you for the courteous reception accorded to our representatives, and record the following points discussed. 1. Progress schedule. We are to prepare a draft progress schedule for the work, to be the basis of a further meeting to be arranged later this ‘week by telephone, for Monday, next, Apr. 5. 2. Nominated sub-contractors. ‘You will give us as far as possible on Monday next, a list as complete as possible of the nominated sub-contractors you desire to appoint, in order that we may arrange a co-ordinated programme with them.” On Apr. 5, 1954, there met at the council's architect's office Mr. Smith, Mr. Hurst, Mr. Mottram and Mr. Corby, together with two representatives of Messrs. Gleeds and Partners, the quantity surveyors nominated by the architect. At ‘that meeting there was a further discussion as to the programme for the execution of the works. Mr. Mottram produced a progress schedule prepared by him then in draft form and subsequently printed in the form of a document which was produced in this action. This document shows a period of seventy-two weeks for the completion of the works. I am satisfied that Mr. Smith saw this document at this meeting. Mr. Mottram testified positively to this offect and says that Mr. Smith and Mr. Hurst themselves mentioned seventy-two weeks. Mr. Corby testified to the same effect rather more cautiously. Their evidence is borne out by that given on commission by Mr. Hurst. The two representatives of Messrs. Gleeds do not remember seeing a progress schedule. Mr. Smith denies that he saw the progress schedule on this occasion. The letter dated Apr. 1, 1954, and the inherent probabilities strongly indicate that progress schedule would be produced on Apr. 5, 1954, and I am satisfied that Mr. Smith’s recollection on this point is at fault. It will be observed that this meeting was held in Mr. Smith’s office, and it would be hardly possible that if the progress schedule was produced at all he should not personally have seen it. In the course of the discussion Mr. Mottram and perhaps also Mr. Corby made it clear that the company intended to complete within the seventy-two weeks. Mr, Hurst also leaves no doubt on this point, his statement being: ‘‘ What was clear to me was the fact that they were going to get the job done in eighteen months ”. The discussion was largely concerned with the sub-contractors whose work had to be fitted in with that of the company, and timing was a matter of major concern. I will return at a later stage to the inference to be drawn as to Mr. Smith’s state of mind by the end of the meeting on Apr. 5, 1954. On Apr. 12, 1954, the council executed the contract. Work on the building then began. Colonel Lucking, a surveyor employed by the company, prepared applications for interim monthly certificates under the contract and submitted these to Mr. Ward, one of Messrs, Gleeds’ representatives. Colonel Lucking was informed by Mr. Ward that the period for completion under the contract was thirty months, and on this information he prepared tho first two certificates accordingly, He was then informed by someone in the company’s office that the period for completion under the contract was eighteen months. He prepared, and Mr. Ward accepted, all subsequent certificates on this basis. The company encountered various difficulties with the sub-contractors nominated by the council, and in the event was unable to complete the work till a date early in 1988. A B D F @ HCh.D. A. ROBERTS & CO. v. LEICESTERSHIRE 0.0. (Punwyouror, J.) 551 In February, 1956, the directors of the company, probably as the result of a conversation between Mr. Corby and Mr. Hurst, learned that the council was working to a thirty-month period for completion, and on Feb. 28, 1955, Mr. Corby wrote to the council’s architect as follows: “We are very concerned to discover that there would appear to be a clerical error on the form of contract for the above, in that the date for completion is given as Sept. 30, 1956, instead of Sept. 30, 1965, which is the correct date. You will find that our tender dated Mar. 8, 1954, undertook the completion of the works within seventy-eight weeks of the date of instructions to proceed. We received your official order No. CA/A.2623 dated Mar. 12, 1964, instructing us to execute the works in accordance with our tender, under cover of a letter dated Mar. 13, 1954, wherein it was stated that it is imperative that the work be commenced as near as possible to Mar. 26, 1954, and in any case not later than Mar. 31, 1954. In all these circumstances, wo shall, therefore, be glad if you will kindly arrange for the date on the contract documents to be corrected and initialled by the parties.” A meeting was held on Mar. 2, 1955, between representatives of the council and of the company and certain others. Mr. Collins made a note of this meeting which will be found in the agreed correspondence, and on Mar. 9, 1955, wrote to the company as follows: “With reference to your letter of Feb. 28, I cannot see that any useful purpose would be served by altering the contract date at this juncture. There is no objection to your completing the work much earlier than the date stipulated. For your information, I enclose a note of our conference on Mar. 2, when the above question, inter alia, was discussed.” Ultimately the writ in this action was issued on Nov. 11, 1958. As I have said, the action has been heard before me on the issue of rectification only, and I deliberately abstain from making any findings which do not go to this issue. ‘The company claims rectification of the contract on two alternative grounds, namely (i) that it was the common intention of the parties that the contract should include @ period for completion of eighteen months and the period of thirty months was inserted under common mistake; and (ii) that the council cannot be heard to say that it was not mistaken as to the date for completion since when it executed the contract it well knew that the company was mistaken as to the date for completion included in the contract, yet stood by and took no step to draw the company’s attention to its mistake. The second ground is formulated in fuill in the reply delivered by the company in this action. On the facts as I have stated them it is clear that the council and the company ‘were not at one on the length of the period for completion intended by them respectively to be inserted in the contract, and accordingly the company is not entitled to rectification on the first ground relied on. ‘The second ground rests on the principle that a party is entitled to rectification of a contract on proof that he believed a particular term to be included in the contract and that the other party concluded the contract with the omission or a variation of that term in the knowledge that the first party believed the term to be included. Counsel appearing for the council formulated the principle in slightly different terms, as follows, viz., the plaintiff must show that his intention was that the term sought to be introduced by rectification should be included in the contract and, so far as now relevant, that the omission of the term was occasioned by the dishonest conduct of the defendant in acceptance of the formation of the contract without the term, in the knowledge that the plaintiff thought the term was included. Counsel thus introduces into his formulation of the principle the word “dishonest”, but he accepts that such conduct by the defendant in his formulation is of its nature dishonest, so that the word “dishonest appears to carry the matter no further. I do not think that there is any substantial disagreement as to the scope of the principle.552 ALL ENGLAND LAW REPORTS (1961] 2 A E.R. ‘The principle is stated in SNELL’s PrroreLes o¥ Equrry (26th Edn.), p. 669, a8 follows: “ By what appears to be a species of equitable estoppel, if one party to a transaction knows that the instrument contains @ mistake in his favour but does nothing to correct it, he (and those claiming under him) will be pre- cluded from resisting rectification on the ground that the mistake is unilateral and not common.” The exact basis of the principle appears to be in some doubt. If the principle is correctly rested on estoppel it seems to me that it is not an essential ingredient of the right of action to establish any particular degree of obliquity to be attri- buted to the defendant in such circumstances. If, on the other hand, the principle is rested on fraud, obviously dishonesty must be established. It is well established that a party claiming rectification must prove his facts beyond reasonable doubt, and I think that this high standard of proof must equally apply where the claim is based on the principle indicated above. I have been referred to two recent decisions on rectification in the Court of Appeal, namely, George Cohen, Sons & Co., Ltd. v. Docks and Inland Waterways Executive (1), and North Thames Gas Board v. Sunbury-on-Thames Urban District Council (2). In the former of these cases the court was concerned primarily, and in the second exclusively, with the question whether on the particular facts there had been such common mistake as to warrant rectification on the primary ground, @ question which was answered in the affirmative in the former, and in the negative in the latter case. In the former case there was also some discussion on an alternative ground for rectification germane to the second ground relied on here, and there was considerable argument, before me as to the exact scope of what was said on this alternative ground. I have also been referred to a number of other cases in this connexion, including Smith v. Hughes (3), and Whiteley v. Delaney (4). For the purpose of the case before me it will be sufficient to rely on the principle set out previously. Nothing in the cases cited throws any doubt on this principle, and I do not think that I can usofully go further into the law. Almost at the end of the trial, during his speech in reply, counsel for the company asked for leave to amend the reply by: including certain alternative claims based on a representation alleged to have been contained in the order form dated Mar. 12, 1954, and the letter dated Mar. 13, 1954. I did not think it right to allow at that stage these amendments which involved issues of fact, and one of which alleged fraud. Returning to the facts of the present case, the company, as I have held, believed that the eighteen-month period of completion was included in the contract. The question then is: did the council, when it concluded the contract with the thirty-month period, do so in the knowledge that the company believed the eighteen-month period was included in it? Counsel for the council accepts that for this purpose the knowledge of the council’s officers should be treated as the knowledge of the council. He also accepts that the relevant officers are Mr. Collins and Mr. Smith and that the county clerk, who drew the contract on their instructions as transmitted by Mr. Thornton, may be left out of account. I do not think that on the evidence either of the officers concerned, that is Mr. Collins and Mr. Smith, could properly be held to have had knowledge of the company’s belief in the eighteen-month period during the interval between the despatch on Mar. 17, 1954, of the contract specifying the thirty-month period and the meeting on Mar. 30, 1954. The point then narrows itself to the knowledge of Mr. Smith as the result of the meetings held on Mar. 30, 1954, and Apr. 6, 1954. Do the facts raise beyond reasonable doubt, the inference that by the end of the latter meeting Mr. Smith know that the company was under the belief that the period of completion under the contract was eighteen months? (1) [1950] 84 Lloyd’s Rep. 97. (2) (1955), unreported. (8) (1871), LR. 6 Q.B. 597. (4) [1914] A.C. 132. A B D ECh.D. A. ROBERTS & CO. v, LEICESTERSHIRE C.C, (Pewnyourox, J.) 553 I proceed to summarise the facts relevant to the state of Mr. Smith’s know- ledge by the end of the meeting on Apr. 5, 1954: (i) He knew that under the revised tender the company had agreed to complete the works within seventy- eight weeks of instructions to proceed; (ii) as an experienced architect he must have appreciated that the price under the tender was related to the period for completion and that if the period had been longer the price would probably have been higher; (iii) he had discussed the period for completion with Mr. Collins and on the latter’s instructions hed, through Mr. Thornton, instructed the council’s clerk to include in the contract thirty months as the period for com- pletion; (iv) he had taken no steps to call the attention of the company to the inclusion of thirty months as the period for completion instead of eighteen months; (v) he had been told by Mr. Cruse and Mr. Corby on Mar. 30, 1954, that the company aimed to get the work finished in eighteen months and had told Mr. Corby that he did not think that this would be possible; (vi) he had been shown by Mr. Mottram on Apr. 5, 1954, the progress schedule showing a period of seventy-two weeks for completion of the work and had been assured by Mr. Mottram, and perhaps also by Mr. Corby, that the company intended to complete in that time; (vii) as an experienced architect, he could not fail to appreciate that seventy-two weeks for completion in the progress schedule was appropriate to an eighteen-month period for completion under the contract and inappropriate to a thirty-month period for completion under the contract; (viii) Mr. Mottram and Mr. Corby had made no comment on what, if they believed the period for completion under the contract’ to be thirty months, rust have seemed to them a startling anomaly. In my judgment, these facts raise, beyond reasonable doubt, the inference that Mr. Smith did know, at the latest by the end of the meeting on Apr. 5, 1954, that the company believed the period for completion under the contract to be eighteen months. Only if he were unusually stupid or unusually heedless could he have failed to understand the company’s state of mind, at least by the end of this meeting. I am satisfied he was neither stupid nor heedless, and it seems to me that he did realise the company’s mistake. It is suggested that it would be inconceivable for an official of Mr. Smith’s position, if he did realise the com- pany’s mistake, to stand by without bringing it to the company’s notice; but after hearing Mr. Smith’s evidence, and in particular his views on the propriety of inserting a new date for completion in the contract without communication with the company, I am unable to attribute any weight to this argument, It is also contended that Mr. Smith had no motive for acting as he did. No one suggests that he had any corrupt personal motive, but, as a loyal officer of the council he must have recognised that it would be extremely inconvenient if the contract were to go off, bearing in mind that work under it must begin by the end of March in order to qualify for the ministry grant. ‘As I have said, this issue appears to mo to depend on the state of Mr. Smith’s knowledge, and I do not feel myself concerned either to criticise, or to excuse, his conduct. I propose accordingly to order that the contract be rectified by the insertion of Sept. 30, 1955, in place of Sept. 30, 1956, as the date for completion. Order accordingly. Solicitors: Sydney Redfern d Co. (for the company); Kingsford, Dorman & Co. agents for Clerk of the county council, Leicester (for the council). [Reported by Juxtren SANDEL, Barrister-at-Law.]