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The contractors did not get entry to any part of the lands until June 1890, and they subsequently claimed damages from the commissioners on the ground that the latter were bound to have given them entry on acceptance of their tender, or shortly thereafter, and that they had failed to give timeous entry in terms of the contract. They maintained that the question whether timeous entry had been given should be referred to the arbiter.
In July 1889 the Police Commissioners of the burgh of Leven, through their engineers Messrs Leslie & Reid, issued a specification of the work to be done in connection with the execution of proposed waterworks for that burgh, and invited tenders. The specification contained, inter alia , the following general conditions—“The contractor will get possession of the ground immediately after acceptance of the tender (p. 4 of App.) … He must enter into a regularly stamped contract containing all the ordinary legal clauses.”
By letter, dated 10th August, G. Mackay & Sons, contractors, offered to construct the works, and their offer was accepted by the Police Commissioners on 11th September 1889.
The Police Commissioners did not give Mackay & Sons entry to any part of the ground until June 17th 1890, and to the remainder of the land entry was not given until September 13th of that year or later.
With regard to the first claim mentioned in the summons no question arose, as the defenders admitted that it fell under the arbitration clause.
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