Gambar halaman
PDF
ePub

Jan. 24, 1908.

Aitken,
Campbell, &
Co., Limited,
v. Boullen &
Gatenby.

Lord Low.

Suppose that when the defenders refused to take back the 64 pieces, the pursuers had at once also returned the remaining 69 pieces, and intimated that they repudiated the contract and rejected the whole goods, I cannot imagine any ground upon which it could have been held that they were not entitled to follow that course. But I think that it is equally plain that they were entitled to say to the defenders,—“If you will not take back the goods which are disconform to sample, we shall keep them, along with the goods which are conform to sample, but we shall claim damages in respect that you have failed to perform a material part of the contract."

I am therefore of opinion that the Sheriff-substitute was wrong in finding that "although the partial rejection was invalid, the pursuers cannot now claim to retain all the goods and sue for damages."

It appears that the pursuers paid the contract price of the goods before they discovered that part of them was not conform to contract, and accordingly their claim is for repayment of the amount of the loss which they have sustained in respect of part of the goods not being conform to sample. I understand that the parties have adjusted the amount of the loss at £26, 18s. 3d., and accordingly I am of opinion that decree should be pronounced for that sum.

LORD ARDWALL-In April 1905 the defenders sold to the pursuers by sample 133 pieces of maroon twills, and delivered them to the pursuers on 6th May following. On 22d May the pursuers paid to the defenders £76, 1s. 9d. as the price of the goods. On 20th June following the pursuers, having made a complete examination of the goods, discovered that certain pieces were not conform to sample, and they intimated a rejection of these pieces to the defenders, and returned to them 64 pieces as disconform to sample. At the same time they intimated to the defenders their acceptance of the balance of the goods. The defenders refused to agree to the attempted partial rejection, and have never accepted re-delivery or otherwise acquiesced in the said rejection. The pursuers, under agreement, have now in their hands the rejected goods, and also those that they all along kept as being conform to sample.

In these circumstances the present action is raised for payment of £50, 19s., being the price of the rejected goods, or, alternatively, the sum of £25, 16s., being the loss and damage sustained by the pursuers on the footing of their retaining the whole goods.

The Sheriff-substitute held that the pursuers were not entitled to reject part of the goods, and, that having attempted to reject part of the goods, they are barred from now keeping the whole of the goods and claiming damages. He accordingly assoilzied the defenders. The Sheriff recalled this interlocutor, on the ground that the pursuers were entitled to reject part of the goods in virtue of the provisions of section 30 (3) of the Sale of Goods Act, 1893. He accordingly has given decree for £36, 12s. 3d., being the price of the defective pieces which were rejected, and a further sum of £8, 7s. 9d. in name of damages.

I propose to deal first with the question whether the provisions of section 30 (3) of the said Act apply to the circumstances of the present case.

20

That section is in the following terms:- "Where the seller delivers to the Jan. 24 1908. buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods Campbell, & which are in accordance with the contract and reject the rest."

Co., Limited, v. Boullen &

In the present case what was sold was maroon twills equal to samples Gatenby. sent, and it is proved that 64 of the 133 pieces sent were not equal Lord Ardwall. to sample in respect that they were more "tender," as it is called, than the samples. "Tenderness" in goods of this kind, it is explained, is an extreme degree of softness or weakness in the goods, and there is some evidence to the effect that when goods of this description are of such quality as to merit the epithet "tender" it is usual to sell them by the pound and not by the yard, and on the strength of this practice of the trade it is maintained for the pursuers that "tender" goods are goods of a description different from those which were conform to the sample within the meaning of the word "description" as used in the Act. I confess I cannot accept this contention. I am of opinion that the whole of the goods sent in fulfilment of the order were goods of the same description," namely, maroon twills, and that their conformity or disconformity to sample fell to be determined by the varying degrees of strength on the one hand and softness or "tenderness" on the other; and from the proof I think it sufficiently appears that the gradation in the texture of the goods varied greatly, and I do not think that at any point in the variation from strong to "tender" goods it could be predicated that goods at any one part of the scale were of a different "description" from the goods immediately next to them either on the side of strength or of "tenderness."

66

I accordingly do not think that the subsection in question applies, because I do not think it can be said that any part of the goods delivered was mixed with goods of a different description. I am of opinion that the word "description" implies a difference of kind, not merely of quality, and the cases which were cited as illustrations of cases to which the section might apply were all cases where there was a difference of kind and not merely of quality in the goods.

In the case of Levy v. Green1 crockery of a different pattern and consisting of different articles from those ordered was sent in a crate containing the articles which had been ordered. In Nicholson v. Bradfield Union,2 in a contract for the sale of coal, the sellers put in a lot of coal from a different colliery from that ordered, which got mixed with the first delivery; and in the case of Jaffé v. Ritchie a seller of yarns, which were described as "flax yarns," delivered several spindles containing yarns composed of a mixture of flax and jute, and it was there held that this did not answer to the description of "flax yarns," and that accordingly they were properly rejected. But no case was cited in which a mere difference in quality was held sufficient to divide goods into goods of different "descriptions."

For these reasons I am of opinion that the said subsection does not apply, and that the interlocutors of the Sheriff, which proceed upon the application of that subsection, must be recalled.

1 (1857) 8 E. & B. 575, (1859) 28 L. J., Q. B. 319. 2(1866) L. R., 1 Q. B. 620.

3 23 D. 242.

Jan. 24, 19.08. The next question for consideration is whether the pursuers, having Aitken, rejected part of the goods sent, are now barred from retaining that part Campbell, & along with the goods which they had not rejected and claiming damages in Co., Limited, v. Boullen & respect of defective fulfilment of the contract. I confess I have found this Gatenby. to be a question of some difficulty. The cases of the Electric Construction Lord Ardwall. Company v. Hurry & Young, and Croom & Arthur v. Stewart & Company, were cited as authorities for the proposition that after intimating to a seller rejection of goods as disconform to contract a buyer is not entitled to fall back on the alternative remedy provided by the Sale of Goods Act of retaining the goods and claiming damages for the seller's failure to perform a material part of the contract. I may notice in passing that taking these two cases together the above proposition as one of universal application was questioned in the first case by Lords Kinnear and Low, and in the second by Lord Kyllachy, and it is possible that in some other circumstances it may deserve reconsideration. But accepting the views of the majority in each of these cases as absolutely sound, I am of opinion that the present case is capable of being differentiated from them. In both these cases the whole of the subject sold was rejected, and in both of them the question was complicated by the buyers, after intimating rejection of machines, continuing to use them for considerable periods of time. Now, in the present case the pursuers did not reject the whole of the subject of the sale, nor did they, by keeping possession of the rejected portion, in any way prejudice, so far as that portion was concerned, the interests of the sellers. They were accordingly not in the position of having elected to take one of the remedies provided by the Act, and therefore by implication of having departed from the other. What they did was to adopt neither the one alternative nor the other, but to make a partial rejection which they were not entitled to make, and which they did make in a mistaken view of their own rights in the matter. In other words, they attempted to do what they were not entitled to do either under the Act or at common law. But the fact of their having made this mistake does not involve them in the dilemma in which the Court considered the sellers had placed themselves in the two cases above referred to, and I am of opinion that nothing else has occurred to bar them from now adopting the alternative remedy provided by section 11, subsection (2), of the said Act by retaining the whole goods and claiming damages for breach of contract.

On these grounds I think the Sheriff-substitute's interlocutor of 14th May 1906, with the exception of its findings in fact, ought to be recalled, and decree given for the alternative sum of £26, 18s. 3d. claimed by the pursuers.

LORD JUSTICE-CLERK.-I concur with your Lordships in holding that section 30 (3) of the Sale of Goods Act does not apply to this case, and that on the grounds so clearly stated by Lord Low. I am therefore of opinion that the interlocutor of the Sheriff must be recalled. Further, I agree with the opinion expressed by both your Lordships that in the circumstances of this case the purchaser of the goods has the right still, retaining the whole of the

[blocks in formation]

C

v. Boullen &

goods, to claim damages for the disconformity of a portion of the goods to Jan. 24, 1908. the quality shewn by the sample upon which the purchase was made. The Aitken, case of the Electric Company, which was founded on at the debate, was Campbell, & Co., Limited, one of an entirely different character from the present. The sale in that case was of a specific article-a machine for developing and transmitting Gatenby. energy by electrical transmutation. The party in that case did not return Lord Justicethe machine. They intimated that they rejected it, but kept the machine Clerk. and used it for months. The decision in that case, which seems somewhat doubtful as regards its soundness, has no bearing on this case, which is one in which the disconformity is in respect of some part of the goods being of inferior quality. The sellers suffered no damage by the course which was taken, which was a mistaken course under the Act. The Sheriff-substitute, on the authority of the Electric Company case,1 held that the buyer was barred from now claiming damages for that part of the goods which was not conform to sample. I concur with your Lordships in holding that the goods were of one "description" in the sense of the Act, and that the section refers to a difference of kind and not of quality-such as in the crockery case, where different articles were sent among those which had been ordered. The case of jute yarn and flax yarn 3 was similar. I therefore agree with the course proposed by Lord Low.

LORD STORMONTH-DARLING was absent.

THE COURT pronounced this interlocutor:-"The Lords having
heard counsel for the parties on the appeal for the defenders
against the interlocutors of the Sheriff-substitute and the
Sheriff of Lanark, dated 14th May and 6th December 1906,
and 24th January 1907, sustain the appeal, and recall the
said interlocutors appealed against: Find in fact in terms of
the seven findings in fact in the said interlocutor dated 14th
May 1906, but omitting from the seventh of said findings the
last twenty-six words following the word 're-delivery': Find
in law in terms of the first two findings in law in said inter-
locutor of 14th May 1906: And further find in law (3) that
although the said attempted partial rejection was invalid, the
pursuers are entitled to retain all the goods and sue for
damages, the defenders having been in no way prejudiced by
the said partial rejection of the goods, the value of which has
been adjusted at the sum of £26, 18s. 3d. Therefore ordain
the defenders to make payment to the pursuers of the said
sum of £26, 18s. 3d., with interest thereon at the rate of 5 per
centum per annum from the date of citation till payment, and
decern: Find the pursuers entitled to expenses in this and in
the inferior Court, which modify to one-half the taxed amount
thereof."

SMITH & WATT, W.S.-MACPHERSON & MACKAY, S.S.C.-Agents.

2 Levy v. Green, 28 L. J., Q. B. 319.

1 24 R. 312.

3 Jaffé v. Ritchie, 23 D. 242.

No. 71. THE AMERICAN MORTGAGE COMPANY OF SCOTLAND, LIMITED, Pursuers (Respondents).-Lorimer, K. C.-R. S. Horne.

Jan. 31, 1908.

American

Mortgage
Company of

Scotland,
Limited, v.
Sidway.

1ST DIVISION. Lord Guthrie.

LEVERETT BARKER SIDWAY AND ANOTHER, Defenders (Reclaimers).—
Morison, K.C.-Hon. W. Watson.

Arrestment-Arrestment ad fundandam jurisdictionem — Arrestment of Shares in Limited Company.-The shares of a limited company registered in Scotland are subject to arrestment, and the arrestment of such shares in the hands of the company ad fundandam jurisdictionem renders the shareholder liable to the jurisdiction of the Court of Session.

Sinclair v. Staples, Jan. 27, 1860, 22 D. 600, followed.

THE AMERICAN MORTGAGE COMPANY OF SCOTLAND, LIMITED, having their registered office at 36 Castle Street, Edinburgh, raised an action for payment against Leverett Barker Sidway and Henry Turner Sidway, of the firm of L. B. Sidway & Company of Chicago, in the United States of America, and of 5300 Armour Avenue, there.

In order to found jurisdiction the pursuers, on 21st August 1903, had used arrestments in the hands of the Missouri Land and Live Stock Company, Limited, incorporated under the Companies Acts, and having its registered office at 16 Castle Street, Edinburgh, by which, as the pursuers averred, they attached 755 shares of the Company belonging to L. B. Sidway and 22 shares belonging to H. T. Sidway.

The pursuers pleaded;-(1) The defenders are subject to the jurisdiction of the Court of Session in Scotland by reason of the letters of arrestment to found jurisdiction executed against them.

The defenders pleaded;-(1) No jurisdiction.

The Lord Ordinary (Guthrie) allowed a proof on the question of jurisdiction, which was taken on 6th March 1907, and from which it appeared that at the date of the arrestments the defenders were the registered holders of the shares above mentioned. It further appeared that at the same date no dividend or other sum was payable by the Missouri Company to the defenders.

On 26th December 1907 the Lord Ordinary pronounced this interlocutor:-" Finds that by the arrestments used by the American Mortgage Company of Scotland, Limited, the defenders have become liable to the jurisdiction of the Court in the present action: Therefore repels the defenders' first plea in law, and appoints the case to be put to the roll for further procedure; and grants leave to reclaim."*

The

"OPINION. The pursuers allege they have founded jurisdiction against the defenders, residents in the United States, by the arrestment of certain shares belonging to the defenders in the Missouri Land and Live Stock Company, Limited, which has its registered office in Edinburgh. defenders are admitted to have been proprietors of these shares on 21st August 1903, the date of the alleged arrestment. But the defenders maintain that, by the law of Scotland, shares in limited joint stock companies are not arrestable, and, therefore, there is no warrant for proceeding against them in Scotland. At the date of arrestment, although dividend appears to have been earned, no sum was actually payable to the defenders either in the shape of dividend or return of capital.

"The general rule is thus, enunciated by Lord Deas in Lindsay v. London and North-Western Railway Company, 1860, 22 D. 571, at p. 596-'All moveable and heritable property in Scotland is attachable in one way or other. We have poinding to attach what is in a man's own possession; arrestment to attach personal estate in the hands of another; and adjudica

« SebelumnyaLanjutkan »