Scottish Court of Session Decisions

Young and Campbell Smith for reclaimers.

Dean of Faculty (Monckeiff) and H. J. Moncreiff for respondents.

Lord President—This contract was entered into in 1865, and whether actually constituted by writing or not, the terms are pretty evident from the two letters of 11th and 13th April. The kind of bottles ordered by the defenders was a new kind, likely to be liable to some imperfection not attaching to the making of the ordinary kind of bottles. There was a good deal of communication between the parties in conversation, and at last the matter came to this, that the defenders said in their letter of 11th April, “it might be preferable to have the bottles after the same general design of a hexagon shape, plain, not fluted, if you think that the strength would not suffer to any material extent, or affect the packing. You must cut fine in this matter, as we are likely to require a large quantity.” That letter shows, in the first place, that the defenders were quite aware that the peculiar shape of the bottles rendered it doubtful whether it would be sufficiently strong. It also proves, to my mind, that what was contemplated was not one order once for all, but a continuous supply from time to time. The pursuers answer on the 13th that they “think it is quite practicable to make a good mould for you, hexagon shape, plain, without fluting. It will not be quite so strong as the round bottles, but we think it will be nearly so, and on hearing that you decide on this, we shall endeavour to carry out your wish as soon as a mould can be prepared. The bush in the bottom cannot be much depended on with these moulds, as the glass is a good deal chilled before leaving them, but we shall do the best possible.” The defenders answer on the 14th, “Please set about getting the mould at once for the hexagon shape.” And so the bargain was concluded. It appeared to me at first that the defenders meant to suggest that this letter of the 13th was a guarantee by the pursuers that the bottles of this shape would certainly prove sufficient in all respects for the purposes of the defenders. I cannot so read that letter. It is more cautiously expressed. The pursuers do not say, on their credit as bottlemakers, that these new bottles will be as strong as ordinary bottles, or as strong as will do for the purposes of the defenders. They leave it as matter of experiment, and that it was so on the part of both admits of no doubt on the evidence. That may not be conclusive of the case, but it is very important. It was essentially an experimental contract. The defender ordered 25 gross, and asked the pursuers to send a pattern as soon as possible. Then there is some correspondence; and the next important fact is, that on 22d June the pursuers write that they will send a parcel of the bottles on Monday. These arrived in Leith, and receipt was acknowledged on the 30th by the defenders, who say—“The small quantity of bottles have arrived. They are very nice, excepting the neck, which we think would be better about half the length.” Looking to the nature of the contract, and the kind of goods, I think there was a duty incumbent on the defenders to satisfy themselves by experiment whether these bottles would answer their purpose, and if they had become satisfied that they would not do so, they should have stopped the manufacture. But they do nothing of that kind. Their excuse is that they were not persons of skill, and could not tell by looking at them whether they were good or bad. But surely from the making of the contract there was a doubt of their sufficiency. Persons who purchase goods in the course of their trade are judges of their sufficiency as much as the sellers. But there is a man of the name of Hunter in the employment of the defenders, whom they treat as a person of skill, and they might have taken his opinion, and they might have taken advantage of his practical skill by bottling, and trying whether the bottles would stand. Hunter says that when he saw the bottles he was struck with their appearance. He thought they were very light and thin, and required great care in washing. If that was the appearance of the bottles, in the view of the cellarman, that enhanced the duty of the defenders to try them. They failed to do so, and instead they go on by letter to press the manufacture of more, urging the pursuers to furnish them as fast as possible. Such is the state of the written evidence. When we turn to the parole evidence we find that these bottles in the hands of the defenders did not stand the test to which they were subjected. I am not disposed even to conjecture that there was anything improper or unskilful in the way of treating them. That is not necessary for the present case. I take for granted that the defenders used fair skill in handling them, and yet so great a proportion broke. The question is, Did the pursuers fail in the discharge of their duty? I think not. I have said the defenders were wanting in a duty incumbent on them; and I think the pursuers did their duty. They undertook to make as good a bottle of this kind and shape as they could; and, in the proof, there is abundant evidence of men of skill that, looking to the conditions of the manufacture, these are as good bottles as could be produced. Taking the length and shape of the bottles, it is said that no house in Glasgow could have made better. In these circumstances, the pursuers ask payment of the price; and the defenders resist the demand in toto. Their pleas in defence are exclusive of all claim by the pursuers. Meantime, in September 1865, three gross were sent to Canada. This action was raised in 1866. The defenders admitted that they had sent away this quantity, and promised, in the course of the process, to explain the fate of the cargo, but they have not done so. All we have is this, that when the principal defender is examined eight months after, he says he can give no bad account of them, from which I think the fair inference is, that this was a successful adventure on his part. That is inconsistent with his defences. I have no hesitation in adhering to the interlocutor of the Lord Ordinary.