Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 5_417, [1867] SLR 5_417

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SCOTTISH_SLR_Court_of_Session

Page: 417↓

Court of Session Inner House First Division.

Friday, March 27. 1867.

5 SLR 417

Sellar and Sons

v.

Gladstone and Company.

Subject_1Agency
Subject_2Commission Agent
Subject_3Sale
Subject_4Disconform to Order — Judicial Warrant — Foreign.
Facts:

A firm in Scotland instructed a foreign firm to send them a quantity of “best Pegu cutch.” When the cutch arrived in this country, it was rejected by the purchasers as inferior in quality, and disconform to order, and was sold by the importers at the port of discharge in England. The importers charging on a bill which had been accepted by the purchasers for the price, suspension by the purchasers refused; and held, on a proof, that there was no evidence that the cutch was not as good as could be procured at the time, or that any inferiority in quality was due to any other cause than sea damage. Objection by suspenders that the cutch had been sold without judicial warrant, repelled, on the ground that it was not shown that judicial warrant was necessary in England, where the sale took place.

Headnote:

In August 1863 one of the suspenders, then acting at Rangoon for J. Sellar & Sons, of Elgin, ordered from the respondents 150 tons of the best Pegu cutch. The respondents shipped from Calcutta about half of the quantity of cutch ordered, and drew a bill for the amount, which was accepted by the suspenders. In May 1864 the cutch arrived in London, where it was seen and examined by the other suspender, who then called on the respondents' house in London, and intimated that he declined to accept the cutch, as it was not in accordance with the order. His reason for this he stated to be that the cutch was of inferior quality, and had, owing to the insufficiency of the bags in which it was packed, suffered greatly from the voyage. After some correspondence between the parties, the respondents sold the cutch by private sale, and in August 1864 charged the suspenders on the bill.

The principal ground of suspension was, that the cutch being disconform to order, the suspenders were entitled to reject it. The respondents denied that the suspenders had in fact timeously rejected the cutch, and contended that there was no relevant allegation that the cutch in question did not answer the description of the best Pegu cutch to be had at the time in terms of the order. An issue being proposed, the case was reported to the Inner-House, and a proof was allowed.

The suspenders now contended on the proof that the cutch was inferior and was properly rejected; and, farther, that as the respondents had no right to sell under their lien, they must be held to have sold the goods as their own property, and so the suspenders had received no value for the bill.

Judgment:

Gifford and Keir for suspenders.

Clark and Mackay for respondents.

At advising—

The Lord President said there were substantially two questions at issue—(1) whether the order was in the terms alleged; and (2) whether there was a failure on the part of the firm who furnished the goods in respect of the quality of the goods. The first question, however, might be dismissed, for the order was clearly an order for the best Pegu cutch. The only difficulty was as to the second question, and that difficulty arose from the nature of the goods. If this had been an order for manufactured goods, bearing a particular brand, or described by a name well known in trade, indicating a special quality of goods, no question could have arisen. But here the goods were the natural produce of a foreign country; and it did not appear from the evidence that there were any well defined classes or qualities of it. The nomenclature used by all the witnesses was of a very uncertain and varying kind; and all that could be said, therefore, was that “best Pegu cutch” meant cutch of a very good quality. Now this cutch was a very peculiar kind of cargo. It was not a favourite with shipmasters,

Page: 418↓

and it was very apt to suffer from trans-shipment; from hot weather; and from various other contingencies. In the present case the cargo was trans-shipped; and, undoubtedly, when it arrived in this country it had suffered a good deal. It had run together, so that it had to be broken up before it could be got out of the hold, and it had got mixed up partially with cargo shipped by another house, for which the Gladstones were not responsible. The cutch, on its arrival, was examined, and the suspenders’ witnesses say it was bad, and they say, moreover, that it was bad independently of the damage arising through the voyage. That might be so; but it was more satisfactory to have evidence of the quality of the goods when shipped at Rangoon, and such evidence as there was was favourable to the shippers. But then there was a report by Mr Baker, for the suspenders, on the quality of the cutch after arrival; and the impression left on the mind after reading this report, and seeing the value put upon the several piles of cutch, after making allowance for sea damage, was decidedly favourable to the respondents. And this favourable impression was confirmed on considering these valuations, together with what one of the suspenders expected to be the value of the cargo on its arrival here. There had been some misapprehension as to the nature of the liability of the respondents. It was not the liability of a mere seller of goods under an ordinary contract of sale, in which the seller undertook to furnish goods of a particular quality manufactured by himself, or by some one else, but then in his hands. This was the liability of a commission agent, and was a question in the law of agency; and the question was, whether the agent had failed in the performance of his duty. It did not appear that he had so failed. Cutch was a very peculiar kind of article, and an agent acting under an order such as here was vested with a considerable discretion to do the best he could, and there was no evidence to show that he did not do the best possible in the circumstances. As to the sale by the respondents, no doubt the goods realised less than they might have done if they had been sold otherwise; but if the rejection of the goods was unwarrantable, the suspenders must bear the loss. They said, no doubt, that the sale was unwarrantable, because it was without judicial warrant. If the proceedings had taken place in Scotland, there might have been a good deal in that objection, for it was the practice here to have a warrant of the Judge Ordinary before sale, in order that the other party might have due notice to attend to his interests. But this all took place in England, and it was not proved that the sellers were not following the usual course in acting as they did. If the chargers would restrict the charge for the balance now due to them, after deducting payments already make, judgment would be given in their favour.

The other Judges concurred, and the charge, as restricted, was found orderly proceeded, and the suspenders found liable in expenses.

Solicitors: Agents for Suspenders— H. & A. Inglis, W.S.

Agent for Respondents— A. Howe, W.S.

1867