Scottish Court of Session Decisions

In 1866 the pursuers purchased from the defenders a quantity of a certain kind of yarn. On 21st June 1867 the defenders agreed to take back from the pursuers the amount of that yarn then remaining in the pursuers’ hands, and in place thereof to furnish them a greater amount of another kind of yarn at a specified price. The memorandum of agreement was as follows:—“Greenock, 21st June 1867.—Messrs Fleming, Reid & Company agree to take back what we have of 30 L hank yam, abou 6000 gross, at price invoiced; and we order, in place thereof, about 10,000 gross B quality, spool, to sample last submitted. For each gross of spool up to the quantity of hank returned we pay 17s. 3d., and for balance we pay 15s. 6d. (fifteen and six), common colours; yarns to be delivered and to take date as our last orders of July 22 and August 10, 1866.—(Signed) W. Hinshaw & Co.” The acceptance by the defenders, which was of same date, was without qualification, being as follows:—“21st June 1867.—We accept your order as contained in yours of 21st instant. (Signed) Fleming, Reid & Co.”

Thereafter there arose a misunderstanding between the parties respecting the dates of delivery of the 10,000 gross spool yarn, in consequence of which instructions as to the dyeing of the yarn were not timeously given to the defenders, and they were thus prevented (they allege), through the fault of the pursuers, from implementing the agreement. The pursuers, stating that they held the 6000 gross yarn (which by the agreement the defenders agreed to take back), at the order of the defenders, and thus were ready to perform their part of the contract, raised this action against the defenders, concluding for £4690, 5s. sterling, the total price of the 6000 gross yarn the defenders had agreed to take back, calculating at the price at which it had been invoiced to them by the defenders.

The following issue was proposed:—

“It being admitted that the pursuers ordered from the defenders 6000 gross L 30s. hank yarn at the price of 15s. 1½d. per gross, and 2500 gross of the same yarn at 15s. 6d. per gross; and that the said quantities of yarn were thereafter invoiced to the pursuers by the defenders at various dates at and prior to 20th January 1867, and that the said price was paid by the pursuers to the defenders,—

Whether, in terms of the offer or memorandum No. 30 of process, and acceptance thereof, No. 10 of process, dated 21st June 1867, the defenders agreed to take from the pursuers the whole of the said 30 L hank yarn which the pursuers had—about 6000 gross—at the prices at which said yarn had been invoiced to the pursuers by the defenders; whether the pursuers, in implement of said agreement, have delivered or duly offered to deliver to the defenders 6140 or thereby gross of said yarn; and whether the defenders are due and resting owing to the pursuers the sum of £4690, 5s., or any part thereof, being the price at which said yarn was invoiced to the pursuers, with interest from the 21st June 1867?”

The Lord Ordinary reported on the issue with this note:—

“The defenders object to the issue that, as it is now framed, the pursuers do not put in issue a proper contract of sale, in consistency with the way in which the action is libelled, and with the terms of the issue originally proposed. It does not occur to the Lord Ordinary that this is a substantial objection. The contract set forth in the summons is of a special and anomalous kind, to which the terms of the issue appear to be quite appropriate.

The defenders, however, take a more fundamental objection to the issue, which resolves into a plea against the relevancy of the action. They say that the contract averred in the summons, and in the second article of the condescendence added on revisal, is a complex transaction in regard to the defenders receiving back goods formerly sold

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and invoiced to the pursuers, and to other goods which the pursuers then ordered from the defenders. There is no inconsistency between the original statement of the contract in the summons and the statement added on revisal, which merely sets forth the evidence.

The Lord Ordinary does not think the action irrelevant, or that the pursuers can be refused an issue of the kind they ask. There was undoubtedly a complex transaction, and if the defenders had delivered the new yarns then ordered, or any part of them, without payment, the pursuers’ claim would naturally, perhaps necessarily, have been for payment of a balance on account. But as the matter stands, the defenders not having delivered, or now offering delivery of the new yarns, and the pursuers making no demand on that ground, the pursuers appear to be entitled to sue for the amount to be paid to them for the yarns, which it was agreed were to be taken back at the invoice price which they had paid for them. It does not seem to affect this question whether the sum sued for is looked upon as price due to the pursuers as in a proper sale, or as the return of the price of goods received back under a special contract to that effect. The defenders may have a defence upon the other branch of the contract, and their averment that they have been prevented implementing it by the fault of pursuers. It is right to say that the Lord Ordinary originally felt some difficulty as to the shape in which the pursuers’ demand is made; but, on consideration, he has come to the conclusion now indicated.

The defenders further maintain that the action should have been for damages for breach of contract. But, if the view of the case now stated by the Lord Ordinary be correct, there seems to be no room for this contention. The law of Scotland is, that ‘where the goods have been already delivered the seller may have a personal action for the price,’ and, ‘where the goods are not yet delivered the seller may raise action for the price, proffering delivery of the goods.’—1 Bell's Com., 443. In the present case, the pursuers state that the larger part of the goods are in the defenders' possession. The law of England seems to be different where the goods are undelivered, and the property is not transferred to the purchaser, (Addison on Contracts, 5th edit., 1057) but that is a distinction which has not been recognised in Scotland. It can make no difference in this respect, that the demand is not for money due properly as the price of goods sold by the pursuers, but as the return of the price paid by them for goods which the defenders have agreed to receive back.”