Scottish Court of Session Decisions

Lord President—In the view I take of this case I am disposed to assume that the contract was made between the defender and the pursuers' travellers in the terms which appear in the defender's memorandum, viz., that the pursuers, through their agent, sold to him 50 bags of Baltic white at 60s., and with this condition, that the pursuers should be at liberty to send D. N. flour, if it should be better than Baltic white. That is the contract as alleged by the defender. Then it appears from the correspondence that the invoice of the goods was received by Jardine on 20th April, on which day he acknowledged receipt. On 23d April he acknowledged receipt of the flour itself, and says in his letter of that date that he has not yet tried it, but it appeared to him—apparently from an examination of its colour—not equal to Baltic white. On the next day he says—“I have tried the French flour sent me, and I find it quite inferior to the Baltic whites, and on that account I will insist on having Baltic whites in its stead. The flour was guaranteed to me, of which I have proof, to be better than Baltic whites, and I hope you will fulfil your obligation without any trouble.” At this date, therefore, the defender distinctly rejected the flour as in implement of the contract of sale, and an obligation thereby immediately lay on him to return the goods thus rejected, or if not immediately returning them, in respect of the distance, he was bound to put them into such custody as that they should thereafter lie at the order of the pursuers. That is a well established rule. But he says nothing at all about the matter at that time. Then, three days after, he writes a letter, on 27th April, in which he says—“The flour lies at the rail, station, and I will not allow it to be removed until I get Baltic whites, or something as good.” That is to say, he rejects the goods, but holds to the bargain, and retains the rejected goods in security of the fulfilment of the bargain by the sellers. That he was not entitled to do. When a party so retains goods which he has rejected, it must be held, according to sound principles of mercantile law, that he takes the goods. The defender continued in the same position down to 9th May, when, for the first time, he expressly, in writing to the pursuers, gave them liberty to remove the goods. Under these circumstances, the defender is not entitled to refuse payment of the contract price. He must be held to have taken the goods, and not to have rejected them in such a way as, assuming them to be disconform to the contract, he was entitled to do.

The question on the evidence, as to the terms of the bargain, and whether the goods were a due fulfilment of the bargain, is more difficult; but on that I give no opinion, the rather because I think, if we had to pronounce judgment on that, the proof is not complete, and I should have wished more evidence as to the nature of the D. N. flour, as compared with Baltic whites. But it is unnecessary to say more on that, for the other ground of judgment is very clear.

Lord Deas concurred, holding that the ground of judgment stated was sufficient, but being prepared to go farther, and to hold, with the Sheriff-substitute, that the appellant had in fact purchased D. N. flour, but without any proper guarantee entitling him to reject it.

Lord Ardmillan and Lord Kinloch concurred with the Lord President.