Scottish Court of Session Decisions

Mrs Steel, who for some time carried on business as a draper and grocer in Mid-Calder, proposed in March 1868 to give up business. The defender, Swan, proposed to take up the business, and arranged with the landlord for a lease of the premises. He also, on 25th March, addressed this letter to the pursuer:—“I do hereby agree to take the remaining goods that may be in the shop at Whitsunday, at a valuation of two men, you choose one and me another, with the full understanding that you do not add anything to it but I what is necessary for carrying on the grocery department. John Swan.”

The pursuer answered—“Dear Sir,—I agree to accept you as the purchaser of my stock-in-trade, and promise to add nothing to its extension, except what is required for the grocery department;

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but, at a future date, there must be a proper agreement drawn out, witnessed and signed in due form on both sides, relative to entire settlement.”

This minute of reference was afterwards entered into—“I, Sarah Steel, draper and grocer in Mid-Calder, on the one part, and I, John Swan, tailor, Mid-Calder, on the other part, do hereby agree to refer the valuation of the drapery and grocery goods in the shop at Mid-Calder, presently occupied by the first-named party, to the decision of Mr Robert Mochrie, Dundas Street, Edinburgh, and Mr John Mungle, merchant, West Calder. and, in the event of their not agreeing, with power to them to choose an oversman.—Dated at Mid-Calder, this 28th day of April 1868. Sarah Steel, John Swan.”

The arbiters accepted, and on 28th April,Mr Mochrie and Mr James Rodger, in room of Mr Mungle, made a valuation of the stock, fixing the total value at £187, 2s. 4Jd. The pursuer alleged that thereafter the inventory and valuation were delivered to the defender, who took delivery, but refused to pay the price.

The defender, on the other hand, alleged—“Upon the 28th of April the defender, who had not been present at the inspection by Mr Mochrie and Mr Rodgers, received the keys of the shop from the pursuer, he being in the belief that the valuation had been properly and validly completed. On going to the shop he discovered that the quantity of goods in the shop was very much greater than it had been when he had agreed to purchase the stock. While in the shop, the defender, for the first time, ascertained that Mr Mochrie and Mr Rodgers had not made any examination by weight and measure, but had only fixed the prices at a certain rate per yard or per pound according to quality and condition. Whenever the defender ascertained this he at once relocked the shop, and returned the keys to the pursuer. The defender did not interfere with the stock in any way, and has never been in the shop since.”

After this action was raised the goods were sold under judicial warrant for between £80 and £90.

A proof was taken. The pursuer and her sister deponed that shortly before the valuation they measured all the drapery goods and weighed all the grocery goods in the shop, correctly, marking the goods accordingly. The pursuer deponed further that Swan had stated that he was not satisfied with the valuation, without assigning a reason. Mr Mochrie deponed—“In the case of such valuations it is not customary for the valuators to weigh or measure the goods. They take the weights and measurements from the tickets, and merely fix the values that are to be put upon the goods. We found tickets on the goods indicating the quantities. They seemed to have been brought up to date. I understood the goods had been measured the day before. I have valued many stocks, and have always done it in this way. We tested some of the measurements and found them to be correct. There was one piece that I thought rather short, but on being measured it turned out full length. When the purchaser enters the shop and takes possession of the goods, he is quite entitled to measure and weigh them to see if the quantities given in the valuation are correct. The practice is, to allow about a day for checking the quantities.”

Mr William Maxwell deponed—“I am one of the partners of the firm of Kennington & Jenner, drapers, Edinburgh. I have had considerable experience in valuing drapery stocks to be taken over by one shopkeeper from another. In these cases the valuator does not measure the goods. The duty of the valuator, however, depends a good deal upon circumstances. Generally he sends his own men or women previously to measure the goods, and the valuator on the other side does the same: and then, when the valuation is made, they take these measurements as correct. In the case of small stocks, the measurements might be done by the parties themselves, but, as a general rule, that is not the practice. The valuator merely puts a value upon the articles after they have been counted or measured. Heis bound to sign his inventory, and that becomes a sort of guarantee to the buyer that the stock is correctly valued.”

Mr Shepherd, of M'Nab & Shepherd, drapers, gave similar evidence, stating, however, that it was not his practice to sign the inventory, never being asked to do so.

Mr William Lyon, of Lyon & Turnbull, auctioneers, gave similar evidence.

Mr Brownlee, auctioneerin Mid-Calder, and landlord of the shop in question, on the other hand, deponed—“I had had some conversation with Mr Rodgers about the valuation before I proposed that we should go to the shop. I asked him, ‘Have you weighed and measured all the articles?’ and he said, ‘No.’ I said, ‘That is surely a curious way of doing; I should like to go in and see what you have done.’ I was quite astonished to hear that two valuators had made a valuation without weighing and measuring; I never heard of such a thing before. I would not have done it as an appraiser. When we went to the shop I opened out two or three of the webs, and found there were remnants inside in the rolls of cloth. I think I only opened three or four, and in two I found remnants—in one of 4 yards, and in the other 3J yards, or something like that. One of these pieces was marked 17 yards, and there were only 12J yards, the rest being remnants. That, in appraising, would make a considerable difference in value. Then there were pieces that had been lying in the window, and were very much soiled. I called Mr Rodger's attention to these things, and he said he supposed Mr Swan had examined the stock before, and that it was not his business to do so. Mr Rodgers indicated that he was not aware of these pieces being cut. I said to Mr Swan that I thought it was a very unfair valuation, and I recommended him to have nothing to do with the stock until the valuation was properly taken.”

The Lord Ordinary ( Bakcaple) pronounced this interlocutor:—“Finds that, in valuing the goods in the pursuer's shop under the contract of sale between her and the defender, in so far as the same fell to be disposed of by measurement or weight, the valuators only determined the price thereof per yard or per pound, or other integer of measurement or weight, and that the actual measurements and weights thereof were not ascertained by the valuators, or in any other way binding on the defender: Finds that the document, No. 7 of process, purporting to be a valuation of said goods, was, except as regards the calculations therein contained, dictated by the valuators to William Campbell, who was authorised by the parties to act as clerk in the said valuation, and was correctly taken down by him, and the calculations therein contained were thereafter correctly made by him, but the weights and measurements of said goods therein contained were so dictated by the valuators from tickets previously

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affixed thereto by the pursuer: Finds that the whole of said goods in the pursuer's shop have been sold by authority of the Court since this action was raised, without the measurements and weights thereof having been ascertained: Finds that, in these circumstances, the contract of sale of said goods entered into between the pursuer and defender was never fully completed, and cannot now be completed: Finds that the objection, that the measurements and weights of the goods were not ascertained, was not stated by the defender before the action was raised; and that he did state, both before the action was raised and afterwards on record, other objections rested on grounds which are entirely unsupported by the evidence: In these circumstances, assoilzies the defender from the conclusions of the libel, and decerns; and finds no expenses due to either party.”

The pursuer reclaimed.

Scott and Orphoot for reclaimer.

Macdonald for respondent.

The Court unanimously recalled the interlocutor of the Lord Ordinary, and gave judgment for the pursuer, holding that if there was any hardship in the case it was entirely due to the fault of the defender. It was clearly proved by the evidence of skilled witnesses that the valuators had done all they could be expected to do, and had followed the usual practice in such cases. If the defender was to object to the valuation, he should have done so betimes. He did not do so, and he even allowed the goods to be sold under judicial warrant, so that the measure and weight were now beyond ascertainment, without getting a new valuation. On such an informal reference it was absurd to expect a formal award, and even the signing of the inventory by the valuators seemed quite immaterial, provided they actually performed their duty of fixing the prices.