Scottish Court of Session Decisions

Lord President—This is not a contract of sale, but a contract of a composite character. It is a mixture of sale and agency. The parties to it had each an object in view. The respondents selected the appellants, as an old-established firm in Glasgow, to sell for them. The appellants, on the other hand, as godfathers to the machines, stipulated—“if we are to have the sale, we must have the character of being the only firm selling them.” It is not therefore, a contract of sale. The appellants were to have 33 per cent, on the sale, which is almost a contract of agency. But then, it differs from it in this respect, that they were to take the risk of the sale. It is said that after the hundred machines were sold, the contract was to cease. But whether or no this be true, makes little difference—the contract is still the same. So long as the hundred machines were with them, they alone were to he able to sell. But, on the other hand, might they lock them up ? Surely not. Of course this, like many other things, is not expressed in the memorandum. But I think they were bound to push the sale. Mr Wilson says—“The inducement held out by the defenders to us, to give them the sole agency in Glasgow, was that they promised to put the machines into the hands of their travellers, advertise them largely, and make them a prominent article for sale. In consequence of this we abstained from advertising, or in any other way pushing the sale of the machines in any part of this country.” There was no stipulated time when the machines were to be delivered, hut there was an interest on both sides that delivery should he made as early as possible. Mr Wilson, it is alleged, was four weeks in Glasgow, and yet made no delivery of the machines. Of this the appellants justly complain. But then, they unjustifiably say—“You are breaking the contract; you are selling to all and sundry.” This assertion was unfounded. Several witnesses expressly state that when they called at the Glasgow agency of the respondents to get machines, they were directed to apply to the appellants, who alone had right to sell them; and that the machines exhibited in the window were there only as samples, and for ”ale to country purchasers.

Yet the appellants broke up the contract and refused to accept delivery of the goods. If this had been a contract of sale, all the respondents had to do would have been to sell the machines at once and claim the difference from the appellants. But, as I have said, this is not a contract of sale. The claim is of the loss arising to the respondents from the appellants, as parties to this contract, not getting the machines pushed in the Glasgow market. It was, we are informed by witnesses, a good opportunity for their sale; and the only machines that were sold were well thought of by the purchasers.

In consequence of the appellants' action in this matter the respondents lost the Glasgow custom they thought they had secured under the contract. There was no loss on the hundred machines. They were actually sold for a higher sum than the appellants were to have paid for them. But Mr Wilson tells us, in consequence of the loss of the Glasgow market, they were left at Christmas with an extra supply of machines in hand, to the extent of 200 ; and that in consequence, they, in December, reduced their production of machines by 10 per week.

The only question, then, I think, is what is the amount of damages to be paid. The Sheriff assesses it at £25. Had this been a jury case, and I been requested to withdraw the case from the jury, I should not have done so. They might quite probably have given £25 ; and if they had, I do not think your Lordships would have been for setting aside their verdict. I am, therefore, for adhering to the Sheriff's interlocutor.

The other Judges concurred.