Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Glasgow. The action in the Court below was brought by Messrs J. & R. Williamson, wine and spirit merchants in Glasgow, against Messrs Allan & Poynter, warehouse-keepers there. And the question was whether the defenders were liable for the price of a puncheon of whisky belonging to the pursuers which had been lost while stored in the defenders’ bonded warehouse through the bursting of its hoops. It appeared that the cask had been warehoused in the year 1859; and the accident took place in the month of January 1869. The pursuers alleged that the defenders had failed to use due diligence for the preservation of the cask, inasmuch as they had not in their warehouse a satisfactory system of inspection. The defenders, while admitting that, as warehouse-keepers, they were liable in due and common diligence, maintained that, in point of fact, such diligence had been exercised, and that the cask in question had been examined from time to time in a manner which was reasonable and according to the custom of the trade.

The Sheriff-substitute ( Galbraith) , after a proof, pronounced the following interlocutor:—“Finds that this action is raised for delivery of a puncheon of spirits described in the summons, and said to have been stored with the defenders on or about the 2d day of October 1859; Finds that the defence is an admission of the receipt of a puncheon by the defenders as storekeepers, and an explanation that the puncheon burst in the defenders’ stores

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from the opening, without their fault, of certain of the hoops which had decayed, or from some other defect in the cask; finds in fact, first, that on the pleadings and on the proof the parties are at one as to the material facts, and that the principal issue raised is whether the defenders did their duty as storekeepers in seeing to the state of the cask, and whether their failure duly to examine the cask in question led to the loss. Second, that the defenders did do all that was fairly exigible from them, in respect it is proved that the whole casks in their extensive stores were regularly and carefully examined. Third, that the puncheon burst from natural decay of the hoops, and that there is in process no evidence whatever to connect the defenders with this decay. Fourth, that there is evidence in process that, without fault of the storekeeper, such a tiling may happen as the bursting of a puncheon: Finds that witnesses have been examined as to the duties and obligations of storekeepers to attend to and protect goods intrusted to their charge, but the Sheriff-substitute, although he took that evidence, is clearly of opinion that the Court alone can judge in that matter, and, in the absence of evidence of carelessness on the defenders’ part, he cannot hold them blameworthy; Therefore assoilzies the defenders from the conclusions of the summons: Finds the pursuers liable to the defenders in expenses, allows an account thereof to be lodged, and remits the same when lodged to the auditor of court to tax and report, and decerns.”

On appeal, the Sheriff-Principal ( Bell) altered, and pronounced the following interlocutor:—“Recalls the interlocutor appealed against: Finds that storekeepers are bound to exercise ‘due and common diligence ’ for the preservation of goods stored with them for hire (see Cailiff, Peakes King Bench Kept. p. 155): Finds that the question raised by this action is whether the defenders exercised as storekeepers such diligence in regard to the puncheon of whisky referred to in the summons: Finds that the said puncheon was put into the defenders’ stores by the pursuers so far back as October 1859: Finds that it rested on an asphalted floor, and it had lain in the same place for two years previous to the 4th January last: Finds that it was then discovered that three iron hoops which were nearest the farthest off end of the puncheon had given way,' and that the whole contents had in consequence leaked out and were lost: Finds that the break in the hoops took place in the part which was immediately under the puncheon, and the whole three hoops were at the time much rusted, and especially at the parts where the break occurred: Finds that the person kept by the defender to look after the goods in store is not a cooper, and he admits that he had not moved or turned the puncheon, or looked under it, or done anything to the hoops for at least two years before the burst, and farther, that although the defenders are in the habit of employing a cooper when they require one, he is not aware that any cooperage was done upon the puncheon during the nine years and two months it was in the defenders’ store: Finds it proved that the breaking of the hoops is attributable to their weakness caused by rust, and that the lower part of hoops, being that on which the cask rests, naturally rusts more than any other: Finds that the witnesses John Stewart junior and James Watt M'Gregor, both coopers, after inspecting the puncheon and hoops, made the report No. 12/1, in which they say, inter alia, ‘It is our opinion the loss of whisky has occurred by the springing of the end and the two next hoops through their weakness from rust, and that the cask while in store has not had the necessary renewal of hoops which such a lengthened storage would demand:’ Finds that in their evidence in causa these witnesses further depone that ‘the hoops were very much corroded, and if the corroded parts had been looked at, any skilled person would have seen that they were deficient; and M'Gregor adds, ‘if the cask had been examined periodically the defect in the hoops would have been discovered.’ … ‘It is not necessary to take a hoop off to see that it is defective, that is, if the hoop be properly inspected, By stooping, the hoops of casks even on the floor could be examined;’ Finds that the defenders’ own witness, Alexander Hill Stewart, cooper, says, ‘Had I been called on as a cooper to inspect the puncheon I certainly would not have been satisfied with looking at the top of it merely and another of the defender's witnesses, James Fleming, bonded storekeeper, depones, ‘Where a cask lies for a number of years in a store the hoops are apt to get rusty, and in such a case, if they appear to be very rusty and of doubtful strength, it would be the duty of the storekeeper to let the owner know:’ Finds that it is the custom of all storekeepers who receive into their stores for any length of time casks and puncheons of wine and spirits either to keep a cooper to look after them or to employ one periodically to inspect them: Finds that the defenders were aware of this custom, and at least occasionally acted in conformity with it: Finds that John Williamson, one of the pursuers, depones, ‘I have been regularly charged for cooperage of cask, but was never consulted about the work to be done before it was done. I paid the accounts for the cooperage as regular charges. I have done so to the defenders, and I have paid them and other extra charges even when the casks have not lain so long as the puncheon in question:’ Finds that said pursuer, in corroboration of this statement, produced the defenders’ discharged account, No. 12/2, in which there is a charge of 4s. lid. for cooperage on one of the pursuers; casks: Finds that, in the above circumstances, the defenders did not exercise due and common diligence as storekeepers as regards the puncheon in question, in respect that they did not inspect said puncheon with sufficient attention to observe the injurious and perfectly patent effects of time and rust on the iron hoops, and that they neither intimated their precarious condition to the pursuers nor did anything to guard against the probable consequences of their insufficiency: Therefore repels the defences, and seeing that the value of the lost contents of the puncheon is not disputed, decerns against the defenders in terms of the alternative conclusions of the summons: Finds them also liable in expenses, allows an account thereof to be given in, and remits the same to the auditor of court to tax and report.

“ Note.—It is not without some hesitation that the Sheriff differs so materially from the Sheriff-substitute in the view he takes of this case. He has set forth as clearly as he can the grounds on which he so differs in the preceding interlocutor, but he thinks it right to add here that this seems on the whole to be a case in which there is room for an extrajudicial compromise, by which, instead of throwing more money away in litigation, the loss which has been sustained shall be made to fall not exclusively on either party.”

The defenders appealed.

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Watson and Maclean for them

Shard ( Solicitor-General with him) in answer.

At advising—