Scottish Court of Session Decisions

Observed by Lord President—A sale of oats for grinding purposes, or oil for food, as distinguished from burning, would be a sale for a particular purpose and imply warranty.

The pursuer is a seed merchant in Haddington,

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the defenders are seedsmen in Glasgow. In the beginning of 1807, or the end of 1866, the pursuer having a quantity of East Lothian Swede turnip seed for sale, offered a part of it to the defenders for sale, but at that time the offer was not accepted.

On 17th May 1867 the defenders sent the pursuer a memorandum in the following terms:—“You made an offer to us of East Lothian Swede turnip seed this season; if you still wish to find a buyer, let us have a sample, with lowest value, and say the season it was sowed. We do not promise to buy it, but will see.” On 17th May the pursuer in answer wrote—“I give you offer of two lots of East Lothian Swede, subject to your reply by return. Turnip seeds are now going up in price, and are sure to go farther, but having given you the offer before, and as I grow East Lothian Swede largely, I will, at this time, quote you low, which I hope will lead to further transactions. Fifty bushels East Lothian Swede, crop 1866, at 22s. 6d., or fifty bushels, crop 1865, at 22s., cash in two months. Both lots were grown in East Lothian, and are first-class stocks. I supply wholesale merchants in Edinburgh regularly with the same stock every year. Some of them to the extent of 150 bushels.” On May 25th the defenders wrote:—“We are in terms with another party about Swede turnip seed, but we have not closed yet, and before coming to terms, expected to have had samples of your seed, which have not yet come to hand. Mark the season on each lot in which they were sowed.” On 27th May the pursuer, in reply, wrote:—“I have now a little difficulty in giving you the offer of the seed, but if you attend to the undernoted, you may secure one of the lots. Enclosed you have the two samples, and if you accept the one lot or the other at the prices quoted, you must send telegram to-morrow, saying which lot you take.” The defenders did not answer on the following day, but on 31st May they wrote:—“If you have not parted with your Swede turnip seed yet, we will take one of the lots (50 bus.), and let it be the crop of 1866, if you have it. It should be cleaned a little better, as we observed some gravel amongst it. If the other sample was of the last crop, we would take it fully as readily, as it is a good sample and well dressed; whichever you send us, let us know of as soon as possible in confirmation of the purchase.” The pursuer on 1st June sent the defenders 50 bushels of the said East Lothian purple top Swede turnip seed, of crop 1866, in thirteen bags. These bags, which were also sold or delivered to defenders were of the price or value of 1s. 3d. each. The pursuer also sent the defenders an invoice of the seed and bags. On 13th August the defenders wrote,—“Very much against our desire, we have occasion to complain very much at the result in growth of the Swedish turnip seed we had of you, and which we could not entertain until we had given it repeated trials in our nurseries. The returns shew only 50 per cent., fully 8 per cent, of that low growth, weak. Having purchased the seed from you of crop 1866; and net seed, we concluded there must have been some error in our proofs, but find them as stated. We cannot, therefore, retain the seed, as it is evidently not of recent saving; and will thank you to give us directions how to place it on your account. We are glad the market value has advanced since we had the seed delivered, otherwise you might have had occasion to doubt our representations.”

The pursuer complained of the defenders' delay in keeping the seed if they were dissatisfied with it, but maintaining there was no cause for dissatisfaction. He stated that he had supplied many other merchants with lots of the same seed; and that they had made no complaint. A proof was led; and in it the defenders shewed that they had carried on a variety of tests, the returns of which shewed a low per centage of yield—about 50 per cent.—and they maintained that the delay was due to the time for carrying on these tests.

The Sheriff-Substitute ( Galbraith) assoilzied the defenders, and the Sheriff ( Glassford Bell) adhered in the following interlocutor:—

“ Glasgow, 15 th December 1869.—Having heard parties' procurators on the pursuer's appeal, and thereafter made avizandum with the proof, productions, and whole process: Finds, first, in point of fact, that the Swede turnip seed in question was sold by the pursuer, and delivered to the defenders on 1st June 1867; that before the sale was concluded a sample was exhibited, and the defenders were assured in writing by the pursuer that the seed was ‘first-class stock:’ Finds that, to constitute first class Swede turnip seed, it ought to have a germinating power of not less than from 85 to 90 per cent., but the quality of the seed cannot be discovered by merely looking at it, and it is impossible to ascertain the germinating power until it has been tried by sowing: Finds that, between the 1st June and 13th August following, the defenders tested the seed by sowing several small quantities of it taken from each of the bags in which it was contained, and the result was that its germinating power did not average more than from 60 to 65 per cent.: Finds that, on the last-mentioned date, the defenders wrote to the pursuer the the letter No. 5–7, intimating the inferior quality of the seed, declining to retain it, and asking what the pursuer wished should be done with it; and the pursuer, on the 14th August, wrote in answer the letter No. 5–8, in which he declined to consent to the sale being rescinded, and repeated his belief that the seed was of excellent quality: Finds, however, that the pursuer has not led any evidence to contradict the proof adduced by the defenders of the inferior quality of the seed, and he (the pursuer) does not now deny that its inferiority has been sufficiently established, although it would appear that other seed of the same stock had turned out better, and had given satisfaction to the parties to whom it had been sold: Finds, farther, although it is in evidence that four out of the thirteen bags in which the seed was forwarded got wet externally when in the hands of the carrier, there is no reason to believe that any loss of germinating power is attributable to that cause: Finds, second, in point of law, that the assurance given by the pursuer that the seed was ‘first-class stock’ may fairly be construed as an assurance that it was first-class quality; that, at all events, the terms of the contract were such as to make it incumbent on the pursuer to supply seed of a merchantable description, which the seed in question turned out not to be; that, although a sample was exhibited, the sale was not, in the proper sense, a sale by sample, in respect that the character of the seed could not be judged of by merely looking at the sample, and the rule caveat emptor does not therefore apply; that there was no such delay on the part of the defenders in testing the seed, and no such dealing with it or any part of it by re-sale, use, or otherwise, as to bar them from their right to cancel the contract, they having, as soon as the

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defect was discovered, given notice that they did cancel it;—Therefore adheres to the interlocutor appealed against, dismisses the appeal, and decerns.

“ Note.—The pursuer pleads that the seed was sold by sample, and that there is no evidence that it was inferior to sample. Effect might be given to this plea if the article sold had been of such a kind that its quality could have been ascertained by inspection of the sample, for then, as was held in Parkinson, May 20, 1802, 2 East, p. 813, the maxim would have applied caveat emptor. But there are many sales where, though sample is exhibited, such exhibition does not constitute a sale by sample. (See Story on Contracts, vol. ii. sec. 835; Benjamin on Sale, p. 482; and Story on Personal Property, sec. 376.) All that a buyer can ascertain by inspecting a sample of turnip seed is that it is well cleaned and pure; and if he were subsequently to object that the bulk were inferior in these respects, it would be a good answer that it was equal to sample. But when the defect is latent, and of that nature which the mere inspection of a sample would afford no means of discovering, the rule is caveat venditor, not caveat emptor, for even where there is no express warranty, if the seller knows the purpose for which the article is wanted, there is an implied warranty that it is reasonably fit and proper for that purpose (Ross' Leading Cases in Mercantile Law, vol. ii, p. 375). The pursuer pleads, farther, that it was the duty of the defenders to have tested the quality of the seed sooner than they did, and that they were barred by mora from rejecting it. The rule as to this is, that when the article sold is defective, the challenge must be made by the purchaser ‘without unreasonable delay,’ but what unreasonable delay is depends on the circumstances of the case. If the defective quality may be discovered at once, by an examination of the article, then, as was explained by the Lord Justice-Clerk (Hope) in Smart, June 23,1852, where seed was the article purchased, there must be no delay, the article being perishable, and capable of immediate examination. But, in the words of Mr Ross, ut supra, p. 845, ‘Where it is impossible to know absolutely whether the article is defective or not without a trial, the purchaser is entitled to make a trial of the article before returning it.’ Accordingly, in Hill, December 11, 1837, a dealer in grass seed was held liable in damages and repetition of the price for certain seed grown by himself, and sold by him at a good price, but which, from its bad quality, did not vegetate; and it was even held not to be a bar to the action that before sowing the seed the purchaser had observed it to have a bad colour and smell, and had not then returned it or intimated that circumstance to the seller. The Lord Justice-Clerk (Boyle) said, ‘I demur to the law laid down by the Sheriff that he should at once have sent the seed back. He had not tried it, and having paid a full price for it he might have been told he was not entitled to return it without trial. Neither can I hold the action barred by delay to bring it, for seed in particular seasons may be dormant, and the proper time to ascertain how it has sprung is when the crop is cut, and then the pursuer told the defender he would not stand to the bargain.’ See also, to the same effect, Baird, February 13, 1788, and Dickson, 15th December 1808, F. C., the rubric of which last case, as given by Ross, is—a seller is ‘liable for damages arising from latent defects in the article sold by him (Swedish turnip seed), although acting optima fide, and in ignorance of the existence of the defects.’ These cases are on all-fours with the present, and seem conclusive of the questions now raised, the seed having been challenged as soon as its latent inferiority was ascertained, and no more than a reasonable time having been taken for so ascertaining.”

The pursuer appealed.

Black and Campbell for him.

Shand and Balfour in answer.

The Court unanimously reversed the Sheriff's interlocutor. They held that the solution of the question was to be found in the construction of the letters in which the contract was embodied. By the contract, turnip seed of a certain kind, and grown in a certain place, was to be sent. The seed was of the kind specified, and it has been grown in East Lothian. It was to be of first-class stock, and by this it was evident, from the nature of the evidence and of the contract, seed of first-class pedigree or patronage, stock long grown and well known was meant, and not seed of first-class quality. Now, it was clearly proved that the seed precisely answered all these stipulations. And the complaint of the purchasers was that, having tested it, it did not yield as great a crop as they expected. But the tests did not seem reliable; some were in the open air, some in an atmosphere heated by a stove, some on wet flannel. The tests were made in many ways, and the seed yielded results up to 80 per cent. The tests were probably influenced by the way they were made, but there was no information how the seed turned out in actual growth. Under the contract it was plain the seller was not liable for any deficiency in the germinating power of the seed. As to warranty, that was now fixed by statute. By the 5th section of the Mercantile Law Amendment Act the risk was laid on the purchaser, unless he knew of bad quality in the article sold, or gave an express warranty. Here the seller gave no express warranty, and did not know of any defect in the quality of the seed. The question then was, Did this case fall within the exceptions provided in the Act? It clearly did not. There had been no express warranty, nor had the seed been sold for a particular purpose. Selling oats for seed as distinguished from grinding purposes, or oil for food and it proved only fit for burning, would be sale for a particular purpose, and would imply warrandice; but here the seed was sold for general purposes. The pursuer was therefore entitled to decree in terms of the libel.