Scottish Court of Session Decisions

The circumstances in this case were nearly the same as those in the preceding one. They differed however in these respects: On 22d May 1867 the defenders wrote the pursuer a letter in which they said—“Please say whether you know this seed to be of really first class stock and good growth. Perhaps you may be able to state the percentage of germination. Waiting favour of reply in course.” The pursuer wrote in reply—“ May 23, 1867.—Gentlemen, In answer to yours, the seed is first-class stock, the same stock having been grown regularly by father and son for the last thirty years. It is good growth; having been

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tried in earth about one month since, it grew 90 per cent. 150 bushels of the same seed was sold about two months ago and had no fault; it has been cleaned since, and will likely grow the same. In short, you may have all confidence in the seed.” On 28th June the defenders wrote expressing their dissatisfaction; and eventually in the course of the month rejected the seed.

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

“ Glasgow, December 10 th 1869.—Having heard parties' procurators on the pursuer's appeal, and thereafter made avizandum with the proof, productions, and whole process: Finds that, in reply to the pursuer's letter of 21st May 1867, offering to sell 50 bushels of East Lothian Purple Top Swede Turnip Seed, the defenders sent the pursuer, on 22d May, the letter No. 53, in which, before accepting the offer, they wrote, ‘Please say whether you know this seed to be of really first-class stock and good growth; perhaps you may be able to state the per centage of germination’: Finds that, in answer, the pursuer sent the defenders, on 23d May, the letter No. 54, in which he writes, “In answer to yours, the seed is first-class stock, the same stock having been grown regularly by father and son for the last thirty years; it is good growth, having been tried in earth about one month since, it grew 90 per cent. 150 bushels of the same seed were sold two months ago, and had no faults; it has been well cleaned since, and will likely grow the same; in short, you may have all confidence in the seed:” Finds that, although this may not be a warranty that the seed would grow 90 per cent., but only a representation that such growth was probable, it is substantially a warranty that the seed was of good growth, and it was under said warranty that the purchase was made: Finds it proved, that when the seed was tested it was found not to be of good growth, seeing that no such seed is, according to the established understanding of the trade, of good growth if it does not possess a germinating power of at least 85 per cent., whilst the seed in question shewed an average germinating power of only 63 per cent.: Finds that the defenders ascertained the quality of the seed by the proper and usual method of testing, within a month of its delivery, and as soon as they found that it was not a merchantable article, or, at all events, not the article intended to be bought, and not according to warranty, they intimated to the pursuer their rejection of it: Finds that there was no undue delay on the defenders' part in making this intimation, and the pursuer was bound to have taken back the seed: Therefore sustains the defences, adheres to the interlocutor appealed against, dismisses the appeal, and decerns.

Note.—There are four points in this case which support the defence: First, that it was expressly stated by the pursuer, and that in such a manner as to amount to a warranty, that the seed was of “good growth,” which means of full germinating power; second, that the deficiency in the seed was latent, and could not be discovered by merely looking at it; third, that on being tried, it was found not to be of good growth, or reasonably fit for the use for which it was sold; and fourth, that the trial was made, and the rescinding of the purchase was intimated without any unreasonable delay. When all these elements combine, goods to which they are applicable cannot be forced upon the buyer.—See Parson on Contracts, vol. i, p. 592; Story on the Law of Personal Property, p. 456; and Benjamin on Sale, p. 488. See also Dickson v. Kincaid, Dec. 15, 1808, F.C. It may be right to add that, although the interlocutor sheets instruct that a judicial warrant was granted, pendente lite, to sell the seed, it appears from the statement of parties that no sale has taken place, and the pursuer is consequently entitled to have the seed returned to him.”

The pursuer appealed.

Black and Campbell for him.

Shand and Balfour in answer.

The Court unanimously reversed the Sheriff's interlocutor upon the same grounds as in the proceeding case.

The statement by the pursuer of the germinating power of the seed was in answer to a question, and it was only a statement of what it had yielded to his experiments. No others of those who had received the seed had complained, though there had been a great many purchasers. There had been in this case less delay in complaining of the seed. The same judgment, however, ought to be pronounced. The Court commented upon the peculiar fact that the Mercantile Law Amendment Act did not seem to have been pleaded in the Sheriff-Court, and that decision had been given irrespective of it.