Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Lanarkshire in an action in which John Hinshaw & Co.,

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manufacturers in Glasgow, sued William Adam & Son, calendered, there, for the sum of £220 as the amount of damage done to certain lustre goods sent by the pursuers to the defenders to be finished, and said to have been returned in a damaged condition. The defence substantially was (1) that the process of finishing such goods as those in question was one of delicacy, and necessarily involving some risk, and that, in the presence of any proof of negligence on the defenders' part, the risk lay with the owners of the goods; (2) that the pursuers' claim was not made tempestive, and that the defenders were allowed to go on finishing the different parcels of goods in ignorance that any cause of complaint existed.

The Sheriff-Substitute ( Galbraith), after a proof, decerned against the defenders in terms of the libel. The following is his interlocutor:— ‘Having heard parties’ procurators, finds that this action is raised for payment of the sum of ‘£220 sterling, being the amount of damages and loss sustained by the pursuers through the defenders having, through want of due care, or due skill, or otherwise through defenders’ fault, destroyed or injured 132 pieces or thereby of lustre goods, being a portion of a larger lot or lots put by the pursuers into their hands for the purpose of being finished in the months of December 1805, and January, February, and March 1866; and which goods were returned by the defenders to the pursuers in a damaged condition, with interest’: Finds it pled in defence on the merits—the preliminary plea having been already disposed of—(1) that the pursuers had failed, ‘upon receipt of the goods, and in direct violation of the rule in the trade, to intimate to the defenders the claim now made by them ; and barred themselves from insisting upon it in the present action;’ (2) that ‘the defenders are not responsible for any damage done to the goods caused by imperfections in the cloth, or previous processes to which the goods or yarn from which the goods were made had been subjected;’ and (3) that the defenders are not responsible for any injury or damage in finishing arising from the quality of the goods not being able to bear the process of finishing required by the pursuers:’ Finds that the defenders have stated no plea as to their not having by their culpa damaged the goods in question, although they have averment to that effect, and that parties have joined issue and led proof on the footing that the defenders deny liability for the damage libelled: Finds, in fact, that the pursuers have instructed the facts averred in the summons: Finds the defenders' pleas untenable, for the reasons stated in the annexed note: Therefore decerns against the defenders in terms of the conclusions of the summons: Finds the defenders liable in expenses; allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report, and decerns.

Note—There is no doubt, on reading the proof, and considering the evidence of the witnesses Leek, Pattison, Sclanders, Parker, Hinshaw jun., and M'Farlane, and others, and taking their evidence on this branch of the case in connection with that of the witnesses adduced for the defence, that pieces of goods to the number and value as libelled were destroyed or damaged, to a greater or lesser extent, by the defenders in the course of the season 1865–66, when they were finishing those and other goods for the pursuers. The witnesses for the pursuers speak to the results, and the witnesses for the defenders, with slight exception, as to what the results should have been. The evidence on that branch of the case is nearly all on one side, but there remains to be considered the defenders' pleas—viz. (1) That the notice of the damage was not given in writing, according to custom; and (2),—and this was specially relied on in debate—that the process to which the goods were to be subjected was a most delicate process, and that the risk of injury lay with the pursuers. With respect to the first of these pleas, it is not proved that notice of damage must, by custom of trade, be given in writing, and even if those in the trade set up such a plea, the Sheriff-Substitute would have considerable hesitation in giving effect to such a custom. It is enough that notice is given in any form, and in this case notice of the damage is abundantly proved, and that from the very first. Then, with respect to the remaining plea, that the risk of the process was great, and lay with the pursuers, the defenders referred to Story on Bailment, sec. 432; Bell's Prin., sec. 132; Bell's Com., 5th ed. 1.460,and others, to the effect of showing that in law they were not bound to warrant the success of a delicate or exceptional operation. Withoutdisputing the weight of these authorities, the Sheriff-Substitute is of opinion that they have no application. The defenders undertook to do the work. They might have stopped if they had chosen, but at their own pleasure, and presumably for their own profit, they went on until the whole season's work was done. The pursuers told them what they wanted. The defenders undertook the work. They did not say ‘we cannot do it.’ They tried no doubt their best, but they failed. Another objection was brought up in the proof by the defenders to this effect—that the pursuers had not done their best by the goods, even in their damaged state. In law they were not bound to deal with the goods at all; but it is proved that the pursuers did sell the goods in the best market they could get, and—although the evidence on this point is conflicting—by authority of the defenders. There has been a very long proof led in this case, and a great deal of production made, quite properly, no doubt, in the view of the parties; but the Sheriff-Substitute thinks that he has, in the foregoing short judgment, stated all that is requisite, to his mind at least, for the decision of the case. The goods were sent out sound, except as admitted and allowed for, and were returned practically worthless.”

On appeal the Sheriff ( Glassfokd Bell) altered, and found that in the whole circumstances full effect could not be given to.the pleas of either party, and that the case was peculiarly one for an equitable adjustment, and therefore decerned for the sum of £86 as in full of the pursuers' claim.

Both parties appealed.

Millar, q.c., and Lancaster, for pursuers.

Watson and Balfour, for defenders.

Their Lordships held (1) that where an artificer is employed to do certain work, and undertakes to do it, prima facie he is liable for the injury he causes in the course of it, and that the defenders here had not discharged themselves by showing that there was any defect in the goods, or incapacity to sustain the process of finishing; (2) that upon the evidence there did not appear to have been a failure to give timeous notice of the damage so as to defeat the pursuers' claim; but (3) that the damage must he estimated as at the date when the goods were received from the defenders, and not at the date, long subsequent, when they were sold, and therefore that

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a considerable deduction must be made from the amount of the pursuers' claim. The pursuers were found entitled to their expenses, subject to deduction of one-fourth.