Scottish Court of Session Decisions

This was an action at the instance of Manus Boyle of Dungloe, Ireland, against F. H. Hughes, manufacturing chemist at Borrowstounness, to recover the sum of £329, 15s. 10d., being the balance due for kelp supplied to the defender.

The parties have had several previous dealings in kelp, and in 1868 Boyle supplied Hughes with a cargo of kelp per a vessel called the “Flora Kelso.” By letters dated in March and July 1868, the pursuer agreed to furnish to the defender cargoes of “such kelp as you supplied per ‘ Flora Kelso ’ last year,” at the price of £6, 14s. per ton of 21 cwts., to be delivered at Borrowstounness. Accordingly the kelp was delivered and certain sums paid to account of the price, and the present action is for the purpose of recovering the balance due.

The defence was that the kelp was disconform to order, and was of no value to the defender, in respect that it did not contain a sufficient percentage of iodine.

The defender alleged, “in point of fact, the kelp sent by the pursuer in August and September 1869 by the ‘Albion,’ ‘Flora Kelso,’ and ‘Ada,’ was entirely disconform to contract, and was not nearly equal in quality to that sent by the ‘Flora Kelso’ in 1868, as stipulated for. The value to the defender, as already explained, consists in the iodine yielded. The kelp per ‘Flora Kelso’ of 1868 yielded 20J lbs. of iodine per ton of 20 cwts., whereas the kelp above mentioned sent in 1869 yielded only, as shewn by analysis, as follows:—“

Kelp, per ‘ Albion,’	10–67 lbs.
Do. per ‘ Flora Kelso,’of 1869	12–29“
Do. per ‘ Ada,’	8–93“

thus yielding on an average only one-half the amount of iodine yielded by the sample or pattern

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cargo. The kelp so sent in 1869 was only worth at the utmost from £4 to £5 per ton.”

The Lord Ordinary (Mure) allowed a proof, and thereafter pronounced this interlocutor and note:—6 th April 1870.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and productions, Finds that in or about the months of March and June and July 1869 contracts were entered into between the pursuer and defender, under which the pursuer undertook to supply the defender, at the rate of £6,14s. per ton of 21 cwt., with about 300 tons of kelp, of the same kind and quality as that which he had supplied to the defender by the ship ‘ Flora Kelso ’ in June 1868: Finds that in the months of August and September 1869 about 307 tons of kelp were delivered by the pursuer to the defender as in fulfilment of the above contract; and that the said kelp was on arrival rejected by the defender, as being disconform to contract, and is now lying in the stores of the defender, at the risk of the pursuer: Finds that the pursuer has failed to prove that the kelp so delivered to the defender was of the same kind and quality as that supplied by the ‘ Flora Kelso ’ in 1868; and that the defender was warranted in rejecting the said kelp as not being of the stipulated quality: Therefore assoilzies the defender from the conclusions of the action, and decerns: Finds him entitled to expenses, of which appoints an account to be given in, and remits the same when lodged to the Auditor to tax and report.

“ Note.—The terms of the contract entered into between the pursuer and the defender relative to the kelp in question are clearly expressed in the correspondence which passed between the parties, in which it was conditioned, and agreed to on the part of the pursuer, that the kelp was to be of the same quality as that ‘ sent per “Flora Kelso” last year.’ So that the main question raised for decision is, whether the kelp supplied under these contracts was of the stipulated quality?

That the cargo of kelp per ‘ Flora Kelso,’ purchased by the defender from the pursuer in 1868, was believed at the time to be, and was of a very superior quality, cannot, it is thought, admit of any serious dispute. In the letter of the pursuer announcing its shipment in June 1868, lie describes it as ‘ about the best kelp ever left county Donegal;’ and it is spoken of in similar terms by the servants of the defender. From the analysis, again, which was made of it by the defender himself on its arrival on the 1st of July 1868, it appears to have contained upwards of 20 lbs. of iodine per ton of 20 cwts., or about 21 lb per ton of 21 cwts. This analysis was entered at the time in a book kept by the defender for that particular purpose, which contains the analysis of all purchases of kelp made through a long series of years; and as the analysis shews a yield of iodine corresponding to the character given by the pursuer of the kelp when shipped, there seems no reason to doubt its general accuracy.

The fact that the kelp yielded a very large quantity of iodine was made known to the pursuer in the autumn of 1868, when the defender was settling his account for the kelp purchased during that year, the other portions of which had turned out to be inferior in quality to that sent by the ‘Flora Kelso,’ and were paid for at a much lower rate. This was admitted in evidence by the pursuer, and although he says that he has no recollection of the analysis being read over to him from the book, the Lord Ordinary sees no reason to doubt that the account given of that matter by the defender and his principal clerk is correct.

It was in this knowledge, therefore, of the quality of the kelp thus supplied to the defender in 1868, and of the fact that iodine was the ingredient which the defender chiefly looked to for the purpose of his manufacture, inasmuch as the other kelp furnished by the pursuer to the defender in 1868 was found fault with because of the deficiency of the yield of iodine, that the pursuer undertook in 1869 to supply kelp of the same quality as that sent by the ‘ Flora Kelso.’

But the kelp supplied in 1869 appeared, upon being analysed, to be very inferior in quality to that sent by the ‘ Flora Kelso ’ in 1868, and, on the highest calculation, not to be capable of yielding more than 14–17 lbs. of iodine per 21 cwts. The analysis which brings out this result was made from a sample taken by the pursuer from the defender's stores, and which the defender says was a picked sample; but it is substantially confirmed by the analysis of other chemists, namely, Mr Mahony and Dr Wallace, who each of them found upwards of 13 lbs. of iodine per ton of 21 cwts. in samples taken from the same store. Holding 13 lbs. to 14 lbs. of iodine per 21 cwts. to be the average yield of the cargoes sent to the defender in 1869, —that is, at the rate of from 6 lbs. to 7 lbs. per ton less than the quantity obtained from the ‘ Flora Kelso’ kelp; and there is, therefore, a deficiency in quality sufficient, in the opinion of the Lord Ordinary, to entitle the defender to maintain that he has not received kelp of the stipulated quality.

Evidence has, however, been adduced with a view to show that the analysis made by the defender of the ‘ Flora Kelso ’ kelp in 1868 is not to be relied on; and, as against its accuracy, there is produced one made by Mr Tatlock of Glasgow of a sample of kelp sent to him by the pursuer in November 1869, which was found to contain only 12–70 lbs. of iodine per ton. This sample is said to have been part of one which was taken of the ‘ Flora Kelso ’ kelp in 1868, and kept by the pursuer in his office in Ireland, where it lay till November 1869. But there is no corroboration of the pursuer as to the manner in which this sample was kept, or as to where it was kept; and as it is not impossible that other materials may have been mixed with it during the eighteen months it lay in the shop, especially if any portion of it consisted of small or decomposed matter, the Lord Ordinary does not think that it would be safe to deal with it as being a proper sample of the ‘ Flora Kelso ’ kelp of 1868, or that the relatively small quantity of iodine contained in it can be accounted for by any supposed loss through exposure ; for Mr Tatlock says that if kept dry in a tea-chest, which the pursuer says it was, the loss would not be appreciable, and kelp which only yields 12–70 lbs. of iodine per ton of 21 cwts. would certainly not come up to the description given by the pursuer at the time of the kelp shipped by the ‘ Flora Kelso ’ in 1868.

The Lord Ordinary has therefore come to the conclusion that there is nothing proved on the part of the pursuer to discredit the general accuracy of the analysis made of that kelp by the defender on its arrival in 1868; while there are, on the other hand, circumstances connected with the manufacture

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of the kelp delivered in 1869—such as the comparatively late period of the year at which it was made, the difficulty there was in getting weed in the spring, the wetness of the weather, up at all events to the 22d of June 1869, and the character of the locality from which a considerable portion of it came—which are, in the opinion of the Lord Ordinary, of themselves sufficient in a great measure to account for its defective quality.”

The pursuer reclaimed.

Fraser and Black for him.

Shand and Maclean in answer.

The Court unanimously recalled the Lord Ordinary's interlocutor. There was no doubt a special warranty which the pursuer was bound to satisfy, but it was not to the effect that the kelp would contain the same percentage of iodine as that sent by the “Flora Kelso,” but that it should be of “the same kind and quality.” That stipulation was fulfilled when it was gathered on the same shore and treated in the same way as the former cargo. It had been proved that it would be impossible to find kelp which contained 20½lbs. of iodine per ton, as it was alleged by the defender the kelp of the “Flora Kelso” had done.

This result was obtained by the defender from an analysis, the principle of which he refused to explain, and therefore the presumption in favour of the difference of quality which would have existed if the analysis of the two cargoes had been properly conducted did not hold.