Scottish Court of Session Decisions

This was an action raised by John Walker against the Langdales Chemical Manure Company, for the purpose of recovering the price of 212 or thereby carcases of whales, sold by the pursuer, a farmer in Shetland, to the defenders, manure manufacturers in Newcastle, at the rate of 50s. per ton, payable on delivery at the defenders’ wharf. The carcases did not arrive there till two-and-a-half months after the date of the contract, and were then condemned and destroyed by the Local Board of Health, as being putrid and injurious to health. The pursuer also sought to be relieved of a claim against him for £40 by the owner of the “Mars,” the vessel in which the carcases were shipped, as the expense of destroying them, and of a further sum of £84 for demurrage. He pleaded—“(1) The defenders having purchased the carcases from the pursuer, and delivery having been tendered, the defenders are liable for the price thereof and they are also bound to relieve the pursuer of the claim made by the owner of the ‘Mars.’ (2) The defenders, in the circumstances, are justly due and addebted to the pursuer in the price of the whales’ carcases, and are bound to relieve the pursuer of the claim made against him for the expense of destroying the cargo, and for demurrage.”

The defenders pleaded, inter alia—“(1) The pursuer having failed timeously to deliver or tender delivery to the defenders, in terms of the contract, of the goods contracted for, in such condition as by the contract they ought to have been, he cannot maintain the present action. (2) Having regard to the time when and the condition in which the goods arrived in Newcastle, the defenders were not bound to accept delivery thereof under the contract.”

The Lord Ordinary pronounced the following interlocutor:—

“9 th April 1873—The Lord Ordinary having heard parties’ procurators, and considered the closed record, proof adduced, and whole process—Finds, as matter of fact—1st, That in the end of December 1871 a contract was entered into between the pursuer and the defenders, by which the pursuer undertook to deliver at the defenders’ wharf at Newcastle 212 or thereby carcases of whales, then lying at Uyea Sound, in Shetland, with heads, at the rate of 50s. per ton, to be paid on delivery; 2d, That upon the carcases arriving at Newcastle, which they did on the 7th of March 1872, they were in a putrid state, and unfit for being used in the manufacture of chemical manure; 3d, That when the condition of the cargo was made known to the Local Board of Health at Newcastle, proceedings were taken by them to prevent the

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cargo from being landed, and it was thereafter condemned and destroyed, at their instance, as a nuisance and injurious to health; 4th, That when the whale heads arrived at Newcastle in the end of March they were also in a putrid condition, and unfit for the purpose of manufacture: Finds, in these circumstances, in point of law—(1st), That as the pursuer, by the contract founded on, undertook to deliver the carcases in question at Newcastle, the property, until delivered, was at the risk of the pursuer; (2d), That the defenders were entitled to refuse to take delivery of the carcases in the condition in which they were when tendered to them for delivery; and (3d), That the pursuer failed to deliver the goods contracted for to the defenders in terms of the contract: Therefore assoilzies the defenders from the whole conclusions of the action, and decerns: Finds them 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.—(1) It is very clearly established by the evidence in this case that the contract in question was (1) to deliver at Newcastle, and also that this obligation was deliberately undertaken by the pursuer. Because, in the earlier communications which passed between him and the defenders relative to the contract, the carcases were offered at 30s. per ton, ‘free on board at Uyea;’ but upon being informed by the defenders that they could not arrange for a vessel to take delivery in Shetland, and requested to offer the carcases for delivery at Newcastle, the pursuer did so at 50s., instead of 30s. per ton, thereby stipulating for 20s. per ton more, with a view, it is presumed, to meet the expense of transit and some of the consequent risks.

(2) Such being the nature of the contract, it appears to the Lord Ordinary that the carcases, until delivery, were in law at the risk of the pursuer. It is so laid down by Erskine iii., 3. 7, and Prin. iii. 3, 3, in Bell's Coms., vol. i. p. 444; and it was so decided in the cases of Spence, 25th January 1807, Dict., p. 3153, and Milne, 1st Feb. 1809, F. C.

(3) In these circumstances, it is not necessary, in the view the Lord Ordinary takes of the case, as between the pursuer and the defenders, to inquire whether the condition of the cargo when the vessel arrived at Newcastle was occasioned by improper delays and mismanagement of the cargo during the voyage. These are questions which must, it is thought, be disposed of between the pursuer and the owners of the vessel in which the carcases were shipped; because the pursuer by his contract was hound to deliver at Newcastle; and if the carcases, when there tendered for delivery, were in such a condition as entitled the defenders to reject them, it is, in the opinion of the Lord Ordinary, of no moment whether that was caused by unnecessary delays and mismanagement on the part of the master of the vessel during the voyage, or arose from delays occasioned by stress of weather or other unavoidable causes. In the case of Milne, above referred to, the condition of the wheat which led to and was held to warrant its rejection, appears to have arisen not from any fault on the part of the seller or those employed by him, but simply from the wheat having become heated in the course of the voyage, and being in that state when tendered for delivery.

(4) As regards the condition of the carcases in question at the time of their arrival at Newcastle, it is, in the opinion of the Lord Ordinary, plain upon the evidence that they were then in an advanced state of decomposition—putrid, and unfit for disembarkation by any ordinary process. This is proved by the scientific witnesses examined, who saw the cargo, two of whom, viz., Dr Newton and Dr Hardcastle, inspected it on the 13th of March upon the employment of the defenders; and the other, Mr Pattinson, on the 14th, upon the employment of the pursuer, and whose evidence is fully more decided than that of the witnesses who inspected it for the defenders. The opinion of these witnesses is confirmed by that of the defenders’ foreman, who inspected it on Monday the 11th; of the Inspector of Nuisances, who superintended its removal; and of the parties engaged under him in carrying out his directions. And this body of evidence from parties who saw the cargo is, in the opinion of the Lord Ordinary, more to be relied on upon a practical question of this description than the opinion of a scientific man even of the high position of Dr Stevenson Macadam, who had not an opportunity of examining the cargo.

(5) This evidence, moreover, appears to the Lord Ordinary to be sufficient to show, not only that the carcases were not in a fit state to be landed, but also that they were not in a fit state to be manufactured into chemical manure, which was the purpose for which they had been bought. The defenders’ foreman is very distinct upon this point; and, while there is no contrary evidence, his opinion in that respect is corroborated by that of the managing director of the defenders, and by two other chemical manure manufacturers at Newcastle, who say that carcases in such a putrid condition were not a merchantable commodity, could not be worked up without endangering the lives of the workmen, and would not therefore be received info any of their works. And that this opinion is acted upon is borne out by the fact that another cargo of whales purchased by the defenders, which arrived some time before the one in question, and which, when landed at a distance from Newcastle, was found to be in a decomposed state, was buried there, and has not yet been used; and that it is in evidence that the defenders do not intend to use it for several years to come, or until the flesh and obnoxious matter have been absorbed, and nothing is left but the bones.

(6) It is strongly contended on the part of the pursuer that even if, in ordinary circumstances, the risk under a contract of this description lay with the seller till delivery, it had here been transferred, because of the defenders’ refusal to allow the pursuer to use the necessary quantity of carbolic acid for the preservation of the flesh. But the Lord Ordinary is unable to read the communications which passed between the parties in this light. For he does not think that there was any refusal on the part of the defenders to allow carbolic acid to be used. They no doubt seem to have hesitated at first, as they do not appear to have been aware of the precise effect it might have upon the whales as an article of manure. But when informed by the pursuer that the chemists he consulted said it would do no harm, they seem at once to have consented to the pursuer using as much as he might see it prudent to do.

Upon the whole matter, therefore, the Lord Ordinary has come to the conclusion that, as the

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pursuer was under a contract to deliver at Newcastle, and the cargo when it arrived there was not only unfit for use, but even for being landed with safety, the pursuer has failed to deliver in terms of the contract, and that he is not therefore entitled to recover against the defenders, in terms of the conclusions of the summons.”

The pursuers reclaimed.

Authorities— Jaffé v. Ritchie, 21 Dec. 1860, 23 D. 242; Hansen v. Craig, 4 Feb. 1859, 21 D. 432; Hutchison v. Henry & Corrie, 26 Nov. 1867, 6 Macph. 57; Bull v. Robinson, 10 Exch. 342; 24 L. J. Exch. 165.

At advising—