Scottish Court of Session Decisions

The summons in this suit, at the instance of John & Henry Gwynne, hydraulic and mechanical engineers, London, against John Walker & Co., sugar refiners, Glasgow, concluded for payment of £125, with interest, being the agreed on price of a locomotive boiler with tubes and fittings, which was made by the pursuers, and duly delivered to the defenders. The defence was, that the boiler being insufficient for the purpose for which it was intended, the defenders were entitled to reject it, and did timeously reject it.

After a proof, the Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 5 th June 1873.—The Lord Ordinary having heard the counsel for the parties, and having considered the closed record, proof, and process,—Assoilzies the defenders from the conclusions of the summons, and decerns: Finds the pursuers liable in expenses, of which allows an account to be given in, and remits the same when lodged to the Auditor to tax and to report.

Note.—The defenders are sugar-refiners in Greenock, where they carry on an extensive trade, refining about 1000 tons of sugar weekly. In refining sugar a large and continuous supply of cold water is required for the purpose of creating a vacuum, by condensing the steam which rises from the pans in which the sugar is boiled, and of thus enabling the manufacturer to boil the sugar at a low temperature. If the supply of cold water is not continuous, the temperature in the pans rises, the sugar becomes carbonised and discoloured, and its value in the market lessened. The quantity of water required by the defenders for condensing purposes is about 1000 gallons per minute, or 60,000 gallons an hour, and their daily work lasts about eighteen hours.

The defender Hugh William Walker depones that ‘an intermission of half a minute in the supply of water would raise the temperature and discolour the sugar.’

As the supply of such a large quantity of water from land sources was very costly, the defenders resolved to obtain an adequate supply by pumping t up from the sea, and they entered into a contract

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in November 1869 with Messrs Hastie, Kincaid, & Donald of Greenock for one of the pursuers' patent centrifugal pumping-engines. This engine was to be supplied with steam from one of the boilers in the defenders' works, with an available pressure of steam of about 40 lbs. By the contract between the pursuers and Messrs Hastie, Kincaid, & Donald, the pursuers undertook that their pumping-engine should be capable of discharging 60,000 gallons of sea-water per hour to a height of 52 feet, through 700 yards of 15-inch piping. The pursuers gave distinct directions that the suction—pipes, which were to be laid by another contractor, should have a gradual fall towards the river, that the sweeps or bends should be very easy and as few as possible, and that the joints should be carefully made.

The pipes were laid so as to discharge the water at a height of 62 feet, and not of 52 feet, as specified in the contract; and they were 750 yards in length, being 50 yards longer than was specified in the pursuers' contract. On the pursuers' pumping-engine being attached to these pipes, it proved insufficient to discharge the stipulated quantity at that height, or even at the height of 52 feet. On 22d August 1870 the pursuers wrote to Hastie, Kincaid, & Donald,—‘We are in receipt of your favour of 20th inst., and note that you cannot get the pump to work. You state that you cannot get more than 40 lbs. steam; but unless you can get 60 lbs. pressure, we are sure it will not work.’ The pursuer Mr John Gwynne thereafter visited the works, and on 24th October 1870 the pursuers again wrote Hastie, Kincaid, & Donald that they were not to blame, as there were ‘more horizontal pipes, more verticle lift, and not so much steam pressure as was arranged.’ As regards the steam pressure, the pursuers were in error, because Hastie, Kincaid, & Donald informed them by their letter of 5th November 1869, before ordering the pumping-engine, that ‘the available pressure would be about 40 lbs.’ The pursuers, in their said letter of 24th October 1870, then stated, ‘Our Mr J. Gwynne understood that there was 19 feet vertical suction, and 46 feet vertical discharge, total 65 feet, 13 feet more than was agreed; also that there was 820 yards of horizontal pipes, 120 yards more than specified. Although there is so much difference in our contract and what you expect us to do, still we do not wish to leave you in a difficulty, as we are most anxious to do everything in our power to make the pumping-engine give Messrs Walker & Co. satisfaction. We should strongly recommend Messrs Walker & Co. to put up a tubular boiler (locomotive), that would work up to 60 or 70 lbs. pressure, which would make the pumping-engine discharge 2000 gallons per minute if required.’ A considerable amount of correspondence passed thereafter between the parties, in which the pursuers, with good reason, blamed the pipes as not air-tight, and leaking, and in which they referred to one of their pumping-engines then in use at Chatham Dockyard. On 2d February 1871 Hastie, Kincaid, & Donald wrote to the pursuers that the defenders were ‘willing to keep the pump if some arrangement can be come to with regard to the additional cost of the boiler;’ and the pursuers, in answer, wrote referring to the leakage of the pipes, and stated that, ‘even with the defective laying of the pipes, we believe the engine and pump capable of doing the work we stated, could we get the proper pressure in the cylinder.’

Mr Hugh William Walker and the defenders' manager, Mr Mackenzie, thereafter went to London and met the pursuer Mr John Gwynne, and also saw the pursuers' pumping-engine and locomotive boiler in operation at Chatham. After Mr Walker's return to Greenock, the defenders entered into a contract with the pursuers for a locomotive boiler for the pump, at the price of £125, the condition of which (as stated in their letter to Hastie and Co., dated 22d February 1871, which was sent to the pursuers) is that ‘the pump gives full satisfaction, both as regards its economical working and as to the quantity of water thrown.’

The locomotive boiler thus ordered was thereafter fitted up in the defenders' works; and having been rejected by them on the ground that it was insufficient for the purpose for which it was ordered, the present action has been raised to obtain decree for £125 as the price thereof.

The Lord Ordinary is of opinion that it is proved that the locomotive boiler which was supplied by the pursuers in the circumstances above mentioned is insufficient to keep their pumping-engine working, so as to give a continuous supply of water to the defenders, for condensing purposes, in the stipulated quantity of 60,000 gallons per hour. After being in operation for about four hours, the fire-bars of such a boiler become choked with clinkers and ashes, which interfere so materially with the passage of air through the fire-bars as to render their removal necessary. If not removed the fire would not burn with sufficient intensity to keep up the requisite pressure of steam; and as the clinkers and ashes continued to accumulate, the heat of the fire and the pressure of steam would become less. Now, it is proved by a great number of witnesses thoroughly acquainted with locomotive boilers that the clinkers and ashes cannot be removed from the fire-box of such a boiler in less time than from twenty minutes to half an hour, during which time the furnace door is open. and that the pressure of steam in the boiler will fall during this cleaning to such an extent as to be insufficient to work the pumping-engine, and to make it keep up the continuous supply of water required by the defenders for condensing purposes. The pursuer Mr John Gwynne and his under-foreman, Manwaring, deponed that the fire-box of their locomotive boiler could be cleared of ashes and clinkers by a skilled stoker without losing the requisite pressure of steam, and that the pumping-engine could be kept working during the cleaning, so as to give the requisite supply of water continuously. But their evidence on this point stands alone, and it is completely disproved by the numerous and experienced witnesses adduced by the defenders. The Lord Ordinary does not think it necessary to refer in detail to the evidence of these witnesses. After carefully considering it, he considers that it is clearly proved that a locomotive boiler is wholly unfitted to keep up for more than about four hours such a pressure of steam as is required to make the pursuers' pumping-engine deliver the quantity of water for which the defenders stipulated. It is proved that the pumping-engine supplied by the pursuers at Chatham Dockyard required to be stopped every four hours for the purpose of cleaning the clinkers and ashes out of the fire-box of the locomotive boiler. The pursuers did not work the engine supplied to the defenders for more than three hours, a trial which was, the Lord Ordinary thinks, altogether insufficient; and

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the result of that short trial was, that the fire was getting dirty and the pressure of steam was falling towards its close.

Now, the pursuer Mr John Gwynne admits that he was aware that it was for the condensing purposes of a sugar-refinery that the defenders required 60,000 gallons of water an hour, and that a continuous supply of cold water is necessary for these purposes. He also admits that Mr Walker, at his interview with him, told him that they wanted a continuous supply. The boiler, for the price of which the pursuers now sue, is not of a kind or capacity which will, according to the evidence, enable their pumping-engine to deliver that quantity of water continuously. The Lord Ordinary considers that it is proved to be wholly insufficient for the defenders' purposes, and that with it the pumping-engine cannot fulfil the condition of the contract under which the boiler was, on the pursuers' recommendation, purchased, namely, to give full satisfaction as to the quantity of water thrown.

The pursuers maintain that the suction-pipes are not air-tight, and that the inefficiency of their pumping-engine is materially affected when this is the case. The pipes, as originally laid, were neither air nor water tight, as the joints were not made tight; but these pipes were all lifted, and were relaid in March 1872, and they were securely and efficiently joined by experienced pipe-layers. After being relaid, the sea end was plugged, and they were tested and found perfectly tight. This was immediately before the trials of the pursuers' boiler and pumping-engine in May 1872, so that these trials were not injuriously affected by the state of the pipes. The pipes were again tested on Monday the 26th of May last by skilled witnesses, who depone that they are, in their opinion, for all practical purposes, air and water tight. There was a loss of one ten-thousandth part of the water in the pipes in an hour. But that loss, these witnesses consider, may be accounted for by the water escaping at the valve at the sea end of the pipe, in consequence of sand or other foreign substance getting into it, which escape it is impossible to prevent in small quantity when the pump is not working. Farther, the insufficiency of the pursuers' boiler—which has been in the opinion of the Lord Ordinary proved—arises from its inability to keep up a constant pressure of steam sufficient to ensure delivery of the stipulated quantity of water for a longer period than four hours or thereby at a time, an inability occasioned by the necessity to clear the fire-box of clinkers and ashes after the fire has burned for that period. So that even with the most perfect pipes, and with no foreign substance interfering with the close fitting of the valve, the pursuers' boiler cannot fulfil the condition under which it was bought. The same remark applies also to the objection stated by the pursuers, that the delivery pipe is sixty-two feet above the water, instead of fifty-two feet, as mentioned in the contract for the pumping-engine, and that the pipes are fifty yards longer than those therein mentioned. The last objection is also met, the Lord Ordinary conceives, by the fact that this additional height and length were known to the pursuers when they entered into the contract for the boiler, and that in their letter of 24th October 1870, above quoted, in which a greater height and length were mentioned than actually exists, they recommended a locomotive boiler, which they stated would make their pumping-engine discharge 2000 gallons per minute if required.

Another objection urged by the defenders was. that the boiler and pumping-engine required two stokers and an engineman, and that they therefore did not fulfil the condition of the contract as to economical working. The Lord Ordinary is not satisfied that this objection is well founded: and he considers that the boiler and pumping-engine can be efficiently worked with one stoker and one engineman, which is the usual provision for a locomotive boiler and engine.”

The pursuers appealed.

At advising—