Scottish Court of Session Decisions

Special circumstances where the strict rule of law was held not to apply.

This was an action raised in the Sheriff Court of Renfrew by John M'Carter, marine store dealer, Glasgow, against Messrs Stewart & Mackenzie, paper-manufacturers there, for the price of various bales of “round ropes” alleged to have been delivered in the month of February 1876 to the defenders.

The defenders pleaded—“(1) The goods supplied in the month of February, charged for in the account annexed to the summons as ‘round ropes,’ not being of that class, but mixed material, of an inferior quality, the defenders are not bound to keep the same, or at least are not bound to pay more than a fair and reasonable price for same; and the fact of the defenders having taken delivery of the said goods cannot operate against them, seeing, that they used all practicable expedition in examining the large bales into which the said goods were packed, and acquainting the pursuer of the contents thereof, and offering to return the same, and that the said bales were so packed as to deceive or mislead the defenders as to the nature of their contents on such a casual examination as was possible on delivery being taken.”

The Sheriff-Substitute (Cowan) ordered a proof. It appeared that there had been a course of dealing between the parties of some duration, the goods being delivered at various times in various quantities. The Sheriff-Substitute thereafter held that the bales which were found to be of deficient quality were those delivered by the pursuer, and he so far found in favour of the defenders. The Sheriff, on appeal, finding that there was no doubt of the deficiency of the goods, and that they were those furnished by the pursuers, adhered, adding this note:

“Note.— … The consequence in law from these facts is, that the pursuer cannot recover payment for an article that, if ordered (about which there is contradictory evidence), was not the article said to have been ordered, unless the defenders have done something which barred them from stating this plea. The last article delivered was upon the 29th February, and the objection is stated on the 3d of March. There was no great delay there in stating the objection; but still it may be argued that each delivery during the month of February must be treated separately, and ought to have been examined at once. The Sheriff is not inclined to hold that there is any specialty in this particular trade which would free the purchaser from his obligation of immediate examination of the article purchased and immediate rejection. It may, no doubt, have been very inconvenient to examine bulky bales at the time of delivery, and before they were needed for manufacture. But this inconvenience is not a sufficient answer for delay in examination and rejection, unless there were specialties in the particular case; and there are such specialties. The bales were so made up that upon opening them the first thing presented was round rope; and any person inspecting would naturally conclude that the whole contents were of the same character and quality, and would not think it necessary to turn out the whole bale. But such was not the case. The round rope was only on the exterior shakings, and inferior materials were in the interior. Again, the delay in examination till the article came to be needed for manufacture was in accordance with the dealing and understanding between these parties. ‘And lastly, no damage or inconvenience has resulted to the pursuer from the delay.”

The pursuer appealed, and argued on the question of law that the defender was bound, on the authority of the cases of Chapman v. Couston, March 10, 1871, 9 Macph. 675, H. of L. 2 Law Rep., Scotch App. 250;

Page: 573↓

and M'Cormick & Co. v. Rittmeyer & Co., June 3, 1869, 7 Macph. 854, to examine the goods at once on receiving delivery, and if they were found deficient in quality to return them, giving immediate notice to the sellers.

At advising—