Scottish Court of Session Decisions

The following were the averments of the pursuer in this case:—“The defenders Millar & Young, in or about the month of August last, consigned, in name and for behoof of Devaux Frères & Cie., in the warehouse of the pursuer James Whyte, 13,021 pounds of yarn. Arrestments were on the 25th and 31st days of August last laid upon the said goods in the hands of the pursuer, in connection with an action at the instance of the defenders Millar & Young against the defenders Devaux Frères & Cie. The pursuer has frequently applied to each of the defenders to remove the goods from his custody and pay the store rent thereon. Said applications having always been refused, the present action has become necessary.”

The prayer of the action was for the Sheriff “to grant warrant of sale of 13,021 pounds of yarn, lodged in the pursuer's warehouse by the said Millar & Young, for behoof of the said Devaux Frères & Cie., in or about the month of August last, and that by public roup or otherwise, as the Court may ordain; the proceeds of sale, under deduction of warehouse rent, and all other claims incurred or to be incurred by the pursuer on account of the said goods, and of the expenses of this process, to be consigned in the hands of the Clerk of Court or otherwise.”

Devaux Frères & Cie. admitted that the yarn was stored in their name, but they denied that this was done on their behalf. They explained that they had no interest in the yarn, and stated that they were about to raise an action against Millar & Young for the price. But neither they nor Millar & Young objected to the yarn being

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removed to another store, provided that the removal did not invalidate the arrestments.

The pursuer pleaded—“The defenders having refused to remove their goods from his premises, the pursuer is entitled to decree of sale.”

Millar & Young pleaded—“The pursuer having knowingly received the yarn into store, he is not entitled now to force a sale thereof.”

Devaux Frères & Cie. pleaded—“The defenders Devaux Frères & Cie. having no interest in the yarns in question, this application, so far as they are concerned, is unnecessary, and they cannot be prejudiced by it.”

The Sheriff-Substitute ( Erskine Murray) pronounced this interlocutor—“Finds (1) that the defenders Millar & Young, yarn merchants, Glasgow, having ordered from the defenders Devaux Frères, manufacturers, Belgium, certain yarns, they were forwarded to this country, when Millar & Young, considering them not to be according to order, stored them with pursuer James Whyte, storeman, Glasgow, in name of Devaux Frères, wrote to Devaux Frères rejecting them, and raised an action against them in the Court of Session, on which they arrested the yarns in pursuer's hands: Finds (2) that pursuer, finding that the yarns are inflammable, and that questions arise with his insurers regarding them, has called upon the defenders to remove the yarns, which they refuse to do: Finds (3) that thereupon pursuer has raised this action to have the yarns sold, and the balance, after deducting charges, consigned in Court: Finds (4) that defenders Millar & Young urge that he ought to remove the yarns to another store, to be stored in his name, which he declines to do; while Devaux, though putting in a defence that they have nothing to do with the matter, have not appeared further: Finds (5) that for the purposes of the case between defenders it seems proper that a fair sample be taken from the yarn to be preserved, and that this can be done without prejudice to parties' rights: Finds on the whole case and in law, that in the circumstances pursuer is not bound to retain the yarns, or to remove them at his expense and keep them in another store in his own name, and that he is entitled to warrant of sale as craved: Therefore grants warrant to Mr H. S. Macpherson, yarn merchant, Glasgow, to sell to the best advantage (except as after provided) the yarns in question; and ordains him to consign the proceeds of sale in the hands of the Clerk of Court within fourteen days after the sale, after deduction of warehouse rent, expenses of sale, and expenses of process, said proceeds to be consigned as a surrogatum for the yarns in question, and subject to any legal nexus laid upon the yarns in question by the arrestment of parties Millar & Young: Further, grants warrant to Mr Macpherson to inspect the yarns in question, and draw therefrom fair samples to the extent of one hundred pounds (100 lbs.), and store the same for the purposes of the case between Millar & Young and Devaux Frères, said selection to take place within six days, and the sale not to take place till after said inspection and selection: Remits the accounts of expenses to the Auditor of Court to tax and report, and decerns; reserving to pronounce further.”

The Sheriff ( Clark) adhered, adding this note—“The question here is, Is the pursuer bound to keep the goods for any time longer than he chooses to do so? I do not think he is. He has not undertaken to keep them for any specified period, and apparently for good reasons he now wishes to be relieved of their custody and to be paid his claim for storage. With this view he has required the defenders to take away their goods. This they have refused to do—in point of fact they refused to do anything. The pursuer has accordingly asked the Court to have the goods sold, the only alternative that remained to him. He seems fully entitled to this remedy; the sampling is a concession in favour of the defenders. I do not see that the Sheriff-Substitute could well have pronounced any other interlocutor than he has done.”

The defenders Millar & Young appealed, and argued—The contract being one without stipulation as to time, was for the safe custody of the goods as long as the person placing them in the warehouse chose and paid the rent.

Devaux Frères & Cie. (who alone appeared) argued—Such a doctrine would be a most inequitable one, and impossible to carry out. It would put a practical stop to the utility of warehouses if the warehouseman must either stipulate for a definite period of deposit or be liable to retain the goods for an indefinitely long period, no matter what changes of circumstances might take place in his condition.