Scottish Court of Session Decisions

In this case the pursuers were A. B. Fleming & Company (Limited), chemical manufacturers, Granton, near Edinburgh, and the defenders were the Airdrie Iron Company, and Messrs Martin and Adamson, the partners of that firm. On 18th March 1880 the pursuers sent to the defenders a specification of certain stills and other cast-iron work for the supply of which the pursuers wished to have estimates. The specification bore that all the articles to be supplied were “to be first-class castings of Scotch iron of best quality, to be free from flaws or sand-cracks, all bottoms to be cast ‘bottom downwards.’” On 23d March the defenders offered to supply the articles conform to this specification. On 29th March the pursuers in part accepted this offer, and agreed to purchase from the defenders, inter alia, six large and four smaller stills, “the whole to be a good and satisfactory job to our Mr Irvine, and delivered at our works by 15th May 1880.” In point of fact the deliveries were not completed till September, but the pursuers took delivery and paid the price.

When the pursuers received the still which was first delivered in May 1880 they noticed what appeared to be certain flaws in it, with reference to which they wrote to the defenders intimating that if the flaws extended to the body of the metal they would reject the still and all others in the same condition. The defenders replied that they were thoroughly satisfied of the solidity of the still and its fitness for work. This still, and the two which followed it, broke down within three months after they had been put into use, and on the defenders denying liability the pursuers raised this action, in which they claimed damages, estimated at £680, being £180 as the value of the three stills, which they had to replace, and £500 for the loss of time during which their works were partially standing idle for want of the stills.

The pursuers averred—“In November 1880 certain defects, which had hitherto been latent, were discovered in two of the large still bottoms; and these still bottoms dropped down. It was then discovered that the castings for these two stills were defective and disconform to contract, that they were made of material altogether unsuited to the work contracted for, and were of defective moulding. The dropping down was occasioned by the defective construction of the stills. A third of the still bottoms supplied by the defenders under the foresaid contract broke down in the month of December 1880, and from the same causes. The breaking down of the castings was at once intimated to the defenders by the pursuers, who called upon them to replace the defective stills, but this the defenders refused to do.”

The defenders answered—“Believed to be true that certain of the still bottoms supplied by the defenders dropped or broke down after being in use for some time. Denied that this was caused by any fault on the part of the defenders, the work supplied being in every respect conform to the contract. If the stills failed through defects (which is denied), it was through such defects as were easily ascertainable, and ought to have been ascertained by the pursuers on delivery—-as were inherent in the specification. The defenders believe and aver that the failure of the stills was due to overheating, caused by the faulty erection and grossly unskilful or careless treatment of the stills by the pursuers.”

The pursuers pleaded—“(2) The still bottoms referred to having given way on account of defective materials and workmanship, and having been disconform to contract, the pursuers are entitled to be indemnified by the defenders for the loss they have sustained thereby. (3) The pursuers having suffered loss in the circumstances condescended upon, through the fault of the defenders or those for whom they are responsible, to the extent libelled, the pursuers are entitled to decree in terms of the conclusions of the summons, with expenses.”

The defenders pleaded—“(2) The work supplied by the defenders being in all respects conform to the contract, and any failure therein being caused by the pursuers' faulty erection or use of the stills, the defenders should be assoilzied. (3) The pursuers having accepted delivery of the articles supplied, and having used the same for a considerable time without objection, are barred from now rejecting them or claiming damages.”

After a proof, the import of which sufficiently appears from the note and opinions infra, the Lord Ordinary (Fraser) pronounced this interlocutor:—“Finds that the defenders in March 1880 agreed with the pursuers to furnish to the latter, inter alia, six large stills, to be made according to specification, to be first-class castings of Scotch iron of the best quality, and to be delivered at the pursuers' works on 15th May 1880: Finds that the stills were not delivered at the appointed day, but were only delivered in parcels in the months of June and July, and that in consequence of such delay the pursuers were subjected to much inconvenience: Finds that the stills were put in situ in the months of July and August, and were wrought from these months down to December, when one of the stills was found to be cracked, and leaked and became useless, and that in a week or two thereafter the other two stills cracked and likewise became useless: Finds that in February 1881 they were removed from their seats and broken up for the purpose of examining the material of which they were composed: Finds that the defenders were unable to procure other stills to supply the place of those stills that had been removed for a period of forty-four days, and were in consequence unable to turn out during that period the rosin oil in which they deal to the extent they otherwise would have been able to do, and thereby they suffered loss and damage: Finds that these stills which had become useless as aforesaid were composed of iron not suited for the purpose intended by the contracting parties, viz., stills requiring the application thereto of great heat: And further, finds that the workmanship was defective, and thus the stills furnished became useless through the fault of the defenders: Therefore finds in law that they are liable in damages: Assesses the same at £250.”

He added this note:—“The specification in this case provides that the articles were to be ‘first-class castings of Scotch iron of best quality,’ and the acceptance of the defenders' offer, dated 29th March 1880, adds this additional condition to the contract—‘The whole to be a good and

Page: 407↓

satisfactory job to our Mr Robert Irvine, and delivered at our works by 15th May 1880.’

“The time within which the articles were to be made and delivered was soon found by the defenders to be much too limited. From the correspondence produced, it appears that the pursuers kept pressing the defenders to have the work done within the contract time, they being very much in need of the stills; and, on the other hand, the defenders made very earnest appeals for an extension of the period, urging that they had put aside other profitable contracts in order to fulfil this one, were working night and day at the job, and paying heavy charges for overtime to their men. To this cause it is thought that a good deal of the failure of the defenders to supply a satisfactory article must be attributed. The defender Mr Adamson himself assigns it in some measure to this urgent haste for the completion of the work. That the defenders had too short time for the fulfilment of their contract was a misfortune to them, but it was no excuse. They entered into the bargain with their eyes open; and they were the best judges, as to whether or not they had capabilities sufficient to enable them to come up to time.

Three stills broke down altogether after being in use for three months. They became bagged and blistered, and all three were cracked—a result which the pursuers aver, and which the Lord Ordinary has found, to be the consequence of using iron unfitted for the purpose, and of hasty and defective workmanship. On the other hand, the defenders allege that the stills were not fairly treated, and that the explanation of the disaster was the overheating them in a way that no still could be expected to survive, and which maltreatment the defenders could not have anticipated when they entered into the contract.

It is proved that the furnace bars were 3 feet 6 inches from the still, and there is evidence on both sides as to whether this distance was what ought to have been adopted. The witnesses for the defenders maintain that there ought to have been a distance of 7 feet, so that the heat could not play upon the still with the same intensity as it must do when the distance is shorter. But the experience of the witnesses varies very much. Some of them never heard of the distance being so small as 3 feet 6 inches, and have found 5 and 6 feet even to be too short, and have been obliged, as Norman Henderson, the manager of the Brox-burn Oil-Works, states, to increase the distance to 7 feet. The same result of saving the still from the heat is obtained by Thomas Jeffrey, a partner of the Stanriff Oil Company, in another way. His stills are only 2 feet 3 inches from the fire bars, and stand very fairly; but then he protects the stills by a brick arch thrown over the fire, with holes therein, through which the heat may pass upwards. All this is met by evidence of an equal number of experts, of the same experience and respectability, who are of opinion that 3 feet 6 inches is not an unusual, and is a proper distance to adopt. There is a circumstance which in this conflict of evidence leads to a conclusion against the defenders. Besides the stills obtained from the defenders, there were at Granton, in the pursuers' works, nineteen other stills obtained from Hawthorn of Leith, which were set in the same way as were the defenders' stills, and were subjected to the same treatment at the hands of the same workmen, and all these stills have had an average life of three years, while the defenders' stills came to an end in three months. Further, the defender Mr Adamson himself had an opportunity before he made his offer of seeing the precise conditions on which his stills were to be wrought. He visited the pursuers' works, and saw the use to which the stills were to be applied, and he could then have ascertained what was the distance between the fire-bars and the stills, which were in operation at the time of his visit. He says that he was not asked to look at this; nor did he ask anything about it. Whose fault was that? If it was an essential matter, surely he who came to inspect the premises where his article was to be worked ought to have made himself acquainted with it. The whole works were thrown open to him; and the very fact that he did not make himself acquainted with this point indicates that at the time he considered it of no moment, seeing that he ascertained that Hawthorn's stills, which had been wrought in the works, had the usual average life of well-constructed articles.

There is, moreover, direct evidence that there was no maltreatment of the stills by overheating. The workmen employed to look after the stills when they were being wrought were all very positive on the point. But besides this, there is a material interest to be served in pre venting over-heating. When that takes place the oil from the rosin becomes gas, and hence a careful watch is put at the discharge pipe as to whether over-heating is taking place. It is only at the discharge pipe that this can be learned; and James Barclay, the watchman told off to perform this duty, says that when he noticed any over-heating he immediately took means by the use of the damper to check it.

Therefore the explanation of the failure of the defenders' stills must, if not attributable to the hasty execution of the job, be attributed to the material that they used. Here, again, there is the same conflict betwen the expert witnesses. Those for the pursuers say that the metal which was used, being No. 2 Langloan and No. 3 Gartsherrie, was not fitted for stills to which great heat must necessarily be applied, while the very reverse is testified to by the witnesses for the defenders. But some of these witnesses apparently do not trust entirely to stills composed of this mixture standing without some assistance. Mr Jeffrey, of the Stanriff Oil Company, as already stated, protects the still with a brick arch, and Mr Henderson, of the Broxburn Oil Company, when he orders stills, gets them of this mixture, but he always specifies that they shall be twice cast (which was not done by the defenders), the effect of which is to make the iron closer in the grain and harder. The preponderance of evidence is in favour of hard iron as a resister of heat, and this seems to be the explanation why Hawthorn's manufacture has stood so well. The specimen produced of a part of one of these is, according to the unanimous opinion of the witnesses, much harder and closer than the specimen part of the defenders' stills. Therefore the conclusion must be arrived at, that the defenders did not use the Scotch iron of the best quality—that is, of a quality fitted for the purpose, seeing that they did not use iron of a closer grain (like the Hawthorn's),

Page: 408↓

and this is proved by the different fates of the two stills.

“The defenders must therefore pay damages. According to the evidence the pursuers have been put to the following direct expenditure in consequence of the failure of the stills:—

Hawthorn's account for other stills:—	£98	6	6
Bricklayers' account	60	19	10
Time of the pursuers' men actually paid for	16	2	4
Tools and nuts supplied for the new work	2	10	0
	£177	18	8

“Besides this direct expenditure, the pursuers lost the profits from the work of three stills for forty-four days, which Mr Harris, the commercial director, estimates at a large sum, depending upon a number of hypotheses which cannot be adopted, and the Lord Ordinary thinks that justice will be done by assessing the whole damage at £250, keeping in view the fact that the pursuers did obtain three months' good work out of the stills they received from the defenders.”

The defenders reclaimed, and argued—The stills supplied were conform to contract. They were “first-class castings of Scotch iron of best quality.” That was not disputed. What was said was that they were unfit for the peculiar purposes of the pursuers' works. Now, there was not a word about these purposes in the contract. It might be that the defenders were bound to supply stills suited for the general purposes of stills. That might be implied from the terms of the contract. But the pursuers' methods involved the application of very great heat to the stills—and of this nothing was said. It was said that Hawthorn's stills stood the test. But the defenders when they undertook the contract were told nothing about Hawthorn's stills. Hawthorn might have been told something of the secrets of the pursuers' operations (which they refused to disclose at the proof), and thus be able to make the stills of a quality sufficient to withstand the chemical or other results which the pursuers' process of distilling caused in the stills. The pursuers said that by double running the iron or by the admixture of scrap-iron the stills would have been made suitable for the distillation of rosin. If that was the case the contract should have so stipulated. The defenders had complied with all that the contract required by supplying castings of the quality of iron specified, and fit for the ordinary purposes of stills. Further, the pursuers themselves had caused the injury to the stills by allowing them to be overheated. Lastly, if they intended to reject the stills they should have done so sooner. They were barred by delay.

Replied for pursuers—A person who contracts to supply an article for a particular purpose was held to warrant the article as fit for that purpose. The defenders had so contracted here, and had not fulfilled their contract. They knew (for one of their number had visited the works) exactly the purpose for which these stills were wanted—at least they might have known if they had asked. And Hawthorn's stills showed that suitable stills could easily be made. An express warranty—if “first-class castings,” &c., was an express warranty—did not exclude an implied warranty that the goods were fit for the purpose intended— Cooper & Aves v. Clydesdale Shipping Company; Bigge v. Parkinson. There was no evidence of overheating, and as to the delay in returning the stills, the pursuers were entitled to test them fairly before returning them.

Authorities— Baird v. Aitken, February 13, 1788, M. 14,243; Seaton v. Carmichael, January 28, 1680, M. 14,233; Jaffe v. Ritchie, December 21, 1860, 23 D. 242; Cooper & Aves v. Clydesdale Shipping Company, March 19,1863, 1 Macph. 677; Hutchinson & Company v. Henry & Corrie, Nov. 26, 1867, 6 Macph. 57; Pearce Brothers v. Irons, Feb. 25, 1869, 7 Macph. 571; Hardie v. Austin & M'Aslan, May 25, 1870, 8 Macph. 798; Hardie v. Smith, May 25, 1870, 42 Scot. Jur. 454; Hamilton v. Robertson, May 31, 1878, 5 R. 839; Couston, Thomson, & Company v. Chapman, July 19, 1872, 10 Macph. (H. of L.) 74, L.R. 2 Sc. App. 250; Bigge v. Parkinson, February 10, 1862, 7 Hurls, and Norm. 955, 31 L.J. Exch. 301; Bell's Comm. 5th ed. p. 438, 7th ed. p. 440.

At advising—