Scottish Court of Session Decisions

This was an appeal by Robert Sanderson against interlocutors of the Sheriff of the Lothians in cross actions between the appellant and the Straiton Oil Co. The appellant was a builder in Portobello, and had recently erected a double villa at Joppa, for which the Straiton Oil Co., the respondents, who were owners of a quarry, had supplied the stone. The respondents' action against the appellant was for the price of this stone; the appellant's action was for damages alleged to have been sustained by him in consequence of the inferior quality of some of the stone supplied to him.

The stone of the respondents' quarry at Straiton is of two kinds—“clean” rock and “black” rock. The latter rock is sold at the same price as the former, and is as suitable for building purposes in all respects except that in consequence of the presence in it of sulphate of iron it tends to become discoloured on exposure to weather. It is therefore unsuitable for the front of a villa. From the evidence led in these actions it appeared that where “clean” rock was specially ordered the company endeavoured to supply it, but that where there was a general order for building stone it was the practice simply to send the customer the “run of the quarry,” so that he might or might not have a large proportion of black rock in what was sent. On 6th January 1881 the appellant ordered from the company, for the villas which he was erecting at Joppa, 30 trucks of rubble and 500 feet ashlar, “all to be clean rock,” and on 11th January more clean rock was ordered by him. On 31st January he ordered a number of stones of specified dimensions, “all solid stones,” but he

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said in his order (which was a written order) nothing about “clean rock.” On 15th, 18th, and 24th February, and on 7th, 14th, 15th, and 16th March, other orders were sent for stones by the appellant, in which no mention of “clean” rock being required was made. On 19th April he again ordered “clean rock.” On the occasions on which “clean rock” was ordered he received it, but on the other occasions he received only the run of the quarry. Some of the “black” rock received by him on these latter occasions having been built into the front of the villas, became discoloured after a short exposure to the weather, and a complaint was made by the appellant of the quality of the stone supplied to him. The respondents offered to send clean stones in place of those which had become discoloured, leaving the appellant to take out of the front wall of the villas the discoloured stones and put in the new ones, according to a process well known in the building trade. The appellant declined this offer, and intimated that he held the respondents liable for the cost of replacement, and that the balance of his account, £12, 15s., would be retained until the front of the building was put into proper condition. The respondents then raised for this balance an action in the Sheriff Court of the Lothians, and the appellant raised a counter-action concluding for £40 damages for the respondents' alleged breach of contract in sending “black” rock instead of “clean” rock.

The actions were conjoined, and after a proof in the conjoined actions the Sheriff-Substitute ( Rutherfurd) pronounced this interlocutor:—“(1) In the action at the instance of The Straiton Oil Company (Limited) v. Alexander Sanderson, Finds that on or about the dates, and at the prices specified in the account annexed to the summons, the defender bought from the pursuers, and the pursuers sold and delivered to the defender, the various quantities of stone and lime therein mentioned, to the value in all of £12, 15s, 1d.: Finds that the defender has failed to prove his averment in the defences, to the effect that the stones so delivered were of an inferior description to those ordered by him from the pursuers: Finds that the defender has retained possession of the stones and lime aforesaid, and has not paid the price thereof to the pursuers: Therefore finds the defender liable, in terms of the conclusions of the libel, to make payment to the pursuers of the sum of £12, 15s. 1d., and decerns: And (2) in the action at the instance of Alexander Sanderson v. The Straiton Oil Company ( Limited), Finds that between the 6th of January and the end of April 1881 the pursuer ordered from the defenders the various quantities and descriptions of stone specified, and that the stones so ordered by the pursuer were intended by him to be (and in fact were) supplied from the defenders' quarry at Straiton: Finds that the said stones were delivered to the pursuer by the defenders conform to invoices: Finds that the said stones were neither defective nor of bad quality, nor unfit for building purposes, although all of them were not suitable for the purpose to which some of them were applied by the pursuer, viz., the facing of a villa which he was building at the the time: Finds, further, that the defenders gave the pursuer no express warranty of the quality or sufficiency of the said stones, and that the same were not expressly sold by the defenders to the pursuer for a specified or particular purpose within the meaning of the Mercantile Law Amendment Act of 1856: Therefore assoilzies the defenders from the conclusions of the action, and decerns: Finds The Straiton Oil Company (Limited) entitled to expenses in both the separate actions and in the conjoined actions.”

He added this note—“Between the beginning of January and the end of April 1881 Mr Sanderson, the defender in the first, and the pursuer in the second, of the conjoined actions, procured from The Straiton Oil Company's quarry, near Loanhead, various quantities of stone, which he used in the construction of a double villa he was then building near Joppa. Mr Sanderson, who is a builder, is well acquainted with the character of the stone in the company's quarry, having used it on previous occasions in erecting other houses In his … deposition as a witness the pursuer states that he ordered the stones by letter, addressed to the secretary at the defenders' office in Edinburgh. There is no evidence, however, to show that any such letter was received by the defenders. Grant, their bookkeeper, says that the first order was given by the pursuer himself verbally on 6th January 1881, when he called at the company's office, and the witness wrote it down just as he gave it, and sent it on to the works. This witness also states that when he received verbal orders from the pursuer he was careful to transmit memoranda to the works containing the orders exactly. The memorandum expressly specified ‘clean rock,’ and it is also expressly mentioned in No. 11 of process, which is a repetition of the order contained in No. 10. None of the other memoranda, however, nor the letter or post cards containing orders for stone, make any mention of clean stone, with one exception, dated 19th April, which contains an order, inter alia for ‘three trucks of clean rubble.’ The pursuer, however, contends that as the first order was for ‘clean’ stone, he was entitled to rely upon the defenders continuing to supply it whenever he had occasion to order more stone during the building of the villa. The Sheriff-Substitute cannot assent to this proposition. It appears to him that each order embodied a separate transaction, and that there was no obligation on the defenders to supply ‘clean’ rock unless it were mentioned in the order.

“The pursuer also maintains that the defenders are liable under the 5th section of the Mercantile Law Amendment Act, in respect that the stone in question was of inferior quality, and unfitted for the particular purpose for which it was sold. The Sheriff-Substitute is of opinion that the section of the statute referred to has no application in the present instance. It provides for the case of goods sold which at the time of the sale were ‘defective or of bad quality.’ But the stones delivered to the pursuer are not proved to have been defective or of bad quality; although some of them, being of black rock, were not well suited to the purpose for which the pursuer used them, they were quite suitable for the construction of other parts of the building.

“Moreover, even if the stones in question could be held to have been defective or of bad quality, they were not expressly sold for the particular purpose of facing the villa, and no warranty was

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given. On the whole matter, it appears to the Sheriff-Substitute that the claim for damages is untenable.

“In the action at the instance of The Straiton Oil Company it was admitted by the defender's agent at the proof that the defender had purchased and obtained delivery of the stones and lime mentioned in the account libelled at the prices therein set forth, and that they had not been paid for.”

On appeal the Sheriff ( Davidson) adhered.

Sanderson appealed to the First Division of the Court of Session.

The arguments sufficiently appear from the judgment.

At advising—