Scottish Court of Session Decisions

On 29th June 1883 Frederick John Rowan, civil engineer in Glasgow, wrote to The Coats Iron and Steel Company (of which the partners were William Jardine and Matthew D. Goodwin) as follows:—“In accordance with the arrangement entered into with your Mr Jardine to-day, I beg hereby to state that I undertake to supply you with the ironwork, bricks, and brickwork of two ‘Wilson's Patent Gas Producers’ of the 4 cwt. per hour size, erected as soon as possible at your works, for the sum of £130 each producer, nett cash; this amount includes Mr Wilson's charge for royalty.” To this Mr Jardine, for the company, replied on the next day—“We accept your offer of yesterday's date, to supply us with two ‘Wilson's Patent Gas Producers’ of 4 cwt. size, for the sum of £130 each producer, including royalty.” The patent consisted of an apparatus for producing gas by the patent combustion of coal, by the introduction of steam in a particular manner, by the arrangement of the parts of the producer, and by a steam-jet for forcing in air arranged in a certain manner. A producer might be of a size to burn any number of tons of coal.

Rowan thereafter, on Wilson's system, and after obtaining plans from Wilson, proceeded to erect two gas producers in the works, and about the end of August of the same year informed the company that they were ready for use. They were put to work, but the company did not succeed in getting them to burn so much as 4 cwt. per hour or produce the gas they expected. Rowan went out to see them. He thought they were not properly worked.

In the end of December of that year the company's law-agents wrote to Rowan's law-agents intimating that their clients rejected the producers as disconform to contract.

Rowan then raised the present action in the Sheriff Court of Lanarkshire at Airdrie, against the Company, for payment of £260 and interest, as the price of the two gas producers, which he alleged to be due to him by the defenders on his completion of his part of the contract constituted by the offer and acceptance contained in the above-recited letters, and which the defenders refused to pay.

The action was defended by the company, who averred:—The producers were found when used not to consume 4 cwt. of fuel each per hour, and consequently not to supply the amount of gas which they wanted from them. They intimated this to the pursuer, who sent skilled workmen to examine the producers, but was unable to give any explanation of the failure, and refused to do anything further in implement of the contract. The defenders then themselves made a thorough trial of the producers, and found that they would not consume more than 2 1 2 cwt. of coal each per hour. They averred that in supplying them with producers which failed to burn 4 cwt. per hour the pursuer had committed breach of contract.

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The pursuer pleaded that the amount sued for was resting-owing to him by the defenders.

The defenders pleaded—“The pursuer haying failed to supply two producers, each of a size capable of consuming 4 cwt. of coal per hour, as contracted for, and the defenders haying timeously rejected those actually erected, the defenders are entitled to absolvitor, with expenses.”

The following facts were elicited on proof—The producers were built in accordance with Wilson's patent, and on the plans furnished by him. From these plans the pursuer stated he could not, as Wilson's representative, though a principal in this contract, depart. The pursuer stated that 4 cwt. per hour size meant a size capable of burning 4 cwt. per hour. Previous to the erection a model was submitted to Mr Jardine, according to which, with a slight alteration made at the latter's request, they were erected. Alfred Wilson, the patentee, stated in his evidence—“A 4 cwt. per hour producer is intended to do anything from a small quantity up to 4 cwt. per hour. That is what it is known in the trade to do. (Q) If it does not do that, would you consider it a 4 cwt. producer?—(A) Yes, certainly, because it is the most simple matter in the world to prevent a 4 cwt. producer burning 4 cwt. an hour …. (Q) Assuming that very great care has been taken in firing, and every attention possible paid to it, if it does not burn 4 cwt. per hour, would you say it was a 4 cwt. producer?—(A) Yes, certainly. It is a nominal size. (Q) Then it has nothing to do with the amount of coal burned?—(A) Yes, it is the basis of consumption which it has done. I have tested it…. (Q) What was the average consumption?—(A) I can only say over 4 cwt. an hour. I tested it. I cannot give you the figures. There is no patent in the size. I can make them any size. (Q) Were these tests carried out in order to fix the size, or were the sizes fixed in accordance with experiment?—(A) If I remember rightly, the sizes were fixed before the experiments were made. When the experiments were made, I found that they confirmed the capability which I fixed. They were fixed upon theory, and a practical test was made, and that test confirmed the capability of the producer.” He had supplied plans for the erection of several hundreds of these producers.

The defenders led proof to show that the producers after being erected in their works failed, even when worked by skilled workmen from other works—one of whom was recommended by the pursuer—where Wilson's patent was in use, and under the personal inspection of the pursuer himself, to gassify more than 2 1 2 to 2 1 2 cwts. per hour. The defenders had no other objection to them except that their capacity to make gas was too small.

The Sheriff-Substitute ( Mair) after certain findings in conformity with the above-stated facts, found “(2) that it is proved and is admitted by the pursuer, that by gas producers of 4 cwt. per hour size is meant producers each capable of consuming 4 cwt. of coal per hour; (3) that the pursuer caused to be erected at the defenders' works two gas producers, and about the end of August 1883 informed the defenders they were ready to be used; (4) that immediately thereafter the said producers were found not capable of consuming 4 cwt. of coal each per hour, and consequently did not and could not supply the gas required for heating the puddling furnaces at the defenders' works; (5) that notwithstanding several trials afterwards of the gas producers, it was found they would not consume the quantity of fuel required, and they were therefore rejected by the defenders on 20th December 1883 as disconform to contract; finds that the pursuer has failed to supply two producers, each of a size capable of consuming 4 cwt. of coal per hour as contracted for, and that the defenders having timeously rejected those erected, the defenders are entitled to absolvitor; therefore assoilzies the defenders from the action.”

The pursuer appealed to the Court of Session, and argued—All he undertook to do was to erect a patent machine of the name of a 4 cwt. per hour gas producer, according to plans furnished by the patentee, and having done this he had fulfilled his contract. He gave no guarantee that they would actually consume the amount, and in the time according to which they were described by the patentee. The seller of a patent article never does guarantee more than merely that the article sold is the article patented— Ollivant v. Bayley, 5 Q.B., Ad. and Ell. 288; Prideaux v. Bunnetl, 1 C.B. (N.S.) 613; Chanter v. Hopkins, 4 Mees. & Wels. 399; Ross's Leading Cases, ii., Com. Law, 368. And these cases were all a fortiori of the present, for in all of them the patentee himself (and not as here his agent) had contracted with the buyer, and had been a party to the case. Alternatively, he had proved that when properly worked, the machine supplied would consume 4 cwt.

The defender replied—The question of patent did not enter into the case except as furnishing a description of the article. They had no objection to the article supplied as far as the patented process was concerned. The question was purely one of the sale of article guaranteed to do a certain amount of work which it had failed to do, and failing, proved disconform to contract. The circumstances were thus not those of any of the cases relied on by the pursuer.

At advising—