Scottish Court of Session Decisions

Thomson Brothers, grain and flour merchants in Glasgow, raised this action in the Sheriff Court of Dumfries and Galloway at Kirkcudbright against David Thomson, baker, Castle-Douglas, for payment of £315.

In January 1884 the defender bought and received from the pursuers delivery of 50 small bags Danube flour. He did not use it at once. On 1st May of the same year, before he had tried it, Alexander M'Kay, the pursuers' traveller, visited Castle-Douglas and saw the defender, when the contract of sale of 200 large or 400 small bags of Danube flour founded on by the pursuers of this action was made with him by M'Kay on their behalf. Of the same date the pursuers sent to the defender from Glasgow the following sale-note—“Dear Sir—We beg to confirm sale made to you to-day by our Mr M'Kay of the balance of our ‘Danube’ flour, limited to five hundred (500) bags 140 lbs. each at thirty-one shillings and sixpence (31s. 6d.) per 280 lbs. Delivery in 14 days.”

On 5th May the defender wrote to the pursuers as follows—“Gentlemen—I tried the ‘Danube’ on Saturday along with my usual mixture, and found that it reduced my quality very much. To-day I tried it by itself to put it on its own merits, and I can safely say it is the most inferior I have met for a very long time. I need not say that I'll have no more of it at any price.”

On 7th May the pursuers wrote to the defender declining to cancel the contract referred to in the sale-note. On the 8th the defender replied that he would refuse to take delivery of any more flour. After some further correspondence, in the course of which the defender stated that he had not received the sale-note of 1st May when he wrote the letter of the 5th, and throughout which the parties maintained the same positions towards each other, the pursuers stored 400 small bags of flour in Glasgow in neutral custody in the defender's name. The pursuers subsequently raised the present action for the price of this stored flour.

They pleaded—“(1) The pursuers having sold to defender the balance of said parcel of a cargo of flour limited as condescended on to 400 small bags, and the defender having purchased same at the price libelled on, and pursuers having stored same in defender's name, all as condescended on, pursuers are entitled to decree as craved. (2) In any case, the pursuers having implemented their part of the contract of sale between pursuers and defender, and having stored the flour in question with a neutral storekeeper in defender's name, have suffered loss and damage to the extent of Three hundred and fifteen pounds sterling, the price thereof, and are entitled to decree for said sum with expenses.”

The defender stated as a preliminary plea that the pursuers should on their own statement have re-sold the flour and brought an action for the damage they might have suffered, and therefore that their action was incompetent as laid; and, inter alia, on the merits—“(4) No contract of sale in the terms condescended on was entered into, or if it was, the defender repudiated it before delivery. (5) The alleged contract has been departed from by the pursuers, or at least they are not entitled to recover the price, not having implemented their part of the contract by delivering the goods sold.”

On 23d January 1885 the Sheriff-Substitute ( Nicolson), on the motion of the pursuers, granted warrant to sell the 400 bags of flour in store in the defender's name, and they were sold accordingly, fetching about half-a-crown per bag less than the market price.

On 20th February following (after the flour had been sold and the price lodged in the hands of the Clerk of Court), the Sheriff-Substitute, on the authority of Warin & Craven v. Forrester, 30th Nov. 1870, 4 R. 190, aff. 4 R (H.L) 75, sustained the defender's preliminary pleas and dismissed the action.

The pursuers appealed to the Court of Session.

The Lords, after hearing counsel, before answer appointed a proof before Lord Rutherfurd Clark.

The following was the import of the evidence:—Alexander M'Kay, the pursuers' traveller, deponed

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—The sale-note of 1st May correctly represented the bargain he made with the defender. The bargain was a verbal one, made in the street. He did not remember the words that passed, but only that it was to be a good Minnesota flour of the same brand as the 50 bags sold in January, and for which he then received payment from the defender. “(Q) Did you say this to the defender, ‘You cannot do better than buy the balance of the Danube; we have still about 200 bags left?’—(A) No, 1 cannot remember saying those words or words approaching that. I swear that I did not say we had a balance of the Danube brand we had sold him before.. .. (Q) Did you not just say, ‘We have still about 200 bags left?’—(A) Yes, very likely I would. I believe something was said about his not having tried the Danube he got in January. (Q) Did you say anything about the quality of the flour?—(A) Yes, I said it was good Minnesota flour. I guaranteed the flour in question as good regular Minnesota flour. I do not think I would give it any more definite a character. I believe I showed the defender a sample in January. The lot in question might not be of the same shipment as that previous lot, but it was the same miller's flour and the same brand.” He sold the flour as a “straight” flour.

The defender's account of the bargain was as follows—“He asked me if I was buying anything to-day. I said if he had a good “straight” I would buy it. His answer was, ‘You can't do better than buy the balance of the Danube. We have still 200 left, and if you will clear out the left, I will give you them at a cut price of 31s. 6d.’—cut price being a term known in the trade for keen price. I replied—Well, M'Kay, I have not tried those 50 bags I got from you. I cannot tell anything about the quality.’ He said he could guarantee them a first-class straight, as good for strength or colour as anything in the market. I think these are about the words he used. (Q) Did he say anything at that time about the 50 bags?—(A) He said they were the balance of the same lot as the 50. He said he was too sure of that, as they had lost a lot of money on them, owing to their having been a long time in store. He said he thought the number in store was about 200 bags, but he could not tell the exact number.”

The defender also, along with his foreman, gave evidence as to the inferior quality of the flour, which he had tested out of the 50 bags bought in January. He afterwards, when in Glasgow, went to the store where the flour was stored, along with James Paterson, flour broker, and Andrew Steven, lately manager of the Craig-hall Milling Company, and took a sample to Paterson's office, where they tested it by doughing it, and found it lacking in strength, and not sufficient for the purpose for which that brand of flour was sold in the market. John Thomson, a member of the pursuers' firm, deponed that when the sale was made by M'Kay they had not enough flour in store to cover the sale, and they bought enough to cover it from the sole agent for the Danube brand of flour. They did not try it by sample but by brand. The 50 bags sold to the pursuer in January were of a different shipment altogether.