Scottish Court of Session Decisions

James Stuart & Company, coal and lime merchants, Denny (afterwards represented in this action by J. F. M'Queen, trustee for their creditors), sued James Kennedy, Killiechassie, Tully-powrie, under the Debts Recovery (Scotland) Act 1867, in the Sheriff Court at Perth, for the sum of £34, 16s. 9d., being the balance of an account for £74 for coping-stone.

The pursuer undertook to supply the defender, a mason and builder, with 750 feet of garden wall coping at the price of 1s. 9d. per foot. The question in the case was, Whether the superficial or the lineal foot was intended?

The pursuer averred it was 1s. 9d. per superficial foot. The defender averred it was 1s. 9d. per lineal foot. 750 feet of the specified dimensions at 1s. 9d. per lineal foot amounted to £65, 12s. 6d., while at 1s. 9d. per superficial foot it amounted to £142, 3s. 9d.

The pursuer had on 30th June 1883 written the following letter to the defender—“Dear Sir—Further to my letter of 23d inst. I shall be glad to supply you with 750 lineal feet garden coping, 26” broad, 3” thick at sides, and 3 1 2” in centre, mill-faced, sawn on sides, and half-checked 1 2” on the joints, put on trucks at quarries, at 1s. 9d. per superficial foot, and trusting this low figure will secure the order, I am, yours truly,” &c.

The defender denied that he ever received such a letter, and there was no proof that he ever accepted the offer it contained.

The contract actually entered into was a verbal one, and was entered into between the pursuers' traveller and the defender, between whose evidence at the proof there was a direct contradiction; the traveller saying that the superficial foot, the defender that the lineal foot, was the measure agreed on.

After the question arose, the defender, under reservation of his position, had paid £40 on account. That sum being rather more than the stone then delivered would cost, according to his view of the bargain, he maintained in this process that no more was due. On the pursuers' view the total amount delivered would amount to £74, 16s. 9d., so that £34, 16s. 9d. was the sum sued for.

The Sheriff-Substitute ( Graham) found for the pursuers, and decerned for the sum sued for.

On appeal the Sheriff ( Gloag) on Sept. 26, 1885,

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recalled the Sheriff-Substitute's interlocutor, and found that it was not proved that the parties had agreed on the price of the coping-stone; that the defender had paid £40 for the coping-stones supplied; that the fair market value did not exceed the sum so paid, and assoilzied the defender from the conclusions of the action, with expenses.

“ Note.—The Sheriff-Substitute has decided this case for the pursuers, and has given cogent reasons for his judgment; but after very careful consideration I have come to the conclusion that the grounds of defence are of still greater weight, and that the defender is entitled to absolvitor.

The pursuers, now represented by their trustee, were tenants of a quarry, and they agreed to supply the defender, a mason and builder, with 750 feet of garden-wall coping of specified dimensions, which the defender on his part was to put up on the estate of Garth. The price named was 1s. 9d. per foot, and the question about which the parties have differed is (as the Sheriff-Substitute states it), whether the superficial or the lineal foot was expressed or intended. The pursuer says that the price agreed on was 1s. 9d. per superficial foot; the defender avers that it was 1s. 9d. per lineal foot. The pursuers' rate, having reference to the dimensions of the coping to be supplied, amounts to more than double of the latter's rate. The price of 750 feet of coping, 26 inches broad, at 1s. 9d. per lineal foot, would be £65, 12s. 6d.; while at 1s. 9d. per superficial foot it would be £142, 3s. 9d.

Now, in the first place, I have formed the opinion that 1s. 9d. per lineal foot was very near the market value of coping such as was supplied, and that 1s. 9d. per superficial foot was about double of the fair market rate. I think that important point has been fully established by the witnesses for the defender—Moir, M'Currach, and Beveridge—all practical men, thoroughly versant, I believe, with this matter, and well qualified to give evidence about it. It appears, besides, that the defender was actually supplied with stone-coping of the same kind—used by him for the same purpose—from other tradesmen, Calder Brothers, at 1s. 8d. per lineal foot, to which rate an addition of 1 1 2d. or 2d. per foot would fall to be made for the operation of checking. Further, the defender depones that he had agreed to supply this coping to the proprietor of Garth for 1s. 10d. per lineal foot. This evidence is not corroborated, but I do not understand that it has been seriously questioned; and of course if the defender bought his coping from the pursuers at 1s. 9d. per superficial foot, and sold it at 1s. 10d. per lineal foot, he would be a very serious loser by that transaction. Now, the record fairly raises the question, what was the fair market value of this coping; and this weighty evidence for the defender has not been met by any independent evidence whatever. All the pursuers' witnesses besides James Stuart were in their own employment; they had never been concerned in supplying coping of this kind before; and they do not profess to be able to speak to its price in the market. Now, all the defender's practical witnesses say that the rate of 1s. 9d. per superficial foot was quite out of the question, and, on the whole, I cannot doubt that if decree were to go against the defender he would pay more than twice the market rate—more than twice what he paid to Calder Brothers—and about double of what he was to receive from the proprietor of Garth.

It is no doubt true that all this would be of little consequence if the conditions of the bargain were clearly proved. If that were so, it would not signify whether the bargain was good or bad, equal or unequal; but if there be room for question as to the actual terms of the bargain, then I think the evidence as to what would be a reasonable price is very important, for it is surely very unlikely that the defender would deliberately agree to pay to the pursuers twice the sum for which he could get the same commodity from others, and twice the sum which he was to receive for it on re-sale.

The question then remains—What is the direct proof as to the actual agreement between the parties? Now, their communications commenced with a letter of 21st June, in which the defender asks the pursuer for a quotation for 750 lineal feet of coping. The pursuer replied on 23d June asking further information, which seems to have been furnished, and then there comes the letter of 30th June, of which a copy has been produced, and on which the pursuers' case and the Sheriff-Substitute's judgment mainly depends. In that letter the pursuers explicitly state their price at 1s. 9d. per superficial foot. Now, the defender says that he never received that letter, and at the debate his agent argued the case as if the pursuers had not only never sent that letter to the defender, but had never intended to send it, and had simply concocted it for the fraudulent purpose of founding a claim on it afterwards. Now, I do not agree with that argument in the least. The letter is booked in the pursuers' letter-book in the ordinary way, and I have not the smallest doubt that they wrote it meaning to send it to the defender. Indeed, I see no reasons for charging the pursuers with any dishonesty at all. They had no practical acquaintance with this kind of coping, and I do not doubt that their demand of 1s. 9d. per superficial foot was made in perfect bona fides, and was in their opinion reasonable. Whether the letter reached the defender, or had been omitted to be posted, or had been misaddressed, or had somehow miscarried, is not perfectly clear, although I agree with the Sheriff-Substitute in thinking that the fair conclusion from the evidence is that it was delivered. The defender's denial that he received it raises a difficulty certainly. It is possible that he may have overlooked it; but however that may be, the important point is that there is no proof at all that the defender accepted the offer in that letter. One might have expected a written acceptance. But I hold that, on the evidence, the letter of 30th June, whether received by the defender or not, forms no part of the contract between the parties. That contract was entirely verbal, and was made at a meeting at Logierait between Small, the pursuers' traveller, and the defender. It does not very clearly appear why Small was sent to conclude the bargain, but it is of consequence to notice that Small in his evidence does not say that the pursuers said anything to him about the letter, and it is of still more importance to notice that he does not say that the letter was mentioned at all at the interview between him and the defender when the bargain was made. He depones that

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the rate agreed to was 1s. 9d. per superficial foot; but the defender, on the other hand, depones that it was 1s. 9d. per lineal foot. There is no more, as regards this part of the case, than the directly conflicting evidence of these two witnesses, and I see no sufficient reason for preferring the one to the other. It may be said, on the one hand, that it is very unlikely that Small should agree to supply the coping at 1s. 9d. per lineal foot when the pursuers had just written stating the price at that sum per superficial foot. On the other hand, it is, in the circumstances which have been already referred to, highly improbable that the defender should have agreed to give the larger price. Now, considering that this bargain was completed verbally, and to all appearance somewhat informally, I think it possible to believe both these witnesses, Small and the defender, and I think the fair conclusion from their evidence is that they misunderstood one another—Small intending to refer to the superficial foot, the defender understanding and having in his mind the lineal foot. I by no means say that this view of the case is without difficulty; but my difference from the Sheriff-Substitute seems to be this, that I do not give such over-ruling weight to the letter of 30th June as he does, and I give more weight to considerations as to what would be a fair, reasonable, and probable bargain in the circumstances, as brought out by the practical witnesses adduced by the defender.

Now, seeing that the bargain has been partially fulfilled, the legal result of holding that as regards price there has been no consensus in idem placitum is to hold that the goods supplied must be paid for according to the ordinary market rate ( Wilson, 14th June 1859, 21 D. 957). Now, the whole quantity contracted for has not been supplied, but £40 has been paid to account. I think that 1s. 9d. per lineal foot is slightly under the ordinary market rate, judging from the evidence of the practical witnesses, and on the whole I think that the £40 paid to account comes sufficiently near the market rate. No question has been raised about the balance of the 750 feet of coping-stones not delivered; and as to that balance I do no more than indicate the view that the bargain as to them should be held to be off. I am not in a position, however, to express a final opinion to that effect.

Other points were adverted to in the argument, but they are quite subordinate to the main question, whether the letter of 30th June is to be held as the basis of the agreement, to the exclusion of all considerations as to equity or probability. These points may, however, be very shortly referred to—(1) The price list (No. 17) is not of much importance in this case. It was said on the part of the pursuers to show that they always sold by the superficial foot. It does not show that exactly. But it does not refer to coping stones at all, and I think that the defender succeeds in showing that the prices stated in the list for pavement favour the view that 1s. 9d. per lineal foot rather than 1s. 9d. per superficial foot was a fair price for the coping. (2) Neither were the invoices of the portions of coping delivered pieces of evidence of much consequence. For although the words ‘rate per superficial foot’ heads one of the columns, still they are but ordinary forms, and no rate is in point of fact filled in in the appropriate column. I have examined the invoice-book and find that the rate of 1s. 9d. is filled in pencil. But that did not come to the knowledge of the defender; at the same time, no reflection is involved against the pursuers, because all their invoices in the invoice-book are treated in the same way. The invoice-book may tend to show, what I think is probably the case, that the pursuers understood that the price was 1s. 9d. per superficial foot, but it shows nothing about the understanding of the defender. (3) The payment of £40 to account was rather in excess of the amount due for the coping delivered—if the price were to be stated at 1s. 9d. per superficial foot. But it was made after the defender had distinctly tabled his objections and stated his view of the bargain. There is no proof that he waived his objection, and the payment must be taken along with the explanation which he makes about it, namely, that it was made in the belief that the rest of the coping was to be supplied at his price.

For these reasons I have reached, with considerable hesitation, a conclusion in this case different from that of the Sheriff-Substitute.”

The pursuers appealed to the Court of Session, and based their case upon the letter of 30th June, which they maintained formed the substance of the contract between the parties.

The respondents denied ever having received the letter in question, and maintained that the terms contended for by the pursuers were so unreasonable and ruinous that it was impossible to suppose that he could ever have entered into them.