Scottish Court of Session Decisions

In November 1883 G. & W. Dollar, tinsmiths in Glasgow, ordered from Richard Bradley & Co., engineers at Wakefield, a press to turn out tin can covers. Another article known as a stamp was afterwards ordered, and an account for those articles, packing, &c., was incurred, which in all amounted to £209.

At the time this action was raised G. & W. Dollar had paid £106, 4s. of this account. The action was raised for £102, 17s. 3d. as the balance due. The “press” was delivered in April 1884. The “stamp” was delivered on 8th August 1884. It was subsequently in the same month agreed to exchange it for one of another kind, and the new one was sent in June 1885.

Both press and stamp were set up in Dollar's works by Bradley's men. Certain small breakages occurred in the working of the machinery after it was delivered. In August 1885 Bradley came himself to Glasgow to inquire into complaint of the machinery having failed to work well, and put to rights a small disarrangement which had occurred. Thereafter a small rod of trifling value broke, and on 19th August Dollar wrote complaining of this, and a new rod was sent them, and on 4th September another complaint was made as to it. After some correspondence the solicitors for Bradley, who had on 7th September made formal demand for payment of the account, wrote on 26th September insisting that they had fulfilled the contract, but offering to send a man “to work the tools for three or four days on the understanding that if the tools work correctly during that time no further question is to be raised.” Dollar answered that Bradley might send a man to satisfy him as to the justice of the complaint, and maintaining that they were entitled to “a good job and fulfilment of contract as to working,” but saying nothing of the nature of agreeing to the proposal or dissent from it. The solicitors replied requesting a definite answer, to which Dollar answered that Bradley must put “the machine in good working order before we take it off your hands.” Thereafter Bradley's man was sent on 13th October, and he remedied the breakage complained of, which was a very small one, the repair of which occupied a very short time. He then remained and worked the machine for two days, after which he left, and immediately thereafter Bradley's solicitors again applied for payment and threatened an action, to which Dollar answered that previously the machine had always broken down when it had been used for a day or two, and they would work it for a week,

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and then if it did not break down in that time, would send a cheque in payment. In less than a week they wrote saying it had broken again, a small hammer having broken; but in the course of that week the action had been raised.

The Sheriff-Substitute ( Spens) found the defenders liable for the price of the articles sued for.

“Note.—So far as I am able to judge from the evidence, I think the pursuers acted reasonably and considerately. Practically the whole point in the case now is, whether defenders had a reasonable time in which to test the machinery supplied? I am of opinion they had. I do not know whether it was owing to defenders' faulty working of the machine that it went wrong on more than one occasion, but when the pursuers' skilled workmen came down there never seemed to be any difficulty in his making the machine do what was required. After the action was raised the defenders proposed a further test of eight days, which request pursuers' agent declined, notwithstanding defenders elected to go on and work the machine, with the result that the hammer was smashed. I think that before the action was raised there had been ample time to test the sufficiency of the machine, and I incline to think that if after it was raised defenders proceeded to use the machine as if it were their own, turning out plates for their own uses and purposes, and ultimately breaking a portion of it they are now barred from any right to reject. The fault now alleged is that the hammer being of cast iron is insufficient for the purpose, and there is considerable skilled evidence to this effect; but in the first place it seems somewhat curious that if its being of cast iron renders it insufficient it did not break long ago, and in the second place it was patent that it was cast iron. I put my judgment however upon this ground, that there had been ample time to test the machine before the action was raised, and defenders having after the action was raised used it at their own hands and not only without the consent, but in face of a refusal to permit any further test, are now barred from any right to reject, even if otherwise they had been held entitled to do so.”

The defenders appealed, and argued—The question was one where reasonableness must be considered. The proof showed that the machinery was of such a delicate nature that it was reasonable they should have an opportunity of testing it before they paid the price. None such was given them. The machine was continually breaking in minor and essential parts, and in point of fact they were hurried into Court before the pursuers had satisfactorily completed their bargain to supply a sufficiently reliable piece of machinery. Where it took time and use to discover faults in machinery it was sufficient that notice should be given of defects, and the purchaser could not be bound to reject and return till he had had full trial with the machinery working properly— Fleming v. Airdrie Iron Co., 31st Jan. 1882, 9 R. 473.

The pursuers replied—(1) The machine was conform to contract, and it was natural that the minor portions complained of as weak should occasionally and just at first get out of order. The pursuers had always promptly put these right. (2) The defenders lost their right to reject after the action for the price had been raised— Chapman v. Couston, Thomson, & Co., March 10, 1871, 9 Macph. 675.