Scottish Court of Session Decisions

Gabriel Dunlop, cattle dealer, Stewarton, raised an action in the Sheriff Court of Dumfries and Galloway at Kirkcudbright, against William Crawford, farmer, Gatehouse-of-Fleet, concluding for payment of £95, 5s., being the balance of the price of a lot of cows, 31 in all in number, purchased by the defender from him. The balance was disputed on various grounds, some of which have no bearing on the present question. A payment to account had also been made. The question here reported had reference to the price of two cows rejected by the defender. The defender consigned £66 in process as the whole sum remaining due, claiming to be entitled to reject the two cows, the total price of which two animals was £25, 10s.

The defender pleaded—(1) that the cows were purchased for a specified purpose, and being unfit for that purpose were properly rejected; (2) that one of the cows was disconform to warranty, and that as the other was not one of the cows purchased by the defender decree could not be given for the price of it.

The cows about which there was a dispute were sold by warrant of the Sheriff pending the dispute.

The Sheriff-Substitute ( Nicolson), after a proof, found in law (after certain findings in fact) “that the two cows in question having been sold for a specified purpose, for which they were not fit, the defender was justified in returning them and refusing to pay for them: Assoilzies him from the conclusions of the summons: Appoints the Sheriff-Clerk to pay to the pursuer the sum of £66, 15s. consigned in Court by the defender: Finds the pursuer liable in the expenses of process, as the same shall be taxed by the Auditor of Court, to whom remits the accounts when lodged to tax and report, and decerns.

“ Note.—I do not think it necessary to enter into a detailed comment on the proof. There is, as usual, a strong conflict of evidence as to the soundness and health of the two cows in question, which some witnesses for the pursuer declare to be as sound and healthy as cows can be. I have no difficulty in preferring the evidence for the defender. As usual, also, it was contended for the pursuer that there was no express warranty of the animals. Whether express or not, they were sold as sound and healthy cows for a dairy, and for that express purpose which by sec. 5 of the Mercantile Law Amendment Act is equivalent to warranty,—in fact, they were not merchantable articles, for the purpose for which they were sold. The delay of the defender in returning them was quite excusable and creditable. He wished to give them a chance, and to test them fairly, and he did so. Milch cows are not like dead goods, the quality of which can be ascertained in a few minutes.”

The pursuer appealed to the Court of Session.

The alleged express warranty not being proved, the argument rested entirely on the applicability to the case of the statute.

The Mercantile Law Amendment (Scotland) Act 1856 (19 and 20 Vict. cap. 60), sec. 5, provides—“When goods shall after the passing of this Act be sold, the seller if at the time of the sale he was without knowledge that the same were defective or of bad quality, shall not be held to have warranted their quality or sufficiency, but the goods with all faults shall be at the risk of the purchaser unless the seller shall have given an express warranty of the quality or sufficiency of such goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller shall be considered without such warranty to warrant that the same are fit for such purpose.”

Argued for pursuer—The cows in question were not sold for “a specified and particular purpose” in the sense of the statute. They were sold for the ordinary purpose for which milk cows would be sold. The provisions of the Mercantile Law Amendment Act were not applicable, because a sale of an article for the ordinary purpose for which such an article was used was not a sale for a “specified and particular purpose.”

Authorities— Hardie v. M'Aslan, May 25, 1870, 8 Macph. 798; Bough v. Moir & Birnie, March 5, 1875, 2 R. 529; Hamilton v. Robertson, May 31, 1878, 5 R. 839.

Replied for the defender—The cattle were sold and bought as suitable for use in a dairy, and that was “a specified and particular purpose.”