Scottish Court of Session Decisions

This was an action at the instance of Alexander M'Ewan, timber merchant, Wick, against Alexander Sinclair, auctioneer, Wick, for payment of £454, 1s., the amount of an account for furniture supplied by the pursuer to the defender.

The facts of the case were these—Sinclair, the defender, was the proprietor of an hotel in Wick, of which a person named Bruce was tenant. The pursuer submitted estimates for supplying the hotel with furniture, and these estimates were accepted by the defender. The estimate for each lot was separate, and was separately accepted. The defender admitted liability for the price of certain lots of the furniture, but denied liability for the sum of £223, 11s. 6d., the price of eight lots of bedroom furniture, on the ground that the articles were unfit for the purpose for which they were supplied. Each of these lots included, among other articles, a straw palliasse or mattress. The furniture was delivered to the defender between 5th June and 12th July 1886.

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On 6th August the defender was informed by his tenant that something had gone wrong with the furniture, and on examination he found the beds in all the eight bedrooms swarming with small insects like mites, which had spread over the rest of the furniture. On 9th August he informed the pursuer of the circumstances, who admitted that the insects must have come out of the straw in the straw palliasses. On 11th August the palliasses were removed, and spring mattresses were sent instead. A question was raised with regard to the price of these spring mattresses, which is dealt with by the Lord Ordinary in his note, infra. There was a conflict of evidence as to the terms upon which the defender consented to keep the rest of the bedroom furniture, which is also dealt with by the Lord Ordinary. M'Ewan subsequently sent a man in his employment to the hotel to clean the furniture; he continued his visits until the end of November, by which time the mites had disappeared The defender retained the furniture until this action for payment was raised, and then, towards the end of January 1887, he rejected it. The pursuer refused to take it, and it was delivered into a store.

The pursuer pleaded—“(3) The furnishings supplied to the defender being merchantable in quality and condition, he was not entitled to reject them. (4) Separatim—The defender not having timeously rejected the said furnishings is bound to pay the price thereof.”

The defender pleaded—“(2) The pursuer having in breach of his implied warranty as a manufacturer of and dealer in the class of furnishings ordered from him by the defender, supplied articles unmerchantable in quality and condition, the defender is entitled to reject the same, and having timeously done so, should be assoilzied with expenses. (4) The said defective furnishings having been sold for the specified and particular purpose condescended on, and being unfit for such purpose, the defender is entitled to reject them.”

The Lord Ordinary ( Kinnear), after a proof, on 26th April 1887 repelled the defences, and decerned against the defender in terms of the conclusions of the summons, with expenses.

“ Opinion.—This is an action for the price of the furniture of an hotel sold and delivered by the pursuer to the defender. The defender admits his liability to pay for a part of the furniture, but he alleges that the furniture supplied for the bedrooms of the hotel was unfit for the purpose for which it was sold; and that he accordingly rejected it. The questions in controversy are, whether the bedroom furniture was in fact disconform to contract, and if so, whether it has been rejected timeously?

The whole of the furniture, with the exception of certain spring mattresses, as to which a different question arises, was delivered at the defender's hotel between the 5th of June and the 12th of July 1886. About the end of July or beginning of August it was found that the bedsteads and bedding in several of the rooms were covered with swarms of minute insects resembling mites; and it is not disputed that these insects came from certain straw palliasses supplied by the pursuer. The insects increased rapidly, and spread to other portions of the furniture; the pursuer was informed of what had occurred on the 9th of August, and on the 11th he removed the straw palliasses.

I am of opinion that in these circumstance the defender was entitled to reject the palliasses. I do not think that he proved his averment that their condition was owing to any want of care or skill on the part of the pursuer. It appears from the evidence of the experts who have been examined for the pursuer—and there is no contrary evidence for the defender—that these insects occasionlly appear in straw that has been properly treated, and that experienced upholsterers know of no precautions which can be relied upon for preventing their appearance. The palliasses in question were apparently in good order when they were delivered; and the result of the evidence appears to me to be that the pursuers had no reason to suppose that the straw of which they were made had been improperly treated, or that it was in any respect unfit for use. But there can be no doubt that the palliasses were in fact altogether unfit to be used as bedding; and the defender was therefore in my opinion entitled to reject them, because that was the sole purpose for which they were bought and sold. I do not think it material that their unfitness was not made manifest until a few days after delivery. The case is not that of the purchase of a specific article where a buyer relies upon his own inspection. But the defender ordered goods from the pursuer as manufacturer, upon whose skill and judgment he relied, and who undertook by his contract to supply, among other things, palliasses fit to be used as bedding.

But the straw palliasses were removed by the pursuer as soon as he was made aware of their condition, and the question in this action is, whether the defender is entitled to reject the remainder of the bedroom furniture. The contract is separable, so that the purchaser might reject a particular article as defective or disconform to contract without rejecting the whole furniture supplied, or the whole furniture of the bedroom for which the defective article was intended. The bedroom furniture which is now in question was admittedly in good condition and conform to contract, and the defender has no complaint to make of it, except that it became infested with the mites coming from the straw palliasses. The evidence as to the extent of the mischief is conflicting. But it is unnecessary to examine it in detail, because in the most unfavourable view for the pursuer which can reasonably be taken, it is still clear enough that no permanent damage has been done. Some parts of the furniture were covered with mites from the straw, and it was impossible to get rid of the nuisance without the expenditure of a good deal of time and trouble. But the work was done by men in the pursuer's employment, and by his orders, and it appears to have been successfully accomplished. It is true that the defender says he is not satisfied that the insects might not return as the season advances. But he says that but for that apprehension he would not have rejected the furniture in the condition in which it now is, and he admits that there was nothing wrong with it, ‘except with regard to the insects. It was otherwise perfectly satisfactory.’

It appears to me to be at least very doubtful whether the defender had a sufficient ground in law for rejecting any part of the furniture excepting

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the straw palliasses. But assuming that he might have done so if the rejection had been timeously made, I think he is barred by delay from maintaining that the goods, for which the pursuer now demands payment were in any respect disconform to contract. The goods have remained in his possession and under his control from the middle of July 1886 until the end of January 1887; and in my view of the evidence it was not until the 24th of January, and after the present action had been raised, that he intimated an intention to reject them. The law is perfectly well settled that a buyer who retains goods in his possession for such a length of time must be held to have retained them in conformity with the contract, and is bound to make payment of the contract price.

The defender avers an agreement between him and the pursuer that ‘he should meanwhile retain the bedroom furniture in his hotel, and that his right to reject the same should not be prejudiced while the pursuer was testing’ a certain alleged process for getting rid of the insects. The burden of proving this agreement lies on the defender, and he has failed to prove it. Assuming his account of the interview on the 13th of August to be precisely accurate, it does not appear to me to import an agreement to the effect alleged. It comes to this, that the defender threatened to return the furniture, and the pursuer assured him that with the efforts they were using it would be put all right, whereupon he agreed to keep it. This does not necessarily imply any departure by the pursuer from his legal right, or any admission that the furniture was not conformable to contract. But the pursuer gives an entirely different account of what passed, and I see no reason to doubt that his statement is in accordance with his recollection and belief. Without imputing any intentional misstatement to either party, I think the agreement is not proved. It is to be observed, however, that the correspondence contains no reference to an agreement, such as might have been expected if the parties had distinctly understood that the furniture was left in the defender's possession on other conditions than those arising from the contract, and also that the defender's conduct in the matter is not quite consistent with his own account of his understanding. For if the defender understood that the pursuer had agreed to the alleged conditions, he appears upon his own statement to have failed in his duty to the seller, because he says that when the pursuer's men ceased in November to come regularly to the hotel for the purpose of cleaning the furniture he was dissatisfied with its condition, and that he then made up his mind to reject it. If that were so, he was bound at once to intimate to the pursuer that he rejected the furniture, and either to return it, or at least to intimate that it lay in the hotel at the pursuer's risk. But he continued to retain it, and allowed his tenant to make use of it in the hotel until the end of January, more than two months after he had made up his mind to reject it, and nearly three weeks after the action for payment had been raised. This is quite inconsistent with an agreement that his right to reject or accept should depend upon the success of the pursuer's efforts to clean the furniture, and quite inconsistent also with the obligation which the law lays upon a purchaser to return goods at once to the seller if he does not intend to accept them.

The question as to the defender's liability to pay for the spring beds depends upon different considerations, but as to this matter also there is an unfortunate conflict of evidence. The result, however, appears to me to be that they were sent on approbation and retained by the purchaser. When the straw palliasses were removed it was necessary that some other mattresses should be substituted, and the pursuer proposed to send spring mattresses, as he says, ‘on approbation,’ and he did so accordingly. The defender does not appear to have known that spring mattresses had been supplied until he was asked to pay for them, but when he did come to know of it he did not reject them. He says that he did not know that the pursuer had applied to the tenant Bruce to have them returned, and that Bruce had refused. But he says that ‘if they had been asked back he would not have been prepared to give them. If Bruce had refused to give them back he would have been acting just as I would have desired him to do.’ In these circumstances he must be held to have accepted the spring mattresses, and I am unable to see on what understanding he can have done so, except upon the footing that he was to pay for them at a fair price. There is no suggestion that the price is other than reasonable.”

The defender reclaimed, and argued—Even if the bedroom furniture, other than the palliasses, was delivered in good condition, the mites had spread from the palliasses on to the other furniture, and that was a good reason for rejecting the whole furniture, which was thus made unfit for use— Randall v. Newson, January 22, 1877, 2 L.R., Q.B.D. 102. As regarded the question of timeous rejection, the practice now was to take each case on its merits. There was no absolute rule laid down as to the time within which the rejection must be made, and the defender here had rejected timeously— Chapman v. Couston, Thomson, & Company, March 10, 1871, 9 Macph. 675.

Argued for the respondent—If the palliasses were disconform to contract, as was admitted, that did not permit the defender to return the whole of the articles, which when delivered were conform to contract. All he could do was to return the palliasses, and these the pursuer had removed. Even if the articles were disconform to contract, the defender had barred himself by delay from rejecting them. They were in the hotel and in use for nearly six months after the defect had become patent.

At advising—