Scottish Court of Session Decisions

By contract dated 2d February 1884 Messrs Pontifex & Wood, engineers, Farringdon Works, Shoe Lane, London, sold to Duncan Stevenson, bleacher and ice merchant, Millerston, near Glasgow, a refrigerating machine, and undertook that they would not, without Stevenson's consent, supply any such machine which to their knowledge was to be erected within ten miles of the Cross of Glasgow, and which was to be used for the purpose of making ice for sale, for a period of five years from the date of the contract.

On 16th July 1886, an action was raised in the Court of Session at the instance of Stevenson against Pontifex & Wood, arrestments having been used to found jurisdiction, concluding for the sum of £4983, 18s. 3d., of which £3000 was claimed as damages for breach of contract. The pursuer averred in that action—“(Cond. 9.) Notwithstanding the obligations undertaken by them in the above mentioned article of the contract, the defenders in or about the beginning of the year 1885 supplied to Messrs F. W. Verel & Company, Cathcart, near Glasgow, icemaking machinery similar to that supplied to the pursuer. Messrs Verel & Company have thus been enabled to manufacture ice in competition with the pursuer, have undersold the pursuer in the market, and have thus to a very great extent injured his trade and reduced his profits. Cathcart is within the prescribed limit of ten miles from Glasgow. The defenders have thus violated the terms of the said contract. The loss occasioned to the pursuer by this breach of contract he estimates at not less than £3000.” This action was compromised by the pursuer accepting a tender of £250 in full of his claims under the conclusions of the action, and a discharge of his liability for the sum of £290,12s. 4d., being the balance of the contract price of the machine sold to the pursuer.

The present action was brought on 26th March 1887 by the same pursuer against the same defenders. The conclusion was for £650 as damages, which the pursuer averred he had sustained between 16th July 1886, the date of the first action, and 26th March 1887, the date of the second action, arising from the same breach of contract, viz., the sale to Verel & Company previously mentioned.

The pursuer averred—“(Cond. 7) Since 16th July 1886 and down to the present date the said F. W. Verel & Company have continued to manufacture ice with the machinery supplied to them by the defenders, in competition with the pursuer, have undersold the pursuer in the market, and have thus, by the defenders' said breach of contract, injured the pursuer's trade to a very great extent, and have reduced his profits. The loss sustained by the pursuer between the two dates last mentioned amounts to a sum of not less than £650, being the sum sued for.” Also in Cond. 8 “…The sum tendered and accepted in the action above mentioned included, and was intended by both parties to include, only the damages therein sued for, viz., damage suffered prior to the date of the action.”

The defenders denied these statements, and stated in Ans. 8—“…The whole claim now made was included in and settled by the former action and settlement thereof.”

The pursuer pleaded—“The pursuer having, through the defenders' breach of contract condescended on, suffered loss and damage to the extent sued for, he is entitled to decree in terms of the conclusions of the summons, with expenses.”

The defender pleaded—“(1) In respect of the proceedings in the former action and the settlement thereof the defenders should be assoilzied. (2) It is incompetent to sue, as the pursuer claims right to do, for partial damages for one alleged breach of contract. (3) The pursuer's averments are irrelevant.”

On l5th June l887 the Lord Ordinary ( M'Laren) pronounced this interlocutor—“Finds that the pursuer's claims under the cause of action libelled are satisfied and discharged by the payment founded on in defence:Therefore assoilzies the defenders from the conclusions of the action, and decerns:Finds the defenders entitled to expenses, &c

Opinion.—The defenders are makers of ‘refrigerating machines,’ or machines for making ice in commercial quantities, one of which they sold to the pursuer on 2d February 1884, giving at the same time an obligation not to sell any other machine which to their knowledge was to be erected within ten miles of the Cross of Glasgow, and which was intended to be used for the purpose of making ice for sale. In the year 1885 the defenders (apparently through inadvertence) supplied to Messrs F. W. Verel & Company, Cathcart, near Glasgow, an ice-making machine in breach of this obligation.

On 16th July 1886 the pursuer raised in the Court of Session an action of damages against the defenders, concluding for payment to him of £4983, 18s. 3d., whereof £3000 is stated to be damages for breach of contract, consisting in the supplying an ice machine to Messrs Verel. This action was compromised by the defenders paying £250, and also discharging a claim of £290, 12s. 4d., being the balance of the contract price of the machine supplied to the pursuer.

The pursuer now sues the defenders for £650, being damages accrued from the date of the institution of the former action, 16th July 1886, to the date of the institution of the present action, 26th March 1887; and the question is, whether such a claim can be successfully maintained after the compromise of the first action, or whether that compromise does not amount to a discharge of all claims arising out of the sale of an ice-making machine to Messrs Verel.

The compromise was in general terms for a

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payment of a sum of money in full of the conclusions of the action, and the question whether this compromise covers emerging damages will depend apparently on the terms of the first summons, the amount of the claim made in that summons, and the probabilities of the case.

In the first summons the averments are consistent with the supposition that the conclusions were intended to embrace the whole claims arising out of this breach of contract, except that in claiming damages this expression is used—‘The loss occasioned to the pursuer by this breach of contract he estimates at not less than £3000.’ It is said on the one side that where a claim is made for damages past and future it is usual to state the claim as being for damage ‘sustained and to be sustained.’ It is observed on the other side that there is here no reservation of a right to sue for further damages.

There is nothing in the first summons that would suggest to the defenders that the pursuer had not brought forward all his claims against them, unless this is to be implied from the use of the expression ‘loss occasioned.’ I think that the defenders were entitled to insist that the pursuer should bring forward his whole claim, and that if it had been explained that the summons was not meant to cover future damage, the Judge would most probably have amended the record, or would have sisted process in order that a supplementary action might be brought. But I am not convinced that the pursuer by the use of the words ‘loss occasioned’ meant anything different from damage sustained and to be sustained. I cannot be sure that ‘occasioned’ is a limitation of the claim to past damage, because the expression is not grammatical. It is a case of a substantive used as a verb, without, as I think, any definite relation to tense or time, and the meaning is—The loss to the pursuer on this occasion, or on the occasion of this breach of contract, is £3000.

I am confirmed in this opinion by the consideration that the sum claimed, £3000, is much larger than anyone could reasonably claim for the actual loss of profit consequent on the competition of another firm during the period of a few months. I am also of opinion that it is very improbable that the defenders would have agreed to a compromise if it had been understood that the pursuer was entitled to bring forward fresh claims of damage in respect of the same breach of contract. This is, indeed, so clear that the compromise cannot possibly stand if the present action is to proceed. But it is in my opinion more accordant with the meaning of the parties and with the justice of the case that the compromise should be sustained as a compromise of all claims of damage arising out of the sale of the ice-making machine to Messrs Verel.”

The pursuer reclaimed, and argued—'When the first action was raised the future loss from competition could not be estimated. The pursuer could not in the former action tell to what extent his customers had been dealing with Yerel & Company, but having now found that out he was entitled to bring a second action— Jackson v. Cowie & Sons, July 13, 1872, 9 S.L.R. 617. If the damage was the necessary result of the wrong done, then the whole claim must be made at once, but when it could not be seen whether the damage would continue or not, as in the present case, then subsequent actions could be brought when the future damage arose— Bruce, Hume's Decisions, 596. The cases of Jackson and Bruce were the only two Scotch cases on the subject. The English authorities supported the same view—Mayne on Damages (2d ed.), pp. 93 and 96, and cases there cited— Hambleton v. Veere, 2 Saunder's Reports, 171; Hodsoll v. Stallebrass, January 11, 1810, 11 Adolph. & Ellis, 301; Tricklin and Others v. Williams, July, 3, 1854, 23 L.J., Exch. 335, Parke, B., at p. 337; Whitehouse v. Fellowes, February 12, 1861, 10 C.B. (N.S.) 765, Williams, J., at p. 783; Roberts v. Read, November 10, 1812, 16 East, 215; Shadwell v. Hutchinson, 2 B. & A. 297.

The respondents argued—The averments in the first action were identical with those in the second. There was no suggestion that the defenders had committed any fresh breach of contract. Bruce, supra cit., was a much stronger case than the present. The circumstances in Tricklin, supra cit., were very special. Hambleton and Hodsoll, supra cit., could be distinguished from the present case. They showed that the question was not whether fresh damage had arisen, but whether a new wrong had been done— Lamb v. Walker, May 13, 1878, 3 QBD 389; Qibbs v. Cruickshanks, May 27, 1873, 8 L.B., C.P. 454, Bovill, C.-J., at p. 460. Here the cause of action was the same, viz., the one breach of contract—Guthrie Smith on Reparation, p. 15. In cases of personal injury the jury took into account the probability of the injury causing future damage— Young v. Glasgow Tramway and Omnibus Company, November 29, 1882, 10 R. 242; Shields v. North British Railway Company, November 24, 1874, 2 R. 126. It was incompetent for the pursuer to raise a new action, because there was no new wrong done.

At advising—