Scottish Court of Session Decisions

W. N. White & Company, Limited, fruit brokers, Covent Garden, London, and John Morton Threshie, writer, Glasgow, their mandatory, sued in the Sheriff Court at Glasgow, under the Debts Recovery Act 1867, James Dougherty for £39, 5s., the price of certain cases of apples which the defender purchased from the pursuers at public market in London.

The defender denied liability upon the ground that the sale was by sample, and that the goods delivered were not conform thereto.

The facts as established by the proof are set forth in the following passage of the Sheriff-Substitute's interlocutor—“A public sale of apples was held in Covent Garden Market on 11th June, and a large quantity of apples was sold on that occasion. Among the sales were two quantities of apples to the defender, being sixty cases of a brand know as the ‘Eagle’ brand and sixty cases of another brand known as the ‘Kangaroo.’ The apples had arrived from Tasmania, and they were brought to this country in steamers, which had refrigerators on board, so as to keep the apples fresh. According to the custom of trade in Covent Garden Market, the sales of apples, ‘to arrive’ by certain ships are publicly announced and on the arrival of the vessels the apples are taken to the market and sold by public auction. The apples in bulk are placed in the cellar underneath the market, and a certain number of cases is placed on a dais in front of the intending purchasers. These cases are selected from the bulk by the auctioneer or his deputy, and they are open, and the apples are visible to the offerers. The auctioneer refers to them as being specimens of the apples to be sold. The sale is conducted under certain conditions, which are not read out, but are hung up in front of the auctioneer's rostrum, and it appears to be in accordance with the custom of trade that the conditions are not read, but that they are known to be there and to regulate the sale. At the auction on 11th June the sales to the defender were made in accordance with these customs. The steamer by which the apples are said to have arrived had discharged its cargo the day before the sale, and the bulk of the apples was placed in the cellar, and six open cases were placed on the dais as specimens of the apples in the cellar. These cases contained good sound hard apples. The conditions of the sale were not read, but the defender was bound to know of them. After the sale the defender received a delivery-order for the apples and handed it to a carrier, and the carrier had them conveyed to Glasgow. They arrived in

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Glasgow on the morning after the sale, and the ‘Eagle’ brand lot was found to be utterly useless, and the ‘Kangaroo’ lot was found to be good. The condition of the ‘Eagle’ brand lot is well described in the evidence of Mr James Pinkerton, a neutral witness. He says that the apples were absolutely valueless as fruit, and that they were in an advanced state of decomposition. A certain portion of the cases, viz.—twenty, was not so bad as the rest, but they were not sound fruit. The defender thereupon communicated with the pursuers, and he was told by them to do the best he could with the apples. A misunderstanding arose afterwards as to the defender selling them at his own hand, and a judicial warrant was then obtained to sell them, and the sale realised £5, 1s. 2d.”

Article 3 of the conditions of sale was in these terms—“Goods to be delivered to the purchaser as they now lie, with all faults and defects, without any allowance for inaccurate description of marks, quality, quantity, or condition, and intending buyers are requested to thoroughly inspect the bulk.”

The Sheriff-Substitute ( Balfour) on 4th December 1890 assoilzied the defender.

“ Note.—… Under these circumstances the question arises, whether the defender is liable for the price of the rotten apples? The pursuers say—(1) That according to the conditions of the sale the defender took the risk of the bad quality; (2) that he took delivery of them in London without objection, and is now barred from objecting; and (3) that the carrying of them from London to Glasgow would damage the apples, and that they (the pursuers) had no concern with the carriage — the place of delivery being London.

With reference to the first point, the third clause in the conditions of sale is that the goods are to be delivered to the purchaser as they lie with all faults, and without any allowance for quality or condition, and intending buyers are requested to thoroughly inspect the bulk. I am of opinion that, if the sale to the defender had been made strictly on these conditions of sale, the defender would have been bound to have paid for the apples. He was bound to know the conditions, and he ought to have inspected the bulk. If he chose not to inspect the bulk he took the consequences, and the apples were his with all their faults unless he could prove fraud, which is not averred in this case. But it appears to me that the exhibition of six cases as samples makes a great difference in the transaction between the parties. It is the seller who selects these cases and opens them, and the only meaning which can be attached to the exhibition of them is, that the samples show the quality of apples that are to be sold. Nothing is said in the conditions of sale about samples, and the very fact of exhibiting samples takes away from the necessity of buyers inspecting the bulk. It seems to me that the third clause in the condition has reference to another state of things, viz., that the goods are in bulk, and that no sample is exhibited. But when you have a sample exhibited it is absurd to request the buyers to inspect the bulk. If that condition is to be maintained, even where a sample is exhibited, then the exhibition of the sample has no meaning. If, notwithstanding that a sample was exhibited, the auctioneer had told the audience to inspect the bulk, then I apprehend the auction would have been spoiled. It just comes to this, that these conditions of sale are a formal affair to which purchasers do not pay much heed, but they do this at their own risk, and if a sale comes precisely under the terms of the conditions, the purchasers would be bound by them. In this case, however, the auctioneer himself has entered into a sale by sample, to which the conditions do not allude, and to which the third clause of the conditions is not meant to apply. I hold that that condition applies to the sale of apples in bulk without the production of a sample, and any other result would enable auctioneers to impose on the public by exhibiting sound samples and delivering rotten bulk. If a sample is meant not to be a standard of the quality of the bulk, then the third condition should explicitly state that buyers are requested to inspect the bulk notwithstanding that a sample has been exhibited.” …

The pursuers appealed to the Sheriff ( Berry), who on 12th March 1891 adhered to the judgment appealed against.

“ Note.—I have felt some difficulty with reference to the first question dealt with by the Sheriff-Substitute, namely, whether under the conditions of sale the defender took the risk of bad quality. This really comes to depend on whether the third condition was intended to apply to such a case as we have here, where a sample or specimen of the apples was exhibited at the time of auction. On consideration, I am not prepared to take a different view from the Sheriff-Substitute, who has held that the condition has reference to another state of things, namely, where the goods are in bulk and no sample is exhibited. It is clear, from the terms of certain of the conditions, that they are intended to apply to different kinds of sales, thus the 6th and 7th conditions seem to have reference to sales of goods ‘to arrive,’ where it is impossible to have an inspection of samples. There is nothing in the conditions themselves to show to what precise state of matters the 3rd condition is intended to apply; but it seems reasonable to regard it as applicable to a case where samples are not shown at the time of sale. To hold otherwise would certainly place buyers at a great disadvantage, because, as the evidence shows, it would be next to impossible for them to inspect the bulk after purchasing on a view of the sample. At all events it seems reasonable to hold the condition as directed to a different kind of sale from that which took place here. In that view I think that, as the goods certainly did not correspond with the sample, the defender was entitled to reject them. I do not think that the delivery taken in London was such

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as to exclude the defender from rejection, when on opening the bulk at Glasgow he found the case inferior. Nor do I think that the mere carriage from London to Glasgow would so damage the apples as to account for the condition in which they arrived there, and so bar the defender from rejecting them.”

The pursuers appealed to the Court of Session, and argued—That the sale was by bulk, and was in terms of the printed conditions which were publicly exposed on the rostrum. The purchaser had an opportunity of examining the apples, and if he failed to do so, or did so imperfectly, he, and not the seller, must suffer. No guarantee was given, and the samples shown on the day of sale were just average specimens of the apples. The conditions of sale put the purchaser on his guard, and protected the seller— Macdonald & Fraser v. Henderson, November 3, 1882, 10 R. 95; Hain v. Laing, May 21, 1853, 15 D. 667; Byewater, 1 Ad. & Ell. 508.

Argued for the respondent—There was here a special reference to sample; it was in fact a sale by sample, and it was at the samples that intending purchasers were looking. No reference was made to the “conditions of sale” by the auctioneer, and nothing was done to make an intending purchaser aware of them. The sale was advertised to consist of fruit arriving by a particular ship, and the evidence showed that a number of the apples had come by another vessel, and had been kept for some time. The purchaser had no opportunity of examining his purchase till it was delivered to him. He took for granted that the sample fairly represented the bulk, which it was proved that it did not, and upon that account he was not liable.

At advising—