Scottish Court of Session Decisions

In May 1887 P. & W. Maclellan, iron merchants, Glasgow, contracted, for the sum of £489, 15s. 11d., to execute the malleable ironwork of three tenements which H. & E. Taylor, Buchanan Street, Glasgow, proposed to erect there. Maclellans' estimate included this condition—“The prices for the above to include all charges for carriage and delivery at the job at such times as may be required by the mason, who will take delivery of joists and beams, and lay the same.” There was no absolute contract to deliver within a specified time. In order to implement their obligations Messrs Maclellan entered into contracts with several Belgian firms of ironworkers—the Providence Company, Sclessin & Company, and the Binehill Company, to supply iron beams to Garitte & Dehaspe, who manufactured them into girders fit for the use to which they were to be put. The specifications of the girders about which the dispute finally arose were given by Messrs Taylor to Messrs Maclellan upon 6th June 1887, and sent by them to their Belgian correspondents upon 20th June. The completed girders were delivered in Glasgow upon 17th August. Other orders were given upon the 10th and 13th June, sent to Belgium upon dates varying from the 20th to the 27th June, and the girders delivered in Glasgow from 17th August to 5th October. In consequence of the irregularity and lateness in delivery of the iron girders and joists, Messrs Taylor were not able to finish their houses in the time they had expected to do so, and could not get them ready for the letting season in Glasgow at the Martinmas term. They had also to do much of their mason and plaster work in the winter time, but the houses were finally finished and Messrs Maclellans' ironwork used in them by the spring of 1888.

In March 1888 Messrs Maclellan brought an action in the Sheriff Court at Glasgow for £244, 16s. 9d with interest, being the balance of the price of the girders, &c., they had supplied. The defence was that the pursuers had been in fault in not delivering the girders in due time; that as defenders had incurred damage from the delay, they were entitled to set off the amount of damage they had incurred against the pursuers' account. In December 1888 Messrs Taylor brought an action against Messrs Maclellan for £700, the amount of damage they alleged had been incurred by the failure of the defenders to deliver the ironwork in good time. They averred—“The girders and joists ordered on 6th June were not delivered until the 22d, 23d, and 24th September 1887, consequently the mason could not proceed with the mason work of the tenements from about the middle of June till the beginning of October 1887. Thus they had lost ten to twelve weeks of the best building season, and the buildings had themselves suffered.

In the latter action the defenders averred—“Explained that the pursuers' dates are not correct. Explained further that though an order for part of the goods was given on 6th June 1887, this order was amended, and was only finally adjusted about the end of June 1887. It is admitted, however, that the goods so ordered were not delivered within six weeks of the date of final order. Explained that that was a reasonable time in the circumstances. Explained that what is a reasonable time in a contract of the kind in ordinary circumstances is by custom, which custom the pursuers know or ought to have known, is subject to an extension, if strikes, weather, or other similar causes beyond the control of persons in the position of defenders hinder the work. The following circumstances which occurred in this case in accordance with said custom excused the defenders from giving delivery sooner than they did. The girders, &c., were to be made and brought from Belgium, and were liable to the ordinary delays and risks of the trade there, including strikes. The pursuers and their architect were aware of this at the time of entering into the contract. Considerable delay occurred in the manufacture of the girders, &c., in consequence of strikes occurring among the men employed by the manufacturers of such work in Belgium, and also of the excessive heat prevailing at the time the goods were being manufactured, causing the work to be interrupted. But for these and other similar causes the goods would have been delivered within the usual time allowed by custom of trade in the ordinary case, which is within six or eight weeks of the date of final order.”

The pursuers pleaded—“(1) The sum sued for being the balance of the loss which the pursuers have sustained through the defenders' breach of contract in failing timeously to deliver the goods contracted for, decree should be granted, with interest and expenses, as craved. (2) The averments of defenders as to the construction of the written contract and the custom of trade are irrelevant, and cannot be admitted to probation. Separatim—The custom of trade being unknown to pursuers, is not binding on them.”

The defenders pleaded—“(2) The pursuers' statements, so far as material, being unfounded in fact, the defenders should be assoilized with expenses. (3) The defenders having given delivery within a reasonable time, having reference to the circumstances, they should be assoilzied with expenses.”

In the course of the procedure the Second Division of the Court of Session, on appeal, remitted to the Sheriff to allow a proof before answer of the parties' averments.

The proof was thereafter taken, and its

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import is fully explained in the note to the interlocutor of the Sheriff-Substitute ( Erskine Murray) upon 11th June 1891—“Finds (1) that in May 1887 the parties H. & E. Taylor, who were erecting for themselves a number of tenements in Glasgow, contracted, under the advice of their architect Mr Munro, with the parties Maclellan, iron merchants, &c., Glasgow, for the supply to them of a number of iron compound girders, H beams, &c., required for the new building: Finds (2) that the contract which is contained in No. 7/1 of process, contains no direct obligation to deliver within a specified time, or when demanded: Finds (3) that near the close of the estimate occur the words, ‘The prices for the above to include all charges for carriage to and delivery at the job at such times as may be required by the mason, who will take delivery of joists and beams, and lay the same’: Finds (4) that from the evidence it appears that parties contemplated that in usual course the goods would be delivered in about six weeks or two months after specification of the lengths, but that there was no absolute contract to deliver within that time, all that was contemplated by parties being delivery within a reasonable time: Finds (5) that it is further clear from the evidence, even of the parties Taylor themselves, that the above-quoted clause was inserted, not for the purpose of giving a right to them to demand delivery the moment the masons were ready, but simply to regulate the mode of delivery after the Maclellans or other sellers were prepared to deliver, so that their work might not be blocked by the whole iron being delivered at once: Finds (6) that the parties Taylor through their architect, must in the circumstances, considering the prices at which they bought, and other facts, have known, or ought to have known, that they were not buying goods lying in stock in Glasgow, which could be delivered at any time, but goods which had to be ordered from, manufactured in, and imported from Belgium: Finds (7) that the parties Maclellan have proved that by the custom of trade the sellers in such a case are not responsible for delays occuring in Belgium by strikes and other causes beyond their control, the buyer taking the risk of any such delay in consequence of the cheaper price at which he gets the articles: Finds (8) that while in the present case the lengths were specified between 6th and 15th June, a considerable quantity of the girders, &c., were not delivered till the end of September and beginning of October, being from a month to six weeks beyond what is admitted to be the usual and ordinary time: Finds (9) that on the whole the parties Maclellan have proved by Belgian evidence that the delay was occasioned by strikes and by excessive heat, which delayed manufacture: Finds (10) that the parties Maclellan having raised an action for the contract price of the iron delivered, the parties Taylor have raised a counter-action for damages said to have been occasioned by the delay, through loss of rents, inferior work in consequence of operations being delayed till winter, &c., and the two actions have been conjoined: Finds on the whole cases and in law—(1) that there is no dispute as to the liability of the parties Taylor in the first action, except in respect of their claim for damages in the second; (2) that quoad the action Taylors v. Maclellan, the parties Taylor have failed to prove the parties Maclellan were bound to supply the iron either at a specified time or absolutely on demand; (3) that the contract as regards delivery must be held to have been simply for delivery within a reasonable time; (4) that in such circumstances proof of custom of trade affecting the time of delivery is competent; (5) that the parties Maclellan have proved a custom of trade that the buyer in such cases takes the risk of delay from strikes and other unforeseen causes beyond the sellers' control; (6) that the parties Maclellan have proved that in the present case the delay arose from such causes: Therefore in the action Maclellans v. Taylors decerns as craved, and in the counter-action assoilzies the defenders: Finds the parties Taylor liable to the parties Maclellan in expenses in both actions,” &c.

Messrs Taylor appealed, and argued—There was no custom of trade by which the defenders could be excused from furnishing this iron within six weeks of the date that the specifications were given to them. It was not known to the pursuers, and their architect could not so bind them even if there was such a custom. Even taking it that there was no specific time mentioned in which the iron was to be delivered to the pursuers, it must be delivered within six or eight weeks, as that was a reasonable time according to the custom of the trade, but the defender did not deliver it for eight or ten weeks beyond that time. They could not be excused upon the ground that the firms from which they had ordered the iron were in difficulties from strikes among their workmen or from excessive heat which brought the work to a standstill. The pursuers did not know and did not care if the girders supplied to them were of Belgium iron, and if the defenders could not get the iron from Belgium in time to fulfil their contract, they ought to have gone elsewhere for it or suffer the consequences, i.e., pay damages for the loss they had caused by their failure to implement their contract.

The respondents argued—They had proved by the evidence, and the Sheriff-Substitute had so found, that this was a custom of trade by which an iron manufacturer was excused from fulfilling his contract if he was prevented from doing so by strikes or other causes beyond his control. But even if there was no custom of trade, the defenders were not bound to deliver the iron at any specific time by the contract, because the obligation to deliver as the mason wanted the iron, was only to prevent an accumulation of iron at the buildings, and had nothing to do with a specific time of delivery. The law therefore inferred that the iron was to be delivered within a reasonable time, and in finding out what that

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was, regard must be had to all the circumstances at the time the contract came to be fulfilled, and not merely to what might be a reasonable time in ordinary circumstances— Hick v. Rodocanachi & Company, July 30, 1890, 7 Times Law Reps. 732. It was proved that strikes and excessive heat had prevailed in Belgium at the time the defenders gave their orders, so that the work could not go on, and that was the reasons of the delay in forwarding the girders.

At advising—