Scottish Court of Session Decisions

R. & J. Dick, gutta-percha boot and shoe manufacturers, Glasgow, raised an action in the Sheriff Court at Glasgow for £105 against the Great Northern and North-Eastern Railways, incorporated by Act of Parliament and trading in Glasgow under the name or firm of the East Coast Railways, having their office at 37 West George Street there.

The pursuers averred and the defenders admitted that on or about 2nd December 1899 the defenders, acting in their capacity as common carriers, took delivery of a Siever lasting-machine from Messrs Thomas Wilson, Sons, & Company, Limited, the agents of the English and American Machinery Company, Limited, 1 Worship Street, Finsbury, London, E.C., which machine had been purchased by the pursuers from the said English and American Machinery Company, Limited, for £100, and was delivered to the defenders to be conveyed by them to the works of the pursuers at Greenhead, Glasgow; that when the defenders got delivery of the said machine it was in good order and condition, and quite intact and unbroken; and that on or about 7th December 1899 the defenders tendered said machine at pursuers' works, and that the pursuers refused to accept delivery.

The pursuers also averred that the machine was tendered by the defenders at the pursuers' works in a damaged condition; that it was very badly smashed and in a useless condition, most of the principal parts being broken; that to have the machine repaired, adjusted, and tested would cost about as much as a new machine, and that the repaired machine would not be nearly so serviceable or reliable as a new one.

The defenders explained that the machine had been injured by reason of its being knocked off their lorry by a tramway car horse which fell while passing the lorry on its way along Argyle Street, Glasgow. They contended that if liable they were only liable for the damage done to the machine and not for the price of it.

The pursuers pleaded—“(2) The pursuers' machine having been damaged while in the defenders' hands for carriage, they are entitled to compensation from the defenders for the loss which they have thereby sustained. (3) The pursuers having sustained loss, injury, and damage to the amount sued for, decree ought to be granted as craved, with expenses.”

The defenders pleaded—“(3) In any event, the defenders are only liable to the pursuers in such sum as is necessary to repair the machine, and the sum sued for is excessive.”

Proof was allowed and led. The pursuers brought evidence to show that the machine was only worth its value as old metal as it stood; that it would take £30 to manufacture in this country the parts that had been broken; and that the parts could not be put together without the superintendence of an expert from Leicester. Their experts deponed that even if so repaired they would not guarantee that the machine would work satisfactorily.

The defenders' witnesses deponed that the damaged machine could be made as good as new at an outlay of £15 or £16, 10s.

On 13th March 1901 the Sheriff-Substitute ( Guthrie) pronounced the following interlocutor:—“Finds that the defenders were carriers of a Siever's lasting-machine from Hull to Glasgow about 7th December 1899,

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consigned to the pursuers: Finds that when the crate containing the machine was offered to the pursuers the machine was found to have been seriously broken in transit, and the pursuers refused to take delivery of it: Finds that the machine was so much injured that the pursuers were entitled to reject it: Finds that the cost of the machine at Glasgow was £100 sterling: Decerns for £100 sterling, with interest thereon as craved,” &c.

Note.—“Nettleship v. British Columbia Sawmills, 37 L.J.C.P., 235, L.R. 3 C.P. 499, shows how this case should be decided. It is clear that the machine was very badly damaged, and I am of opinion that the pursuers were not bound to accept it from the carriers. … It is clear that the repair of the machine would have-cost a very considerable sum—I think a good deal more than Messrs Rowan & Company's estimate of £16, 10s.—and it is not clear that when repaired it would have been satisfactory. It is certain that it would not have been as good as new. But the pursuers were entitled to delivery of a new machine, and must, according to settled rules of law, receive what it would cost to supply such a machine at the time of the breach of contract.

“They would also be entitled to interest on such cost from the date of breach ( Nettleship cit.), but they have not asked for it.”

The defenders appealed, and argued—The Sheriff—Substitute's judgment and the reasons on which it was based were wrong. It was only if the Court could reach the conclusion that there was total loss or constructive total loss that the judgment appealed against could be supported. But that was not the case here, and it was not the ground on which the Sheriff-Substitute based his decision. The evidence established that the machine could be repaired. A common carrier, like an insurer, was merely liable to the extent of the damage, and the owner was not entitled to refuse the goods and sue for the full value. The measure of damage was what it would cost to put the machine right, and they asked the Court to assess the actual damage sustained— Paul & Sons v. Caledonian Railway, 1885, 1 S.L. Rev. 290; Hutton v. North British Railway, May 7, 1867, 1 S.L. Rev. 290, note; Ciceri & Company v. Sutton & Company, March 20, 1889, 16 R. 814, aff. March 25, 1890, 17 R. (H.L.) 40, 27 S.L.R. 1018.

Argued for the pursuers—This was a specially patented American article. It was so damaged that its value was merely that of scrap iron, or at least it was no longer the article ordered. The machine could not be repaired, and even if it could it would not be the article ordered and would not last as long. It would not do for the defenders to say that the article at so much cost could by repair be put into a working condition. What they were entitled to was complete indemnification, and this they could not get unless they got a new machine. That was what they had ost, and that was the proper measure of damages— Rice v. Baxendale, 1861, 30 L. J., Exch. 371; Keddie, Gordon, & Company v. North British Railway, December 15, 1886, 14 R. 233, 24 S.L.R. 173.

At advising—