Scottish Court of Session Decisions

Now when that contract was made the only company which ran electric cars at Dumbarton was the Dumbarton Burgh Tramway Company, and advertisements were inserted in the cars run by that company; and for all the time during which that company ran their cars the defender does not deny liability, but says that in the beginning of 1908 the Dumbarton Burgh and County Tramway Company, Limited, took over the former company, and thereafter became proprietors of a largely extended system — the original system being first extended on 7th April 1908, and further extended on 25th June 1908, and again on 25th February 1909—and that whereas up to the time that the original company was taken over their advertisements were shown on cars running in Dumbarton all day, that thereafter they were only shown on cars which were sparsely used and ran over the extended system. The Sheriff, while giving effect to that argument, has held that inasmuch as the defender has had a modified benefit of advertisement, that the pursuers are entitled to a certain sum as a quantum meruit, though not on the contract. On what is strictly the only question raised by the action, namely, whether the pursuers are entitled on their contract to be paid, I think that the Sheriff is right and that they are not, and I so hold on the simple ground that the contract was for advertisement on cars running in Dumbarton—the cars of the then company on their then routes. I do not mean that if the then company had extended their lines by a mile or half a mile that that would have destroyed their identity, but I do say that when they were taken over by another company who have a largely extended system, that there is no identity and that the subject-matter of the contract has ceased to exist. I think that the defender would have been entitled after 7th April 1908 to say that the contract was at an end.

However, inasmuch as the Sheriff has turned the action into an action of quantum meruit, and inasmuch as the defender does not object to that being done — and in that I think he is wise, for otherwise a separate action might have been raised — I do not see any objection to the Sheriff's judgment being upheld. I wish, however, to make it clear that my ground of judgment is not that the contract was modified, for the contract was at an end by the fact of the company not being able to give what they had contracted to give, but that a quantum meruit was due for the advertisement given.

Lord Mackenzie—I am of the same opinion. The contract on which this action was brought was one under which the defender agreed to take six glass slides on the electric cars running at Dumbarton for a period of five years at the cost of 1s. per week per glass. Now in their condescendence the pursuers set out that “in the beginning of 1908 the Dumbarton Burgh Tramway Company, Limited, was taken over by the Dumbarton Burgh and County Tramway Company, Limited.” I point this out, because it was said in argument that the defences did not give due notice of the point on which the case turns. It appears to me that, before they can recover, the pursuers must show that the company with which the contract was made was truly the same company as that which now exists, and that the existing company is able to give the same or substantially the same facilities for advertising. The point therefore arises on the pursuers' own averments, and, accordingly, I am not disposed to attach importance to the argument that the point should have been taken in the defender's pleadings. The only effect of the defender's stating the point in his defences would have been to direct the pursuer's attention to the vital defect in their own condescendence.

I am not to be taken as saying that it might not have been possible for the second company — the Dumbarton Burgh and County Tramway Company, Limited — to fulfil the contract. But when one turns to the proof it at once appears how different the one company is from the other. We find that in no reasonable view can the second company be said to be the same as the original company.

The defender contracted for advertisements to be exhibited on “the electric cars running at Dumbarton.” Now, in the first place, when the first company was taken over by the new company the double-deck cars on which the defender's advertisement was shown were not running in any proper sense of the term, as is proved by the evidence of the pursuers' own witness M'Mahon. He says that, apart from the early morning and evening service for workmen, they are laid up in the shed. Secondly, the cars, if they could be held to be running, were not running “at Dumbarton.” Now it is clear what the defender wanted when he made the contract. He says in his evidence — “When I gave the advertisement I knew that the cars were running between Barloan and Dalreoch Toll every twenty minutes, and between Dalreoch Toll and Barloan every twenty minutes, backwards and forwards every day.… I gave the advertisement because the cars were going to be running backward and forward in Dumbarton all day. The more cars running the more people would see my advertisement. That was the basis upon which I signed the contract. That is what I took to mean by ‘cars running at Dumbarton’ at that particular time.” But the cars did not run in this way after the system was transferred to the new company, and as from that date the defender was not getting what he contracted for he is not liable under the contract. Accordingly I agree with your Lordship.

The Lord President intimated that Lord Kinnear, who was absent at advising, concurred.

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