Scottish Court of Session Decisions

Lord Salvesen—This is an appeal in a summary cause to which section 8 of the Sheriff Courts Act 1907 applies, and as the procedure laid down in that section is novel it behoves us to walk warily in dealing with the interpretation of it and the method in which it is to be applied in practice. The substance of section 8 is that in a summary cause the sheriff-substitute may dispose of the cause without a record and without having the evidence taken down in shorthand or otherwise recorded, and that in such a case there shall be no appeal at all upon questions of fact, there being no materials preserved upon which such an appeal can be taken. It is open, however, for either party to move that the evidence shall be recorded, and if it has been recorded the sheriff-substitute's judgment both on fact and law may in ordinary form be brought under the review of the sheriff. The section proceeds—“In a summary cause, if the sheriff on appeal is of opinion that important questions of law are involved he shall state the same in his interlocutor, and he may then or within seven days from the date of his interlocutor grant leave to appeal to a Division of the Court of Session on such questions of law, but otherwise the judgment of the sheriff shall be final.”

It is this last part of the section that confers upon us jurisdiction to entertain an appeal at all in a summary cause to which section 8 applies. We have already held that it is not a valid objection to the competency of the appeal that the Sheriff has not expressly stated in the interlocutor the particular question of law which he thought of sufficient importance to be submitted to the review of the Court of Session. It is enough if it plainly appears from his interlocutor that there is a question of law and that he has, within the seven days stipulated, granted leave to appeal; because it may be assumed that he would not grant leave to appeal unless he was of opinion that an important question of law was involved, and that it was right that the parties should have the benefit of that question of law decided by a higher court. It follows, however, from the section that we must take the findings in fact of the Sheriff as conclusive, and that we can only deal with his interlocutor either by way of affirming it or reversing it if we are satisfied upon these findings in fact he reached an erroneous conclusion in law; and parties admitted that that being so, we were not entitled to go to the proof printed in this case with the view of considering whether the Sheriff was justified in reaching the conclusions in fact which he expressed in his interlocutor.

Now so dealing with the case we have three findings in fact here—(1) That on 25th May 1910 the pursuer sold to the defenders a bay horse at the price of £28, with a warranty that it was a good worker and sound in wind; (2) that the defenders bargained that they should have a week's trial with the horse; (3) that they returned the horse within the week on the ground that it was suffering from stringhalt and was going lame. It is plain that the third finding in fact does not affirm that there was any breach of warranty. It was not even found that the horse was in point of fact suffering from stringhalt and was going lame; it is only found that that was the ground upon which it was returned. Even if it were suffering from stringhalt and was going lame, that would admittedly not be a breach of the warranty as expressed in the first finding. The case therefore turns really upon the two first findings, and I think we may take it exactly as if these findings had been expressed in a written contract by the parties, with the addendum appearing on the contract that the stipulation embodied in the second finding had been inserted at the instance of the defenders.

That being so, was the contract one of sale on approbation, as the Sheriff has found in law, or was it a sale with a warranty and a right on the part of the defenders to reject the horse within a week if within that time they found it was disconform to warranty? That is really a question of the construction of a contract, and is therefore properly a question of law. I think that the Sheriff was entirely justified in the view which he took that it was a question of law of such a nature as might entitle the party who was unsuccessful to obtain the benefit of the review of this Court. I cannot say that I have any doubt that the findings in fact of the Sheriff did not warrant the conclusion in law at which he arrived. In my opinion this was not, upon his findings, a contract of sale on approbation. Had that been the true meaning of the bargain, I cannot understand why there should have been a warranty given at all, for within the week the buyer might reject the horse without assigning any ground whatever, except that he did not like it. The Sheriff's view involves that there was to be a free trial for a week of the horse with an absolute right of rejection upon any ground, and that the sale under the warranty was then to take effect if the horse was not rejected, which would give the purchasers a further right [of rejection if they thereafter discovered a breach of the warranty and intimated timeously their desire to rescind the contract.

I reach this conclusion upon the facts as

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