Scottish Court of Session Decisions

LORD MACKINTOSH'S OPINION.—[After stating the effect of the evidence]—

Now, the first question that arises in law is whether or not the facts here established suffice to show that the pursuer, the buyer, did make known to the seller a "particular purpose for which" the van was "required" within the meaning of those words as used in section 14 (1) of the 1893 Act, and whether he did so so as to show that he was relying on Mr Scott's skill or judgment. There is surprisingly little authority upon the true construction of section 14 (1) of the Sale of Goods Act, 1893, and such authority as there is is not altogether consistent. The view which, speaking for myself, is the one which I think is the correct view to take is that the position is exactly as it was described to be by Lord Shand in a case which fell under the similar, but not identical, provision of the Mercantile Law Amendment Act, 1856, section 5. In that case, Hamilton v. Robertson, (1878) 5 R. 839, Lord Shand said (at p. 841):

"The provision of the Act"

(and here he is referring to the Mercantile Law Amendment Act of 1856) "does not create or provide a warranty by the seller that the goods shall be suitable for the general purpose for which such goods are used, but for a specified and particular purpose, when that purpose is expressly stated." In Williamson v. Macpherson & Co., (1904) 6 F. 863, Lord Kincairney (at p. 874) expressed the opinion, with which I agree, that the earlier decisions under section 5 of the 1856 Act were applicable to the construction of section 14 (1) of the Sale of Goods Act. Now, if the true construction of the section be as stated by Lord Shand, it would seem to me to be clear that the facts proved here do not bring the present case under it. This was a van, the general purpose of which was the carrying of goods, and all that was told to the seller was that it was to be used by the buyer for that general purpose, certain examples being given of the kinds of goods which might be carried in it. In my opinion that is in no sense a particular purpose within the meaning of section 14 (1). It may be that the view which I have taken with regard to the meaning of this section is too narrow to cover every type of case, and it might be difficult to bring within it the decision in such a case as the English case of Preist v. Last, [1903] 2 K B 148, where it was held that, by simply asking for a hot-water bottle, the particular purpose for which it was required was sufficiently specified so as to bring the case within the subsection and allow the article to be rejected if the bottle was not in fact able to hold hot water. That case was, as I read the opinions delivered, and especially that by Sir Richard Collins, M.R., a somewhat special case, being that of the sale of an article which could be used ordinarily for one purpose only; but the Master of the Rolls goes on to say (at p. 153):

"There are many goods which have in themselves no special or peculiar efficacy for any one particular purpose,"

(that is, he is distinguishing the general case from the special hot-water bottle case before him), "but are capable of general use for a multitude of purposes. In the case of a purchase of goods of that kind, in order to give rise to the implication of a warranty, it is necessary to show that, though the article sold was capable of general use for many purposes, in the particular case it was sold with reference to a particular purpose." Now, in my opinion, the present case clearly falls within the class of goods which the Master of the Rolls there describes as being goods which have in themselves no special or peculiar efficacy for any one particular purpsoe, but are capable of general use for many purposes. This was an ordinary fairly large covered-in van which could be used for many different purposes, and for carrying many different types of goods. There was some evidence that it might have been used as a travelling shop. On the opinion as expressed by the Master of the Rolls in this case of Preist v. Last the subsection would only apply in such a case if a particular purpose or a particular use, and not just the general use to which a vehicle of its kind might be put, had been specially stipulated for. For these reasons I hold that section 14 (1) does not apply to this case and that the case falls under the main words of section 14, which proceeds upon what is the general rule in all such sales as this, namely, the rule based upon the maxim caveat emptor.

But the pursuer also maintains that, quite apart from section 14 (1), he is entitled to reject the van and get his money back, because he says the contract was induced by material misrepresentation made to him by the seller, Mr Scott. The material misrepresentation founded upon is the statement which I have held was made by Mr Scott to the pursuer, namely, that the van was in good running order. Now, in my view, especially in a sale of this type which was a sale of a second-hand motor vehicle, any statement of that kind could only be regarded as an expression of the opinion of the seller, and, if the buyer was not himself sufficiently expert or mechanically instructed to satisfy himself as to the condition of the vehicle, then he had only himself to blame if he accepted the seller's expression of opinion on the matter without having it checked by an expert on his behalf. In my view, the statement made by Mr Scott to the pursuer was not in law a representation, but was simply an expression of opinion, and the pursuer cannot found upon that as being a misrepresentation entitling him to repudiate the contract.

It follows therefore from what I have said that both of the two grounds upon which the pursuer has based his case for rejection have failed. But, even if I were wrong in that, I would still hold that decree cannot be granted in favour of the pursuer, for the further reason that he failed to reject the van in anything like a reasonable time. The remedy which he has chosen, namely, rejection of the article and demand to have his money paid back to him, is one to which, even if the case had fallen under section 14 (1) or had been due to material misrepresentation on the part of the seller, he could only have recourse if he exercised his right in the matter within a reasonable time. Now, what is a reasonable time is a question of fact and depends upon the whole circumstances of the case. The facts are that the van was purchased and taken away from the seller's yard on 10th June, and no intimation of rejection of the van was given to the seller until 8th July. What happened to the van within the first week, namely 10th to 17th June, the evidence does not enable us to say. The only evidence upon that point is that during that week the pursuer got the name which was originally on the van painted out and his own name put upon it, and I think the evidence was to the effect that it was removed from the pursuer's yard in Newtongrange for that purpose. According to his evidence it was away for three days for that purpose; but there is no evidence thereafter as to what the pursuer was doing with the van until he went to the aerodrome at East Fortune to collect the bedding which he was to take to Dingwall. The delivery order which was produced shows that the date upon which he went to collect this bedding was 17th June, and it was, I think, on that date that the van broke down shortly after leaving the aerodrome. As already stated, there is no evidence of what use, if any, had been made of the van immediately before 17th June. But in any event, if the remedy of rejection was going to be exercised by the pursuer, he was bound, in my opinion, to intimate this to the seller within a very few days after 17th June, whereas in point of fact his solicitor's letter of 8th July was the first intimation the seller had that there was anything amiss with the bargain which had been completed on 10th June. There was no proof of any facts and circumstances which would account for, explain or excuse any such long delay in intimating to the seller that the van was to be rejected. In my opinion, that ground alone would be sufficient to prevent a decree being granted in favour of the pursuer. On the whole matter, on every ground above referred to, the pursuer's action has, in my opinion, failed, and accordingly the defender must be assoilzied.

I shall sustain plea 4 for the defender, plea 7 for the defender and the first part of plea 8 for the defender, and assoilzie the defender from the conclusions of the summons.