Scottish Court of Session Decisions

At advising on 9th June 1976,—

LORD JUSTICE-CLERK (Wheatley).—The pursuers in this action seek payment of £9383.99 from the defenders under a contract entered into between the parties on 2nd December 1971 for the hire of a crane. The pursuers hire out heavy plant and equipment, including cranes mounted on trucks, and the defenders manufacture, deliver and erect prefabricated units for building. On 2nd December 1971, in conformity with previous practice, the defenders verbally contracted by telephone for the hire of a 12-ton telescopic mounted crane from the pursuers. On the same day, and in fact within a relatively short period of time after receipt of the order, the pursuers delivered the crane with a driver to the defenders' site at Plean. Shortly thereafter the crane overbalanced and was damaged, and the sum sued for is the total loss and damage alleged by the pursuers to have been sustained by them as a result thereof.

The basis of the pursuers' claim is that their "General Conditions for the Hiring of Plant" and particularly Clause 13 thereof, although not referred to at the time when the verbal contract was entered into, were incorporated into that contract by virtue of certain factors in the previous course of dealing between the parties.

Clause 8 of the General Conditions provided that during the currency of the hire the driver of the crane, who was an employee of the pursuers, was deemed to be pro hac vice the servant of the defenders, but the relevant condition for the purposes of the present claim, and the one on which the pursuers base that claim, is Clause 13, which is in the following terms:

"During the continuance of the hire period the Hirer shall make good to the Owners all loss of or damage to the Plant from whatever cause the same may arise, fair wear and tear excepted and except as provided in Clause 9 herein, and shall also fully and completely indemnify the Owner in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with or arising out of the use of the Plant and in respect of all costs and charges in connection therewith whether arising under statute or common law."

Clause 9 has no bearing on the present case.

After proof the Lord Ordinary held that the pursuers had not established that the General Conditions, and in particular Clause 13, had been incorporated into the verbal contract and assoilzied the defenders. Nevertheless, in accordance with proper practice, he applied his mind to the assessment of the damages which he would have awarded if he had been finding in favour of the pursuers, and in the result reached a modified figure of £7570.33. In this reclaiming motion the pursuers maintain that the Lord Ordinary reached a wrong conclusion both on the merits and on the assessment of damages. Both parties in the reclaiming motion stated that they were prepared to accept and argue their cases upon the facts found by the Lord Ordinary on the merits. The debate on the merits accordingly centred on whether he had correctly applied the law to these facts. In brief his ultimate finding was that the pursuers had not taken all reasonable means to give the defenders notice that Clause 13 of the General Conditions was a condition of the contract, that Clause 13 was not incorporated into the contract, and that the action accordingly failed. Much of the evidence (and of the Lord Ordinary's Opinion) was devoted to the question whether or not the prior dealings between the parties for the hire of cranes, all of which were instituted by verbal contracts, constituted a "course of dealing."

Pursuers' junior counsel opined that although the Lord Ordinary had not in terms made a finding on this point, it was a fair inference from his opinion that he had not accepted that a "course of dealing" had been established. This was a vital matter for the pursuers, because ex concessu if they failed to set up a "course of dealing" the whole basis of their argument that Clause 13 was incorporated into the contract disappeared, since it was from "the course of dealing" that, in the circumstances of the case, the Clause had to be read into the contract by legal implication. Without the incorporation of the Clause the pursuers admittedly had no case.

That issue, however, does not now trouble this Court, since defenders' counsel conceded that on the evidence a "course of dealing" had been established—a concession which in my opinion was very fairly and properly made.

In these circumstances the facts relevant to the issue on the merits can be stated in fairly short compass. In the period of some two years prior to 2nd December 1971 the parties had entered about 12 similar verbal contracts for the hire of plant. Five of these were during the three months prior to 2nd December 1971, and one of them, a long-term hire, was still current on that date. The pursuers' system of documentation for such a hire was that, when the contract was made verbally, an Acknowledgment of Order Form was sent by post to the hirer in confirmation of the verbal contract. No. 26 of process is the one sent to the defenders on this occasion, and was received by them on 6th December 1971. Each of these forms sets out the facts and terms of the hire, and at the foot there is the following statement:

"Your Order is accepted subject to the General Conditions for the hiring of plant issued by the Contractor's Plant Association, copy of which can be forwarded on request. Acceptance of the plant on site implies acceptance of all terms and conditions stated on this acknowledgement."

In No. 26 of process items which are included or not applicable are appropriately noted, and under the heading of "Insurances" there is entered "Hirer's responsibility." The Contractor's Plant Association is an English organisation. There is a corresponding Scottish organisation whose General Conditions are somewhat different, but as pursuers' counsel stated that they were not submitting that the parties here were in the same trade and of equal bargaining power, the point is of no significance in the argument. What is of relevance is that it is said that a copy of the General Conditions can be forwarded on request, and that no specific reference is made to Clause 13, of Clause 8 for that matter.

The pursuers' system in relation to written contracts of hire is notably different. They send to the Hirers a written Hire Contract (Offer), of which Nos. 12 and 28 of process are specimens. This document begins:

"Dear Sirs, We thank you for your order/enquiry for hire of plant and set out below a schedule of plant which we offer to hire at the hire rates and terms noted and subject to the general conditions endorsed hereon. Acceptance of the plant on the site implies acceptance of all terms and conditions stated on this offer …"

At the foot there is the following:

"N.B. Clause 13. The Hirer should cover by insurance the indemnity given to the Owner in this Clause."

There is appended to this document the General Conditions of which No. 29 of process is a specimen.

It is a matter of agreement that no copy of the General Conditions was ever sent by the pursuers to the defenders, that the defenders never asked the pursuers for a copy and that the defenders had never received or signed a Hire Contract (Offer). So far as the evidence goes there was no proof that the defenders were aware of the terms or purport of the General Conditions prior to the accident, and it was by the letter from the pursuers dated 24th January 1972 (No. 27 of process) that the defenders were first provided with a copy of the General Conditions and their attention was specifically drawn to Clauses 8 and 13. In the situation which has resulted from the debate in this Court the issue falls within narrow limits. It now being accepted that there was a "course of dealing" between the parties, the pursuers maintained that the circumstances of that course of dealing and the repeated reference in the Acknowledgment of Order Forms to the General Conditions and their availability on request was sufficient to import into the verbal contract of 2nd December 1971 the General Conditions and in particular Clause 13 thereof. It was argued that, while it might not have been possible to advance this submission in the early stages of the course of dealing, by the time that this verbal contract was made they had taken sufficient and reasonable steps to certiorate the defenders that these conditions formed part of such contracts, and that the defenders by not asking for a copy of the General Conditions but continuing to place verbal contracts for the hire of plant had led them to believe that they, the defenders, were accepting that the legal rights and liabilities which otherwise would have arisen from the verbal contract were modified by the General Conditions, and in particular Clause 13. While their counsel were unable to produce any authority to establish the proposition that the terms of a written document could be incorporated into a verbal contract because of a prior course of dealing involving similar verbal contracts and written documents, they submitted that as a matter of principle a reference in such written documents to General Conditions was sufficient to effect that result in circumstances like those here present. The defenders on the other hand maintained that the reference in the Acknowledgment of Order Forms to the General Conditions simpliciter without any reference to their terms or at least to the purport of those terms—and this had special applicability to Clause 13—did not constitute sufficient and reasonable steps to justify the legal importation into the verbal contract of these General Conditions, and this deficiency was not cured by the repetition of the reference to the General Conditions in the successive Acknowledgment of Order Forms or by their failure to ask for a copy of these General Conditions. The answer to the issue of course depends on the law as applied to the facts of the case.

The pursuers are in petitiorio, and they are seeking by legal implication to import into the verbal contract a condition which was not included per expressum.

As the case has developed, the only question to be answered on the merits is whether the pursuers, to use the language of Lord Dunedin in Hood v. Anchor Line 1918 SC (HL) 143 at 149, "did what was reasonably sufficient to bring to the appellants' (i.e. the defenders) notice the existence of the condition." A similar test, if in somewhat different words, was applied by Lord Dundas in M'Connell & Reid v. Smith 1911 S.C. 635 at 638. The condition here was Clause 13. What is reasonably sufficient will be a question of circumstances in each case, and subject to any general principles of law, will in effect be "a jury question" to be determined on all the facts of the case—see the speeches of Viscount Haldane and Lord Dunedin in Hood v. Anchor Line (supra). A contract gives rise to certain rights and obligations imposed by law, and modification of these which are sought to be imported may vary in degree in their importance. Mr Hope for the defenders submitted that the more important was the right which was sought to be modified the higher was the standard of proof required to establish the modification. In support of that proposition he cited a passage from the opinion of Lord Dundas in M'Connell & Reid v. Smith (supra), a case where it was sought to import into a contract rules of a Trade Association which ousted the jurisdiction of the Courts in favour of arbitration. His Lordship there said:

"It is an important matter, and one that must be distinctly expressed, that a man should abandon the normal remedies at law."

Denning L.J. (as he then was) in J. Spurling Ltd. v. Bradshaw [1956] 1 WLR 461 at p. 466 said:

"I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it."

Mr Hope submitted that an acceptance of an indemnity clause was just as much an abandonment of normal legal rights as relinquishing the right to resort to a court of law in favour of arbitration. For the purpose of the present issue I would be content to say that, having regard to the purpose and effect of Clause 13, it would have to be clearly established that the pursuers had taken reasonable and sufficient steps as a result of the previous course of dealing wherein repeated references were made to it in the Acknowledgment of Order Forms by reference to the General Conditions to bring to the defenders' notice the existence of that clause which they were maintaining had to be incorporated into the verbal agreement which made no reference to it. This, in my view, turns on whether the reference to the General Conditions in these forms per sesatisfied the test. If it did, then the information that copies of the General Conditions would be sent on request made access to them reasonably available. And while by reason of the procedure followed the defenders could not have certiorated themselves of these conditions before using plant at least on the occasion of the first contract, by the time that the instant contract came along they had had plenty of time to acquaint themselves with them. And so the issue turns on the answer to the question—did the reference to the General Conditions in these forms per se constitute reasonable and sufficient notice to the defenders, since nothing else was done by the pursuers to direct their attention to them?

A fairly short and simple test seems applicable in the circumstances of this case. If the pursuers deemed it necessary in cases of a written contract to enclose with the Hire Contract (Offer) for hire of plant a copy of the General Conditions, and draw specific attention to the Hirers to Clause 13 on that Hire Contract (Offer) Form, why were corresponding steps not taken in verbal contracts, through the Acknowledgment of Order Forms or otherwise, at least on the first occasion when business was transacted?

Regarding the issue as a broad jury point I would regard that as conclusive against the pursuers, because they had demonstrated a standard which they obviously felt necessary for written contracts, but had failed to observe that same standard in verbal contracts without demonstrating in any way why different standards should apply. Pursuers' counsel, however, sought to find support and indeed fortification for their submission that the reference in the Acknowledgment of Order Forms to the General Conditions did satisfy the test of "reasonable and sufficient steps" (when considered along with their offer to supply copies of the General Conditions on request) by reference to what have become known as the "ticket cases."

They conceded that with one possible exception they could not find or found upon any cases other than "ticket cases" to buttress their argument on this point. This is not a very propitious start, since it was pointed out by both Lord Guest and Lord Pearce in M'Cutcheon v. David MacBrayne Ltd. 1964 SC (HL) 28 at pages 38 and 44 and 45 respectively that "ticket cases" are in a special category, and Lord Pearce at page 45 expressed the view that a further extension of the protection given by such cases is very undesirable. Lord Dundas in M'Connell & Reid v. Smith (supra) took a similar view at page 638. Accordingly, unless the pursuers can bring the present case into the category of "ticket cases," the latter can avail them nought. In these circumstances I do not consider it necessary to examine these "ticket cases" unless this case can be brought into that category. The one possible exception to which I have referred is the case of Goodyear Tyre and Rubber Co. (Great Britain) Ltd. v. Lancashire Batteries Ltd . [1958] 1 W.L.R. 857. That, however, was a very special case, involving very special circumstances (including reference to certain statutory provisions and the giving of the nature and purport if not the actual terms of the Conditions in the Notice) which, on the findings in fact, enabled the court to bring it into the category of "ticket cases" and treat it as such—cf. Lord Evershed M.R. at p. 864. It is far removed from the facts of the case of M'Connell & Reid v. Smith (supra)which, as I shall note later, is much closer to the instant case, and which was not treated as being in the category of "ticket cases." In my opinion the pursuers cannot bring this case into that category. On this point of sufficient and reasonable notice, which is basically a jury one, the Lord Ordinary found against the pursuers, and I see no reason to differ from his conclusion.

As I have already indicated, the procedure which the pursuers followed in written contracts for the hire of plant seems in itself sufficient to negative that unless it can be demonstrated that there is some material difference between the two types of contract which would justify a distinction being made. No attempt was made by pursuers' counsel to draw such a distinction and I can find none. In any event, the decision and opinions in M'Connell & Reid v. Smith (supra) seem to me to be sufficiently apposite to enable them to cover the instant case to the effect of negativing the pursuers' proposition. Their counsel sought to distinguish that case from the present one, but I can find no material differences which would make what was said and decided in that case inapplicable here. Conversely, in cases such as J. Spurling Ltd. v. Bradshaw [1956] 1 WLR 461 and Hardwick Game Farm v. S.A.P.P.A . [1966] 1 W.L.R. 287 and [1969] 2 AC 31, where conditions were incorporated into the contract, there was not only reference to the fact that there were conditions, but these conditions were set out in the documents themselves. Here there was only a bare reference to the General Conditions and where copies could be obtained, and no reference to the terms or at least the purport of the terms of the conditions, and in my opinion that, in the circumstances of this case, was not enough. It is for these reasons that I have reached the conclusion that the pursuers have not clearly established that they gave sufficient and reasonable notice to the defenders that they intended the General Conditions and in particular Clause 13 to be imported into the verbal contract. I would certainly not be prepared to hold that the Lord Ordinary was not entitled to make the finding on this point which he did.

Pursuers' counsel, however, submitted that this approach did not provide the correct criterion. They sought to base the criterion on a dictum of Diplock L.J. (as he then was) in the Court of Appeal in Hardwick Game Farm v. S.A.P.P.A. (supra at p. 340 of [1966] 1 W.L.R.) to the following effect:

"Where… the parties have not agreed to embody their contract in a written document but have entered into an oral contract with the intention of thereby creating legal rights and liabilities and it is sought to rely upon a term contained in some written document as modifying the respective rights and liabilities which would arise by implication of law from the nature of the contract, the only question is whether each party has led the other reasonably to believe he intended that the rights and liabilities towards one another which would otherwise arise by implication of law from the nature of the contract … should be modified in the manner specified in the written document."

It is in respect of this alternative criterion that the fact that the defenders did not ask the pursuers for a copy of the General Conditions has to be viewed.

In my opinion this test relates to the legal interpretation of the facts established and not to the question of reasonable notice. If reasonable notice has not been proved, then the condition sought to be imported into the contract forms no part of the facts from which the rights and obligations of the parties have to be legally inferred. The dictum of Diplock L. J. seems to me to be simply a reflection of what was said by Professor Gloag in his work on Contract (2nd Edition), p. 7, which was cited by and received the imprimatur of Lord Reid in M'Cutcheon v. David MacBrayne Ltd . (supra) at p. 35, namely:—

"The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other."

When regard is had to the context in which that passage appears in Gloag on Contract, and the case which the author cites as an illustration of the principle, namely Muirhead & Turnbull v. Dickson (1905) 7 F 686, it is quite clear that it only relates to the legal interpretation and implication to be given to the facts accepted by the Court from the evidence, and does not relate to the question of whether a particular fact, such as the giving of reasonable notice, has been established. I am accordingly of the view that this test has no applicability to the only issue on the merits here, i.e., the giving of reasonable notice.

In all the circumstances, therefore, I consider that the Lord Ordinary was entitled to assoilzie the defenders.

[His Lordship then dealt with the question of damages, with which this report is not concerned, and concluded]—I would accordingly move your Lordships to refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 28th August 1975.

LORD KISSEN .—The pursuers have reclaimed against the interlocutor of the Lord Ordinary which assoilzied the defenders from the conclusion of this action for payment of the sum of £9,383.99. The attack was twofold. It was, firstly, argued that the Lord Ordinary had erred in not making an award to the pursuers. It was, secondly, argued that the Lord Ordinary had erred in assessing the sum which he would have awarded, if he had found in favour of the pursuers.

The Lord Ordinary, in his opinion, has dealt fully with the parties' averments and with the evidence which was led. Counsel for the parties agreed with the findings in fact which he made in regard to the merits, subject to the addition of a transaction on 3rd November 1971 in his reference to four previous transactions. That addition was of no consequence to the matters raised in the reclaiming motion. They did not agree with his findings in regard to the quantum of damages for which indemnification was sought by the pursuers.

I begin with the consideration of the pursuers' attack on the decision of the Lord Ordinary on the merits. This ultimately narrowed itself to a short legal point. Before stating the narrow question of law on which the pursuers' case finally rested, I mention, very briefly, some basic facts, which are more fully stated in the opinion of the Lord Ordinary, to which I refer for details, and the concession which was made by defenders' counsel, in the course of the discussion, and which narrowed the issue.

On 2nd December 1971 there was an oral contract between the pursuers and defenders which was made by telephone. The contract was for the hire of a crane by the pursuers to the defenders. The crane was delivered to the pursuers on the same day and shortly after delivery it over-balanced and was damaged. The pursuers sued for the cost of the damage to the crane. The basis of this action was that the contract of hire was subject to the General Conditions for the Hiring of Plant issued by the Contractors' Plant Association. It was not disputed that, if these Conditions applied to the hire, the defenders were bound to indemnify the pursuers for the loss and damage to the crane. No mention was made of these Conditions when the oral contract was made. An Acknowledgment of Order, referring to this oral contract, was sent by the pursuers to the defenders and received by the latter on 6th December 1971. This Acknowledgment stated, inter alia:—

"Your Order is accepted subject to the General Conditions for the hiring of plant issued by the Contractors' Plant Association, copy of which can be forwarded on request. Acceptance of the plant on site implies acceptance of all terms and conditions stated on this acknowledgement."

There had been previous transactions between the parties which had been carried out in exactly the same way, that is, by an oral contract followed by the Acknowledgment. There were about five between September 1971 and 2nd December 1971 and some before September 1971 but the exact number is immaterial, because of the concession to which I later refer. It was not proved that the defenders were aware of the contents of those General Conditions prior to January 1972 and they had never requested a copy of them from the pursuers.

The basis of the pursuers' case was that these General Conditions had been incorporated in the oral contract of hire because of the prior transactions between the parties which had set up such a course of dealing that incorporation of the Conditions was implied in the oral contract of 2nd December 1971. Pursuers' counsel agreed that there were two requirements for the incorporation of the General Conditions to modify the terms of the oral contract. One requirement was proof of such a prior course of sufficient dealings as would justify the modification and alteration of the rights and liabilities of the parties which arose from the oral contract, when that was considered in isolation. The second requirement was proof that steps had been taken, in the prior course of dealing, to bring to the notice and attention of the defenders the Conditions, such steps having to be sufficient to justify the implication that they were incorporated in the contract of 2nd December 1971. The first submission by pursuers' counsel, on this aspect of the case, was that the Lord Ordinary had appeared to decide that the first requirement had not been established, although there was no express finding to that effect, and that he was in error in so deciding. It is, however, unnecessary to consider what he did decide, in regard to that first requirement, because defenders' counsel conceded that this requirement had been established. I think that defenders' counsel had no option but to make this concession, on the facts of this case, and I say no more about it.

The point at issue between the parties was on the second requirement. The narrow question was whether the General Conditions could be incorporated into the oral contract when the written document (Acknowledgment of Hire), which was founded on as modifying the rights and liabilities of the parties, because of the prior course of dealing in which it had been used, did not state the Conditions nor their import but only referred to them and how a copy could be obtained.

Pursuers' counsel agreed that there was no reported case where the terms of a written document had been held to have been incorporated into an oral contract because of a course of prior dealing, involving a similar written document and oral contract, where the terms of the written document which was founded on to alter the oral agreement were not stated in the written document. They argued that, nevertheless, on principle, a reference to the General Conditions and where a copy could be obtained, as in this case, was enough. Notice that there were General Conditions, even if their import was not mentioned, was sufficient, on that submission. Some support was sought from the so-called "ticket" cases but, as was pointed out in M'Cutcheon v. MacBrayne 1964 S.C. (H.L.), 28, such cases are in a different category and different principles apply. (See, for example, Lord Reid at p. 34.) Further support was sought from Goodyear Tyre & Rubber Co. (Great Britain) Ltd. v. Lancashire Batteries [1958] 1 W.L.R. 857 and the observations of Lord Evershed M.R. at p. 862, where he referred to the "ticket" cases. Without going into details, that case concerned the sufficiency of a notice about price restriction under reference to section 25 (1) of the Restrictive Trade Practices Act 1956. The notice, in that case, although it did not give details, made clear the nature and purport of the conditions of which the general notice was given, unlike the present case where the defenders only had notice that there were Conditions. I do not think that this case can support the pursuers' argument. Further support was also sought from the general principles which were said to be found in the observations of Diplock L. J., as he then was, in the Appeal Court in Hardwick v. Suffolk [1966] 1 W.L.R. 287 at p. 340, and referred to by the Lord Ordinary in his Opinion. That case, which went to the House of Lords ([1969] 2 AC 31), dealt, inter alia, with written documents which contained details of the conditions sought to be implied in the oral contracts. These observations, on which the pursuers' counsel founded, were directed to circumstances where no question arose as to the sufficiency of the details of the notice of the written conditions sought to be implied by a course of trading. He refers specifically to relying "on a term contained in some written document" whereas, in the present case, the pursuers rely on a reference to unspecified terms in the written document on which they found. The question at issue here is whether a reference to a term or terms in a written document has the same effect as the term or terms actually contained in a written document in a course of dealing transaction and that case is of no assistance in this respect in regard to general principles.

Of the many cases quoted to this Court, including those mentioned by the Lord Ordinary, only one case bore any similarity to the present case, in that the written document which was founded on to modify an oral contract did not contain the actual terms which were founded on, but only a reference. That case was M'Connell & Reid v. Smith 1911 S.C. 635. Lord Dundas said' inter alia, at p. 638:

"A mere reference to the rules is, to my mind, quite insufficient to import such a condition into the contract."

He further said that the question is, "Did those who found upon the condition take reasonable means to give the other party notice that it was a condition of contract?" The "condition" to which he refers related to referring disputes to arbitration. Lord Ardwall at p. 639 held that the reference to rules was not "reasonable notice" and the Lord Justice-Clerk (Macdonald) reached a similar view, rejecting "ticket" cases as applying to that case. Pursuers' counsel sought to distinguish that case. There were, of course, differences in the facts but those differences do not affect the general principles. That was a course of dealing case (see p. 636). The fact that the reference was in a side-note is immaterial. The conditions sought to be implied in this case are as important and as serious as the condition in that case. The question in all such cases as the present is whether the party founding on a condition or on conditions in a written contract to modify an oral contract has given reasonable and sufficient notice that such condition or conditions would be implied in subsequent oral contracts. What constitutes reasonable and sufficient notice must depend on the nature and scope of the condition sought to be implied and the whole facts and circumstances of the particular case. Where, as here, the condition sought to be implied is particularly stringent, in that the defenders' common law rights are completely excluded, "the greater the notice which must be given of it." (To use the words of Denning L.J., as he then was, in Spurling v. Bradshaw [1956] 1 WLR 461 at p. 466. See also Henderson v. Stevenson 2 R. (H.L.) at p. 77 per Lord Chelmsford and p. 79 per Lord O'Hagan and the observations in M'Connell & Reid, supra.)

On any test, it seems to me that reasonable and sufficient notice has not been given in this case. It would have been very easy to send a copy of the Conditions with the Acknowledgment. Indeed, the pursuers, when they use a written Hire Contract (Offer) not only append the Conditions to it but also draw the intending hirer's attention in a separate notice to Clause 13, which is the Condition on which they found in this case. As the Lord Ordinary points out, the pursuers must have appreciated the grave import of these Conditions, and, particularly Clause 13, on which they specifically found in their pleadings. I agree with the Lord Ordinary that the pursuers did not take sufficient and reasonable means to give the defenders notice that the Conditions, including Clause 13, were conditions of the contract.

To decide in favour of the pursuers in the present case would be to extend the doctrine of the applicability of conditions further than the doctrine has been applied in the past. (See M'Cutcheon, supra, at p. 38 per Lord Guest, at p. 37 per Lord Hodson and at p. 45 per Lord Pearce.) It would mean the application of the principles of the "ticket" cases, which are based on matters of practicability and reasonableness peculiar to "ticket" contracts, as was pointed out in, for example, Gray v. L.N.E.R. 1930 S.C. 989, to a very different kind of case such as the present, where such matters are very different.

For the reasons which I have given, I agree that the reclaiming motion should be refused.

[His Lordship then dealt with the question of damages, with which this report is not concerned.]

LORD LEECHMAN .—I am in full agreement with the opinions delivered by your Lordships, and I have nothing which I wish to add.

LORD THOMSON .—I agree.