Scottish Court of Session Decisions

This action was brought in the Sheriff-court of Inverness-shire by Abraham Metzenburg, rag merchant, Inverness, with concurrence of Alexander Mowatt, rag merchant, Aberdeen, for his interest, against the Highland Railway Company, for £66, 7s. 7Jd., being the value of thirty bales or bags of rags delivered by Metzenburg through his servant Fraser Rennie, at Inverness, to the defenders, on September 3, 1866, and addressed to Mowat to be delivered by them to Mowat at Aberdeen; and for £2, 10s. 7d., being the expense of sending Rennie to Aberdeen to endeavour to procure delivery of said goods, which was refused. It appeared that the goods were sent in the name of Rennie to Mowat, in the expectation that he would buy them; that on their arrival at Aberdeen, the Great North of Scotland Railway Company, upon whose line they had been carried from Keith to Aberdeen, offered them to Mowatt, who refused to take delivery of them; that the Railway Company then stored them in a warehouse of their own, and communicated the fact to the consigner and the defenders; that an arrestment was then, on 6th September, used in the hands of the Great North of Scotland Railway Company, at the instance of Pirie Pirie & Sons, of all goods Sons, of all goods,&c., in their hands belonging to William M'Donald, rag and stoneware merchant, Inverness; that the Railway Company, believing the said thirty bales to be truly the property of M'Donald, refused, on account of said arrestment, to give them up to Rennie, who called at the office of the company in Aberdeen to demand redelivery, with a delivery-order from Mowat; that the rags were afterwards sold under a warrant obtained by the company from the Sheriff. It was pleaded for the defenders in the Inferior Court that the defenders were under no liability, in respect that they had performed their part of the contract between them and the pursuer by delivering the goods to the Great North of Scotland Railway Company at Keith, or, at all events, by that company's tender of the goods to Mowatt, and his refusal; and that that company having stored the goods, not as proper agents of the defenders, but as independent warehousemen, at the risk and expense of all properly liable, the defenders were released from responsibility; further, that they were entitled, before parting with the goods, to be released from the arrestment. The Sheriff-substitute (W. H. Thomson), after finding in fact as above stated, held in law that the Great North of Scotland Railway, in carrying the said goods from Keith to Aberdeen, acted as the agents of the defenders; that an obligation still lay on the carrier in whose hands the goods were at the time of rejection by the consignee to take charge of said goods and redeliver them to the consigner or his representative on demand, the consignee persisting in his rejection of them; that the Great North of Scotland Railway Company were still in this respect agents of the defenders; and that, they having wrongfully refused re-delivery to the pursuer, the defenders are liable to pursuer in the value. He accordingly decerned against defenders for £65, 7s. 7d.

He added the following note:—

“ The Sheriff-substitute has no doubt, on the proof (1) that the goods in question were bona tide purchased from M'Donald by the pursuer, and were his property, although sent by rail in name of his servant, Fraser Rennie. Apart from the general proof of purchase by the pursuer, the said Rennie, at an early stage of the case, lodged a minute in process repudiating any right of property in them.

“There can be little doubt, in the second place, that the Great North of Scotland Company acted wrongfully in refusing to give up the goods to Rennie. He, in whose name they had been sent, appeared at their office, stating that he possessed written authority from Mowatt, the consignee, to

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get possession of the goods. They don't even ask to see his authority, nor are they under any difficulty about the payment of the carriage, or for any trouble they have had. They simply refuse to give them up on the ground of an arrestment laid in their hands at the instance of a creditor of W. M'Donald. So far as appears, they knew nothing of this M'Donald, and had not an iota of proof, or even any reason to suspect, that the goods were his property. The arrestment is of course in the usual general terms, ‘all goods, &c., pertaining to W. M'Donald.’ The only persons whom they knew anything of in connection with these rags were the nominal consignor Bennie and the consignee Mowatt. The latter had rejected them, and that he persisted in the rejection was proved by the authority given to Bennie to get re-delivery, as they would have seen had they asked for it. (Their agent, Mr Wright, states in his evidence that had he seen that document, he would still have refused to give up the goods.) The other party whom they knew as consigner was Bennie, the very person applying to them.

“The duty of a carrier in such circumstances is very clear from the very nature of things; and it is so laid down in one of the best English authorities on the law of carriers. (See Powell on the Laws of Inland Carriers, pp. 189, 90, 91, 92.)

“So far the case is, in the opinion of the Sheriff-substitute, perfectly clear; but there arises, apart from them, a question of some difficulty, and it is not without hesitation that the Sheriff-substitute has pronounced the above judgment. He has delayed doing so until he should have an opportunity of fully consulting the English authorities, which are much more copious on this branch of the law than the Scotch.

“There is now no doubt whatever that a carrier undertaking to send goods to a particular place which is beyond his own terminus, is responsible for the safe carriage of them by the other carrier to whom he intrusts them in order that they may reach their final destination. The second carrier is the agent of the first. (See Caledonian Railway Company v. Hunter, 9th June 1858; Ferguson, Rennie, Company v. Scottish Central Railway Company, March 30, 1863, and Feb. 27,1864; Murdoch v. Lancaster and Preston Junction Railway, 8 S. M. & W. 421; Watson v. Ambergate, Nottingham, and Boston Railway, 15 E. Jurist, 448; leathern v. S. Staffordshire Railway, 8 Exch. 341; Collins v. Bristol and Exeter Railway, 25 Law Journal, 185 Exch.; Wilby v. W. Cornwall Railway, 2 H. & N. 703; Coxon v. Great Western Raihoay, 5 H. liN, 274; Croreach v. London and North Western Railway, 14 C. B. 255; Bennett v. Peninsular and Oriental Company, 6 C. B. 775.)

“ Indeed, the defenders, at the debate, did not seriously dispute this general proposition.

“They contend, however, that the agency of the second company for the first cannot extend beyond the actual transit, and that, as the contract of carriage ended with delivery, or, in this case, with a bona fide offer to deliver to the consignee, whatever took place afterwards was a matter with which the second company only had to do, and for which the company alone is responsible. That company were, they say, thenceforth not carriers but ware housemen, and acted on their own responsibility as such.

“ There is no doubt that the contract of carriage, strictly so called, did come to a termination with the act of offering the goods to the consignee, and the peculiar liability of the carrier as such then terminated also; and that the responsibility of whoever had, by force of circumstances, the custody of the goods after that time, was that of a custodier only. And as there was now nothing of the nature of an insurance, the custodier may not be liable in the same degree and in the same circumstances as when he was the carrier actually engaged in effecting the transit. (See Garside v. Trent and Mersey Navigation Company, 1 T. B. 27; and Hyde v. Trent and Mersey Navigation Company, 5 T. K. 389; Webb and Others, 8 Taunt. 443; Cairns v. Robins, S. M. and W. 258.)

“It does not, as it appears to the Sheriff-substitute, necessarily follow from this that the agency of the second company for the first terminated with the contract of carriage the moment delivery was offered. The second company were employed by the first to carry the goods to Aberdeen from Keith, because the line of the first company does not extend beyond the latter place. Had the first company's line extended to Aberdeen, they would, under their contract with the consigner, have carried the goods thither themselves; would have delivered them or offered delivery themselves, and, on rejection by the consignee, would have found themselves in the position in which the second company actually did find themselves, that of custodiers of rejected goods which they had carried.

“That certain duties and obligations are incumbent on carriers in these circumstances cannot be doubted (Powell on Law of Inland Carriers, p. 188). When the goods are rejected, says that writer, ‘the carrier ought not to deliver them at once to the consigner, but should keep them a reasonable time, and in a reasonable place,’ to give time to the parties to come to terms. In the case of a carrier sending them back prematurely, he was found liable for their loss on the return journey ( Crouch v. Great Western Railway, 2 H.& N. 491; Giles v. Taff Valley Railway, 2 Ell. & Bl. 822.)

“There has been no room for their retaining for a reasonable time, as the carrier could easily have ascertained that the consignee had handed back the goods to the consigner; but it shows, were that necessary, that certain duties lie on the carrier, that is to say, on the party whose functions of carriage have just ended, peculiar to the situation in which he is placed. He is not in the position of a mere finder of the goods, but is still under an obligation to the owner, arising directly out of his position as actual carrier. That they should fulfil this obligation should the circumstances arise (and they are circumstances of no unfrequent occurrence), is part of the carrier's contract with the owner of the goods, as much as the contract of carriage in the stricter sense of the term, and must be held to be implied in every such contract. It appears to the Sheriff-substitute that it is not stretching the doctrine of agency too far to hold that, for these obligations, the second company is the agent of the first, as well as for the obligation of transit, out of which they arise.

“The defenders, by sending notice that the goods lay at Aberdeen, being rejected by Mowatt, would almost seem to have themselves entertained this view at the time, and to have admitted that the other company held the goods still as their agents.

“The question, however, is, as above remarked, one of great nicety, and there is no direct authority on the subject, so far as the Sheriff-substitute can discover.

“It is further contended by the defenders that

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the pursuer has not chosen the proper remedy— that he ought to have brought an action for restitution of the goods, or have raised a multiplepoinding in name of the Railway company. It certainly was open to the pursuer to follow either of these courses. Had the former been adopted, it would appear, from the case of Ferguson, Rennie, § Co. above cited, that it would have been competent on him to call the Great North of Scotland Railway Co. as the respondent, as the actual custodiers, physically so to speak, of the goods; but the Sheritf-substitute is of opinion that this is not inconsistent with the view now taken, that the company, in refusing to redeliver the goods in question, was still the agent of the defenders. At all events, it must be remembered how rapidly the doctrine of the agency of one carrier for another has been developed within the last few years.

“In regard to an action of multiplepoinding, it may be remarked that the course was open to the defenders as to the other railway company. The Aberdeen Company, however, after the present case had come into Court, and after the good3 were, according to their own statement, rapidly deteriorating, obtained a warrant for their sale from the Sheriff of Aberdeenshire.

“Whether the pursuer has used the most speedy and cheapest mode of vindicating his rights may be matter of dispute, but the Sheriff-substitute sees no reason for holding that this remedy is incompetent.

“This action is in substance an action of damages, the measure of the damages being the value of the goods to the pursuer at the time when he was deprived of them. The sum charged appears to represent with tolerable accuracy the market price of such goods at the time at Aberdeen, where the goods were, and also at Perth, where, failing a market for them at Aberdeen, they would, presumably, have been sold by the pursuer, had he duly got possession of them.

“If the above judgment shall be affirmed elsewhere, it will be for the defenders to consider what recourse they have against the Great North of Scotland Railway Company.”

On appeal, the Sheriff (Ivory) altered, and assoilzied the defenders, holding that the Great North of Scotland Railway Company were justified in refusing delivery, on the ground that Rennie took no means to prove to the satisfaction of Mr Wright, the railway company's agent at Aberdeen, that he was entitled to delivery of the goods; and that the circumstances were altogether calculated to rouse the suspicion of the company and justify them in making further inquiry before they delivered up the goods.

He added the following note:—

“ Note.— The principal, if not the only demand for delivery of the goods was made by Fraser Rennie. It is not very clearly established that this demand was made on 6th September. But, assuming this to have been the case, and that the refusal therefore took place before the 7th, when the arrestment was actually laid on, the Sheriff is of opinion that John Wright was justified in refusing to deliver the rags to Rennie.

“The consignee appears to have rejected the goods on the morning of the 6th, and this was immediately intimated to the defenders, as the parties who forwarded the goods to the North of Scotland Company, with a request that they should give notice to the sender, and advise early as to their disposal.

“Before, however, notice could be given to the sender, or any advice regarding the disposal of the goods could be received from the defenders, Rennie called on Wright, and demanded delivery. But it appears that Wright was not acquainted with him, and that the latter produced no evidence, and took no steps to establish to the satisfaction of Wright that he was entitled to demand delivery.

“Rennie, moreover, made the demand for delivery solely on the ground that he was owner of the rags. But he now swears that he was not the owner. He had, therefore, no right to demand delivery in his own name. This of itself seems a sufficient ground to justify Wright's refusal to deliver the rags.

“Again, no claim for delivery of the rags was made in name of the pursuer, the real owner. Rennie not only did not produce to Wright any letter from the pursuer authorising him to receive delivery of the goods, but he all along studiously concealed from Wright and the defenders that the pursuer had any right of property in them.

“Further, although the arrestment may not have actually been laid on at the date of the refusal to deliver, the North of Scotland Company had received notice of it. The doubt as to Rennie's right of property in the goods was also strengthened by the latter's admission that the rags had once belonged to M'Donald. These facts, along with Rennie's hasty demand, and the other suspicious circumstances of the case, were all calculated to rouse the suspicion of the company, and, it is thought, justified them in making further inquiry before they delivered up the goods.

“On these grounds, it is thought that Wright was justified in refusing to deliver the rags to Rennie on the occasion in question.

“It does not appear from the evidence that any demand for delivery other than that above referred to was made by the pursuer. But, even if there had been, it appears that before the North of Scotland Railway Company received any answer from the defenders as to the disposal of the goods, the same were duly arrested in their hands, and that the arrestment was in force on 8th October 1866, being the date of the present action. In these circumstances, it is thought that the defenders and their agents were warranted in refusing to deliver the goods to the pursuer prior to the date of the present action.— ( Matthew v. Fawns, 21st May 1842, 4 D. 1242; Ersk. iii., 6, iv., 14.)

The pursuer appealed.

Gifford and Asher for him.

Clark and Lancaster in answer.

At advising—