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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brigham & Bickerton v. Ralston [1872] ScotLR 10_3 (15 October 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/10SLR0003.html Cite as: [1872] SLR 10_3, [1872] ScotLR 10_3 |
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[Sheriff of Dumbartonshire.
Circumstances in which the Court held that there had been an agreement to buy under certain suspensive conditions; that, these conditions not being fulfilled, the sale was not completed, and that there had been no such delay on the part of the proposed purchaser as to deprive him of his right to return the article in question.
This was an action raised in the Sheriff-court of Dumbartonshire by Messrs Brigham & Bickerton, agricultural implement makers, &c., Berwick-on-Tweed, against Mr James Ralston, farmer, Gartshore, Kirkintilloch, for the price of a Buckeye Junior Mowing and Reaping Machine, which they alleged they had sold and delivered to him. The defender contended that by the agreement upon which the machine came into his hands he was to become purchaser of the machine if, upon cutting his crops with it, he was satisfied with its capacity for the work. The pursuers, upon the other hand, although they did not contend for an absolute sale, but admitted that the defender was entitled to be satisfied with the cutting of the machine, averred that by agreement the trial cutting was limited to five acres, and that by continuing to work the machine throughout the season the defender had signified his satisfaction with, and completed the purchase of, the machine.
A proof having been led, the Sheriff-Substitute ( Steele) pronounced the following interlocutor;—“The Sheriff-Substitute having heard parties' procurators vivo voce, and resumed consideration of the process, Finds that, about the month of May 1869, Mr Adam William Dunn of Glasgow, an agent of the pursuers for the sale of their reaping-machines, called upon the defender and pressed him for an order for one of these machines, to be furnished to him, but this order the defender declined to give; Finds that, shortly afterwards, a reaping-machine was sent to the defender by the pursuers, or by their agent Mr Dunn; Finds that defender immediately waited upon Mr Dunn, and remonstrated with him for sending the machine without authority, whereupon Mr Dunn urged the defender to allow the machine to remain with him on trial, and to cut bis crops with it for the season, assuring him that he would not be bound to keep the machine unless he were thoroughly satisfied with it; Finds that, upon this understanding, the defender agreed to make use of the machine, and accordingly, at his first trial of it in cutting his hay crop, Mr Dunn came to the farm, and started the machine, and gave instructions in regard to it; Finds that on that occasion the operation of the machine was tolerably good, though not in accordance with the defender's expectations; but, in conformity with his arrangement with Mr Dunn, he resolved to retain it till the corn was ripe, that he might have an opportunity of trying it upon that crop; Finds that the defender accordingly tried the machine in cutting the grain crop, but he found that it was incapable of performing this work satisfactorily, and, in particular, that in every journey or course it made through the field it left uncut a strip of grain of from one to three inches broad, and which was trod down and destroyed; Finds that the defender informed Mr Dunn of this, and he sent Mr Jamieson, a friend of his, to see what was wrong, and endeavour to rectify it; but Mr Jamieson, though he tried several experiments on the machine, was unable to effect any improvement; Finds that, after the reaping of the grain was completed, the defender repeated to Mr Dunn the complaints he had already made of the machine, and intimated his intention of returning it, in terms of their agreement; and he also wrote to the same effect to the pursuers in answer to a letter from them asking payment of the price of the machine; Finds, in these circumstances, that the defender is entitled to be relieved of the claim now made against him by the pursuers; Therefore, and for the reasons stated in the annexed note, sustains the defences, and assoilzies the defender from the conclusions of the action; finds the pursuers liable in expenses, in so far as these have not yet been disposed of; appoints an account thereof to be given in, and remits to the auditor to tax the same, and to report, and decerns.”
The pursuers appealed to the Sheriff-Depute ( Blackburn), who pronounced the following finding:—
“ Edinburgh, 7th May 1872.—The Sheriff having heard parties' procurators on the pursuers' appeal, considered the proof and whole cause, Finds that, on the 15th of May 1869, the pursuers sent by railway to Kirkintilloch station a combined mowing and reaping machine, addressed to the defender; Finds that the arrival of the said machine was duly intimated by the station-master to the defender; Finds that the defender shortly afterwards sent for and took delivery of the said machine; Finds that on 8th June following the defender duly received an invoice of the said machine, together with a separate note from the pursuers, copies whereof are Nos. 7/1 and 7/2 of process; Finds that the machine had been sent to the defender by order of Mr. Dunn, the pursuers' agent in Glasgow; Finds that the pursuers are in use to allow five acres of grass or grain to be cut on trial, before holding a purchaser bound to keep their machines; Finds that the defender used the machine sent to him for cutting his whole hay crop, amounting to sixteen acres; Finds that, at the conclusion of the hay cutting, he expressed no dissatisfaction with the machine, nor offered to return it; Finds that he thereafter kept the machine in his stackyard until the grain harvest, about the end of August; Finds that he then again used the machine to cut the grain crops; Finds that the machine did not cut them well, and in particular that it left a strip of about three inches wide in each course uncut and pressed down: Finds that the defender complained of this to Mr Dunn; Finds
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In a Note appended to this judgment the Sheriff, inter alia, makes the following remarks;—“But, assuming that the defender is right in saying—what the Sheriff understands to be the import of the minute of defence, viz., that the machine was on trial for the season, and to be returned by the defender without payment if not satisfied with it—the Sheriff still thinks the defender on the facts proved must fail in his defence.
“If the failure of the machine to cut the three inches which it left uncut was the ground of his dissatisfaction, the defender was bound at once to have ceased to use the machine, and to have returned it when the attempts to remedy the defect proved unavailing. If, again, he meant to return it because of the fracture of the connecting-rod, he ought not to have had that repaired and thereafter continued the use of the machine, but should have returned it at once. And, finally, if after his crops were all cut he had reason to be dissatisfied, he was bound at once to have said so to the pursuers, and was not entitled to wait until pressed for payment before intimating his intention to return it, and without assigning any cause.”
The defender appealed to the Second Division of the Court of Session.
Authority cited, Pearce v. Irons, Feb. 25, 1869, 7 Macph. 571.
The Court were of opinion that, as the defender had not ordered the machine, or entered into an ordinary contract of sale, but merely accepted it when sent, under conditions, he was entitled to reject it even so late as he did, these conditions not having been fulfilled: Therefore sustained the appeal, altered the judgment appealed against, and assoilzied the defender, with expenses in both Courts.
Counsel for Pursuers— Shand and Macintosh. Agent— Alexander Sholts Douglas, W.S.
Counsel for Defender— Balfour. Agents— Muir & Fleming, S.S.C.
