Scottish Court of Session Decisions

This case came up on appeal from the interlocutor of the Sheriff-Principal ( Glassford Bell), dated 30th July 1872, and was at the instance of John Stewart & Sons, seedsmen, Dundee, against John Currie, nurseryman, Lanark, for £138, 12s., for gooseberry bushes and other plants supplied, conform to account from 30th October 1871 till 13th January 1872. The dispute in the case had reference to the goods not having been furnished by the pursuers according to order. The defender pleaded that (1) the sum sued for not being due, the action was premature; and (2) that the judicial referee having reported on the dispute, and the goods having been sold and the proceeds consigned, and the defender having offered to consign the balance admitted to be due by him in the process previous to the closing of the record, the action should be dismissed. Further (on the merits), that the bushes being disconform to order, and timeous notice of the same having been given to the pursuers, he was entitled to absolvitor. The Sheriff-Substitute ( Dyce) sustained the preliminary pleas and dismissed the action, reserving to the defender all competent claims for loss and damage on account of alleged breach of contract. On adpeal, the Sheriff-Depute ( Bell) recalled this decision, repelled the whole of the defences, and decerned against the defender for the sum of £107, 10s. 10d. consigned by him in the hands of the Clerk of Court. The important finding in the interlocutor is as follows:—“Finds that, if the case required to be decided upon that allegation, it would be necessary to allow before answer some proof, as parties are not at one on the facts; but finds that there is no occasion to go into the inquiry, in respect that the defender is barred (1) by mora, and (2) by the manner in which he dealt with the plants from now insisting in his objection to them: Finds that it was not till two months after their delivery to said defender that he, for the first time, by his letter, No. 13/10, of date 30th December 1871, took any exception to them, and he did not then offer, in respect of the alleged inferiority of some, to return the whole, but only those that were challenged, or to keep them at half-price: Finds that it is no sufficient excuse for the delay in challenging that the party to whom the defender had sold the plants did not require to use them for two months, and did not discover their character sooner, the alleged defect not being latent, but discoverable at once on inspection by any person of skill; neither was the defender entitled to pick and choose, but was bound to reject the whole goods or none, whereas he has kept and used by far the larger quantity.”

Authorities— Barbridge & Co. v. Sturrock, 10 S. 520; Chapman v. Couston, Thomson, & Co., March 10, 1871, 8 Scot. Law Rep. 415, aff. 9 Scot. Law Rep. 664, 43 Jurist, 326, 9 Macph. 675; M'Crmick, June 5, 1869, 7 Macph. 854.

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