Scottish Court of Session Decisions

On 27th March 1877 William Blews & Sons, who were bell and brass founders, with places of business at Birmingham, West Bromwich, and Moscow, purchased, by order of that date, a quantity of gas-piping from William M'Leod and Co., metal merchants in Oswald Street, Glasgow. The terms of the transaction were that the goods should be paid for by six months' bill from date of shipment and bill of lading, and that they were to be shipped by Messrs D. R. Macgregor and Co.'s (of Leith) “first steamer from Leith to Riga, to our orders.” By a second order of the same date Win. Blews & Sons purchased another quantity of gas-piping on exactly similar terms, and they themselves corresponded with Messrs Macgregor & Co., and arranged with them as to the freight. On the 20th April 1877 the goods, in two parcels, were duly despatched by M'Leod & Co. to Messrs Macgregor & Co., and invoices being sent to William Blews & Sons, they granted their

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acceptance for the amount at six months from the 18th April. The goods duly arrived at Leith, and were shipped by Messrs Macgregor & Co. on board their first steamer to Riga, the “Waverley.” Separate bills of lading were made out for each parcel of goods, and were handed to William Blews & Sons. They were dated Leith, 24th April 1877. The following specimen is taken from the Lord Ordinary's note appended to his interlocutor—“Transmarine goods traffic, Leith to Moscow via Riga, in transit.” The goods “are to be delivered in the like good order and condition at the aforesaid port of Riga, unto the agent of Riga Dunaburg Railway Company or to their assigns, to be by them forwarded in transit to Messrs William Blews & Sons, Moscow—freight for the said goods Leith to Moscow, including Riga charges, being hereby agreed upon to be 304 cops per pood, to be paid in Moscow, with primage and average accustomed, and charges as stipulated.” On the 12th May thereafter William Blews & Sons issued a circular instructing that they had been compelled to file a petition for liquidation, and Charles Augustus Harrison, public accountant, Birmingham, was appointed receiver and manager of their estate. On hearing this M'Leod & Co. wrote on 17th May 1877 to Messrs Macgregor & Co. requesting them to stop the pipes in transit, and on 30th May thereafter the latter wrote back saying that their agent had done so at Riga while the goods were in the hands of the Riga Dunaburg Railway Company. The present action was then raised by M'Leod & Co. against Harrison, the receiver and manager for Messrs Blews & Sons' estate, concluding for the sum of £269, 7s. 5d., with interest thereon at the rate of 5 per cent. per annum from 21st October 1877, being the price due for the gas-piping. The pursuers pleaded—(1) That having sold to Blews & Sons the gas-piping, and William Blews having become insolvent and bankrupt at and prior to the time when the goods were delivered to them, or to any agent on their estate, for custody, they were, the price being unpaid, entitled to stop the goods in transitu, and that the goods were validly so stopped. (2) In respect to the stoppage in transits, they were entitled to decree against the defenders for the price of the goods sold by them to William Blews & Sons, with interest thereon from the date when the bill which was granted for the said price became payable.

The defender, on the other hand, pleaded—(1) that the pursuers' statements were not relevant or sufficient to support the conclusions of the summons; and (2) that the goods having been delivered to Messrs Blews & Sons, and shipped by them at Leith, the pursuers were not therefore entitled to stop in transitu.

The Lord Ordinary ( Adam) decerned against the defender, ordaining him to make the payment concluded for, and in the note which he appended to his interlocutor he said—“The only question argued to the Lord Ordinary was, whether this was an effectual stoppage of the goods while in transitu?

“The Lord Ordinary is clearly of opinion that it was. It appears to him that the goods were directed to be delivered to William Blews & Sons at Moscow, and nowhere else, and that the transitus lasted until the goods arrived at their destination in Moscow. The only ground on which the defender maintained that the stoppage was ineffectual is that set forth in their third plea-in-law, that the goods were delivered to William Blews & Sons and were shipped by them at Leith. By this it is not meant that the goods were actually delivered to William Blews & Sons, but that Macgregor & Co. were their agents, and that delivery to Macgregor & Co. was the same in law as delivery to them. In the case ex parte Rosevear China Clay Co., April 24, 1879, L.R. 11 Chancery Division, 560, it was held that delivery of goods by a vendor to a carrier hired by the purchaser is only constructive, not actual delivery, inasmuch as the contract with a carrier to carry goods does not make him the agent or servant of the person with whom he contracts. The goods in the present case were shipped in a general ship, but the same has been decided in the case where the goods were shipped in a ship chartered by the purchaser for the purpose Brendston, v. Strang, April 21, 1860, L.R. 3 Chancery App. 588. It appears to the Lord Ordinary that the goods in this case were at the time of the stoppage in the custody of a third person intermediate between the seller, who had parted with, and the buyer who had not yet acquired, actual possession, and therefore were liable to be stopped by the unpaid sellers. See also ex parte Watson, February 15, 1877, L.R. 5 Chancery Division, 35; ex parte Barron, March 12, 1877, L.R. 9 Chancery Division, 783; ex parte Cooper, February 20, 1879, L.R. 11 Chancery Division, 68; ex parte Goldey, Davis, & Co., February 12, 1880, L.R. 13 Chancery Division 628.”

The defender reclaimed, and during the discussion craved leave to add to his record the following amended statement of facts—“At all events, the goods were delivered to Blews & Sons at Riga.

“The agents for Blews & Sons at Riga and Revel are Kuiep & Werner, shipping agents at these ports, to whose care the goods were consigned by the bills of lading. Keep & Werner act as the general and shipping agents of Blews & Sons, and have a running account with them, in which the usual agency commission is charged. The disbursements amount to £3000 or £4000 annually.

On the arrival of the “Waverley” at Riga, and on or about 4th May 1877, the goods were discharged and delivered to Kniep & Werner as agents for Blews & Sons.

On 6th May 1877 notice was received by Kniep & Werner from the Riga and Dunaburg Railway Company that the goods would, on being handed over to them, be detained until the arrival of instructions.

On 13th May Kniep & Werner, having thus been warned of the risk of stoppage, lodged protest against the proposed detention, and asked whether the railway company had received orders which would admit of the goods being forwarded by them.

On same day the railway company informed Kniep & Werner that they had left it open to Helmsing & Grimm. acting for Macgregor & Company, to lodge an attachment within twenty-four hours.

On 17th May, and before resolving to hand over the goods to the railway company, Kuiep & Werner communicated with Mr Grimm, and received

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from him an assurance that no attachment would follow. In reliance on this assurance. Kniep & Werner cleared the goods and paid the duty and charges thereon, amounting to Rs.2300, with a view to forwarding them by the Dunaburg railway to Moscow, and handed them to a wharf warehouseman to be loaded in trucks and delivered to the railway company. They were accordingly loaded and delivered to them.

On 18th May, and after the goods had been delivered to the railway company, Kniep & Werner were informed by the company that Hehnsing & Grimm, in the name of Macgregor & Company, had handed in a notarial protest against forwarding the goods to Moscow.”

And also to amend the record by adding the following plea-in-law—“(4) At all events, the goods having been delivered to Messrs Blews & Sons at Riga, and handed over by them to the railway company on the assurance above stated, the pursuers were not entitled thereafter to stop them in transitu.”

On the merits of the case as it existed prior to his putting in the above amendment the defender argued—The stoppage was incompetent when in terms of the contract the pursuer shipped the goods to the defenders' agents Macgregor & Co. at Leith, taking the bill of lading in the defenders' name; there was then actual delivery, and the transit ended. It has been so held in the case of Schotsmans v. Lancashire and Yorkshire Railway Co., Jan. 16, 1867, L.R. 2 Ch. App. 232, even where the goods had been shipped in a general ship known to belong to the purchaser. If the pursuer had desired to restrain the effect of such delivery, he should have, on the authority of Turner v. Trustees of Liverpool Docks, May 26, 1851, L.J. 20 Exch. 393, taken the bill of lading for goods deliverable to his own order.

The pursuer argued—The stoppage was competent. The transit could never end till the goods reached Moscow, for it was there that the goods were to be finally delivered to Blews & Co. as consignees. The mere fact that the goods came into the hands of Macgregor & Co. at Leith did not affect the transitus in the smallest degree. They held the goods merely as carriers.

Authorities— Morton v. Abercromby, Jan. 7, 1858, 20 D. 362; Mitchell v. Wright, Feb. 10, 1871, 9 Macph. 516, Bell's Com. (M'Laren's ed.) 232; Gibbes In re Whitworth, Nov. 8, 1875, L.R. 1 Ch. Div. 101; ex parte Golding, Davis, & Co. (Limited) in re Knight, Feb. 12, 1880, L.R. 13 Ch. Div. 628; ex parte Rosevear China Clay Co., April 24, 1879, L.R. 11 Ch. Div. 560; ex parte Falk in re Kiell, May 6, 1880, L.R. 24 Ch. Div. 446; ex parte Cooper, Feb. 20, 1879, L.R. 11 Ch. Div. 68; ex parte Barron, March 12, 1877, L.R. 6 Ch. Div. 783.