Scottish Court of Session Decisions

In March 1884 Robert Campbell, a farmer, Craichmore, Stranraer, who had dealt for some time with James Carter & Co., seed merchants, London, gave their agent at Whithorn an order, which as written down and sent by him to Carter & Co. was—“100 bushels Paris Cluster oats at 6s., to be clear of black oats and barley; see that this is good and pure.” The agent wrote to Campbell, saying, “I have ordered for you 100 bushels oats, to be pure and good.”

On 1st April the oats arrived in sealed bags. The ground was ready prepared for sowing, and on the second day they were taken to the field and sowed by Campbell's son and his men. The son deponed thus in this action:—“Before taking out the seed I opened two of the bags and looked in at the top. I did not see anything wrong with them; I did not see barley. I did not expect to find barley among the seed oats. The seals on the bags were not disturbed till they went to the field.”

After the seed came and was used there arrived the invoice, which was for “100 bushels oats, Paris White Cluster,” and to which was appended this notice, printed in red—

“ Special Notice.

“Our seed corn being thrashed by steam machinery, we cannot undertake any responsibility as to the produce or purity. It is sold on these conditions only, and if the sample is not approved it must be returned to us at once, carriage paid.”

Campbell saw this notice. It was similar to others in Carter & Co.'s catalogues, which he admitted receiving, but in which he had not seen it.

When the crop came up it was found to contain a good deal of barley, and was useless for the purpose of producing seed oats, for which Campbell had intended it. The amount of barley in it turned out in this action to be about 4 per cent. Campbell complained of this to Carter & Co., who disputed it, and maintained that even if it were so he had intimation by the notice printed above that it was not guaranteed. Eventually they sued him in the Debts Recovery Court at Wigton for £40, 4s. 9d., part of which, £8, 7s. 3d., was for grass seed, liability for which was admitted, and the rest for the oats in question, which Campbell refused to pay for. They pleaded, inter alia, that there had been no warranty, and that in any view Campbell, the defender, had not timeously rejected the oats.

He made a counter claim of damages for the pursuers' breach of contract, restricting his claim to the amount sued for by them.

The pursuers sought to prove that the seed when sent off was pure, and that the admixture of barley in the crop was owing to the seed being sown where there had been barley, or by its being carried by rooks from barley stacks. On this point they failed in their proof. They led evidence also to show that corns of barley, if any, might be detected in oat seed, before sowing, by anyone of experience. On this point the defender deponed, being asked—“When this seed came home, did you examine it? —No. You did not examine it at all?—No. Inever saw it. Did anyone else examine it for you?— My son got it. Your son was in charge of it?— Yes. Was it he who sowed it?—It was the ‘yearly’ man, but it was under my son's direction. Did he examine it?—Yes; I believe he did. He

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had opened some sacks of it. If you had examined the seed, could you have seen the mixture of barley in it if there was such?—It is a difficult kind of oat to see barley in. It is an oat something of the same size, and it is difficult to see it unless there is a lot in it. You could see it if you examined it?—But I did not examine it. But I am asking you, as a practical man, if you could see the mixture of barley in the oats if you examined it?—Yes; but I believed I was dealing with respectable parties, the Queen's Seedsmen, and would get a genuine article. But you did not examine it?—No.” And his son, besides the passage above quoted, deponed—“When you looked into these two bags did you handle the grain at all?—I just glanced casually into the bag. I did not examine them thoroughly…. If there had been a great deal of barley in the two bags you looked at you would have seen it?— The Cluster is long in the pile, and nearly the same as barley. If we had examined it thoroughly we might have seen if there was barley, but I was not looking for that.” The defender also led evidence to show that the barley was heavier than the oats, and might have escaped examination by being somewhat down near the bottom of the sack.

The Sheriff-Substitute ( Nicolson) pronounced this judgment:—[ After narrating the facts above detailed]—“Finds in law that the goods sold were at the risk of the purchaser, and that he is not entitled to refuse payment of the price: Repels the defences.

“ Note.—This case involves questions of importance, not only to farmers, but to all persons who buy or sell to any considerable extent. The main question between the parties might have been of greater difficulty before the Mercantile Law Amendment Act 1856 passed. But that Act has laid down the law in regard to sale and warranty so distinctly as to make it much more easy now than it was previously for any person engaging in a contract of sale to know what his rights and duties are. Section 5 of that Act ought to be much better known than it is, and should be engrossed in the pocket-book of every man of business. It is in these terms:—

‘Where goods shall, after the passing of this Act, be sold, the seller, if at the time of the sale he was without knowledge that the same were defective or of bad quality, shall not be held to have warranted their quality or sufficiency, but the goods, with all faults, shall be at the risk of the purchaser, unless the seller shall have given an express warranty of the quality or sufficiency of such goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller shall be considered, without such warranty, to warrant that the same are fit for such purpose.’

Applying the law thus laid down to the present case, these questions arise—(1) Were the pursuers at the time of the sale without knowledge that the goods sold were defective, or of bad quality? (2) Did they give an express warranty of the quality or sufficiency of the goods? (3) Were the goods expressly sold for a specified and particular purpose?

(1) The proof for the pursuers is quite distinct on this question. [ His Lordship examined the pursuers' evidence as to the quality of the oats].

The pursuers cannot therefore be said to have known, or to have had any reason to believe or suspect, that the goods they were selling to the defender were ‘defective or of bad quality.’

“(2) The second question hardly requires an answer. The pursuers not only gave no express warranty of the quality or sufficiency of the goods, but they expressly and repeatedly informed the defender and their other customers that they gave no guarantee as to their ‘produce or purity.’

“(3) The defender says, in his third plea, that the pursuers having expressly sold the oats ‘for the specified and particular purpose of being used as seed, and the same having turned out unfit for that purpose, the defender is entitled to absolvitor,’ &c. The oats were undoubtedly sold for the purpose of being used as seed, which is the only purpose for which the pursuers sell them; but that they were unfit for that purpose has not been proved. That the produce of them was not fit to be sold as seed by the defender is quite another question, though from the proof it appears to be his chief grievance. There is not a word in the proof to show that he wished the seed for the purpose of producing seed to be sold, or that he made that known to the pursuers.

“The circulars issued by the pursuers, and regularly sent to the defender since 1881, imply that samples of the seeds wanted are to be sent by the pursuers for the intending purchasers to judge. The defender, however, did not ask for a sample; nor did he, or anyone for him, make any examination of the seed when it came. His son and his servant, J. Hannah, opened the bags, and sowed the seed with a machine, but never saw anything to complain of. The defender's son says—‘Before taking out the seed, I opened two of the bags and looked in at the top. I did not see anything wrong with them. I did not see barley.’

“Bound as Paris Cluster oats may be, I cannot doubt that a person of any experience could distinguish barley grains among them if he took the trouble to inspect. But the defender did not do so, nor did his son or his servant. They never discovered that there was barley among the oats till the barley, which shoots earlier, began to show itself in the field, at a date which does not seem to me to be of so much importance as the questions put for the pursuers on the point indicate.

“The defender's explanation of his want of vigilance in this respect is—that he believed he was ‘dealing with respectable people, and would get a genuine article.’ It is also suggested, on his part, that the barley grains, being heavier than the oats, would sink to the bottom of the sacks, and therefore escape the observation of a person examining the grain only at the mouth of the sack. I am not satisfied that this explanation is physically correct. I rather think that when big and little stones are mixed and shaken, the big ones come to the top. It seems to me also, that if the barley seeds sank to the bottom of the sack, they ought to have been all the more visible when the sacks were emptied. But neither the defender's son nor anyone else engaged in the sowing of the seed saw anything wrong with it.

“The alleged defect in the article sold cannot be called a ‘latent’ one, which the defender had no means of discovering till the crop grew. It might be so with turnip seed, but the difference in size and shape between oat and barley seed is

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such that no person accustomed to see them could fail to observe a mixture of the two if it were to any considerable extent. The defender having specially required that the seed should be pure, and having probably heard from some of his neighbours, witnesses for him in this case, that they had reason to complain of the pursuers' seed, ought to have exercised all the more caution and vigilance, especially as he got no sample, and to have examined the seed before putting it in the ground. If he had found it defective then, he should have immediately returned it, and given the reason for so doing. Instead of that, he neither examined it nor said a word about it from 4th April, when the last of it was sown, till 2d August, when he wrote to the pursuers' agent to say that the crop was miserable, and that he was going to claim damages.

“How the barley got among the oats I do not feel called on to determine. According to the pursuers' evidence, the proportion of barley seeds in the oats sold to the defender was 3 in 700; according to the defender's evidence, the proportion in the crop it produced was about 4 in 100. If the question had arisen in Judæa in the first century, the explanation would be—‘An enemy hath done this.’ But that practice among neighbours is unknown in Scotland. Among the enemies whom the pursuers’ witnesses suggest are ‘rooks,’ but black as these birds are I cannot regard the charge against them as well founded. The suggestion that the barley seeds were conveyed in farmyard manure or sheep droppings is equally unsatisfactory, as the defender says he laid only artificial manure on the ground where the seed was sown, and had no sheep feeding on it previously.

“But even on the supposition that the barley seeds which have rendered the defender's crop unfit for use, except as meal, were mixed with the seed sold by the pursuers to the defender, the former would still, in terms of the statute above cited, be entitled to prevail.

“Of the authorities cited, the most directly applicable in this case is that of Hardie v. Austin, (25th March 1870, 8 Macph. 798), where a seller of turnip seed as ‘first-class E. Lothian stock’ was held not to have warranted its productive quality, in respect that it was not sold for the specific purpose of producing saleable seed.”

On appeal the Sheriff ( Macpherson) found “that the oats furnished by the pursuers to the defender were not merchantable oat seed, nor free from barley, nor pure and good, and that the defender has suffered damage thereby; but that the evidence does not supply sufficient means for assigning the amount thereof: Finds that the pursuers are entitled to decree against the defender for the sum of £8, 7s. 3d., being the amount of the first two items of said account: Finds they are not entitled to the further sum sued for, on the footing of being the contract price of the grain sent to the defender: Therefore sustains the appeal, and recals the interlocutor appealed against; decerns against the defender for payment to the pursuers of the said sum of £8, 7s. 3d.; and quoad ultra assoilzies the defender from the conclusions of the summons—reserving to the pursuers their right to sue on the principle of quantum meruit for the value of the grain sent by them to and used by the defender; and to the defender his answer thereto: Finds the defender entitled to expenses; modifies the same at £10 sterling, for which decerns against the pursuers; and allows the said sum of £8, 7s. 3d. to be applied pro tanto thereto; and decerns.

“ Note.—It may be doubted whether this case falls under the Mercantile Law Amendment Act. It might perhaps be maintained, on the authority of Jaffé, December 21, 1860, 23 D. 248 (which, however, was a stronger case than this), that the mixture of barley made the article furnished quite different from that which was ordered. Where the sale is neither of an ascertained mass nor of a specific amount of an ascertained mass, and the price a full one as here, the article delivered must be merchantable, whether the seller knew of the defect or not— Jaffé, supra, and Hutchison, November 26th, 1867, 6 Macph. 57.

“But if the Mercantile Law Amendment Act does apply, the oats were bought and sold for seed, which is sale for a specific purpose, and therefore the pursuers were bound to supply an article fit for that purpose. See opinion of Lord President in Hardie v. Austin & M'Aslan, May 25, 1879.

“As to the terms of the sale, the quality was warranted. It is quite unnecessary for the defender to put this part of his case higher than the pursuers’ agent had stated it. Their circulars were not referred to when the order was given, and if they had been read by the defender, who swears they were not, that would have accounted for his taking care to transact only in terms implying warranty. The pursuers having failed to produce either their agent's order-book or letter, though asked to do so, cannot repudiate his account of what occurred. They must, therefore, be held to have been informed that the defender had specified that the grain was to be free from barley, and the defender was entitled to rely upon their agent's letter of 24th March, saying that he had ordered his oats to be ‘pure and good,’ and having received no further communication before or along with the oats, was entitled to expect that the forwarding of them by the pursuers implied unqualified acceptance of an order as for ‘pure and good’ seed.

“It is beyond dispute that the crop which grew from this seed furnished was a mixture of oats and barley, and attempts at reconciling that fact with the idea that they had sent ‘pure and good’ seed have been disproved. The pursuer's witnesses say they sold the same oats to others, and had no complaint except from the defender. But several witnesses who bought Paris Cluster oats from the pursuers depone that they had suffered similarly with the defender, and two of them add that they, like him, complained to the pursuers' agent, who does not contradict their statement.

“The pursuers further maintain that if the oats were as bad as the defender alleges, he has lost his remedy by carelessness in failing to discover the fault, and by not timeously rejecting the grain.

“The first of these contentions turns on the question of the latency of the defect. Four. other witnesses bought grain which proved similarly tainted, and did not detect it on first examining the grain, though one did when in course of sowing, but the conclusive answer

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assuming the fact, is, that the pursuers did not discover the fault. Indeed, it does not seem quite clear from the evidence that they ever examined the cargo from which the defender was supplied. They did indeed lay aside a sample (which, by the way, did contain barley) without examining it at the time. If they did not examine the cargo, and it was impure, then, unless the fault was latent, they are not entitled to plead ignorance of the defect, the ignorance being due to refusal to use their eyes. If they did examine it, and failed to discover the fault, that is good proof of its latency, and the defender's failure to discover it may be excused.

“As to delay in intimating the fault, and the failure to return, had the pursuers acted upon what they say was their practice, and sent a sample, which the defender did not look at, then they might have cause of complaint. But even the pursuers' notice attached to the invoice, which only reached the defender after the seed was in the ground, did not necessarily imply that the seed was bad, and though the defender did not intimate his claim of damage the first time he saw an ear of barley, he did when he saw the full extent of the mischief, and when it was possible to estimate the amount of damage.

“In such a case the return of the subject of the sale is of course impossible. The reasons why in other cases early rejection and return are important have no application here. The article furnished was beyond the reach either of mischief from the defender or remedy by the pursuers, and equally beyond re-sale; and there could be no immediate estimate of the damage.

“I regret that this case, so full of questions, both of fact and law, had not been sent to the Ordinary Roll.

“The pursuers contended that the defence resolved itself into a claim of damages for breach of contract, and therefore could not competently be entertained in the Debts Recovery Court, and that they were entitled to decree simpliciter; but under the case of Macbride v. Hamilton, 2 R. 778, the question of damages could receive effect, ope exceptionis, to the extent of the sum claimed by the pursuers.

“The attention of parties was so concentrated on the question of the quality of the grain, and the question of the pursuers' obligation to furnish grain up to a certain standard, that the pursuers led no proof, and the defender little, as to the amount of damage, and thinking it undesirable to have a new proof in this or another litigation, I had a meeting with the agents to see whether they could agree as to the amount of damages, if any should ultimately be found due. But no agreement was come to.

“In these circumstances I have endeavoured to frame the interlocutor so as to enable the leading questions of fact to be determined in this process, leaving open for discussion in another the amount of damages. According to the view I have taken, the pursuers cannot claim more than the actual value, not the contract price, of the grain they sent, which was used by the defender. But even to a claim so modified the defender may have an answer, or, if he should insist on the amount claimed in his counter claim, he must bring a separate action. But if liability for damages were once admitted, probably the meagre evidence in process may be sufficient to enable the parties themselves to determine the amount with, or even without, the aid of some-one of agricultural experience.”

The pursuers appealed to the Court of Session, and argued—The stipulation with regard to the black oats or barley had reference to the quality of the article, not to the particular description of article to be supplied. Upon the evidence the defender had failed to establish that he had not been supplied with the articles for which he had contracted. There was no evidence as to the state of the grain when it arrived, only as to the crop. That was not sufficient evidence— Dixon v. Jones, Heard, & Ingram, Mar. 19, 1884, 11 R. 737. Moreover, there was no onus on pursuer to show where the barley came from— Wieler v. Schiliggi, 1856, 25 L.J. C.P. 89. Admitting that there was 4 per cent. of barley in the oats, that was not such an adulteration as to constitute breach of contract— Hardie v. Austin & M'Aslan, May 25, 1870, 42 Jurist 450; Hardie v. Smith and Simons, May 25, 1870, 42 Jurist 450; M'Cormick & Go. v. Rittmeyer & Co., June 3, 1869, 7 Macph. 854. There had not been timeous rejection, as there was an obligation on the buyer to examine the seed when he got it—Bell's Prin. sec. 99; Bell's Com. i. 465; Baird v. Aitken, M. 14, 243; Smart v. Begg, June 23, 1852, 14 D. 912; Chapman v. Houston, Thomson, & Co., Mar. 10, 1871, 9 Macph. 675, aff. 10 Macph. (H. of L.) 74.

The defender argued—This case fell within the principle of Jaffé. Ritchie, Dec. 21, 1860, 23 D. 248. The defender had ordered oats, and got oats mixed with 4 per cent. of barley, so that what he had received was of a different description from what he had ordered— Dickson & Co. v. Kincaid, Dec. 15, 1808, F.C. There was no duty on the defender to examine the seed whenever he received it, as only the most critical examination would then have revealed the admixture of barley. The defender had given notice to the pursuers whenever the crop sprang from the ground— Spencer & Go. v. Dobie & Co., Dec. 17, 1879, 7 R. 396; M'Carter v. Stewart & Mackenzie, June 14, 1877, 4 R. 890; Fleming & Co. v. Airdrie Iron Co., Jan. 31, 1882, 9 R. 473; Pearce Brothers v. Irons, Feb. 25, 1869, 7 Macph. 571.

At advising—