Scottish Court of Session Decisions

This was an action raised by Morrison & Mason, Limited, contractors, Glasgow, against Clarkson Brothers, hydraulic engineers, Glasgow, concluding for payment of £1579, 2s. 9d.

The pursuers averred that to enable them to carry out a contract on which they were engaged in Radnorshire they had in December 1894 accepted an offer from the defenders to supply a “Champion” pump of certain dimensions; that the pump had been delivered in March 1895; that after giving it a short trial they had left it unused till November 1895, when upon trying it again they found it quite unable to perform its work; that the defenders, on being informed of this, sent workmen to repair the pump, but to no purpose; and that the pursuers finally rejected it in February 1896. The pursuers further averred that they had sustained great loss and damage because of the failure of the pump. The sum sued for was composed of the following items—the price of the pump, extra coal and wages of men for keeping out water while the defenders' men were repairing the pump, and delay to the works, and time of miners and engineers lost.

The defenders explained that the pump was reasonably fit for the purpose specified, and was accepted as such by the pursuers. They averred that the price had been paid by the pursuers on 1st May 1895, and that no complaint was made in regard to the pump until December 1895.

The pursuers pleaded, inter alia—“(3) The pursuers never having accepted the said pump as sufficient, and having timeously rejected same as disconform to warranty, are not barred from insisting in the present action.”

The defenders pleaded, inter alia—“(2) Personal bar—in respect of the pursuers' acceptance of said pump in implement of said contract, and use of it after trial and without intimation to the defenders of any defect.”

A proof was allowed, of which the material results may be summarised as follows:—By offer dated 12th, and acceptance dated 18th December 1895, the parties contracted for the purchase by the pursuers from the defenders of a “Champion” direct double-acting ram pump, which, in the words of the offer, “will throw the water 320 feet vertical with pressure of steam 45 lbs. per square inch.” The price was £157, and the pump was duly delivered to the pursuers on 11th March 1895. At that date the pursuers were sinking a shaft to a tunnel on which they were engaged in connection with the Birmingham Waterworks scheme; and on the arrival of the pump they placed it at the lowest point to which the shaft had yet been sunk, viz., 120 feet. They there used it for about ten days for the purpose of pumping water out of the shaft, and then removed it and took it to pieces, and left them lying exposed to the weather till the shaft was completed to the depth of 320 feet. The pursuers paid the defenders the price on 1st May. After the completion of the shaft, the pursuers on 4th November 1895 set up the pump at the bottom and began to use it for throwing water to the surface. It failed to perform this work satisfactorily. In the course of its ten days' trial, or during the interval of disuse, the pump had met with one or two accidents, e.g., the air chamber had burst, and in December, it having appeared from the further trial that the pump could not do its work, the defenders, at the pursuers' request, sent a skilled fitter to examine it, which he did at the bottom of the shaft. After this inspection the pump was fitted by the defenders with a new and larger dome, with a new shaft, and with certain other improvements. It continued, however, to be a failure. On 15th February 1896 the pursuers removed it from the workings, and on 17th February they intimated to the defenders a heavy claim against them for loss and delay. [A considerable amount of evidence was led as to the cutting of certain bossheads, circular centre projections in the valve cover, designed to keep the spindle or ram in the valve firmly in its position. The radical defect in the pump was maintained by the defenders to be the unsteadiness of the spindle owing to the bossheads having been cut away, as they maintained, by the pursuers. That the bossheads had been cut down was not denied, but there was a strong conflict of testimony as to when and by whom it had been done. It is unnecessary, however, to go further into the point, although the Lord Ordinary founded his judgment mainly upon it.]

On 27th January 1897 the Lord Ordinary ( Kincairney) found, inter alia, that the pursuers rejected the pump in or about February 1896, and that the pursuers had not accepted said pump, and that said rejection was timeous; and therefore decerned in favour of the pursuers for the sum of £211, 9s. 2d.

Opinion.— … “The pursuers are contractors, and were in the course of constructing a tunnel in Wales, and this case is about a pump which they purchased from the defenders for the purpose of raising the water from the tunnel; and my judgment proceeds on the footing that this claim of the pursuers is founded on the rejection by them of the pump. I understood that the case was so taken by the parties, and on no other footing could the pursuers have made repayment of the price of the pump an item in their claim. The pursuers' third plea-in-law is based on the fact of rejection.

The contract was constituted by an offer by the defenders, dated 12th, and accepted by the pursuers, dated 18th December 1894. The offer was to supply one of the defenders' ‘Champion Direct Double-Acting Ram Pumps,’ with a steam cylinder of 14 inches diameter, a pump of 16 inches diameter, a stroke 12 inches long, and with

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suction and discharge pipes of 4 inches diameter. The offer bore that the pump would ‘throw the water 320 feet vertical with pressure of steam 45 lbs.’ It is proved that the pursuers had explained to the defenders that they required a pump which would raise the water to that height.

A pump of the dimensions specified was supplied on 11th March 1895. To that extent the sellers fulfilled the contract. At that time the pursuers were engaged in sinking a shaft down to their tunnel, and they were therefore not ready to put the pump to the purpose for which it was intended; but they placed it, soon after it arrived, in the shaft, at the point which they had reached in sinking it, which was then about 120 feet below the surface, and used it for about ten days for pumping the water from thence as they proceeded to excavate the shaft. They then took it away and laid it outside their works until they had completed the shaft and reached the level at which they were to make their tunnel, which was at a depth of 320 feet. Meantime the pursuers paid the price of the pump, £157, on 1st May 1895.

They reached the bottom of the shaft on 31st October, and in November (the precise day does not, I think, appear) they set up the defenders' ‘Champion’ pump there, and began to use it for throwing up the water to the surface. It failed, and I think failed completely, to do so; and the pursuers, after various efforts to remedy its defects, in which they were assisted by the defenders, removed it in February 1896, and substituted another pump, with which, I understand, the work; has been satisfactorily done. Various repairs were made on the pump, but there is no clear proof of any complaint about it until January 1896, and it was not, as I understand, rejected until February. It was removed to Glasgow under an order of Court pronounced in this process.…

[ Here his Lordship examined very fully the evidence as to the boss-heads.]

If I am right so far, then it follows that sections 11 and 14 of the Sale of Goods Act (56 and 57 Vict. cap. 71) apply, and that the pursuers as buyers were entitled within a reasonable time after delivery to reject the pump and treat the contract as repudiated.

The defenders refer also to section 35 of the Act, which must be read along with sections 11 and 14, and which provides that the buyer is deemed to have accepted the goods ‘when the goods have been delivered to him and when he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.’

The defenders have maintained that the rejection was not in a reasonable time, and that the pursuers have done acts in relation to the machine inconsistent with the ownership of the sellers. The pursuers maintain that their rejection was timeous, having been made when after various attempts to remedy the machine it was discovered to be incapable of being made fit for its purpose.

These contentions raise questions of difficulty. The time which elapsed between the delivery and the rejection was about eleven months. That was a long period, but the mere lapse of that time, considering that this is a case about the rejection of machinery (which has always been considered as an exceptional case) does not in my opinion of itself bar rejection. In the case of Pearce Brothers v. Irons, 25th February 1869, 7 Macph. 571, the purchaser of a steam-engine, which he had used for fourteen months, was held entitled to insist that the seller should furnish a new pinion at his own expense to replace a pinion which had broken through defect in its structure. In this case there is a somewhat noticeable peculiarity, viz., that when the pursuers bought the pump they were not ready to put it to the use for which they wished it. They were not ready to do that until November. There may, I think, be cases in which if a man chooses to purchase a machine long before he needs it, he may not be entitled to reject it, if when he comes to try it, it is found insufficient. No such case was quoted. It seems to be a question of circumstances and of degree. Here there was, I suppose, from the nature of the work to be done, a certain amount of uncertainty as to the time when the sinking of the shaft to the tunnel would be fully completed; and I think that the pursuers, having regard to the nature of their contract, and in particular the penalty clause, for failure to complete the work within the stipulated time, were entitled to take care that they had a pump ready for them when they were ready for it. They were entitled to avoid all risk of having to wait for their pump, and in the circumstances the fact that they got their pump rather earlier than they needed it should not in my opinion materially affect their claim.

But then they did in fact put it to some use when they got it, and the defenders contend that, as they were discontented with it, they should have rejected it then, instead of which they manifested their satisfaction by paying the price. But the action of the pump did not then disclose its inability to throw up the water to the height required. Most of the witnesses on both sides seem to be agreed that at 120 feet below the surface it did throw up such water as there appeared. What was then complained of was its vibration to such an extent as to terrify the miners who had to work below it. M'Crindle, a witness for the defenders, says that it worked fairly well when first put up at that level. I think it cannot fairly be said that at that time the pursuers were in a position to reject it, or that they had had a reasonable opportunity of examination for the purpose of ascertaining whether it would do the work for which it was bought. For aught that then appeared, when the pump was placed on a solid foundation at the bottom with no workmen below it, the

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vibration might diminish, as certainly it would become less objectionable. The pursuers seem entitled in these circumstances to appeal to the 34th section of the Sale of Goods Act as supporting their contention, that they should not at that time be deemed to have accepted the pump.

After it was put down at the bottom in November, it underwent a series of accidents, for which in my opinion the pursuers are not responsible; and a number of experimental efforts were made to improve it, both by the pursuers and by the fitter sent by the defenders, who did not act as if they considered themselves as relieved from responsibility. I think it fairly deducible from the proof that it was during the time between November and February, or the greater part of it, undergoing examination for the purpose of seeing whether its faults could be discovered and remedied. Perhaps the pursuers might have rejected the pump sooner, but they gave the defenders an opportunity of remedying its defects if they could. That caused delay, but not delay to which the defenders can object. I am therefore not prepared to say that the objection was not timeous in respect of the lapse of time, having regard to the circumstances.

But then it is said that the pursuers did acts in connection with the pump inconsistent with the ownership of the seller.

In the first place, they paid for it, which was certainly in a sense inconsistent with the ownership of the seller. But the mere act of payment is not sufficient to bar rejection in a case regarding machinery. That occurred in the case of Pearce, before quoted, and also in the case of Fleming & Co., Ltd. v. Airdrie Iron Co., 31st January 1882, 9 R. 473, but in neither case was payment of the price held to bar the remedy of the purchaser. The Sale of Goods Act does not seem to affect the law on that point, for the acts there spoken of are acts done in relation to the thing sold, which the payment of the price cannot on a reasonable construction be held to be.

Secondly, they used the pump in the execution of the work in which they were engaged. That is true, and in many cases such use would bar rejection, but not always or generally in cases as to machinery. Such use was the best, and probably the only mode of examining the pump. The buyer was entitled to examine it, and if in examining it he put it to use and profit, that is not an act necessarily inconsistent with the ownership of the seller. No other mode of using it is suggested.

Then it is said that the machine has suffered damage in the using of it, and that, besides, the pursuers made certain alterations on it unwarrantable in any one who was not an owner.

The principal accidents which the pump suffered were the bursting of the dome (which is a continuation of the barrel of the pump), and the breaking of the crank shaft. There is no proof that either of these injuries was caused by the fault of the pursuers. I am inclined to attribute them to the faults of the pump; but it seems enough to say that they have been remedied, and that no question about the expense of remedying them is involved in this case.

The only material alteration which the pursuers made was the insertion of air cocks. These appear to have been put on without the previous sanction of the defenders or of their representative M'Laren; but I think the act was done in the course of an endeavour to get the pump to work in which the pursuers and defenders were working together, and it was sanctioned and approved of by M'Laren. The point is not without difficulty, but I think that this act ought not to be regarded as necessarily an act of ownership implying acceptance and barring rejection.

Assuming that the sellers have failed to fulfil a material part of the contract, and that the buyers are not barred from rejection, and have rejected, the next question is what remedy can they have in this action and on this proof. I think they are entitled to repayment of the price and of the expense of carriage and cartage, and of fitting the pump in the bottom of the shaft, and of taking it out of the shaft. These are Nos. 1, 2, 3, 4, and 6 of their Statement of Claim, amounting to £211, 9s. 2d. These sums seem sufficiently proved, and I think their right to this extent was not contested by the defenders, if the pursuers should succeed at all.”

The defenders reclaimed, and in support of the argument that the plea of personal bar was well founded, referred to Pearce Brothers v. Irons, February 25,1869, 7 Macph. 571; Fleming & Company Limited v. Airdrie Iron Company, January 31, 1882, 9 R. 473; Newlands v. Leggatt, March 13, 1885, 12 R. 820; The Electric Construction Company, Limited v. Hurry & Young, January 14, 1897, 24 R. 312; Paton & Sons v. Payne & Company Limited, November 13, 1897, 35 S.L.R. 112; and The Sale of Goods Act 1893 (56 and 57 Vict. cap. 71), secs. 11, 14, and 35.

The pursuers in defending the Lord Ordinary's judgment referred to Duff & Company v. Iron and Steel Fencing and Buildings Company, December 1891, 19 R. 199.

At advising—