Scottish Court of Session Decisions

The Sale of Goods Act 1893 (56 and 57. Vict. c. 71), sec. 11 (2), provides—“In Scotland, failure by the seller to perform any material part of a contract of sale is a breach of contract, which entitles the buyer either within a reasonable time after delivery to reject the goods and treat the contract as repudiated, or to retain the goods and treat the failure to perform such material part as a breach which may give rise to a claim for compensation or damages.”

Section 35—“The buyer is deemed to have accepted the goods when … or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”

William Hyslop, coalmaster, Bank House, New Cumnock, brought an action in the Sheriff Court of Lanarkshire at Glasgow against David Shirlaw, surgeon-dentist, 42 Bath Street, Glasgow, in which he sued for (1) a sum of £285, and (2) a sum of £172, being the prices paid by the pursuer to the defender for certain pictures purchased from him in January and February 1901.

The pursuer averred, inter alia—“(Cond 2) In the month of January 1901, the defender sold to the pursuer two pictures, and warranted same as the genuine works of John Phillips, R.A., and Thomas Gainsborough, R. A., respectively, and that at the total sum of £285, being £235 for the picture by the first-named artist, and £50 for that of the second-named artist. The receipt granted by the defender for said total sum is herewith produced, which receipt contains an express warranty that the pictures referred to are the genuine works of each of the parties therein named. The defender also by correspondence with the pursuer in said month of January 1901, and particularly by letters of dates 22nd, 25th, and 28th, all days of January 1901, warranted the said pictures to be the respective works of the artists named. Said pictures were duly delivered to the pursuer by the defender. The pursuer, in the end of July, or in August last, was instructed, and believes that said two pictures are not the works of the artists named, and are practically worthless. (Cond. 3) In February 1901, the defender sold to the pursuer three pictures, two being so sold and warranted as the genuine works of E. Verbockhoeven and H. Tenkate respectively, and that at the total sum of £172. The receipt containing said warranty granted by defender for said sum is herewith produced. The defender also, by correspondence with pursuer in said month of January 1901, and particularly by letters of dates 22nd, 25th, and 28th, all days of January 1901, warranted the said pictures to be the respective works of the artists named. The defender stated that said third picture was signed ‘V.C.’, and was given by the defender to the pursuer by way of ‘luckpenny,’ or otherwise without charge. Said pictures were also duly delivered by the defender to the pursuer. In July or August last the pursuer was instructed and believes that said two pictures alleged to be the works of E. Verbockhoeven and H. Tenkate, are not the

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genuine works of the artists named, and are practically worthless.”

The defender averred that the pictures were genuine, but denied that he had warranted them to be so, and averred that for upwards of eighteen months the pursuer had been fully satisfied with his purchases.

The pursuer pleaded, inter alia—“(1) The defender having sold to the pursuer the four pictures condescended on, and warranted same as the genuine works of the artists named, and such pictures being spurious, the pursuer is entitled to repayment of the price paid, with interest thereon and expenses as craved.”

The defender pleaded, inter alia—“(2) The defender not having warranted said pictures or made any representation regarding said pictures equivalent to warranty, he ought to be assoilzied. (3) The pursuer having accepted delivery and paid price and retained said pictures for upwards of eighteen months after said sales, he is barred from maintaining the present action.”

On 15th December 1902 the Sheriff-Substitute ( Strachan) repelled, inter alia, the defender's third plea and allowed a proof, and this interlocutor was adhered to by the Sheriff ( Guthrie) on appeal.

On 24th November 1903 a proof was taken, restricted at this time by request of parties to their averments on the questions of sale and warranty, the question of whether in fact the pictures were genuine or spurious being reserved.

The following was the import of the proof:—On 6th January 1901 a mutual friend of the pursuer and defender, Bailie Watt, took the pursuer to call upon the defender at the latter's residence in Troon with the object of showing the pursuer the defender's pictures. In the course of the visit the pursuer purchased from the defender the “Phillip” and the “Gainsborough,” mentioned in condescendence 2, and subsequently on 26th January obtained a receipt in the following terms:—“3 Sauchiehall Street, Glasgow, Jan 1901.—Received from William Hyslop, Esquire, Bank House, New Cumnock, Ayrshire, the sum of £285 by cheque for two pictures by John Phillip, R.A., and Thos. Gainsborough, R.A.”

On 22nd January 1901 the defender wrote to the pursuer in the following terms:— “Troon, N.B., 22nd Jan 1901.—Dear Mr Hyslop,—I was pleased to learn that your pictures arrived safely at your house after a somewhat eventful journey, and allow me here to express the hope that you may long enjoy the pleasure of seeing them. May I ask you here if you are aware of any of your friends who are desirous of purchasing ‘works of art’ (guaranteed) of famous masters. If so, should they desire, I shall be pleased to show them what I have, as I am anxious, if possible, to avoid a sale. Such a procedure grates on my feelings, to see my old friends scattered to the four quarters of the globe, and if you should bring any of your friends who may buy, I shall be only too pleased to let you have any that you may fancy at an easy figure.” …

On January 25 and January 28 the defender wrote the following letters to the pursuer:—“ Glasgow, 25th Jan 1901.—Dear Mr Hyslop,—Just a line in haste to inform you that I have just had from London an exquisite example of ‘Verbockhoeven,’ who was the master of Thos. S. Couper, the cattle painter, and whose works are exceedingly valuable and great favourites. It is not a large one, but it is signed and dated, and fine. It is a most desirable work, and I could send it to you to-morrow on receipt of a wire. I am not buying at present, as you are aware, and I give you the first chance, as I don't wish to return it, as I can easily dispose of it, as it is rare when such a fine cabinet work of this master finds its way here. I may say I got it from a friend in London who has sent me many fine things, and the picture in question is well worth £300. He wishes £150 for it, and I earnestly advise you to secure it. Kindly let me know if you can come here to-morrow (Sat.) to see it, or if you care to send your machine to meet me, I will bring it, as I should like to see the pictures in any case after they have been hung. If you think fit to see me, send a wire early to No. 3 Sauchiehall Street, and I will go by the 4·20. Excuse this hurried letter. — Kind regards, yours faithfully, D. Shirlaw.”

“ Glasgow, 28 th Jan 1901. — Dear Mr Hyslop,—I have just received a wire in answer to my Sunday's letter, stating that for my com. I can keep the little picture I owe him for. I may here state that I got a little picture from him unframed in a very dirty state. I cleaned it and discovered the initials V. C. in the corner. Vicat Cole, the well-known painter, signs his pictures in that fashion, and while I don't absolutely guarantee the picture as his, yet from what I have seen of his early work I should certainly say it was his. This is my honest conviction. However, the picture is a fine one, and as I told you that what I could get in the way of an abatement off them you should have it, therefore I have pleasure in stating we have done well. I sent him a nice letter and it did the trick. The price is for the three, £170. Make out your cheque for £172, as the frame was mine, and a few shgs. I have spent in connection with it. I shall probably send it off by the 4·20 on Wednesday. I will give it to the guard, and I will expect you will have some one at the station to get it from him. Be sure and measure the edge of the slip of the picture that I showed you very exactly, and I will get glass and bring it, and varnish the picture as well. I got home in good time on Saty.—Believe me, faithfully yours,— D. Shirlaw. P.S.—I enclose receipt for Phillip, Gainsboro. There is no use bringing the one glass without the other. Do you think you could measure the broken glass of the Gainsborough? Dead size.”

Following upon these letters the pursuer on or about 14th February purchased the “Verbockhoeven” and “Tenkate” mentioned in condescendence 3. The defender

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sent the pursuer the following receipt:— “Brandon House, Troon, 14th Feby 1901.—Received from Wm. Hyslop, Esq., New Cumnock, One hundred and seventy-two pds. £172 for three (3) oil paintings one by E. Verbockhoeven (dated), one by H. Tenkate, and another signed V.C.”

In the course of the proof the following evidence was given:— Pursuer examined.—“I had no knowledge of art when making these purchases to guide me as to whether or not these pictures were authentic; I don't profess to be a judge of art. I relied upon the skill of defender in that matter. I had previously heard very excellent opinions as to the ability of defender as an art critic.… Cross.—Have you ever bought a picture without guidance?—(A) Never, I always relied on the seller. I get my pictures warranted. I generally rely on the party I am buying from. I have never relied on my own judgment, not even when dealing with a stranger; I have not sufficient knowledge to rely on my own judgment. If I buy a picture it is sold to me as the genuine work of so and so, and I take it for granted that it is so. I never ask a warranty beyond the receipt. The receipt always bears the painter of the picture. I have never got a picture with an express warranty.”… (With reference to the call of 6th January)—“I have no distinct recollection of what took place during my call. On that day defender said that the pictures were genuine works of art. I don't remember everything that happened, but I remember he did say that. I think Bailie Watt was present. He took me to the house, hut I don't know whether he was present when the conversation took place or not. I went as Bailie Watt's friend. It is very likely that he heard all that took place. (Q) Do you remember on the 6th of January any remark at all being made by defender about the Gainsborough?—(A) Nothing further than he showed me a fine example of a Gainsborough that he had. (Q) Did he put it to you as being a possible or likely Gainsborough?—(A) No.” … (With reference to second purchase)—“He came with the second lot, I think, and stayed over night. I certainly saw the pictures. (Q) Do you remember him telling you that he had received an offer from a London man of these pictures at a particular price, but that he did not want them, and that if you wished to take up the offer you might do so?—(A) I think there was something said about one of the pictures only. I think that picture was a Verbockhoeven. (Q) Don't you know that the three pictures, the Verbockhoeven, the Tenkate, and the V.C., were all pictures that had been received on approbation from London on these terms?—(A) The small one was signed V.C. It did not belong to defender at all. He had got it from the party as a luck-penny, and he gave it to me on the same terms. (Q) Were you not told that this V.C. picture was practically defender's commission, and he was handing the commission over to you?—(A) He did not tell me what commission he was getting. Defender wrote me on the 28th of January. (Q) Are you not aware that you got the bargain he was getting in London and the luckpenny of commission?—(A) I don't know what he got for the commission himself; he never told me. I was told on the 25th January that he was not buying the pictures, and he would give me the first chance. (Q) Was not the whole substance of the bargain this, that he was coming on the chance of you buying the pictures from the seller and getting his commission?—(A) No, I got it from London. I don't know whether he was handing on the bargain to me or not. I bought the pictures as genuine works of art. They were verbally guaranteed to me before I bought them, or I would not have bought them. That applies to the four pictures.… He sold them to me as genuine works of art. Re-examined—I received a verbal warranty that was followed by receipts being granted at a later stage. The pictures were represented to me as being genuine works of art when they were sold.”

Bailie Watt, examined—“Pursuer and I went to defender's on a Sunday afternoon, a friendly call. I do not remember the date. We went into defender's house and had a look at the pictures, and had some talk about art and pictures generally. There was some notice taken of a Gainsborough at that time. (Q) Can you tell us what defender said about that Gainsborough?—(A) Defender said that that picture was a probable or a possible Gainsborough of an early date. The amount that he paid for it was £45, and he said that pursuer could have it for £50. (Q) Did that strike you as being a very improbable price for a warranted Gainsborough?—(A) I would say so. The result was that pursuer bought that picture at or about the price mentioned. I was present when that took place; so far as I remember there was nothing said in the way of warranting the picture, but I don't remember if pursuer asked for a warranty, and I don't remember of defender volunteering it. I think previous to that the Phillips was bought. I think that defender had seven Phillips in his house, and they were all looked at. There was one that struck pursuer's fancy. I think defender suggested one picture of a lady with something on her head, which was a cheaper picture than some other one that pursuer said he would rather have. Ultimately pursuer bought the small one. I don't think pursuer asked for a warranty as regards that purchase. It was not given in my hearing. It was sold as a Phillips; it was spoken of by defender as a Phillips. The other one was sold as a possible or probable Gainsborough. Pursuer took a fancy for that picture when coming down the stair. He asked defender what it was, and defender said it was a picture costing 45 guineas, and he would sell it for £50. He then said—‘I think it is a possible or probable Gainsborough.’ There was nothing said about guarantee or warranty. At that interview there was nothing to suggest that defender did not believe the thing to be as he represented it. I do not think defender would do that.

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Cross-examined—I think defender said something about having had a bargain of the Gainsborough, and that in turn he was quite prepared to give pursuer a bargain. (Q) When you say there was no warranty, do you mean that defender was in doubt as to whether or not the so-called Gainsborough was genuine or not?—(A) That is so. Defender said that the other picture was a Phillips.” …

The defender, examined—… “I remember about the 6th of January 1901 of Bailie Watt bringing the pursuer to see me on a Sunday. They came in when I did not expect them, and the Bailie said the pursuer wanted to see my collection, and asked if it was convenient to see them. I was quite glad to show them, the same as I have done to many a one. Pursuer was never in my house after that; he is mistaken when he thinks that he was. On going round the rooms we got the length of the drawing-room, and when looking at a Phillips he said that there was one in another room that he preferred to that. That other picture was the picture in question. I expressed an opinion as to the relative merits of the picture he had first seen and the picture he saw subsequently. I took him from the drawing-room into the other room and pointed it out to him. He had taken notice of it although I had only mentioned it in a casual way. I took it down off the wall and took it into the drawing-room. I said that while this was nearly a £100 cheaper I preferred it, as it was more typical of the artist, in my opinion, and I liked the colour of it better. That was a picture of a woman at a well. Pursuer preferred the other one, and he said that was the one he wanted, if I would sell it. It was a picture of gipsies dancing. I spoke of both the pictures as Phillips. I believed them to be by Phillips; I had no doubt of it whatever. Pursuer said he would buy the Phillips at the price of £235. He asked me to sell it, and I agreed. He did not ask me for any warranty or guarantee, and I did not suggest any. (Q) If you had been asked for a written warranty, would you have sold the picture plus the warranty at £235?—(A) Certainly not. I had no doubt as to the genuineness of the picture. Bailie Watt was present and heard the whole transaction. Pursuer asked me what the picture was, and I said it was a rather queer sort of picture. I thought it was an early work by Gainsborough in the manner of D'Artois. He said that there were not many people who would back me up in that, but in my opinion I thought it might be a Gainsborough. I said that he could have it at what it practically cost me. My opinion was that it was a Gainsborough, and has always been that, though a doubtful one in many a one's opinion. On these terms the purchase of the Gainsborough was completed. The pictures were sent shortly afterwards. I got a cheque for the amount. Up till the time of the receipt being granted the matter of guarantee or warranty of the genuineness of the pictures was never referred to by either party. (Q) You were asked why in acknowledging receipt of the £285 you spoke of pictures by Phillips and Gainsborough; why do you mention the artists?—(A) To differentiate the one picture from the other. I had no intention of giving a guarantee in the receipt. When we parted after the sale of the pictures was made there was no understanding that I was to give a guarantee. The pictures forming lot 2, the Verbockhoeven, the Tenkate, and the V. C., were not in my house at the time the first sale was made. I don't know if they were in my possession. It was after the first transaction was concluded that it came to be in my power to deal with these pictures. I received a communication from a dealer in London giving me the offer of these three pictures. I did not want to buy them myself, and as pursuer had told me previously that if I saw anything at any time he was willing to become a buyer if I thought the pictures would suit him, and I was to give him the first chance. I was carrying out that request when I brought these pictures under his notice. I got no benefit out of the transaction with regard to the second lot. I even gave him a small picture which I got for my commission. I said that as I was dealing in an honestly and friendly fashion I would give him the picture which was for my commission. It is not a luckpenny. In that transaction I was simply handing on the offer which I got from London, and pursuer knew that. On 25th January, after the first lot had been purchased, I wrote the letter to the pursuer telling him of the chance of getting a Verbockhoeven (dated). When I wrote that I believed it was a Verbockhoeven. I was using the words very much as I had got them from the dealer in London; I had seen the picture myself and believed it was a Verbockhoeven. In the beginning of February I went to the defender's house with the pictures … I did not give any warranty.… I was never asked to do so.”

On 10th July 1902 the pursuer wrote the following letter to the defender:—“Dear Mr Shirlaw—I had some friends staying with me lately that profess to know something about pictures, and I was rather taken aback when they seemed to doubt my word as to the pictures I bought from you being genuine. Under the circumstances I should like to have the pictures examined by some authority, and think for both our sakes you will agree with me that this should be done. I am agreeable to send them to any one of standing you may name, such as Agnew & Sons London. Kindly let me hear from you at earliest convenience, and oblige.—Yours faithfully, Wm. Hyslop.”

A correspondence extending over several months had followed, resulting in the raising of the present action. Prior to the letter of 10th July the pursuer had never indicated to the defender or anyone that he doubted the genuineness of the pictures, and had taken no steps to discover, by expert opinion or otherwise, whether they were or were not the works of the artists thought to have painted them.

The Sheriff-Substitute ( Mitchell) on a

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consideration of the proof was of opinion that the defender had warranted the “Verbockhoeven,” and he accordingly allowed a proof on the question of its genuineness, and subsequently found on a consideration of the evidence that the picture was a forgery. On appeal the Sheriff (GUTHRIE) held that the pursuer had guaranteed all the four pictures and allowed a further proof upon the question of the genuineness of the other three.

The defender, however, while expressly adhering to his opinions and statements on record as to the authenticity of the three remaining pictures, the Gainsborough, Phillip, and Tenkate, lodged a minute agreeing that the case should be disposed of, in order to avoid expense, on the footing that the pictures were not painted by any of these artists. Accordingly on 18th January 1905 the pursuer was granted decree for the sums sued for.

The defender appealed to the Court of Session, and argued—(1) The defender had never warranted the genuineness of any of the pictures. The parole evidence as to what took place at the meetings and the letters clearly showed that the defender did no more than indicate an honest belief that the pictures were the works of the artists mentioned. The terms of the receipts did not involve a warranty, the words “by Phillip, R.A.,” &c., merely being used to identify the various canvasses. Breach of warranty was a “failure to perform a material part of the contract”—Sale of Goods Act 1893, sec. 62—but the defender had entered into no contract with the pursuer except to hand over certain pictures chosen by the pursuer, and this he had done— Campbell v. Henderson, June 1, 1886, 23 S.L.R. 712; Jendwine v. Slade, July 12, 1796, 2 Espinasse 572; Addison on Contracts (10th ed.), 511. (2) In any event, the pursuer

was barred from proceeding with the action, as he had failed to reject the goods within a reasonable time—Sale of Goods Act 1893, secs. 11 (2), 31, 35. The present was not a case of some latent defect suddenly becoming patent, and the buyer immediately thereafter rejecting the goods. He could have made his examination by experts immediately after purchasing just as well as eighteen months afterwards— Carter & Co. v. Campbell, June 12, 1885, 12 R. 1075, 22 S.L.R. 711; Pearce Brothers v. Irons, February 25, 1869, 7 Macph. 571, 6 S.L.R. 372.

Argued for the pursuer and respondent—(1) The defender had warranted the goods orally, by the letters, and by the terms of the receipts. No express words of warranty were necessary— Scott v. Steel, December 9, 1857, 20 D. 253; Stewart v. Jamieson, March 6, 1863, 1 Macph. 525. There was at anyrate an express representation upon which the contract proceeded, and the mere fact that it may not have been fraudulent was immaterial— Ferguson v. Wilson, June 4, 1904, 6 F. 779, 41 S.L.R. 601; Benjamin on Sale (4th ed.) 609; Addison on Contract (10th ed.), 507. The following

cases on the warranty of pictures were authoritative:— Power v. Barham, Jan. 14, 1836, 4 Adolphus & Ellis 473; Lomi v. Tucker, July 10, 1829, 4 Carrington & Payne 15. (2) Whether rejection is timeous or not is always a question of circumstances. The rejection here was timeous. The defender's contention on this point involved the absurdity that the buyer of a picture could never reject it on the ground that it was not genuine unless he had immediately after purchase subjected it to expert examination. The buyer, however, of an article was only bound to examine it if put upon his inquiry by something suspicious. He was not bound to suspect the seller of fraud—Benjamin on Sale, p. 602 and foll. Jones v. Ryde (a case of forged signature), 1814, 5 Taunt 488; Patterson v. Landsberg & Son, May 24, 1905, 42 S.L.R. 542. Pictures differed from such things as grain or machinery in the fact that whereas the latter deteriorated, the former increased in value by the lapse of time, and the whole foundation of the defender's argument on this head was struck at by the fact that he could not show that the so-called delay had been to his prejudice.