Scottish Court of Session Decisions

Thomas Stevenson & Sons, fancy drapers and silk mercers, 76 Princes Street, Edinburgh, pursuers, brought an action against Robert Maule & Son, drapers, carpet, and upholstery warehousemen, removal contractors, and general furnishers, 145–149 Princes Street, and 1 and 5 Hope Street, Edinburgh, defenders, concluding for declarator that the defenders were bound to compensate the pursuers for the value of a carpet, entrusted by the pursuers to the defenders for the purpose of being beaten, which had been destroyed by fire.

The pursuers pleaded—“1. The defenders having contracted with the pursuers as condescended on, and having without the authority or consent of the pursuers given over the custody of the carpet to a third party in whose premises it was destroyed by fire, the pursuers are entitled to decree of declarator in terms of the conclusion of the summons. 2. Alternatively, the defenders having negligently handed over the pursuers' carpet to be housed in the unsafe premises of an agent selected by them, are liable for its loss, and the pursuers are entitled to declarator in terms of the conclusions of the summons. 3. Alternatively, the pursuers' carpet having been destroyed through the negligence of the defenders' agent, for whom they are responsible, the pursuers are entitled to declarator as craved.”

The defenders pleaded, inter alia—“1. The averments of the pursuers being irrelevant and insufficient to support the conclusions of the summons, the action ought to be dismissed. 2. The carpet in question having been destroyed without negligence on the part of the defenders, and without any negligence on the part of their sublessor or for which they are responsible, the defenders are entitled to decree of absolvitor.”

On 30th December 1919, after a proof before answer, the Lord Ordinary ( Ormidale) repelled the pursuers' pleas-in-law and assoilzied the defenders.

Opinion (from which the facts of the case appear)—“The carpet whose value is sued for in this action was lifted on Thursday 15th August. It was taken to Mr Orr's carpet beating works on Friday. A start was made to clean it on Saturday. It would have been finished on Monday, but it was destroyed on Sunday by a fire which broke out in Mr Orr's premises.

“The contract between the pursuers and defenders was a verbal one—that the defenders should send for and lift the carpet, take it away, beat it, and thereafter relay it.

No inquiry was made by the pursuers as to the method followed by the defenders of beating the carpets entrusted to them. The only positive instruction given was

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that the carpet should not be vacuumed—vacuum cleaning being a speciality of the defenders. Nothing was said as to whether the carpet was to be beaten by machinery or by hand. Mr Stevenson appears to have assumed that it would be beaten by hand, as that had been the process followed by John Taylor & Son, Limited, the firm to whom the pursuers had been in the habit before this of sending their carpets. In point of fact Mr Stevenson did what in the ordinary case—prior at any rate to the fire at Mr Orr's premises—the great majority of people did, sent his carpet to be beaten without thinking at all about whether it would be beaten by the defenders on their own premises or sent elsewhere to be beaten. No doubt he says that he assumed that the defenders would themselves do the beating, but he frankly admits that if the carpet had been returned to him well beaten, and he had been told that the work had been done by Mr Orr, he would not have declined to pay the price on the ground that his contract had not been carried out, and would have been quite content. If the pursuers had asked whether the defenders would themselves beat the carpet, they would have been told that the defenders would not, either by machinery or by hand.

It is of some importance that the defenders do not advertise themselves as carpet beaters, only as cleaners of carpets by the vacuum process. Mr Stevenson says that he ‘understood’ that they do so advertise. No one is examined who says positively that they do. Mr Taylor, who is the defenders' cashier, and has been with them for thirty-eight years, says that they do not. This has to be kept in mind, for many questions were put, and the contention of the pursuers is to some extent based, on the assumption that the defenders, like some laundry companies, advertise carpet beating as one department of their business. No doubt if any customer asks them to beat a carpet they accept the job, but they do not announce in any other way to the public that they are carpet beaters.

The defenders maintain that the contract was one for work to be done, and amounted to locatio operis faciendi and nothing more, and that that being so, they were entitled to delegate the execution of the work contracted for to a third party. The pursuers contend that the contract was of a twofold nature, involving at once locatio custodiœ and locatio operis faciendi that the defenders having received possession of the carpet their primary obligation was to retain it in their own custody, and that it is no excuse for their failure to redeliver the carpet that it had been destroyed by an inevitable accident, for non constat that it would have been so destroyed if they had not broken their contract, and without the consent of the pursuers yielded the custody of the carpet to a third party.

I have come to the conclusion that the defenders in sending the carpet to be beaten on other premises than their own, and to that extent surrendering its custody to a third party, were not in breach of their contract if only there was nothing faulty or negligent in their selection of an agent to do the work.

The general law as I understand it is, that in the case of an executorial contract such as this is, if the work to be performed is of an ordinary character, and there is nothing to suggest delectus personæ, the undertaker is entitled to delegate the execution of the work to a sub-agent. Pothier (Droit Civil, &c.) vol. ii, p. 334, sections 420, 421; Story on Bailments, p. 430, section 428.

The work here to be done was not of a peculiar nature, but of a very ordinary description, and the pursuers were not attracted to the defenders because of any skill either professed or possessed by them in the matter of carpet beating. The motive that actuated Mr Stevenson was that, knowing that the defenders were tradesmen with a good business reputation generally, he thought that they might be able to beat the pursuers' carpet no less satisfactorily but at a lesser cost than John Taylor & Sons, Limited. And further, the idea of the carpet being sent on by the defenders to some-one else to be beaten would have been repugnant to him in the main, because he thought that this employment of a third party would have a tendency to increase the expense. As a matter of fact, the cost of beating a carpet is in itself trifling, less than the cost of lifting and relaying it—that is to say, in the present case out of a total cost of about £6 or £7 only £2 or so would be referable to the actual beating.

In my opinion there is no room for the application of the principle of the doctrine of delect as personæ. The person al qualifica tions of the defenders were not of the essence of the contract for beating the carpet. Further, this is not the case of a third party not privy to the contract claiming a right to enforce it. The defenders stand by their contract, and the question is whether it entitled them to execute it in the way they did. Of the cases cited to me directly bearing on the subject of delectus personæ, that of the British Waggon Company v. Lea, 5 QBD 149, referred to in Asphaltic Limestone Concrete Company, Limited, 1907 S.C. 463, Lord M'Laren at 475, 44 S.L.R. 327, appears to be most in point. Other cases cited were Cole v. Handasyde & Company, 1910 S.C. 68, 47 S.L.R. 59; Grierson, Oldham, & Company v. Forbes, Maxwell, & Company, 22 R. 812, 32 S.L.R. 601.

It seems impossible to leave out of view that in acting as they did the defenders were in no way departing from what is a very usual, if not universal, practice in the trade. The evidence establishes that in the ordinary case while some tradesmen on receiving carpets to be beaten do the work themselves on their own premises, others, and so far as I can judge, the great majority, do not, and further, in accepting the carpets they do not intimate to their customers that they will send them to outside parties to have the work done. In the light of that practice, and in the absence of any circumstances inferring delectus personæ,

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it was for the pursuers to make it clear if they so desired that the work was to be done by the defenders on premises of their own. There was no reason why the defenders should be expected to vary their usual practice of sending the carpets received by them to Mr Orr. They had not invited the pursuers to entrust their carpet to them, and they were in my judgment entitled to assume that the defenders in coming to them were aware of their unvarying practice of sending all the carpets given them to be beaten, including their own, to Mr Orr. Steam laundries are in a totally different position. Cleaning is their special and only work, whether it be the washing and dressing of domestic and other linen or the beating of carpets. They so advertise. They are rivals inter se, and I quite understand that the principle of delectus persoœ would apply to a contract entered into with one of them.

If the defenders are right in their contention that this was simply a contract for work to be done, then for the reasons I have given they were entitled to employ a sub-agent to get the work done for them even though that involved the parting, without the express consent of the pursuers, with the carpet.

The agreement to ‘lift, beat, and relay the carpet’ does not in terms instruct or suggest a contract of custody. Bell's Prin. p. 155, Bell's Com. p. 488. It was said that the carpet was an article of value requiring special care and treatment—more, that is to say, than the ordinary care and prudence of a good paterfamilias— Coggs, 2 Smith, L.C. 191. I do not so regard it. It was a large carpet, 42 feet square, as well as a very dirty one. At the time of its destruction it was worth £100. To replace it by a new carpet will, it is agreed, cost £235. But the carpet itself was just an ordinary carpet of large size, of no special quality, and not difficult to replace. It was not like a Persian carpet, and was in a different category altogether from the articles of value referred to by counsel, e.g., ‘a priceless bit of ancient furniture,’ ‘an irreplaceable piece of antique furniture,’ jewellery, or rare tapestries. There is nothing to indicate that Mr Stevenson regarded it as an article of special value requiring more than ordinary care. ‘Give it a good doing, a good beating,’ was all that he said when the defenders' foreman was carrying it away.

Clark v. Earnshaw, 1818, 21 Rev. R. 790, to which I was referred, was a case in which it appeared that a chronometer sent for repair to a watchmaker was stolen while in his custody and the owner recovered damages. That, however, was on the ground of personal negligence, in respect that while he placed his own property in an iron chest he merely put the chronometer into a locked drawer—that is to say, he gave less care and attention to his customer's goods than he did to his own. In the present case there was no such differentiation of treatment. The defenders' own carpets like all his customers' were sent to Mr Orr's premises to be beaten.

Lilley v. Doubleday, 7 Q.B.D. 510, was an action to recover the value of certain drapery goods warehoused by the defendant for the plaintiff which had been destroyed by fire. It was held that a term of the contract had been breached by the defendant in that he had deposited the goods in a repository other than the expressly agreed-on repository. With reference to that state of facts Grove, J., said—‘If a bailee elects to deal with the property entrusted to him in a way not authorised by the bailor he takes upon himself the risks of so doing except when the risk is independent of his acts and inherent in the property itself.’ I see no reason to dissent from that dictum, but the question I have to deal with is whether there was a breach of the contract between the pursuers and defenders, and the case cited does not assist me in reaching the conclusion that there was. In Lilley's case the contract was one of custody and nothing else.

In the present case the contract was one for work to be done, and if I am right in holding that the defenders were not in breach of that contract in delegating a portion of the work to a sub-agent, then it seems to me to follow that the surrender of the carpet to the sub-agent for the purpose of that work being performed upon it could not be a breach of the contract unless they were negligent in their selection of the subagent.

The defenders say that they were not negligent, that Mr Orr was a man of good business reputation and well qualified to do the work required of him and to take care of the carpet while he was doing it, and that accordingly they exercised all the prudence and care which they were bound to take.

The pursuers on the other hand say that assuming that the defenders were entitled to transfer the carpet to a third party, they were in fault in transferring it to Mr Orr in respect, inter alia, that he did not insure the goods that were temporarily deposited with him, whereas there were other carpet beaters to whom they might have entrusted the carpet who did so insure, and so protected the owners against the risk of the destruction of their carpets by fire. That there are carpet beaters of the latter class is proved, but they are very few in number, and are in reality limited to one or two steam laundry companies. A few of the older established upholsterers like Whytock & Reid and John Taylor & Son, Limited, also take out policies which cover their customers' goods, but they do not do more than beat carpets for their ordinary customers. They do not tout for carpets to beat like the laundry companies. As a matter of fact the defenders themselves take out no such policy. The laundry companies do—at least I am prepared to assume that they do—although the exact nature and value of the insurances effected by them is not very clearly established by the evidence. In my opinion, however, the defenders were not guilty of any negligence in not transferring the carpet in question to one of them. It is by no means the universal, or indeed the usual, practice for tradesmen like the defenders to do so. The practice

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may have grown since the fire at Mr Orr's premises, just as apparently it has become more common for inquiries to be made as to insurance. It is easy to be wise and more particular after the event, but the defenders appear to me to have followed just the course ordinarily pursued by people in their own position, and I cannot therefore hold that they failed to exercise reasonable care and prudence because they preferred Mr Orr to one or other of the laundry companies. Mr Orr was a pioneer in the carpet beating by machinery business, and had a high reputation for the excellence of his work. The defenders in employing him omitted no precaution that other people were in the habit of taking by inquiring as to whether he had a floating policy or in other way. What exactly was the nature of the policy, if any, which could or should be effected where storage of goods is not the subject of the contract was left very uncertain by the pursuers' witness Mr Rennie.

The other averments made in cond. 4 in support of the pursuers' plea 2 have no foundation in fact. There is no evidence at all that Mr Orr's premises were specially exposed to risk, and they have always been insured with a responsible insurance company at ordinary rates for the particular risk. There has been no fire in the carpet beating premises of Mr Orr since the business was started in 1865.

There is no evidence to warrant, and no argument was submitted in support of, plea 3 of the pursuers.

I shall repel the pleas for the pursuers, sustain the second and third pleas for the defenders, assoilzie them from the conclusions of the action, and find them entitled to expenses.”

In the Inner House parties lodged a joint minute admitting that Orr obtained the carpet as a sub-contractor with the defenders.

The pursuers reclaimed, and argued—The contract in question was silent as to the right to delegate performance, but the nature of the work was such as to exclude any right to delegate performance. If so, any question of degree of care within the contract was admittedly irrelevant, for in delegating the work to another the defenders were in breach of contract; for the same reason the defence of damnum fatale was not open. The contract was express as to the parties, consequently the onus was upon the defenders to show that they were entitled to pass on the work they bound themselves to do, to a sub-contractor. In effect that was disturbing an express term of the contract. If such a right existed it altered the prestations on either side; under the contract the defenders were to give work and labour and to charge a reasonable sum therefor. If the defenders were right they could substitute therefor the work and labour of others and charge their charge plus a commission. Further, delegation involved a change in the nature of the work, for the pursuers knowing that the only mechanical process of carpet cleaning used by the defenders was by the vacuum process, excluded that, and the pursuers' contract therefore was that the defenders should use the only other method of cleaning available to them, i.e., handbeating. Consequently whatever right the defenders might have had to delegate the work to another who would beat by hand, they had no right to delegate to one who only cleaned carpets by machinery. There was no authority to support the proposition that one who had the right to delegate his obligation to perform had also an option to choose between different methods of performance available amongst his delegates. Further, the contract was not solely one of hire of labour. It also involved custody. The pursuers' contract could only be regarded as express on the selection of custodier, and all the more so as they knew that outwith their own premises the carpet ceased to be insured. Orr was a sub-contractor. His premises were not pro hac vice the defenders, and he was in absolute possession and control to the exclusion of both the pursuers and the defenders. On the difference between a sub-contractor and a temporary servant, Johnson v. W. H. Lindsay & Company, [1891] A C 371, per Lord Watson at p. 382, was referred to. If the defenders were entitled to part with the custody to another they might well do so to one whom the pursuers distrusted. Indeed, they might pass it on to one whom the pursuers in selecting the defenders had deliberately resolved not to employ. The right to exclude delegation rested upon the interest to insist that the obliger and no other should perform. The pursuers in the present case had such an interest, which rested upon the considerations of care in handling, fidelity in keeping, and of liability to pay for the work, not for the cost of the work plus a commission. In essence the pursuers' case was that having selected the person with whom they made their contract they were entitled to performance by him only. The only exception was when the service was interchangeable as in the case of rough work, but that was excluded in the present case because of the element of personal custody involved in the con tract, which alone was sufificient, although here in addition there were the special circumstances above referred to. None of the text writers or the decisions were against the pursuers. Bell's Prin., section 155, was in the pursuers' favour. Bell's Comm., i, 485 et seq., merely dealt with the cases where custody was involved and where skill was involved, but did not deal with the case, such as the present, where both custody and skill were involved. The English text writers were also in favour of the pursuers—Paine on Bailments, p. 177; Addison on Contracts (11th ed.), p. 910, referring to Cooper v. Willowmatt, 1845, 1 C.B. 672, and p. 913; Anson on the Law of Contract (14th ed.), p. 282; Jones on Bailments, p. 90 et seq. Story on Bailments (4th ed.), section 428; Anson, op. cit., p. 283; Pothier, Droit Civil, vol. ii, sections 420, 427, 428, and 429, did not support the proposition of the defenders that delegation was excluded only in cases where the hire was of artistic skill. That was merely one example of the cases in

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which delegation was excluded. Further, neither Jones, Story, nor Bell, who were familiar with Pothier, accepted his statements in their full width. None of the decisions were absolutely in point. Lilley v. Doubleday, 1881, 7 Q.B.D. 510, per Grove, J., at p. 511; Buxton v. Baughan, 1834, 6 Carr. & Pa. 674, per Alderston, B., at p. 675–676; Robson & Sharpe v. Drummond, 1831, 2 Barn. & Adol. 303, per Lord Tenterden, C.J., at p. 307, were in the pursuers' favour. The British Waggon Company v. Lea, 1880, 5 QBD 149, and Asphaltic Limestone Concrete Company v. Glasgow Corporation, 1907 S.C. 463, 44 S.L.R. 327, were distinguished, for in them the work was such as could be supplied by anyone, and they did not support the defenders. Brabant & Company v. King, [1895] AC 632, was not in point. Searle v. Laverick, 1874, 9 Q.B. 122, and the Encyclopædia of Law in America, vol. v, p. 186, stated propositions which it was not necessary for the pursuers to challenge. Cole v. C. H. Handasyde & Company, 1910 S.C. 68, 47 S.L.R. 59, was not in point. Gloag on Contract, p. 457, was referred to.

Argued for the defenders—The pursuers maintained that they were entitled to have the carpet beaten by the defenders in their premises, that the defenders had no right to delegate performance, and that those rights were implied by law in the contract. If so, the contract was one partly of custody and partly to do work, and the implication in question must be found either in the law of custody or in the law of executory contracts. The whole law of custody was based upon negligence. The custodier's duty was to take reasonable care of the things entrusted to him. So long as the defenders delivered the custody to competent persons of reputation it could not be said that they were negligent. Further, the pursuers' case was not based on negligent performance of the contract, but upon the breach of a term of it, and no case of negligence had been stated. In the law of contracts for work delectus personæ was implied only where the work was of a kind which could not be commonly obtained, as, for example, where artistic skill was involved. The cleaning of an ordinary carpet such as the present did not involve skill of an unusual or personal character. Story ( cit.), Anson ( cit.) at p. 283, Pothier ( cit.), were absolutely in favour of the defenders. So was Bell's Comm. ( cit.), and if Bell did not go the whole way, he at least stated that except where the work was personal in character a trustee in bankruptcy could be compelled to do it—i, p. 487. Bell's Prin. was inaccurate, and the authorities referred to did not support the text. The opinions of those text writers had been followed in the American Courts— Bradley v. Cunningham, 61 Conn. 485, 23 Atl. 932, 15 L.R.A. 679, cited in the Encyclopædia of Law in America, vol. v, p. 186, see also p. 180. In a contract of custody the custodier was liable only for negligence— Coggs v. Bernard, 1703, 1 Smith's L.C. (12 ed.), p. 191, per Gould, J., at p. 192, and Holt, C. J., at p. 197, 2 Lord Raymond's Rep. 909. The same applied where the contract involved custody and the doing of work upon the thing deposited—commentary on Coggs' case in 1 Smith's L.C. at p. 224 and p. 227, referring to Searle's case ( cit.), per Lord Blackburn at p. 126, and Brabant's case ( cit.), per Lord Watson at p. 641. There was no interest in the pursuers to insist in performance by the defenders— Cole's case, the Asphaltic Limestone Concrete Company's case, and the British Waggon Company's case. Robson's case was decided on the ground of personal skill and taste. Buxton's case turned on priority of contract. The Lord Ordinary was right.

At advising—