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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCallum v Mason [1955] ScotCS CSIH_8 (19 October 1955) URL: http://www.bailii.org/scot/cases/ScotCS/1955/1956_SC_50.html Cite as: [1955] ScotCS CSIH_8, 1956 SC 50, 1956 SLT 50 |
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19 October 1955
| M'Callum |
| v. |
| Mason |
For the defender, Mr Maxwell, in argument, conceded that if the mixture delivered was 90 per cent "N.P." Stimulant and 10 per cent sodium chlorate, as the pursuer says it was, then the pursuer would have the basis for a relevant case of breach of the implied condition under section 13 of the Sale of Goods Act, 1893—that the goods shall correspond with description. On record the pursuer does say consequentially "that the said mixture did not therefore comply with the description," and in his first plea in law he has a general plea of breach of contract. But he nowhere refers to section 13 of the Act. In that state of the record counsel for the defender invited his opponent as matter of fair notice to say whether he intended to found on section 13. I understood the answer to be in the negative. The debate accordingly proceeded on the footing that the pursuer is founding only on exceptions (1) and (2) to section 14 of the Act.
The defender first argued the broad proposition that section 14 of the Sale of Goods Act can only come into operation where the goods supplied correspond with description in the sense of section 13. This is essentially the same proposition as was rejected by the Court of Appeal in England in Wilson v. Rickett Cockerell & Co., [1954] 1 Q. B. 598, especially per Denning, L.J., at p. 607. In arriving at their decision, however, the Court disapproved the reasoning in Duke v. Jackson, 1921 S. C. 362. If the latter case affirmed the proposition now contended for, I should be bound by its authority. The case related to damage caused by the explosion of a detonator which had been contained in a bag of coal purchased by the pursuer from the defender. The action was based on breach of the implied condition of fitness in section 14 (1) of the Act. It was dismissed as irrelevant by the Lord Ordinary, whose judgment was affirmed in the Inner House. The Lord Ordinary's ground of judgment was that on the pursuer's averments the whole of the coal, or practically the whole of it, was reasonably fit. The Lord Justice-Clerk merely agreed in the result arrived at by the Lord Ordinary. Any difficulty the case may occasion arises from the fact that Lord Dundas and Lord Ormidale drew a line of distinction between the coal and detonator, treating the former as the sole subject of sale and supply and the latter as a foreign substance which had found its way into the bag. This way of regarding the case no doubt arose from the shape of the pursuer's record—for he had commenced by averring that the defender sold and supplied him with a bag of coal, and he then proceeded to explain the explosion as having been caused by a detonator contained in the bag of coal supplied to him. I do not find in the judgments any discussion of the meaning of section 14, or of its crucial words "goods supplied under a contract of sale." None of the learned Judges says that the phrase means goods which correspond with description, nor is there any indication that they regarded the goods supplied in that case as not being conform to description. I cannot find that such circumstances enter into the ratio of the judgment, which I therefore think is confined to the particular averment in that case. If that is correct, then I am free to interpret the phrase "goods supplied under a contract of sale." I respectfully adopt Denning, L.J.'s, opinion in Wilson's case that the phrase means goods delivered in purported pursuance of the contract. Supply under a contract has, I think, a wider and more elastic connotation than supply in terms of a contract. The section, both in its general rule and in its exceptions, is therefore, in my opinion, capable of application—if the facts permit—whether or not the goods supplied correspond with description. Accordingly I hold that the broad proposition contended for by the defender is erroneous.
The defender next argued that the pursuer had failed to aver facts relevant to show that he relied on the seller's skill and judgment so as to raise the implied condition of fitness under section 14 (1) of the Act. He relied on the circumstance that the contract averred by the pursuer prescribed a mixture of two named substances in specified proportions. The express terms of the contract, it was said, left no room for reliance on the seller's skill and judgment to provide that mixture. The case he founded on is Cammell Laird & Co. v. Manganese Bronze and Brass Co., [1934] A. C. 402. In that case shipbuilders had ordered propellers to be made according to a specification drawn up by themselves. That was held to be a sale of future goods. From the judgments I infer that a buyer may so tie the hands of a seller by express directions as to limit the area in which he can be heard to say he relied on skill and judgment. The present case differs from the one cited, because here it was not the buyer who presented the seller with a detailed specification. No doubt the description of the mixture became contractual. I see no good reason, however, why the buyer should not rely on express contract for getting the substance of the thing ordered and on skill and judgment for its being fit for a particular purpose. Accordingly I cannot hold the pursuer's averments under this head to be irrelevant so far as they relate to the tomato crop of 1952. The position is different with regard to the tomato and chrysanthemum crop of 1953, because the pursuer expressly admits on record that the mixture which he ordered was intended to be used during the 1952 season. That averment, in my opinion, precludes him from saying that he relied on the seller's skill and judgment for a mixture fit for his 1953 crop. The particular purpose which he made known to the seller was a purpose limited to the year 1952, and to tomato plants.
Finally, the defender argued that the pursuer had not relevantly averred that the goods supplied to him were not of merchantable quality contrary to the implied condition of section 14 (2). The pursuer avers that "it" was sold to him by description and was a substance which it was in the ordinary course of the defender's business to supply (Record, p. 23 B). The antecedent of "it," when traced back through his averments, is clearly "the said special fertiliser mixture supplied"—that is the mixture containing 10 per cent of sodium chlorate. It is this special mixture supplied which is alleged to have been within the ordinary course of the defender's business to supply and also to have been not merchantable. I do not doubt that goods may be not merchantable though they are sold in the ordinary course of the manufacturer's business. But if so sold I think some specification is called for indicative of the respect in which they are said to be of not merchantable quality as distinct from fitness for a particular purpose. Such specification is completely wanting. I accordingly hold the pursuer's averments in support of breach of the implied condition under section 14 (2) to be irrelevant from lack of specification. [His Lordship concluded by referring to a matter with which this report is not concerned.]
The pursuer reclaimed, and the case was heard before the Second Division (without Lord Blades) on 18th and 19th October 1955.
I did not understand it to be seriously contested that the sale was a sale by description. The sort of goods which the pursuer was to get was specified. Under section 13 of the Sale of Goods Act, 1893,there is an implied condition that the goods delivered shall correspond with the description. The seller does not fulfil the contract by supplying goods of a different sort. If poison is substituted for nutriment, it would appear to follow that the goods delivered are different in kind from the goods ordered and the buyer does not get goods answering to the description in the contract—Jaffé v. Ritchie .Indeed later authorities indicate that, where the proportions of ingredients are specified, a not unsubstantial deviation from these proportions may be enough to bring section 13 into play.
The pursuer, however, has not proceeded on section 13 but prefers to rely on the implied warranties of section 14. As to section 14 (1) it is agreed that he is entitled to a proof before answer so far as the 1952 tomato crop is concerned. But I do not see how, on the pursuer's averments as to the purpose of the purchase and the precise evil which it was sought to remedy, he can possibly found on that subsection for any other crop. The mixture was supplied on the footing that it was all to be used in 1952 and to remedy a set of circumstances existing in 1952. There was no consideration given to subsequent years or different crops where the circumstances and the treatment might be different.
Accordingly so far as the 1953 tomato crop and the chrysanthemums are concerned, the pursuer falls back on section 14 (2) and the implied condition that the goods supplied shall be of merchantable quality. He says that the mixture was not of that quality. The scope of this subsection, however, is limited to the case where the goods tendered are damaged to some extent or are defective in quality but not so much that they can no longer be said to correspond with the description. The buyer gets goods of the sort described in the contract but they are for some reason or another sub-standard. In section 13 the goods are not what was ordered; in section 14 (2) the buyer gets the kind of goods he ordered but they are defective. It seems to me therefore that, where, as here, the pursuer says that having ordered fertiliser he got weed-killer, he is far from section 14 (2). Section 14 (2) operates where what he got is still capable of being described as fertiliser but on account of some defect it is not of such quality as a reasonable buyer would regard as satisfying the contract, assuming him to be aware of the true facts—Gloag on Contract, (2nd ed.) p. 313; Benjamin on Sale, (8th ed.) p. 644. As Lord Justice-Clerk Inglis put it in Jaffé v. Ritchie, at p. 249:
"The terms ‘bad quality,’ ‘defect,’ ‘insufficiency,’ do not apply to a case in which the goods offered are of a different description from those about which the parties contracted. There, there is a clear failure to perform the express words of the contract, and we do not need to imply anything."
In my view, then, the pursuer on his averments is not in a position to bring himself within the scope of section 14 (2). This means that I reach the same result as the Lord Ordinary, but I am prepared to go a little farther than he was prepared to go; his view appears to be that the pursuer might have brought himself within it but that he had failed to be sufficiently specific.
LORD PATRICK.—I concur.
"Acting upon the advice of the said traveller, the pursuer thereupon placed an order with the said traveller for two hundredweights of ‘N.P.’ Stimulant to which 28 lbs. of magnesium sulphate was to be added. Thereafter in July a mixture was delivered in two bags by the defender to the pursuer which was invoiced as consisting of a mixture of two hundredweights of ‘N.P.’ Stimulant and one quarter (i.e., 28 lbs.) sulphate of magnesium. Payment for the said mixture was made by the pursuer to defender in November 1952."
The pursuer then goes on to aver that on analysis it was found that the mixture delivered and invoiced as aforesaid did not contain any sulphate of magnesium but contained sodium chlorate in a proportion of 10 per cent; which percentage is toxic to plants. As a result of applying the said mixture to his 1952 tomato crop and to his 1953 tomato and chrysanthemum crops the pursuer says that his said crops were totally destroyed and he now claims damages accordingly.
It was conceded by the defender that on his averments on record the pursuer had stated a relevant case of breach of section 14 (1) of the Sale of Goods Act, 1893, quoad his 1952 tomato crop, and a proof before answer on that matter has been allowed by the Lord Ordinary. The pursuer maintains, however, that the Lord Ordinary was in error in restricting the proof of breach of section 14 (1) to the averments relating to the application of the said mixture to the 1952 crop and the consequences thereof and that the proof to be allowed should be extended to cover the pursuer's averments relating to his 1953 tomato and chrysanthemum crops, which he avers to have been treated by him with the said mixture and to have been destroyed thereby. I do not agree. In order to make out his case of a breach of section 14 (1) of the Act the pursuer must aver and prove that expressly or by implication he had made known to the defender the particular purpose for which the goods which he had ordered from him were required. So far as his averments go, they show that the particular purpose disclosed to the defender was that the mixture should be applied to the yellowish tomato crop which his traveller had seen and diagnosed as suffering from a deficiency of magnesium in the soil. There is no hint in the averments that the defender was told or given to understand that the mixture was required for or would be used for any different or other purpose than this. The proof which is to be allowed into the alleged breach of section 14 (1) must therefore, in my opinion, be restricted to the pursuer's averments relating to the application of the said mixture to his 1952 tomato crop and the consequences resulting therefrom.
As regards the alleged breach of section 14 (2) I am of opinion that the pursuer has stated no relevant case for allowing in a proof under that subsection. That subsection, in cases where it applies, deals not with the goods failing to correspond with the description ordered—such a case is dealt with by section 13 of the Act—but with the goods being of the description ordered (or at any rate substantially so) but failing to reach the standard of quality which the Act describes as "merchantable quality." In the present case the pursuer's averments are that the goods which he ordered were a fertiliser mixture composed of two hundredweights "N.P." Stimulant and 28 lbs. magnesium sulphate and that what was delivered to him and paid for was a mixture composed of two hundredweights "N.P." Stimulant and 10 per cent sodium chlorate. There are no averments that either component of the mixture delivered was of poor quality. The complaint is that the mixture did not correspond with what had been ordered, because, whereas a mixture of "N.P." Stimulant and magnesium sulphate was ordered, a mixture of "N.P." Stimulant and sodium chlorate was supplied. The pursuer's averments accordingly, in my opinion, possibly disclose a case of breach of section 13 of the Act but are not relevant to found a case of breach of section 14 (2). The pursuer's case as averred seems to me to be essentially different from the case of Wren v. Holt, upon which Mr M'Kechnie founded as being of all the cases in the books most nearly akin to the present case. In that case what was ordered was beer and what according to the opinion of Vaughan Williams, L.J., was supplied was beer, whereas in the present case what was ordered was a mixture composed of "N.P." Stimulant and magnesium sulphate and what was supplied was a different mixture, namely, one composed of "N.P." Stimulant and sodium chlorate. Taking the pursuer's averments as they stand, it would, in my opinion, be quite impossible to say that the mixture supplied by the defender was even substantially the same as, and far less the same as, the mixture which had been ordered by the pursuer. I agree therefore with the Lord Ordinary that no relevant case of breach of section 14 (2) of the Act has been averred by the pursuer, but I prefer to base my opinion on this matter rather on the ground that the facts averred do not disclose a case to which section 14 (2) applies than (as the Lord Ordinary has done) on the averments being lacking in sufficient specification.
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