Scottish Court of Session Decisions

This was an appeal in an action at the instance of the respondents Connal, Cotton, & Co., merchants in Glasgow, against Fisher, Renwick, & Co., shipowners and merchants in Newcastle-on-Tyne. The pursuers claimed a sum of £86, 5s. 8d. in name of damages for loss in consequence of the non-fulfilment of a contract which the defenders had made with them to carry a quantity of goods from Newcastle-on-Tyne to Montreal. The contract between the parties was admitted, and it was also admitted that the goods had not been carried. The defence was that while the defenders had been unable to carry out their contract, and while they were willing to make reasonable compensation for any loss the pursuers had sustained thereby, the claim made was excessive. They tendered in their defences a sum of £50 as amply sufficient to meet any reasonable claims on the part of the pursuers, and pleaded that in respect of this tender the action was unnecessary, and should be dismissed.

The facts as disclosed by the oral and documentary evidence in the cause were these:—By letters passing between the parties on 5th, 6th, 8th, and 9th August 1881, the defenders agreed to carry from the Tyne to Montreal, on behalf of the pursuers, 50 tons of goods, which the pursuers afterwards elected should be white lead. The rate was to be 10s. a ton, with 5 per cent. primage—in all £27, 10s. The white lead was to be despatched by the defenders' next steamer, which they represented would sail in the second week of September. They had no regular line of steamers to Montreal. There was also to be carried for the pursuers by the same steamer 200 tons of coke. The pursuers, through their Montreal firm, sold both the coke and white lead to merchants at Montreal “to arrive.” In the course of the remaining weeks of August and the greater part of September numerous letters passed between the parties, in which the pursuers pressed the defenders to fix a steamer for the despatch both of the coke and the other goods (their election to send white lead not having been yet declared), while the defenders intimated that they were doing their best to get a steamer, but hitherto without success. In the latter part of September the defenders proposed that the coke contract should be cancelled, and a considerable amount of correspondence took place on that subject, resulting in the middle of October in the defenders agreeing to pay £70 (7s. a ton) in consideration of the cancelling by the pursuers of the coke order. In one of the pursuers' letters on this subject, dated 30th September, they said—“What do you propose doing about the 50 tons white lead you have also booked for us, and which our friends have also sold to arrive?” In a letter written by the defenders on 8th October 1881 they said, referring to the desirability of cancelling the coke contract—“Do see what is to be done. It means a frightful loss to send it (the coke) by London or Liverpool.” No steamer having yet been found to take the white lead, the pursuers, who had as yet taken no step themselves to find a steamer, wrote on 5th November 1881—“As regards the 50 tons white lead you had also engaged to take for us, at 10 and 5 per cent. freight, as per your letter of 9th August, Tyne to Montreal, our friends say this must be shipped at once to them either via London, Glasgow, or Liverpool. It is therefore imperative that this is attended to at once, and

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seeing the through rate must cost so much more than direct shipment, we must of course look to you for the difference. Probably shipment from Glasgow will be the cheapest route, and we are making inquiry of the Allans for a through rate via Boston. You had also, we think, better make inquiry in London, or we will if preferable.— P. S.—Allans' rate for the 50 tons white lead, Glasgow to Montreal via Boston, is 32s. and 10s.”

The defenders replied on 7th November—“…With regard to the white lead, if you send any via Boston it must be at your expense. We had no agreement with you for goods binding ourselves to any definite time of shipment; therefore you cannot expect us to be at expense of sending any goods via Boston. It would have been different had we contracted to take goods by a certain ship at a particular date. We are quite ready to carry out any agreements made with you by our next steamer, but of course until we get a steamer we cannot do so.”

The pursuers then proceeded to despatch the white lead to Montreal. It being by that time impossible to ship it direct to Montreal, they sent it by rail to Liverpool, and thence via Halifax to Montreal. This they averred to be the cheapest route. They obtained a special railway rate, but the railway journey cost £41. The total freight of the white lead, adding to this sum a sum of £72, 14s. 9d. for the sea journey and for primage, was £113, 15s. 8d. Deducting from this sum the sum of £27, 10s. which they should have had to pay to the defenders, they raised this action for the balance of £86, 5s. 8d.

The defenders maintained that the pursuers should have sent the goods themselves in the middle of October, when they were made aware by the failure of the defenders to send the coke that there would be no steamer that season. In that event their manager deponed that he considered the white lead could have been sent much more cheaply. No actual rates were, however, proved to have been obtainable in contrast to those paid by the pursuers. The partner of the pursuer's firm who gave evidence on their behalf admitted that before the 5th November he had not—notwithstanding the issue of the coke contract—done anything to secure a steamer for the white lead.

The Sheriff-Substitute granted decree in terms of the conclusions of the petition.

The defenders appealed to the Court of Session, and argued—The difference was a startling one between the amount claimed and the amount for which the defenders were to carry the goods. That of itself almost showed that the pursuers had paid too much. Clearly they would have had to pay less if they had sent the white lead in October, when they were made quite aware by the issue of the coke contract, as well as by the season of the year, that there could be no steamer from the Tyne to Montreal that year. It was their duty, acting tanquam bonus paterfamilias, in these circumstances to make the matter as little and not as much a loss to the defenders as they could. If they had performed that duty the £50 tendered with the defences would have amply compensated them.

Counsel for respondents was not called on.

At advising—