Scottish Court of Session Decisions

This was an action at the instance of Matthew Paul & Company, Limited, Leven-ford Works, Dumbarton, against the Corporation of the city of Glasgow, concluding for payment of £400, being the sum due to the pursuers for making an installation of a Patterson's Smoke—Preventing Suction Draught Apparatus at the defenders' Kennedy Street wash-house.

The pursuers averred that they were the sole licencees and makers of “Patterson's Smoke—Preventing Suction Draught for Land and Marine Boilers;” that this was the well-known trade name of a specific process designed for adaptation to boilers for the purpose of effecting increased power with a saving of fuel and the prevention of smoke; that the apparatus was one in which, by the use of a fan in the main flue leading from the boiler to the chimney, the intensity of the draught and steam production were regulated according to the speed of the fan; that on 9th March 1897 the pursuers wrote to Mr A. B. Macdonald, the defenders' engineer, as follows—“We understand that the Glasgow Corporation have at present under way a number of new boiler installations for city institutions, and we enclose herewith a descriptive circular of Patterson's Suction Draught arrangement, which you may find of interest at the present time. We would direct your attention specially to the combinations under this system of a means both for greatly increasing the boiler capacity, and for largely reducing or entirely preventing smoke, which, so far as we are aware, is not done jointly in any other system.… On hearing from you we shall be glad to submit a proposal for any of the installations you have at present in progress.” The circular referred to contained the following words—“Advantages. For Land Boilers.” … 4. Absolute prevention of smoke.… General Description.… The smoke prevention is absolute, and is obtained by a proper arrangement of air admission, which in no way complicates the furnace fittings, together with the washing of the gases by the water spray as they pass through the fan.”

The pursuers further averred that, after certain members of the Baths and Wash-houses Committee and certain of the defenders' officials had visited the pursuers' works and seen the Patterson apparatus in operation, certain correspondence passed between the parties with regard to proposed installations in wash-houses at Stobcross and Bain Square, which in the end were not proceeded with, and in particular two letters from the pursuers dated respectively 14th and 25th January 1898 regarding the size of the fans required to do the work as described, the amount of work to be done by the pursuers and the Corporation respectively in connection with the installations, and the price to be paid for them; that on 3rd February 1898 the pursuers received from Mr Macdonald a letter requesting them to submit sketches for an installation of the apparatus at a wash-house in Kennedy Street; that on 8th February 1898 the pursuers accordingly made an offer by letter for the said installation, in which, inter alia, they said—“Our price for this installation will be the same as for the other, viz., £370, and an iron chimney 30 feet high and 2 feet 6 inches diameter will cost about £30 additional;” that on 1st March 1898 the Corporation Treasurer wrote to the pursuers a letter in the following terms:—“Dear Sirs,—Having regard to your letters addressed to Mr A. B. M'Donald, City Engineer, of date, 14th January, 25th January, and 8th February, with relative tracings, I beg, on behalf of the Corporation Police Department, to intimate their acceptance of your offer contained in these letters to supply and erect at the Kennedy Street wash-house an installation of Patterson's Suction Draught, with 60-inch fan, engines, iron chimney, &c., all as specified, for the sum of four hundred pounds sterling (£400).” None of these letters contained any reference to the letter of 9th March 1897 or the circular enclosed therewith, or to the prevention of smoke.

The pursuers also averred that no warranty as to the results to be obtained by the apparatus was either asked or given, and that the defenders relied on the technical skill of their engineer, and on the knowledge of the members of committee who had seen the apparatus in operation; that the pursuers proceeded with the fitting up of their apparatus at the Kennedy Street wash-house, and completed it on 9th February 1899; that when erected it was in every respect conform to contract, and in all material respects similar to the apparatus which the defenders' committee saw in operation before the said contract was made, but that after repeated demands the defenders, by letter dated 30th January 1900, refused to make payment of the contract price.

The pursuers pleaded, inter alia—“(2) The pursuers having supplied to the defenders the apparatus as contracted for are entitled to payment of the price. (4) Separatim, the apparatus in question having been sold to the defenders without any warranty, the defenders took the risk of its fitness for the purposes to which it was put. (5) The apparatus in question being a specified article, sold under its patent or other trade-name, there was no implied condition as to its fitness for any particular purpose. (7) The defences are irrelevant.”

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The defenders denied that no warranty as to results had been given by the pursuers, and also that the apparatus as erected was conform to contract, and made reference to their statement of facts. They referred to the correspondence and the pursuers' circular for their terms, and admitted that they refused to make payment. In a separate statement of facts they averred as follows:—“(Stat. 1) The pursuers in their said circular claimed as one of the advantages to be derived from the application of their apparatus to land boilers, and warranted the ‘absolute prevention of smoke’ coupled with a ‘large reduction in cost of chimney.’ The said circular contains the following warranty:—‘The smoke-prevention is absolute, and is obtained by a proper arrangement of air admission, which in no way complicates the furnace fittings, together with the washing of the gases by the water-spray as they pass through the fan.’ (Stat. 2) Relying on the statements and warranty contained in the said circular, and in order to obviate the erection of a large brick chimney stalk, the defenders ordered an installation of the Patterson apparatus for the Kennedy Street wash-house, which after great delay and many remonstrances from the defenders thereat the pursuers erected. The fan was to be delivered in the end of May 1898, but it was not delivered till seven months afterwards, and the pursuers did not complete the erection of the apparatus until the last week of March 1899. After frequent trials the fan was found to be a failure, but the pursuers informed the defenders in September 1899 that it was only a temporary one, and that they had now put a copper fan in hands.… The defenders intimated to the pursuers by letter of 13th September that the buildings were ready for the erection of the apparatus. (Stat. 3) When the apparatus came to be tried it was found that it did not prevent smoke. On the contrary, black smoke issued on all occasions in great quantities through the chimney from the boiler, alike when the apparatus was worked (as it frequently was) by or in presence of the pursuers' men and by the defenders' men. (Stat. 4) On this coming to the knowledge of the pursuers, they on 1st April 1899 wrote to Mr Macdonald stating ‘that it would be necessary to give more air admission over the bars either by leaving the door slightly open, or by providing new doors with bigger openings for air supply through them, or by perforating the fronts above the door.’ The pursuers by said letter undertook ‘that with a sufficient air supply over the bars the smoke will be absolutely prevented.’ (Stat. 5) The defenders agreed to allow the pursuers to make the necessary alterations on the furnace front for the admission of air, and the pursuers accordingly had new perforated furnace doors made and fitted. (Stat. 6) On the apparatus being again tested after the alterations of the furnace doors, the apparatus was still found not to be able to pervent smoke. (Stat. 7) Thereafter the pursuers made repeated attempts by bricking over the back length of the boiler bars so as to reduce the grate area, by substituting a copper fan for the original one supplied, which they stated had been only a temporary one, and otherwise, to make the apparatus conform to their warranty. These attempts, however, entirely failed. (Stat. 8) On 2nd December 1899, on the failure of the attempts by the pursuers, the defenders wrote to the pursuers giving them an opportunity of putting the apparatus to their satisfaction within ten days. The pursuers did not avail themselves of this opportunity, and after some correspondence, and after the pursuers' workmen had vainly attempted to work the engine successfully themselves, the defenders, on or about 30th December 1899, rejected the said apparatus as not being conform to warranty, and thereafter caused it to be removed.” …

The defenders pleaded, inter alia—“(2) The pursuers' averments, so far as material, being unfounded in fact, the defenders ought to be assoilzied with expenses. (3) The apparatus supplied by the pursuers to the defenders being disconform to warranty, and having been rejected by the defenders, the defenders ought to be assoilzied with expenses.”

The Sale of Goods Act 1893 (56 and 57 Vict. c. 71), enacts as follows:—Section 14—“Subject to the provisions of this Act, and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows:—(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the sellers' skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not) there is an impled condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade-name, there is no implied condition as to its fitness for any particular purpose.”

On 10th July 1900 the Lord Ordinary ( Kincairney) before answer allowed the parties a proof of their respective averments on record, and to the pursuer a conjunct probation.

The pursuers reclaimed. During the debate they renounced probation.

Argued for the pursuers and reclaimers—The only question raised by the defence as stated on record was, whether or not the pursuers had warranted that the apparatus erected by them would absolutely prevent smoke. There could be no implied guarantee in a case like this, because in terms of the Sale of Goods Act 1893 (56 and 57 Vict. cap. 71), sec. 14, sub-sec. (1), in the case of a contract for the sale of a specified article under its patent name there was no implied condition as to its fitness for any particular purpose. This enactment only applied the common law rule, that where the buyer could judge of the article for

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himself he did not need to rely on the seller's skill or knowledge— Chanter v. Hopkins, 183S, 4 M. & W., 399: Rowan v. Coats Iron & Steel Company, January 6, 1885, 12 R. 395. The question therefore resolved itself into this, had the pursuers ever given an express guarantee that this apparatus would absolutely prevent smoke? Whether they did so or not could be judged of from the correspondence, all of which was in process. There were no averments on record of anything said or done at any interview between the parties which would modify the contract. There was thus no necessity for a proof, all the material for deciding the case was already before the Court. The circular sent to the pursuers on 9th March 1897 was a “puff” or advertisement in glowing terms descriptive of the patent, and was not a warranty at all, but merely a representation. Even if the terms of the circular constituted a warranty, these had never been imported into the contract. The letters constituting the contract made no reference to the circular or the letter enclosing it, and were all written nine months after the sending of the circular. In such circumstances it was plain that the defenders had given no express guarantee— Hopkins v. Tanqueray, 1854, 23 L.J. C.P. 162; Chalmers v. Harding, 1868, 17 L.T. (N.S.) 571; Malcolm v. Cross, June 9, 1898, 25 R. 1089.

Argued for the defenders and respondents—It would be unsafe to decide the case without proof being led as ordered by the Lord Ordinary. All the cases cited were decided after a proof. Their case was, that the warranty in the circular had been undertaken by the pursuers in the contract, and this would be shown by proof of what passed at interviews between the parties, and by the terms of the correspondence. If the article were patented, there might be no implied warranty, but that did not affect the question of express warranty, which was a question of fact on which proof should be led— Prideaux v. M'Murray, 1860, 2 F. & F., 225. Their position was, that they relied on the circular sent them on 9th March 1897 by the pursuer, and that the warranty therein had been imported into the contract. This would be brought out by the proof. The Lord Ordinary's interlocutor should be affirmed.