Cole v C. H. Handasyde & Company
| Jurisdiction | Scotland |
| Judgment Date | 16 November 1909 |
| Docket Number | No. 18. |
| Date | 16 November 1909 |
| Court | Court of Session |
Lord Mackenzie, Lord President, Lord Kinnear, Lord Johnston.
Personal or Transmissible—Contract—Assignability—Delectus Personœ—Contract for sale of commodity of specified description not manufactured by seller.
Circumstances in which a contract to supply a commodity conform to specification was held to be assignable.
Spencer sold to Handasyde, in terms of a contract note, a quantity of ‘black grease from cotton oil mucilage,’ of ‘usual good merchantable quality,’ and to contain a certain percentage of fatty matter according to the decision of a named analyst. Although Spencer had an expert knowledge of the qualities of black grease, he did not manufacture the grease which he supplied, but dealt as a merchant only, and this was known to Handasyde.
Before any of the grease had been delivered Spencer executed a trust-deed for behoof of his creditors in favour of Cole. Thereafter Cole tendered delivery of the grease to Handasyde, who refused to accept it.
In an action of damages for breach of contract at the instance of Cole, Handasyde maintained that he had entered into the contract in reliance upon the personal skill of Spencer in the selection of the grease, and that the contract was not assignable; and pleaded ‘no title to sue.’
After a proof held (rev. judgment of Lord Mackenzie), that the contract was for the sale of a commodity of a specified description, and referred nothing to the skill or experience of the seller, and was therefore assignable; and plea of ‘no title to sue’repelled.
On 17th June 1907, Knowles Spencer & Son, oil and seed merchants and commission agents, London, entered into a contract with C. H. Handasyde & Company, Dean Oil Works, Dalkeith, to supply them with ‘black grease,’ in terms of a contract note of that date, in the following terms:—
‘We confirm having sold to you this day—
Quantity.—Two hundred and fifty to three hundred (250/300) tons.
Goods.—Black grease from cotton oil mucilage.
Quality.—Usual good merchantable.
Price.—Fifteen pounds, fifteen shillings per ton, on basis of 95 per cent fatty matter, soluble in carbon bi-sulphide, any excess or deficiency of 95 per cent to be paid or allowed for minimum F.M. 88 per cent.
Packages.—Good, strong, iron-bound barrels, seller's option to deliver in pipes at 7/6 per ton less.
Delivery.—January to December 1908, as and when ready f.o.b. London and/or Bristol, seller's option.
Terms.—Cash in fourteen days from shipment, less 21/2 per cent discount. The goods to be sampled by an independent sampler prior to shipment. Analysis to be made by Dr Watson Gray of Liverpool, whose decision shall be final. Sampling and analysis fees to be divided between buyers and sellers.
Each delivery to stand as a separate contract.’
Messrs Handasyde replied on the following day:—‘Yours of 17th inst. received, with contract note for 250/300 tons black grease, for 1908, which appears in order. Please note, however, that all grease is to be soft and seedy as sample in our possession.’
Knowles Spencer & Son replied on 19th June:—‘We are in receipt of your favour of the 14th, and note that you book the sale of 250 to 300 tons black grease for 1908. We are passing on your remarks about the grease being soft and seedy to the makers.’
Mr Knowles Spencer, the senior partner of Knowles Spencer & Son, had at one time been a manufacturer of black grease, and had an expert knowledge of the qualities of the article, but at the date when he first commenced to have dealings with Messrs Handasyde, in 1905, he had ceased to be a manufacturer. Knowles Spencer & Son dealt only as merchants, purchasing from the makers the grease which they contracted to deliver. These facts were all known to Messrs Handasyde.
On 25th January 1908 the partners of Knowles Spencer & Son granted a deed of assignment for behoof of creditors in favour of the pursuer, Stewart Cole, chartered accountant, London, who admittedly had no knowledge of the nature of black grease. The deed of assignment, as was ultimately conceded, conveyed to Cole, inter alia, the whole rights and liabilities under the contract in question, so far as the same were capable of being assigned.
On 18th February 1908 Cole wrote to Messrs Handasyde tendering delivery of 10 tons under the contract, but Messrs Handasyde replied on the following day declining to take delivery, and repudiating the contract. Subsequently Cole made a further tender of 25 tons, which was refused, and he accordingly raised the present action, concluding, inter alia, for £2500 as damages for breach of the contract in question, and averring that he had incurred serious liabilities to the manufacturers, and had been compelled to resell a considerable quantity of black grease at a heavy loss, besides incurring charges for storage and analysis.
The pursuer pleaded;—(2) The defenders being in breach of the said contract of sale of 17th June 1907, between them and the said Knowles Spencer & Son, the pursuer, as in right of the said Knowles Spencer & Son, is entitled to decree for the sum … sued for in name of damages.
The defenders pleaded;—(2) No title to sue.
A proof was allowed of the averments of parties relative to the second plea in law for the defenders. The import of the evidence led, so far as material to this report, sufficiently appears from the opinion of the Lord Ordinary, infra.
On 20th July 1909 the Lord Ordinary (Mackenzie) pronounced an interlocutor finding that the pursuer had no title to sue, and dismissing the action so far as relating to the contract in question.*
The pursuer reclaimed, and the case was heard on 16th November 1909.
Argued for the reclaimer;—The original parties to the contract were dealing as principals, though Knowles Spencer & Son were in fact only middlemen. The defenders did not know with whom Knowles Spencer & Son made their covering contracts, and their only interest was to get goods of the stipulated quality. Delectus personœ was something more than a mere personal preference for a particular dealer; it involved an element of personal service which was not a term of the written contract here.
Argued for the defenders and respondents;—The defenders in entering into the contract relied on the personal service of Mr Knowles Spencer who was specially skilled in the selection of black grease, about which the pursuer knew nothing. The contract thus
contained an element of delectus personœ, and was...
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