Leitch & Company v Leydon. Barr & Company v Macgheoghegan
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Viscount Dunedin,Viscount Hailsham,Lord Blanesburgh,Lord Warrington of Clyffe,. |
| Judgment Date | 24 November 1930 |
| Judgment citation (vLex) | [1930] UKHL J1124-1 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 24 November 1930 |
[1930] UKHL J1124-1
House of Lords
Viscount Hailsham.
Viscount Dunedin.
Lord Buckmaster.
Lord Blanesburgh.
Lord Warrington of Clyffe.
After hearing Counsel for the Appellants, as well on Monday the 20th, as on Tuesday the 21st, days of October last, upon the Petition and Appeal of William Leitch and Company, Limited, having their registered office at 11, Greenside Lane, Edinburgh, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Pitman), of the 12th April 1929, and also an Interlocutor of the Lords of Session there, of the First Division, of the 15th of November 1929, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutors might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises, as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of William Leydon, lodged in answer to the said Appeal; and Counsel appearing for the Respondent, but not being called upon; and due consideration being had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutors complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent, the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The Appellants are manufacturers of aerated waters, which they sell to traders and others in bottles and syphons, the terms of the sale being that the property in the bottles and syphons remains with the Appellants, to whom their immediate customers are bound to restore them. In respect of the bottles with which alone we are concerned a penny, part of the purchase price, is returned upon their receipt.
As between the Appellants and their immediate customers, therefore, the position is quite plain. But the customers are, and must be, to the knowledge of the Appellants, in the habit of reselling the soda water in bottles to anyone who seeks to buy, and the bottles may in such cases be taken away. It is undoubtedly the fact that, if any purchaser takes away a bottle, he has to pay the trader 1d., which is returned if the bottle is sent back, but the evidence is clear, and in accordance with common experience, that such ultimate purchaser becomes apparently the absolute owner of the bottle, and can put it to any of the uses mentioned by Lord Sands, or to any others which ingenuity may suggest. As between the Appellants and such a purchaser, the Appellants say that they still remain the owner of the bottle. This I will assume without deciding it. Letting that matter pass, and coming to the facts of this case, we find that in certain cases the purchasers of these bottles, having emptied them of their original contents, seek to have them refilled, which they can do by a simple process at the shop of anyone who possesses a machine similar to that possessed by the Respondent. The Appellants seek to restrain the Respondent from using their machine for any such purpose. They assert that in the hands of the ultimate purchaser there is no right whatever to use the bottle for any purpose at all. He may have taken it away on a journey, not know to whom it should be returned, and be unaware of the elaborate clearing house in the vortex of which nearly all the empty bottles ultimately find their way, but still the bottle is not his, and even while in his lawful custody cannot, when once empty, ever be refilled. Assuming, however, that the Appellants can claim from any purchaser of the bottle the restoration of the bottle, and forbid him using it for any purpose at all, it still does not follow that they are entitled to obtain the injunction they seek against the Respondent.
The Respondent does no more than fill whatever receptacle is offered to him. He is wholly unaffected by any contract made between the Appellants and their customers. Even if the purchaser is doing an unlawful act in bringing the bottle to be filled, the Appellants cannot cast upon the Respondent the duty of investigating every vessel for the purpose of seeing whether it is one of the Appellants' bottles. It is true that the names are embossed upon the bottles, and the ownership stated on some but not all of the labels, but the labels may be destroyed, as they probably would be, so that if the Appellants are right, the Respondent is bound to inspect and to compel every one of his assistants to inspect each bottle brought, before he refills it, for the purpose of seeing, in the words of the interdict the Appellants seek, whether it is "embossed moulded engraved or otherwise impressed or marked" with the Appellants' name. No authority has been quoted to show that any such duty can be cast upon a stranger to the original contract; and indeed, an injunction, in order to be effective, would, in the result, be an injunction compelling the Respondent to examine the bottle because there are other bottles in numbers which do not belong to the Appellants, though they may belong to other people similarly circumstanced, and unless such a duty were established by precedent, or reasonably to be inferred from well known and accepted obligations, I should be unwilling to create it anew.
For this reason, therefore, I think that the appeal must fail, but I should like to add that had I reached a different conclusion upon the facts as stated, there would still remain to my mind the difficult question as to whether, when the Appellants parted with the possession of these bottles on terms which they must be assumed to know would not be made binding on the ultimate purchaser, and clothed their customer with the full apparent power of making a good title to the bottle, they could afterwards seek assistance by injunction for an alleged wrong for the responsibility of which their own conduct was not entirely free.
My Lords,
I concur. What is that which is demanded from the Respondent it the interdict sought was granted? He would be obliged when a customer called and, proffering a bottle, requested it to be filled from the Vantas Soda Fountain to inspect the bottle and, if he found an embossed name on it, to certiorate himself whether the name was not the name of one of the numerous members of the Association of Aerated Water Manufacturers and, if he found it was, then to refuse to supply the Vantas Water demanded, a refusal which would probably lose him his customer. Such a demand can only be granted if there is a clear case of infringement of a right of the Appellant by the Respondent.
Now, the person who presents the bottle to be filled is in lawful possession of the bottle; that possession is not transferred to the Respondent. The person in lawful possession requests the bottle to be filled and it is filled; the filling is all that the Respondent does. It is quite true that the person presenting the bottle may be, and that to the Respondent's knowledge, under contractual obligation to the Appellant either as to its return or its use, but to that contract the Respondent is no party and it is a novelty to me to say that A can be compelled by law to do or refrain from doing something lawful in itself and that to his own prejudice, in order to help B to enforce his contract with C. No case of that sort was produced. It would be a perfectly different matter if the Respondent in any way asserted property in the bottle or acted in such a way that it could be said that he was passing off his Vantas Aerated Water as the aerated water of the Appellant. He is doing nothing of the sort, nor is he damaging an article which he knows to be not his own. He is only complying with the request of the person who is in lawful possession of the movable to give something which that person uses in a way connected with that movable. The Appellant can sue his customer for breach of contract and either get such damage as he can qualify or get an interdict against his breaking his contract, but he has no contractual relation with the Respondent on which he can sue and he can, in my opinion, qualify no culpa on his part.
I think the Court of Session was right in refusing the interdict.
My Lords, I have perused the opinion of my noble and learned friend, Lord Blanesburgh, which will shortly be read to your Lord-ships, and I find it necessary to say this: Although I think it is quite true that the general considerations on which this case falls to be determined are the same in Scotch and English law, it is quite a different thing to say that Scotch and English law is so much the same that you can quote cases—as quoted by my noble and learned friend—the older authorities on trover and conversion, and make them Scotch authorities. The law of England as to trover and conversion is, in many senses, a very technical law, and it is largely put aside now in modern times, but those older authorities go very technically upon English distinctions. Trespass as to chattel in a Scotch...
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