Mechan & Sons, Ltd, v Bow, M'Lachlan, & Company, Ltd

JurisdictionScotland
Judgment Date02 June 1910
Date02 June 1910
Docket NumberNo. 115.
CourtCourt of Session
Court of Session
1st Division

Lord Salvesen, Lord Johnston, Lord Kinnear, Lord President.

No. 115.
Mechan & Sons, Limited,
and
Bow, M'Lachlan, & Co., Limited.

Sale—Disconformity to contract—Right of rejection—Acceptance of goods—Act inconsistent with seller's ownership—Sale of Goods Act, 1893 (56 and 57 Vict. cap. 71), sec. 35.

The Sale of Goods Act, 1893, section 35, enacts that ‘the buyer is deemed to have accepted the goods … when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller …’

A firm of engineers contracted to supply two feed-tanks to a firm of shipbuilders for a tug which the latter were building, under contract, for the Admiralty. The subcontract contained a provision that the tanks were to be made ‘to British Admiralty latest tests and requirements.’ The tanks were, however, delivered without having been tested by the Admiralty inspector, and were fitted into the tug by the shipbuilders in ignorance of this fact, although they could have ascertained it by examination of the tanks. Thereafter the Admiralty inspected and condemned the tanks, whereupon the shipbuilders rejected them.

Held that the fitting of the tanks into the tugs was an act inconsistent with the ownership of the sellers, and that the shipbuilders accordingly were barred from rejecting the tanks.

On 29th April 1908 Mechan & Sons, Limited, engineers and contractors, Glasgow, brought an action in the Sheriff Court at Glasgow against Bow, M'Lachlan, & Company, Limited, engineers and shipbuilders, Paisley, in which they claimed payment of £89, 10s., the balance of an account for goods manufactured, sold, and delivered, conform to an account annexed to the initial writ.

In August 1907 the defenders ordered from the pursuers a number of tanks, which, as the pursuers were aware, were required for H. M. tug ‘Robust,’ which was being built by the defenders. In terms of the contract between the parties the tanks were to be made ‘all to British Admiralty latest tests and requirements.’ The pursuers admitted that two galvanised feed-tanks (which were rejected by the defenders) were not inspected and passed by the Admiralty overseer before leaving their works, but they averred that at the request of the defenders they were made from stock material, and were delivered without being so inspected and passed. They further averred that these tanks were fitted by the defenders on the vessel; that this action of the defenders was inconsistent with the ownership of the pursuers; and that the subsequent rejection of the tanks by the defenders was not timeously made.

The defenders averred that the two tanks were delivered to them without any knowledge on their part that they had not been passed by the Admiralty overseer, and were immediately fitted on board the tug; that they were inspected there by the Admiralty overseer, who immediately rejected them on account of defective material and workmanship; and that they had to remove the tanks from the vessel at a cost of £25, 10s., and replace them at a cost of £64; and they claimed to retain the amount of these items, being the sum sued for.

The pursuers pleaded, inter alia;—(3) The pursuers should be assoilzied from the defenders' counter claim in respect that—(a) They are not indebted to the defenders in the sum sued for; (b) The defenders accepted the goods the price of which is sued for; (c) The action of the defenders in fitting the tanks on board the said vessel was inconsistent with the ownership of the pursuers.

The defenders pleaded, inter alia;—(3) The tanks mentioned on record having been disconform to contract, and having been rejected by the Admiralty overseer, the action should be dismissed, with expenses. (4) The defenders having sustained loss and damage amounting to the sum sued for, in consequence of the pursuers' breach of contract as condescended on, are entitled to be assoilzied from the conclusions of the action, with expenses.

A proof was allowed and led. The facts proved are given in the following interlocutor pronounced by the Sheriff-substitute (Fyfe) on 9th August 1909:—‘Finds (1) that in November 1906 defenders had contracted with the Admiralty to build and equip for them a tug, which when completed was named the “Robust”; (2) that the terms of that contract are embodied in the prints Nos. 16 and 17 of process; (3) that, inter alia, the contract No. 16 contained a general provision that “the vessel and her machinery shall be constructed as described in the specifications”; (4) that the provision as to tanks (No. 17, p. 20, clause 51) was “two feed-tanks, each of about 70 cubic feet capacity, with suitable doors for access as reservoirs for the feed water, with all pipes and fittings, are to be supplied and fitted by the engineers” (i.e., by defenders); (5) that the specification also contained a general clause (No. 17, p. 36, clause 174), “steel plates, bars, and rivets are to satisfy all conditions, tests, and inspections in accordance with the British standard specification for structural steel for marine boilers, and are to be branded as therein directed”; (6) that the terms of the contract between the defenders and the Admiralty were not communicated to the pursuers, but they were aware generally that the feed-tanks which they contracted to supply to defenders were to be fitted into the tug “Robust,” which the defenders were constructing for the Admiralty; (7) that defenders having decided to subcontract for the steel tanks for the “Robust” on 20th July 1907, invited tenders from various makers, including pursuers; (8) that the defenders' circular letter inviting tenders specified that the goods were “to be to...

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3 cases
  • Charles Henshaw & Sons Ltd v Antlerport Ltd [CSOH]
    • United Kingdom
    • Court of Session (Outer House)
    • 2 June 1995
    ...2 KB 459. Manifatture Tessile Laniera Wooltex v J B Ashley LtdUNK[1979] 2 Ll Rep 28. Mechan Sons Ltd v Bow McLachlan & Co LtdENR1910 SC 758. Molling & Co v Dean & Sons Ltd(1901) 18 TLR Morrison & Mason Ltd v Clarkson BrosSC(1898) 25 R 427. Nelson v William Chalmers & Co LtdENR1913 SC 441. P......
  • Mechans Ltd v Highland Marine Charters Ltd
    • United Kingdom
    • Court of Session (Inner House - Second Division)
    • 22 November 1963
    ...based on the alleged defects were irrelevant. Dictum of Lord Salvesen in Mechan & Sons, Limited v. Bow, M'Lachlan & Co., Limited, 1910 S. C. 758, at p. 763, ContractConditionsBreach of ContractContract to build water busesClause protecting builder from damages caused by defectsApplicability......
  • Singapore Precision Stampings Pte Ltd v Ranoda Electronics Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 12 December 1997
    ...housing. All these acts were validly inconsistent with the ownership of the Plaintiffs. In Mechan & Sons Ltd v Bow, McLachlan & Co Ltd [1910] S.C. 758 the Court held that the fitting of tanks into the tugs was an act which was inconsistent with the ownership of the sellers and that the ship......

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