v. Cal. Rail

8, 1887

At advising

LORD YOUNG-This is an action of damages for breach of contract directed against the Caledonian Railway Company, and we have to decide it as in a concluded cause with the judgment of the Lord Ordinary upon the proof.

The action is of a very simple character, the ground of it being that the railway company delivered goods, which they got from the pursuers to carry and deliver to John Hunter, to Alexander Hunter, the servant of a man of the name of Peebles, and that the pursuers were by this undoubted breach of the contract, if the facts are so, deprived of the cattle, to their loss and damage to the extent of their value. A simpler case of an action of damages for breach of contract is not even conceivable.

The defence to the action-and so far as I can find upon the record the only defence-is, that this breach of contract was condoned by the pursuers-that is to say, that they ratified what the defenders had done in breach of their contract, and so are precluded from complaining and asking damages. What they say upon the record is, that "the cattle were consigned in the name of John A. Hunter, but Peebles' man, A. Hunter, was at the station awaiting the arrival of the cattle, and maintained with the defenders' servant in charge of the cattle that the cattle were consigned to him, and that they belonged to Peebles. On the defenders' servant refusing to give Peebles' man, Hunter, delivery of the cattle, he, assisted by another man unknown to the defenders, proceeded to take forcible delivery of the cattle, and left the defenders' premises with them. The defenders' servant immediately followed the cattle to the market, and would have recovered them from Peebles but for Peebles meeting there with John A. Hunter, the pursuers' representative, and obtaining his authority to sell the cattle, as explained in answer to condescendence 5." I find no other defence in this record. Force is alleged. That is probably an exaggeration, but it is distinctly alleged that, contrary to the will of the defenders, the cattle were removed by Peebles, or his servant authorised by him, and that they would have obtained redress against this irregular conduct, and got the cattle back into their possession so that they might perform their contract with the pursuers, but for the interposition of the pursuers' servant, who condoned what had been done, ratified it, and so precluded his masters from suing them for compensation. The pleas-in-law for the defenders are all founded upon this-[His Lordship here read the pleas-in-law for the defenders.] These are all the pleas, and I cannot therefore regard the defence to this action as any other than condonation-ratification of what had been done in admitted violation of the contract, by which ratification the defenders were prevented from having that undone which had been done, viz., getting the cattle back from the wrong person so that they might perform their contract, and if so, the action is excluded altogether. That was the issue that went to trial. It is therefore, I must say, with some surprise that I read this interlocutor of the Lord Ordinary" Finds that the defenders in the matter complained of committed a technical breach of contract, but that the pursuers sus

tained no damage, because the defenders delivered the goods to the person to whom the pursuers were under obligation to make delivery." There is no suggestion upon the record that the pursuers were under any obligation to make delivery to Peebles. No such case is raised by the averments or by the pleas. The averments and the pleas are to the effect that Peebles was not entitled to delivery, and that his servant got delivery by force, and that the action is excluded only because of the interposed condonation which prevented the Caledonian Railway Company from getting them back. Upon the only defence whieh is stated on record the Lord Ordinary expresses in his note an opinion adverse to the defenders. He says "I do not need to consider or determine whether Hunter had assented to Peebles selling the cattle," but really that was the only defence to the action, and the only question in issue. The Lord Ordinary says-"I think Hunter's view was that Peebles had already got delivery of the cattle and would not give them up, and that he really tried to do his best for all concerned in stipulating that at the ordinary hour of closing business, or the time when he was going to return to Perth, Peebles should meet him at the railway station and pay him as much money as he could furnish out of the proceeds of the sale. I am not satisfied that he meant in any way to ratify the delivery of the cattle to Peebles. He had no authority from his employers to do so as far as we know, and I am not satisfied that this was his meaning. But it

is not necessary, I take it, to go further into that question." Now, I agree in the Lord Ordinary's views upon the facts, and I shall advert to that afterwards, but this is the notice which he takes of the only defence to the action founded upon in the record, and the only issue which went to trial. The Lord Ordinary's view is, that upon the true facts of the case, as presented by the evidence, Peebles was entitled to the cattle, and that he would have got them from the pursuers without payment, so that they would have suffered precisely the same loss by Peebles recovering the cattle from them as they did through the defenders' breach of contract-in short, that the breach of contract led to no damage at all. It would have been at least satisfactory to have had that in issue, and the evidence directed to it if that was the defence. But it was not the defence, and was not in issue, and the evidence was not directed to that. Upon the facts on the evidence directed to the other question, the Lord Ordinary has arrived at the conclusion that Peebles was entitled to delivery of the cattle from the pursuers without payment, and that having his right satisfied only through the medium of the defenders' breach of contract there was no damage done-that it was a mere technical breach of contract, whatever that may mean. I suppose that the Lord Ordinary means that it was a breach of contract attended with no damage. I should have doubted the relevancy of such a defence if it had been stated. The pursuers were the undivested proprietors of the cattle, and had them in their possession and custody, and put them into the hands of the railway company upon a contract with them to deliver to their servant, and the railway company, had they stated such a defence, would have

We

been substantially pleading-"Peebles could by a proper legal process have put you out of the position of being proprietor in possession of these cattle, and recovered them from you without payment of the price, and we shall assume that he would, and that therefore you have suffered no damage by a breach of contract. will put ourselves in his position in order to try the question whether he would have recovered them out of your possession without payment or not." I should have doubted the relevancy of that defence, but I do not need to pursue that topic, because I am clearly of opinion that Peebles was not entitled to obtain delivery of the cattle.

We have had no direct evidence as to the terms of the sale. The question is not put distinctly to any witness, What were the terms of the sale? -either of this particular sale or of the sales generally at this auction mart-and we can only collect it from materials which occur to one in the case. I say the question is not put distinctly to any witness, but it is stated upon record that the terms of all these sales at the auction mart were cash on delivery, and in the bill which was recovered from Peebles of this particular sale, which is set forth in the print of documents we have, as is usual in such accounts rendered by an auctioneer, it says, "terms of sales cash." I should rather think it is invariable that the terms of all auction sales are cash on delivery, and in the absence of any evidence to the contrary I think the Court would assume that in any case. The pursuers here sell by auction at an auction mart. The cattle which they sell are sometimes their own property, and sometimes those of customers who send them in for sale. I suppose the cattle here were their own property, but it would not signify in the case that they were the property of the customer, for the familiar rule in respect to auctioneers' liability is, that they should be liable to the customers for the price of the goods if they give delivery of them without receiving payment. If they receive payment, they must of course hand it over to the customer under deduction of their own charges, and if they deliver the goods to the successful bidders without receiving payment, they are liable. Therefore when these cattle were sold at the auction mart-that is to say, knocked down to Peebles-the sale was cash on delivery-terms cash-and the bidder was by no means entitled to receive delivery without payment of the money. But it is said there was a course of dealing here, and that that made all the sales to Peebles at the auction mart, when the articles were knocked down to him, sales according to a course of dealing, that being a week's credit. I could not assent to that for a moment. Nothing is more familiar than that people in good credit and position, whom the auctioneer can trust, get delivery of the goods without payment, and a note is sent afterwards, but that does not prevent the auctioneer, upon any occasion he pleases, from saying "We have been giving you goods on former occasions habitually without receiving the money, but the terms of sale are cash, and I decline now to give you goods without payment of the money.' He is absolutely entitled to do that. Although you have for years been getting goods on credit, that will not make credit a term of the contract-the contract being terms cash

which the auctioneer can enforce when he sees fit with reason or without reason. In the present case it would occur to me, upon the evidence incidentally taken, although it was not a matter that went to trial, that in this case there was very good reason, Peebles having fallen behind; he had not paid up the purchases he had made the week before. He was £600 in debt at that time for past purchases which he had failed to pay, and when these cattle were knocked down to him delivery was refused. Delivery was not given, and no court in the world would, in my opinion, have ordered delivery to him without payment of the cash in these circumstances, the auctioneer being able to say-"You have fallen into arrear, you are so many hundred pounds in my debt, and I wont give you the cattle;" no court in the world would have ordered delivery by the auctioneer without payment of the price. Of course auctioneers are very willing to keep on good terms with customers, and to give them more or less indulgence, and accordingly there was communication with Peebles, and he was asked to reduce the debt which he was already owing by having got into arrears, and so breaking the custom of weekly payments. Peebles pays over £300, partly in cheques and partly in cash, and that reduced his old debt by that amount. He was then owing the balance remaining after that payment, but it was a considerable balancesomething approaching £300-and if he got delivery of the cattle, amounting in value to £275, without payment, the balance would have been brought up to the old sum of £600, or between £500 and £600-the exact figures do not signify materially-and accordingly they did not deliver the cattle to him, and I am clearly of opinion that they were not bound to deliver the cattle to him. Therefore that view of the Lord Ordinary entirely fails upon the law applicable to the truth of the matter as we collect it from the evidence which was led upon another issue altogether. But it was said to us in argument, and it appears also to have been urged before the Lord Ordinary, although there is no such case upon the record, that there had been delivery to the Caledonian Railway Company for Peebles, as the cattle were addressed and booked to him, and that the change of the address in booking was illegal. Upon that point I think it sufficient to say there is no such case before us, but I agree with the Lord Ordinary there too. He says in his note-"It had been originally intended that the cattle should be consigned to Peebles, and they were actually booked to him; but in consequence of the resolution of the pursuers to which I have referred" that is, that they should not give him delivery "that was altered before the carriage was commenced-before the goods were in transitu, and a new way-bill or invoice was made out, in which the goods were consigned to J. A. Hunter, the senders' representative. A telegram was sent to Glasgow, and was received at Glasgow by Sreenon, the head porter in charge at night at St Rollox, and its contents were by him communicated to Thomson, who was on duty after six o'clock in the morning, and who received the cattle. It seems that Thomson had not been fully informed of the contents of the telegram, but had been told not to deliver to Alexander Hunter, who was Peebles' representative, and he perfectly understood that." Now, I cannot for

v. Cal. Rail

8, 1887

a moment think it would have been open to the railway company to plead that they had not these goods upon the contract to carry them and deliver them to John Hunter; they suggest nothing of the kind here, and I do not think it would have been open to them to do it. It is quite true that the drover who booked the cattle said they were for Peebles, and that they were booked by the drover to Peebles, but he is followed-almost accompanied by a superior servant of the company, who says-"Oh no! they are not to be booked to Peebles; they are to be booked to John Hunter." That was done, and that was the contract upon which the Caledonian Railway Company carried the goods and had them in their possession, when they were forcibly or improperly deprived of their possession in the manner in which they allege. I must therefore, with the Lord Ordinary, reject this ground of defence also. It is not on record, and it is not consistent with the law as applicable to the facts of the case.

I think that exhausts the whole matter, except the only point in issue which has been treated in the manner I have stated. Upon that matter I have already said that I agree with the Lord Ordinary, to the effect that John Hunter the pursuers' servant was sent to Glasgow to take possession of the cattle, they being consigned to him, and to sell them in the market at Glasgow and bring the price home to his employers, but that he had no authority to condone, to ratify, or forgive any breach of contract by the railway company, and did not do so. He had no authority to do it, if he had done it, but he did not do it. On that matter I have stated that I agree with the Lord Ordinary. I do not see very well what Hunter could have done except what he did. He did say to Peebles, who had got the cattle, that if he took the money back with him to his employers he thought it would have been all right-and no doubt it would have been-but to say that that would imply a condonation of the railway company's breach of contract is, I agree with the Lord Ordinary in thinking, entirely out of the question. There was a point in one of the English cases where a railway company had a contract. The company delivered the goods to the wrong party, and the servant of the owner, who sued the railway company for breach of contract, had been in communication with the party who improperly received delivery. He said "If you pay the price it will be all right enough; it is the price we want, and if that is paid it will be all right;" and I rather think in that case part of the price was received. That is not condonation; it is not ratification of the breach of contract. What, then, is the result? More than a year has now elapsed, and the pursuers are without their cattle and without the price. But for this breach of contract, Hunter would have got the cattle, and sold them in the market in Glasgow as he was sent to do. In consequence of the breach of contract, the cattle are removed from the pursuers' possession, and put into the possession of Peebles, who turns them into money; and now at the distance of a year not one farthing of the price is paid. The railway company have recourse against Peebles no doubt, if the facts be proved as they aver upon record; they have recourse against Peebles if he is good

for anything.

I am therefore of opinion that the Lord Ordinary's judgment ought to be recalled, and that the breach of contract complained of ought to be affirmed, and that the damages ought to be assessed at the sum concluded for, which is the price at which the cattle were sold to Peebles. LORD CRAIGHILL and LORD Rutherfurd CLARK concurred.

The LORD JUSTICE-CLERK was absent.

The Court pronounced this interlocutor:

"Find that the defenders wrongfully, and in breach of their contract with the pursuers, delivered the cattle referred to on record to James Peebles, to the loss, injury, and damage of the pursuers: Repel the defences: Assess the damages at £275, 15s. : Ordain the defenders to make payment of that sum to the pursuers, with interest thereon," &c.

Counsel for Reclaimers-Darling-Chisholm. Agent-David Milne, S. S. C.

Counsel for Respondents-Balfour, Q.C.-R. Johnstone. Agents-Hope, Mann, & Kirk, W.S.

Thursday, December 8.

FIRST DIVISION.

[Police Commissioners of Dundee.

THOMSON V. DUNDEE POLICE COMMISSIONERS. Delegation-Delegatus non potest delegare- Statutory Commissioners-Dundee Police and Improvement Act 1882 (45 and 46 Vict. c. cxxxv.), sec. 28 (e)-General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. c. 101), sec. 63.

Held, in a case where police commissioners had delegated certain of their duties to a committee of their number, in terms of section 63 of the General Police Act of 1862, that this committee could not delegate their duties to a sub-committee.

This was an appeal by Thomas Thomson against a deliverance of the Dundee Police Commissioners, by which they disapproved of certain plans and sections submitted to them by the appellant with a view to the erection of new buildings in Dundee.

The Dundee Police and Improvement Consolidation Act 1882, by sections 121 and 122, requires persons intending to erect new buildings to submit plans and sections thereof to the police commissioners for approval, and prohibits the commencement of any new building until the plans and sections thereof, with or without modifications, have been previously approved of by the commissioners.

Section 28 (e) of the Act incorporates section 63 of the General Police Act of 1862, which is in these terms-"The commissioners shall have power to form committees of their number, either with directions to report to the commis

sioners, or for carrying the various purposes of this Act into execution, and to delegate to such committees the powers competent to the commissioners under this Act, in whole or in part, with regard to the subject which may be remitted, to name the convener, and to fix the numbers of such committees who shall form a quorum; and the convener who shall preside at such committees shall be entitled to a deliberative, and, in case of equality, a casting vote, and to convene the members by notices in the way he shall think most convenient."

The Police Commissioners of Dundee, in terms of this section, had delegated their whole powers in regard to such matters as the erection of buildings to the Works Committee.

The Works Committee remitted the plans and sections submitted by the appellant to a subcommittee of their number, with powers. The deliverance appealed against was pronounced by this sub-committee in name of the Police Commissioners.

Argued for the appellant- The deliverance was issued by a sub-committee of the Works Committee on the legal hypothesis that they had power to do so under the statute. They had no such power. They could not represent the Commissioners, who could only be properly repreThe Works sented by the Works Committee. Committee were the delegates of the Commissioners, and they could not re-commit their duties to others-Thomas v. Elgin, July 4, 1856, 18 D. 1204; Lord Advocate v. Sinclair, November 26, 1872, 11 Macph. 137.

Argued for the respondent-The Police Commissioners were not acting ultra vires in delegating their powers to the Works Committee. The statutory quorum acted, and the character of the statutory quorum was not altered by calling it a sub-committee. The appellant's argument was founded upon the words, not upon the substance of the enactment. There was no true delegation here. The delegation was contemplated by the Act, and that distinguished the present case from The Lord Advocate v. Sinclair, supra. Gillespie v. Young, July 20, 1861, 23 D. 1357. There was no true delegation unless a principal body re-committed to others its powers and duties, and retired itself from the consideration of them. The quorum consisted of competent men. The appointment of such committees secured despatch, and such procedure was therefore in the public interest.

At advising

LORD PRESIDENT-I do not think that we have anything to do with public interest, or the interests of the appellant, or general considerations of expediency. The question we have to determine is, whether this deliverance is good under the statute. Now, it certainly bears to be a deliverance by the Commissioners, and therefore, ex facie, it seems to be regular and good. But it is not disputed that the deliverance is not that of the Commissioners or of the committee appointed, but of a sub-committee of the committee appointed by the Commissioners, and the question is whether the committee appointed by the Commissioners had power to delegate their duties to this sub-committee. If they had not this power the deliverance is bad; if they had, the deliverance is good-the case therefore lies in a nutshell.

Now, the powers of delegation given by statute to the Commissioners are provided by section 63 of the General Police Act, incorporated in the Dundee Police Act sec. 28 (e). That section clearly provides a power to appoint committees to carry out the purposes of the Act, but does it import that the committees can re-commit to a certain number of their body to do their work in name of the Commissioners or of the committee ? It appears to me that to hold that would be to disregard the well-known rule of law, delegatus non potest delegare. This committee has a delegated power from the Commissioners, and that delegated power cannot be re-committed or delegated to anyone else. I therefore think we must hold that this deliverance is null, and must be quashed.

LORD MURE concurred.

LORD ADAM-There is no doubt that this is a deliverance by a sub-committee of the Works Committee of the Dundee Commissioners, and it appears to me that a remit to this sub-committee with powers is just a delegation of authority. Such a case answers the definition proposed by Mr Balfour, who said that delegations arose when persons who owned powers committed them to others and retired from their performance. Now, that was just what happened here, for when the Works Committee appointed the sub-committee with powers all the other members of the committee retired from the consideration of the matter, and that simply amounted to delegation proper. I have no hesitation in concurring with your Lordships.

LORD SHAND was absent from illness.

The Court set aside and quashed the deliverance complained of.

Counsel for the Appellant-Sol.-Gen. Robertson-Kennedy. Agent-Gregor M'Gregor, S.S.C.

Counsel for the Respondents-Balfour, Q. C.Macfarlane. Agent J. Smith Clark, S. S.C.

Thursday, December 8.

FIRST DIVISION.

[Sheriff of Lanarkshire. M'ARTHUR V. BOUCHER. Process-Appeal for Jury Trial after Appeal to Sheriff-Judicature Act 1825 (6 Geo. IV. c. 120), sec. 40 Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. c. 70), secs. 27, 28, 29.

Held incompetent, in a case where the Sheriff-Substitute had pronounced an interlocutor allowing a proof, to remove the process to the Court of Session under the 40th section of the Judicature Act while the interlocutor of the Sheriff-Substitute was under appeal to the Sheriff.

In an action of damages in the Sheriff Court at Glasgow at the instauce of Arthur M'Arthur against James Boucher, the Sheriff-Substitute (ERSKINE MURRAY) repelled the preliminary

v. Boucher

, 1887

pleas stated by the defender, and allowed a proof.

The defender appealed to the Sheriff.

The pursuer afterwards appealed to the Court of Session for jury trial under section 40 of the Judicature Act 1825, the claim being for more than £40.

On the case appearing in the Single Bills the respondent objected to the competency of the appeal, and argued-The case was before the Sheriff. This was a proper case for appeal to the Sheriff under the Sheriff Courts Act 1876

(39 and 40 Vict. c. 70), sec. 27. The appeal was in proper form-sec. 28.

The effect of the appeal was to submit the whole case to the Sheriff-sec. 29. There was no standing interlocutor allowing a proof.

The respondent argued-The defender was not debarred from arguing a question of relevancy on the preliminary pleas which he had stated-Virtue v. Police Commissioners of Alloa, December 12, 1873, 1 R. 291. It was more convenient that the preliminary pleas should be considered here rather than that they should be sent back to the Sheriff.

LORD PRESIDENT-The liberty given to either party in the Inferior Court by sec. 40 of the Judicature Act, where the sum sued for is not under £40, is to remove the process by advocation, and, according to present practice, by note of appeal in terms of the Court of Session Act 1868, sec. 73. Now certainly the provision of the 40th section of the Judicature Act is not for the purpose of allowing review of a judgment; its purpose is that the process may be brought here in order that it may become a Court of Session process, and being brought here, the intention is that it should end here by verdict and judgment.

But the condition attached to that form of procedure is, that there should be an interlocutor in the Sheriff Court allowing a proof, and the question now is, whether we have in this case an interlocutor allowing a proof? The answer is, that there is no standing interlocutor of the sort in the Sheriff Court, because the interlocutor of the Sheriff-Substitute is under appeal to the Sheriff, and may cease to be an interlocutor allowing proof after the Sheriff's interlocutor is pronounced. And so the very ground of the application under the 40th section of the Judicature Act is removed by the appeal to the Sheriff, and I think the objection now stated to the present appeal is well founded.

LORD MURE concurred.

LORD ADAM-I am of the same opinion. I think that when the interlocutor of the SheriffSubstitute was appealed to the Sheriff there was no longer an operative judgment in the Sheriff Court. Nothing could have been done on the interlocutor of the Sheriff-Substitute, and it cannot be brought here under the Judicature Act.

LORD SHAND was absent from illness.

The Court sustained the objection and dismissed the appeal.

Counsel for the Pursuer and AppellantBaxter. Agent-William Black, S.S.C.

Counsel for the Defender and RespondentDickson. Agents Macpherson & Mackay, W.S.

Friday, December 9.

SECOND DIVISION.

[Sheriff of Ayrshire. ANDERSON (INSPECTOR OF MAYBOLE) V. GLASS (INSPECTOR OF DALMELLINGTON) AND ANOTHER.

Poor-Residential Settlement-Loss of Settlement. A husband who had a residential settlement in the parish of M., left that parish at Whitsunday 1881, together with his wife and family. They never thereafter resided in the parish. The husband died on 23d March 1885, and his widow became chargeable as a pauper on 21st September 1885. Held that, as the pauper had been absent for more than four years from the parish of M., she had lost the residential settlement she had derived from her husband, and that the parish of her birth was liable.

William Arthur, together with his wife and family, had a residential settlement in the parish of Maybole, from which they removed at Whitsunday 1881, and never afterwards resided in the parish. On 23d March 1885 William Arthur died. On 21st September 1885 his widow, Jane Arthur, became chargeable as a pauper, and obtained relief from the parish of Ayr. The parish of her birth was Stewarton.

This was an action of relief in the Sheriff Court at Ayr, at the instance of the inspector of poor for the parish of Ayr against the inspectors of poor for the parishes of Maybole, Stewarton, and Dalmellington, the birth parish of the husband.

Pleaded for the parish of Maybole-"(1) The settlement which the said Jane Anderson Murray or Arthur took on her husband's death, being a residential settlement in Maybole parish, which was lost by the absence of her husband when in life and her own absence subsequent to his death, and the said Jane Anderson Murray or Arthur having been born in the parish of Stewarton, and having in consequence a birth settlement in that parish, such birth settlement is alone responsible, and the defender, the said John Anderson, as representing the Parochial Board of the parish of Maybole, is entitled to be assoilzied, with expenses.

Pleaded for the parish of Stewarton-"(2) The pauper's husband having acquired a residential settlement in the parish of May bole, which fell to her at his death, the sums sued for ought to be paid by the defender Anderson."

The Sheriff-Substitute (ORR PATERSON) on 28th March 1887 found in law "that the widow having become a proper object of relief, and having received relief prior to the expiry of four years from the date of her husband's removal from the parish of his residential settlement, has not lost by absence her husband's residential settlement in Maybole." The Sheriff-Substitute found in fact that the pauper had become chargeable on 7th