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v. Maclellan

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respect. If that is found in point of fact, then the ground of action is here negatived without any finding upon usage or custom of trade at all. I think that such a finding ought to be pronounced, with the result that the Messrs Maclellan shall have decree for the amount sued for by them in their action, and that they shall be assoilzied from the conclusions of the action of damages against them. That that judgment should be pronounced, and with expenses in both Courts, is what I humbly recommend to your Lordships.

LORD TRAYNER-I have come to the same conclusion. The claim made by Messrs Maclellan being admitted, the question now to be determined is, whether the claim made by the Messrs Taylor for damages in respect of the failure of the Messrs Maclellan to fulfil their contract has been established? The failure alleged against them is, that there was undue delay in delivering the goods which they had contracted to deliver. In considering that question, the first thing to look at is the contract itself, because if the Messrs Maclellan have there undertaken to deliver the iron furnishing in question within a specified time, they are bound to deliver within that time or answer for the consequences. In my opinion, Messrs Maclellan did not bind themselves by the contract between them and the Messrs Taylor to deliver the iron furnishings within or before any particular date. There is no time for delivery specified. If that is a correct view of the contract, then the only obligation incumbent on the Messrs Maclellan was to deliver the goods within a reasonable time. It appears that the Messrs Maclellan took from four to eight weeks longer in the delivery of the goods than would have been the case, or would have been reasonable in or

dinary circumstances. This delay was occasioned by strikes prevailing in Belgium, where the furnishings in question were being made. Now, I concur in the opinion expressed in the case of Hick v. Rodocanachi & Co., that where a party is bound to fulfil a contract, not within a specified time, but within a reasonable time, the reasonableness of the time taken is to be considered in connection with the circumstances existing at the time of fulfilment, rather than the circumstances existing when the contract is made. Taking into account the circumstances which proved to have existed here, I think the Messrs Taylor have failed to show that there was any undue delay in the fulfilment of the contract in question, and that their claim for damages on account of undue delay cannot be sustained.

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I will only add, that in my opinion the custom of trade on which the Maclellans relied to some extent is not proved.

LORD JUSTICE-CLERK-I agree with both your Lordships in the opinion expressed, that this is not a case to be treated at all as one regarding established custom of trade. This is the case of a contract made to deliver certain goods without any time being specified, and that leads to the con

clusion that the time of delivery must be a reasonable time. If that reasonable time is exceeded, then damages for breach of contract will be payable.

Now, it is essential that the one who makes such a contract, as in this case, to deliver within a reasonable time, shall exercise due care in making arrangements for fulfilling the contract. If he does anything which is unreasonable in the way of running a risk that the contract may not be fulfilled within a reasonable time, then But he shall be responsible for that. I am of opinion that there was perfectly reasonable care taken here. The orders were given to a well-known manufacturer, and the person giving the orders had at that time no reasonable ground for holding that any serious or exceptional delay would occur.

ces.

Then comes the question, if one is satisfied that reasonable care was taken in placing the contract, whether the time Occupied was reasonable in the sense of being reasonable in the circumstanIt is of course quite plain that in the ordinary case usage would bring about in such contracts a general term which is held sufficient. In this case, if I remember right, the general term would be something like six weeks or two months. But theu extraordinary circumstances may arise, such as a strike or a fire, or some very serious accident to machinery, or an epidemic among the workmen engaged in a large factory, which might fairly be a reasonable excuse for exceeding the ordinary time; and the question here I think is just this, whether we have sufficient evidence before us to satisfy us that there were such extraordinary circumstances occurring, and whether these extraordinary circumstances occurring were sufficient to prevent the Messrs Maclellan from being in fault and out of reason in delivering at the time they did so much beyond what would have been the ordinary time. I am satisfied upon the evidence that there is no ground for holding that they were in breach of contract in delivering so late as they did. That was due to the extraordinary circumstances which they could not have anticipated, exercising general care. Therefore I agree with your Lordships in the judgment proposed.

The Court pronounced this interlocutor

"Find (1) that by the offer and the acceptance, P. & W. Maclellan agreed to supply, and H. & E. Taylor to buy, the iron therein referred to; (2) that the said iron was duly and timeously delivered in terms of the contract: Therefore of new, in the action of P. & W. Maclellan and H. & E. Taylor, decern as craved, and in the counter action H. & E. Taylor and P. & W. Maclellan assoilzie the defenders from the conclusions of the action," &c.

Counsel for Appellants-Asher, Q.C.Ure. Agents-Simpson & Marwick, W.S.

Counsel for Respondents-Jameson-C. S. Dickson. Agents-J. & J. Ross, W.S.

Friday, October 23.

SECOND

DIVISION.

[Lord Wellwood, Ordinary.

SMITH v. ALLAN & SONS. Process-Reclaiming-Note- CompetencyFailure to Deliver Copies to Opposite Agents-6 Geo. IV., cap. 120, sec. 18Expenses.

A reclaimer boxed his reclaiming-note on the second box-day in the summer vacation, but omitted to send copies to the opposite agent before the case appeared in the Single Bills on the 1st sederunt day. On a motion to have the the reclaiming-note dismissed, Court (1) held, following Campbell's Trustees v. Campbell, March 7, 1868, 6 Macph. 563 (dub. Lord Justice-Clerk), that such a failure if no prejudice was suffered by the opposite party would not render the reclaiming-note incompetent, and (2) (diss. Lord Justice-Clerk), deferred consideration of expenses till the decision on the merits,

In this action by John Baird Smith, sole surviving trustee of the late Thomas Állan senior, ironfounder, Springbank, Glasgow, against Thomas Allan & Sons, ironfounders, Glasgow and Bonlea, the Lord Ordinary, by interlocutor dated 8th September 1891, assoilzied the defenders from the conclusions of the summons as laid, and decerned.

The pursuer reclaimed, and boxed the reclaiming-note on 24th September. It appeared in the Single Bills of the Second Division upon the first sederunt day, 15th October 1891, and the case was sent to the roll. The reclaimer did not at the time he boxed his reclaiming-note give notice of his application for review by delivery of six copies of the note to the known agent of the opposite party according to the provisions of the Act 6 Geo. IV., cap. 120, sec. 18.

The respondents enrolled the case in the Single Bills of the Second Division for 23rd October, and asked the Court in respect of such omission to dismiss the reclaimingnote with expenses.

They argued that this was the course that had always been followed - Fraser v. Carnegie and Others, (Steven's Trustees) June 6, 1839, 1 D. 886; Muir v. Muir, October 17, 1874, 2 R. 26; Taylors v. Macdonald and Another, February, 10, 1844, 6 D. 637; Bell v. Warden, July 2, 1830, 8 D. 1007; Pollock v. Harkness, July 7, 1835, 13 S. 1072. It might have been enough if copies had been furnished even the same morning as the case appeared in the Single Bills, but that had not been done, and the copies had not yet been delivered.

The respondent argued-It was admitted that copies had not been furnished to the opposite agents, but that was from inadvertence, and they would be furnished at once. It had been decided that failure in this respect did not render the reclaiming-note

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LORD YOUNG-I think that this case is ruled by that of Campbell, decided in 1868, which is the latest authority upon this point. That case decided that the direction in the statute as to the delivery of six copies to the opposite party is directory only and not imperative, and that if there should be an accidental omission which causes no prejudice to the opposing party, it is in the power of the Court to relieve him of the consequences. That was done in the case of Campbell, and I think we should do so here. I therefore think we should refuse this motion and with expenses.

LORD RUTHERFURD CLARK and LORD TRAYNER concurred.

LORD JUSTICE-CLERK I confess I am not so clear on the matter as your Lordships appear to be, but I am not prepared to dissent if that is your Lordships' opinion.

In the case of Bell, reported in 8 Shaw, it was decided that in circumstances similar to these it was not competent to present the reclaiming-note. I think it was all the more important because it was a decision of both Divisions of the Court, and it was held that where copies of the reclaiming-note had not been lodged before the case appeared in the Single Bills, the note fell to be dismissed, although it might be different where the copies had been lodged on the same morning as the case appeared in the Single Bills--but I do not dissent.

Counsel for the respondent moved that expenses should not be granted against him.

LORD YOUNG- I think that the most expedient mode-and I have heard the question most carefully considered and decided in the House of Lords-is for the Court to consider and decide the question of expenses when deciding the merits of the case. I did so here. The motion was one in the face of what we have thought is the real effect of the last decision on this point, and it was a motion to take advantage of an accidental mistake by which no prejudice has been suffered by anyone.

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& Henderson

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Saturday, October 24.

SECOND DIVISION.

[Lord Stormonth Darling, Ordinary.

STOCKER v. MURRAY & HENDERSON (OFFICIAL LIQUIDATORS OF COUSTONHOLM PAPER MILLS COMPANY, LIMITED).

Company - Winding-Up-Register – Process-Petition for Rectification of Register -Competency-Companies Act 1862 (25 and 26 Vict. cap. 89)—Companies Act 1886 (49 Vict. cap. 23).

Section 6 of the Companies Act of 1886 made it lawful for the Court which had made a winding-up or supervision order to remit to a Lord Ordinary to take the proceedings previously open to the Court under the Companies Act of 1862, and provided that any judgment of the Lord Ordinary should be subject to review by a reclaimingnote within fourteen days.

In winding-up proceedings which had been remitted to a Lord Ordinary, the liquidators in May 1890, and again in March 1891, presented a note to the Court for settlement of a list of contributories, and on 3rd March 1891 the Lord Ordinary granted the prayer of the note. A person whose name had hitherto without objection appeared in the list of contributories, presented a petition under section 35 of the Act of 1862, to have the register of the company and the list of contributories rectified by the removal of his name. The liquidators objected that the petition was too late and ought to be dismissed in respect that the various orders of Court had become final, particularly in view of section 6 of the Act of 1880.

Held that this section, which transferred the conduct of the liquidation and gave a power of review, did not exclude a party from the benefit of the provisions of the Act of 1862, and as the petition would have been competent under that Act, the petitioner was not now barred from thereby denying that he was a shareholder in the company. The Companies Act 1862 (25 and 26 Vict. cap. 89), sec. 12, provides-“Where an order, interlocutor, or decree has been made in Scotland for winding up a company by the Court, it shall be competent to the Court in Scotland during session, and to the Lord Ordinary on the Bills during vacation, on production by the liquidators of a list certified by them of the names of the contributories liable in payment of any calls which they may wish to enforce, and of the amount due by each contributory respectively and of the date the same became due, to pronounce forthwith a decree against such contributories for payment of the sums so certified to be due by each of them respectively, with interest from the said date till

payment at the rate of £5 per centum per annum in the same way and to the same effect as if they had severally consented to registration for execution on a charge of six days of a legal obligation to pay such calls and interest, and such decree may be extracted immediately, and no suspension thereof shall be competent except on caution or consignation unless with special leave of the Court or Lord Ordinary." "124. Re-hearings of and appeals from any order or de cision made or given in the matter of the winding-up of a company by any Court having jurisdiction under this Act, may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction, subject to this restriction, that no such re-hearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made in manner in which notices of appeal are ordinarily given according to the practice of the Court appealed from.”

The Companies Act 1886 (49 Vict. cap. 23), sec. 6, provides-"Where the Court makes a winding-up or a supervision order, or at any time thereafter, it shall be lawful for the Court in either Division thereof, if it thinks fit, to direct all subsequent proceedings in the winding-up to be taken before one of the permanent Lords Ordinary and to remit the winding-up to him accordingly, and thereupon such Lord Ordinary shall, for the purposes of winding-up, be deemed to be the Court' within the meaning of the recited Act and this Act, and shall have for the purposes of such winding-up all the jurisdiction and powers of the Court of Session, provided always that all orders or judgments pronounced by such Lord Ordinary shall be subject to review only by reclaiming-note in common form, presented (notwithstanding the terms of section 124 of the Companies Act 1862) within fourteen days from the date of such order or judgment."

By interlocutor dated 11th June. 1889 the Second Division of the Court of Session ordered the Coustonholm Paper Mills Company to be wound up by the Court under the provisions of the Companies Acts 18621886. They appointed John Maclay Murray and Frank Young Henderson to be official liquidators of the company, and appointed all subsequent proceedings in the windingup to be taken before Lord Kinnear, Ordinary. The liquidators entered upon the duties of their office on 3rd July 1889.

Upon 14th May 1890 the liquidators presented a note to Lord Kinnear for settlement of a list of contributories, and upon 2nd March 1891 the liquidators presented a similar note to Lord Stormonth Darling (who succeeded Lord Kinnear). On 3rd March 1891 his Lordship pronounced an interlocutor granting the prayer of the

note.

Alexander D. Stocker, May Place, Wolstanton, Stoke-on-Trent, was entered on these lists as the holder of eight shares with an amount unpaid on them of £80, being

the whole value of the shares. Although aware of this he made no objection. Upon 1st April 1891 Lord Wellwood, as Lord Ordinary officiating on the Bills, pronounced an interlocutor making a call upon each of the contributories mentioned in the list, and ordered payment of the call to the official liquidators.

Upon 11th May 1891 Stocker presented a petition to the Lord Ordinary. He denied that he ever was a shareholder in the company or that he ever applied for shares or agreed to become a shareholder therein, and he prayed the Court to ordain the liquidators to rectify the register of the members and list of contributories of the company by removing therefrom his name as holder of the said shares.

The liquidators lodged answers, in which they averred that Stocker was a creditor of Law, the original proprietor of the paper mills, and the vendor to the company; that he had agreed to take payment of Law's debt to him in shares of the company, for which he gave no consideration; that the ten shares of which he stood as owner in the list of contributories were allotted to him; and that after that he was treated as a member of the company, Intimation of the call was sent to him but he took no notice of it.

Upon 17th July 1891 the Lord Ordinary pronounced this interlocutor:-"The Lord Ordinary having heard counsel and considered the petition for Alexander D. Stocker, No. 499 of process, and answers for the liquidators, No. 503 of process, Repels the defence of the liquidators that the petitioner is too late; allows the parties a proof of their averments," &c.

The liquidators reclaimed, and argued— This petition to the Lord Ordinary was presented too late. The list of contributories had been settled and an order to pay the calls made upon the shareholders. It was admitted that settling aright the list of contributories did not also settle the register of members, but the petitioner ought to have brought a suspension of the charge for payment of the call when it was made. It was admitted that diligence had not yet been done upon the decree ordering payment. The petitioner stood upon the provisions of the Companies Act 1862, but these provisions had been altered by the Act of 1886, and Stocker could not now proceed by petition to have the register rectified. He ought to have appeared at the time the list of contributories was to be settled-and proper intimation of that time was made to him-and objected to his name being put upon the list, but he had not adopted that course.

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Court to which the petition was to be presented instead of the Division. Mere delay in bringing his petition could not prejudice the case-In re Alexandra Park Company (Hart's case), July 16, 1868, L.R., Eq. 512.

At advising

LORD JUSTICE-CLERK-By the Act 1886 it became lawful for the Court when it had made a winding-up or a supervision order to remit to a Lord Ordinary to take the same proceedings in the liquidation as had previously been taken by the Court itself under the provisions of the Act of 1862. The section also provided that any judgment of the Lord Ordinary should be subject to review by a reclaiming-note presented within fourteen days. The 6th section of the 1886 Act did that, but I think it did nothing else. It transferred the contract of the liquidation, and it gave a power of review, but in my opinion it did not deprive any party of his right if he desired to take the benefit of the provisions of the Act of 1862. If this petition would not have been barred under the old mode of procedure by anything which had taken place in the Inner House up to that point in the proceedings, I do not think the fact that the proceedings have taken place in the Outer House can bar it. In my opinion the petition would have been competent under the former method of procedure, and therefore I think it is competent now.

LORD YOUNG, LORD RUTHERFURD CLARK, and LORD TRAYNER concurred.

The Court refused the reclaiming-note and remitted the case to the Lord Ordinary.

Counsel for Appellants Q.C.Burnet.

Millar, W.S.

-D.-F. Balfour, Agents Carmichael &

Counsel for Respondent - Asher, Q.C.Salvesen. Agents Alexander Morison, S.S.C.

Tuesday, October 27.

SECOND DIVISION.

[Sheriff of Lanarkshire. STEPHENS, MAWSON, & GOSS v. MACLEOD & COMPANY.

Ship Charter-Party-Construction-Demurrage-Custom of the Port.

A charter-party stipulated that a vessel should proceed to "Portugalete, or any other usual ore loading-place in the river Nervion, not above Luchana, as ordered by merchant's agents on arrival, or so near thereunto as she may safely get, and there load in the customary manner from the factor of the said merchant a full and complete cargo of iron ore. . . . Steamer to be loaded at the rate of not less than

, Mawson, &

27, 1891

400 tons per working day as customary, after being berthed in turn, and ten days on demurrage over and above the said lay-days at 16s. 8d. per hour." The rules of the port provided that the turn for loading vessels was to be taken from an official list of arrivals. The vessel arrived at Portugalete on 17th June, and received her official number. She was ordered by the shippers' factor to load from a particular station or deposit. On 21st June the vessel was ready to receive cargo, but as other previous arrivals had to be loaded from this particular station, she could not be berthed until June 27th, when her loading began, which was completed on the evening of the 28th June. In the meantime vessels which had arrived later were able sooner to load their cargoes from other and less crowded stations.

In an action for demurrage by the shipowners, held (diss. Lord Young) that as the charter-party did not stipulate that the vessel should berth in turn at a particular place, she should have been berthed in turn with other ships according to the order of their arrival at any berth where iron ore was loaded at Portugalete; that her time for loading in turn arrived on 21st June; and that the defenders were liable for the detention of the vessel before the loading commenced.

S.S.

Messrs Stephens, Mawson, & Goss, shipowners, Newport, chartered the "Cassia" to J. & A. Wyllie, by charterparty dated 7th June 1890. Upon 5th July 1890 Macleod & Company, merchants, St Vincent Street, Glasgow, who were the receivers of the cargo, undertook, in consideration of the owners not exercising their lien for demurrage, to hold themselves liable for any demurrage that might be due.

The charter-party was in these termsThat the "Cassia" should, "with all convenient speed, sail and proceed to Portugalete, or any other usual ore loading-place in the river Nervion, not above Luchana, as ordered by merchant's agents on arrival, or so near thereunto as she may safely get, and there load in the customary manner from the factors of the said merchant a full and complete cargo of iron ore," with which she should proceed to Glasgow.. "Steamer to be loaded at the rate of not less than 400 tons per working day as customary (Sundays and holidays excepted), after being berthed in turn, and ten days on demurrage over and above the said lay-days, at 16s. 8d. per hour, to be paid as the same shall become due."

The "Cassia" accordingly sailed for and arrived at Portugalete, and was ready to receive cargo upon 17th June 1890. She was not, however, berthed until about 8 a.m. on 27th June, and the loading was not completed until about 6.15 p.m. on 28th June.

Stephens, Mawson, & Goss sued Macleod & Company for 56 hours' demurrage, amounting to £45, 16s. 8d., contending

that the steamer ought to have begun loading upon 21st June.

Upon 28th January 1891 the Sheriff-Substitute allowed a proof on interrogatories and cross interrogatories, which established that the load for the "Cassia' was about 1500 tons; that the defenders' agent at Bilbao, on receipt of a telegram announcing the sailing of the ship, ordered Victor de Chavarri, Bilbao, to be prepared to load the vessel with the cargo desired; that at various points on the banks of the river Nervion, including Portugalete, there were different stations at which iron ore was deposited, and that to each station were allotted particular kinds of iron ore. The Bilbao River and Cantabrian Railway Company, Limited, published rules for all vessels loading at Portugalete, as follow"1. The turn for loading vessels will be taken from the official list of arrivals, each vessel being entered on the company's turn list according to the number given as from the semaphore station at Galea Point. 4. No vessel will be considered as being ready to load or available to take turn unless she has been duly advised to load by the shipper of the mineral, and that all necessary official and customs papers have been lodged at the office of the company's stationmaster at Sestao, also that there exists a sufficient quantity of mineral in the deposit to load a full and complete cargo, or such a quantity as may be asked for by the captain. 5. When two or more vessels are presented, and in turn, to load mineral from the same deposits, the company will use its discretion as to allowing more than one of such vessels to load at the same time."

The "Cassia" passed Galea Point by the first tide on 17th June and received the official number 4 upon the company's turn list. Upon the same day the captain of the "Cassia" wrote to the defenders-"The present is to advise you that the above steamer Cassia' under my orders is now ready to receive cargo, and that my time will commence according to charter-party." When the "Cassia" arrived the master was ordered by the defenders' factor to have her berthed at the Penuco deposit as soon as her turn came. There were three steamers in turn before her at the same deposit. The master of the vessel deponed that the "Cassia's turn for loading arrived on the 21st June at noon. She was not loaded in turn. The Ingoldsby" and the "Navarra," which arrived on the 19th, and the "Petunia" whicharrived on 20th June, were loaded before her, and after her turn arrived. They were loaded at other deposits than the Penuco. Upon 21st June the master of the "Cassia" wrote to the defenders-"Finding that the s.s. Ingoldsby' of Cardiff, who arrived at this port on the 19th inst., a later date than my steamer ‘Cassia,' who arrived on the 17th inst., is now under tips at Portugalete, and has commenced loading, I hereby give you notice that the s.s. 'Cassia' time will commence from noon on the 21/6/90, as per charter-party, at Glasgow June 7th, and that I shall also

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