1872 Cuninghame v. Anstruther. (if any) remaining unappointed or unexhausted by the said three appointments. And this house doth further find and declare, that according to the true construction of the powers contained in the said settlement of 1828 the same admitted of being validly exercised from time to time by several appointments. And this house doth find and declare, that the estate of Mr. Anstruther is entitled to have credit in the account hereinafter directed for the two sums of £5000 paid by him to the trustees of Mrs. Cuninghame's and Mrs. Mercer's settlements and for any sum received by Miss Lucy Anstruther on account of the sum of £20.000. And this house doth further declare and direct, that a reference be 243] *made to such person as the Court of Session shall appoint under the remit hereby made to take the following accounts: 1. An account of all funds, moneys, and property that were comprised in or became subject to the trusts or dispositions expressed or made in and by the said settlement of 1828, and of the manner in which the funds, moneys, and property, at the death of the said James Austruther, and to ascertain and state what, if anything, was at the time of his decease due from the said James Anstruther (subject as aforesaid) in respect of any trust property or principal trust moneys received by him and applied to his own use, and to ascertain and state the balance due from the estate of the said James Anstruther to the trust estate under the said settlement of 1828; and, if necessary, to take an account of all the estate of the said James Anstruther not comprised in or subject to the trusts of the said settlement of 1828 and of the receipts and payments of his trustees or representatives in respect of such estate (not subject as aforesaid), and to ascertain what estate of the said James Anstruther is ap plicable to the payment of the balance that may be found due from him to the trust estate under the said settlement of 1828 as aforesaid. And it is further ordered, that the expenses of all parties in the Court of Session, being taxed under the direction of the said Court, and the costs of all parties in respect of this appeal, the amount thereof being certified by the clerk of the parliaments, be paid as follows, namely, the costs and expenses of the trustees of the said James Anstruther shall be paid out of the free estate of the said James Austruther; and if any balance of the said free estate shall remain after such payment, the costs and expenses of the several other parties shall be paid out of the said balance, and if the same be deficient, then the last mentioned costs and expenses, or any balance thereof, shall be paid out of the residue of the said settlement funds remaining unappointed or unexhausted as aforesaid. And it is also further ordered, that the cause be remitted back to the Court of Session in Scotland, to do therein as shall be just, and consistent with these declarations, findings, and directions, and this judgment. Agents for the Appellant: Grahames & Wardlaw. Agents for the Respondent: The cases holding that it is an equitable fraud for a parent to deal with a child recently arrived at majority were collected by the editor in a note to Sprague v. Duel, Clarke's Ch. Rep., 95 (second edition), and in a note to Turner v. Collins, 2 English Rep., 304; see also Dunlap's note to Stratford v. Twy nam, Jacobs' Chy. (Banks's ed.), 422; Wright v. Verplank, 8 De Gex MacNaghten and Gordon, 133, and Mr. Perkins's note to Am. ed.; Keogh v. Barrington, Drury's Cases Temp. Napier, 1; Lov. Holmes, id., 290; Price v. Martin, 46 Mississippi. 489; Matter of Will of Jackman, 26 Wisconsin, 104; Woodcard v. Libby, 58 Maine, 42; McCormick v. Sarsen, 45 N. Y., 265; but see Wells v. Selwood, 61 Barb., 238. In cases where a person of feeble intellect is induced to Loch & Maclaurin. sell his property for an inadequate price the court on setting the transfer aside may allow it to stand as a security, by way of mortgage, for the money advanced, Longmate v. Ledger, 2 Giffard, 157, and see Robinson v. Stewart, 10 N. Y., 190. Where a bank, with knowledge of the relative position of the parties, places the proceeds of a promissory note, which has been made in their favor by A (a person just come of age), unreservedly in the power of B (a person who stands in loco parentis to A) knowing at the time that B claims to be a creditor of A to a large amount of necessaries supplied, and B afterwards misappropriates the money, the bank will be restrained from suing on the note Dettman v. Metropo litan etc., 1 Hemming & Miller, 641. *COUSTON, THOMSON, & Co., WINE MERCHANTS IN [250 LEITH, Appellants; CHAPMAN, AUCTIONEER IN EDINBURGH, Respondent. [2 Scotch and Divorce Appeals, 250.] Sale by Sample - Privileges and Obligations of the Purchaser. The purchaser of goods by sample ought to examine them without delay; and if he find that they are not conformable to the sample, he may reject them and rescind the contract-giving immediate notice that he does so, and that the goods are at the risk and disposal of the vendor. Should the vendor not acquiesce, the purchaser should place the goods in neutral custody, duly apprising the vendor. The purchaser is not entitled to hold by the contract and ask for other goods instead of those to which he objects. Where in such a case certain purchasers had omitted to rescind the contract, and neither returned nor offered to return the goods, they were held liable for the price. Per LORD CHELMSFORD: As I understand the law of Scotland, although the goods have been accepted by the purchaser, yet if he find that they do not corre spond with the sample, he has an absolute right to return them. In England, if goods are sold by sample, and they are delivered, and accepted by the purchaser, he cannot return them; but if he has taken the delivery conditionally, he has a right to keep the goods for a sufficient time to enable him to give them a fair trial- and if they are found not to correspond with the sample, he is then enti tled to return them. Per LORD CHELMSFORD: In England, if a horse is sold with a warranty of soundness, and it turns out to be unsound, the purchaser cannot return the horse unless there is a stipulation that if the horse does not answer to the warranty the purchaser shall be at liberty to return it. But in Scotland, as I understand the law of that country, there would be an absolute right to return the horse upon the discovery of its unsoundness, without any specific stipulation to that effect. The result was un- ON the 19th of March, 1870, several lots of wine were purchased by the appellants from the respondent at one of his public auctions at Edinburgh. The sale of each lot was by sample. The price of the whole was £699 16s. 5d. The delivery of the goods was completed by the 11th of April. The appellants had the wine examined. satisfactory, especially as to lots 24 and 51. they wrote to the respondent, saying they "were agreeable to pay for the rest of the goods," but intimating, as to lots 24 and 51, that they would pay for them when supplied according to the sample; adding that they "considered themselves entitled to the *difference between the price at which they had purchased [251 them and the price at which they could be bought in the market." The respondent answered on the 1st of June that the appellants' "proposition could not be entertained." On the 3d of June the appellants wrote by their agent, saying "they were anxious to have the matter settled," but doing nothing to attain that object. On the 8th of June the respondent's agent replied (1) See Heilbutt v. Hickson, post. that they were preparing a summons for payment of the price "of the wine purchased on the 19th of March." On the 9th of June the appellants, by their agent, proposed a reference, but they still kept the wine and withheld the price. On the 13th of June the respondent's agent sent by letter the threatened summons, which was acknowledged on the 14th of June as "served;" the appellants' agent then writing that "his clients" (the appellants) were agreeable to pay for the whole of their purchases, with the exception of lot 24 and 51, which they were willing to return without any claim for deterioration or value." This communication put an end to the negotiations, and the respondent's action against the appellants came before the Lord Ordinary (1) who, on the 29th of November, 1870, decided as follows: Finds (1) that the defenders purchased from the pursuer, at a public sale on the 19th of March, 1870, the various lots of wine mentioned in article first of the pur suer's condescendence, and that at the various prices therein specified: Finds (2) that shortly after the sale, and about the end of March or beginning of April, the defenders received delivery of the whole lots so purchased by them: Finds (3) that some time thereafter, and in April and May, 1870, the defenders objected to lots Nos. 24 and 51 as being disconform to sample: Finds (4) that the defenders did not expressly offer to return these lots, but the pursuer intimated that he would not receive them unless the whole lots purchased by the defenders were returned: Finds (5) that the defenders have not returned, and have not placed in neutral custody, any of the disputed lots, or any part thereof, but have retained, and still retain, in their own possession, custody and control, the whole lots purchased by them: Finds, in point of law, that the defenders are barred from now withholding payment of the price on the ground that the wines, or any of them, are of defective quality: Therefore decerns and ordains the defenders to make payment to the pursuer of the sum of £699 16s. 5d. sterling with interest thereon and expenses. Ilis Lordship explained in a note that the specialty on which the Lord Ordinary has felt himself compelled to decide the whole case against the defenders, is, that, notwithstanding the challenge and the dispute, the de252 fenders *have, from the time of delivery until now (a period of eight months, and more than seven months after the alleged bad quality was discovered) retained the whole wine in their possession and under their own control, and have failed to place it either in neutral custody, or to apply timeously for a warrant of sale. It is quite fixed that a purchaser who rejects goods as disconform to order has no right to retain them as a security for damages, or that other goods shall be sent. If he does so, though his objection to quality be well founded, he must pay the contract price. Against this interlocutor the appellants reclaimed to the first division, who, ou the 10th of March, 1871, found and decreed as follows: (2) Find that no return or offer of return of the said wines, or any part of them, was made before the institution of the present action, and that the said wines have all along remained in the custody and under the control of the defenders, and that they have at various times, and at their own hand, opened and used, for the purpose of trial and experiment, portions of the wines of which the defenders (1) Lord Gifford. the facts; but he did not dispute the general principles of law laid down by the other Judges. (2) 3d series, vol. ix, p. 75. Lord Deas dissented from the judgment upon refuse to pay the price, to the extent in all of four or five dozen bottles: Find, in point of law, that, in these circumstances, the defenders are now barred from withholding payment of the price of lots 24 and 51, on the ground that these lots are disconform to sample, or not conformable to the contract of sale: Therefore decern against the defenders in terms of the conclusions of the summons. Under these circumstances the present appeal was presented to the house, and having been set down for argument, Mr. Manisty, Q.C., and Mr. Campbell Smith appeared for the appellants, and were very fully heard. The Lord Advocate (1) and the Solicitor-General (2) were not called upon to address the house; their Lordships delivering the following opinions: THE LORD CHANCELLOR (3): My Lords, it is clear in this case that the purchase of each lot was a distinct contract. The question is as to lots 24 and 51, and the contest of the appellants is, that the sale having been by sample, these lots were not conformable to the sample. The sale took place on the 19th of March, and the delivery was to have been immediate, but did not take place until early in April. Sold as claret of fine quality and sufficiently high price, the appellants *sent a sample of it to a Mr. Cooper, of Reading, [253 who, upon examining it, returned it, stating that the wine was wholly unfit to be offered to customers. There was no offer by the appellants to return the lots before the 14th of June, which was the day after the matter was brought into litigation, the proceedings having commenced on the 13th. There is no doubt that the wine was delivered, and there is no doubt that it was not according to sample; but there is one matter which it was undoubtedly thrown upon the appellants to prove namely, the timeous rejection and return of the thing bought. The question is, whether that has been clearly made out and established to your Lordships' satisfaction. However unfortunate it may be for these gentlemen, I apprehend that the only conclusion to which we can properly come is that this was not done. These gentlemen had really only one thing to do, or rather one of two things to do, namely, either to take the lots and pay for them, trusting to what they might recover in a subsequent action; or to reject them at once, and notify to the vendor that they held them at his risk and disposition, and that they utterly abnegated all liability and all responsibility in respect of those wines. I say they might have done that on the 6th of May; but nothing whatever was done until the 13th of June, when the action had been brought. I apprehend the Court would have been entitled to come to the conclusion that there had not been such a clear and distinct (3) Sir George Jessel, Q.C. (") Lord Hatherley. () Mr. Young, Q.C. notification of the breaking off of the contract up to at least the 13th of June (whatever there may have been on the 14th of June) as would justify these gentlemen in retaining, as they did, the goods which had been sold to them without paying the price for them. It was suggested in argument that in effect there was no contract between the parties as to the quality of the wine. A case was cited in which a person engaged, not to sell a definite thing in esse, but to supply certain quantities of yarn according to sample (1). He might supply the yarn from whencesoever he pleased; there might not be a single hank of it in esse at the time beyond the sample of it. He furnished some jute instead of flax. There the very contract was for flax, not for jute a thing different in rerum natura; but here the contract is for certain specified wines 254] sent over by a certain firm, and lying in certain specified cellars. The parties were both of them acting bonâ fide. Both the vendor and the vendee thought that it was wine of the quality represented by the sample; both thought so up to the very moment of the communication from Reading. Those gentlemen found that when they received the goods the articles supplied were not what they conceived that they ought to be. They had it in their power either to accept them and pay for them, reserving all their rights, or to reject them and notify the rejection. It appears to me that they have not done either the one or the other, and the consequence is that they are now liable for the price. I think, therefore, my Lords, that all that we can do is to affirm the interlocutors of the Court of Session and dismiss the appeal with costs. LORD CHELMSFORD: Reference has been made to the difference between the law of England and the law of Scotland as to the right of a purchaser to rescind a contract, and therefore I will say a few words upon. that subject. In England, if goods are sold by sample, and they are delivered and accepted by the purchaser, he cannot return them; but if he has not completely accepted them, that is, if he has taken the delivery conditionally, he has a right to keep the goods for a sufficient time to enable him to give them a fair trial, and if they are found not to correspond with the sample he is then entitled to return them. As I understand the law of Scotland, although the goods have been accepted by the purchaser, yet if he find that they do not correspond with the sample, he has an absolute right to return them. () Jaffe v. Ritchie, 23 Dunlop, 242. |