Scottish Court of Session Decisions

Melvin Edgar, dealer in modern and antique furniture, 241 Eglinton Street, Glasgow, pursuer, brought an action in the Sheriff Court at Glasgow against William Cunningham Hector, artist, Glasgow, defender, for the sum of £145, being the price of a suite of eight small and two ribbon-back mahogany chairs sold by the pursuer to the defender.

The defender pleaded—“(1) The contract of purchase having been induced by the verbal misrepresentations of pursuer, and the misrepresentation arising from the actual appearance of the chairs, the contract should be rescinded and decree granted in favour of defender for £95 and expenses.”

The pursuer pleaded, inter alia—“(3) The pursuer having made no representation or guarantee as to the chairs, defender's counter-claim should be rejected and decree should be granted in terms of the pursuer's crave with expenses. (5) The defender having purchased said chairs on his own judgment and not in reliance on pursuer's skill, cannot found on any opinions expressed by him in the course of the negotiations.”

The following narrative of the facts of the case and the import of the evidence is taken from the opinion of Lord Mackenzie ( infra)—“The pursuer carries on business in Glasgow, and designs himself as a dealer in antiques. On 18th May 1910 he sold to the defender six small and two arm ribbon back mahogany chairs at the price of £120; the defender agreed to pay the pursuer a further sum of £25 if the pursuer could procure for him two additional small chairs. On the same date the

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pursuer handed the defender a memorandum in these terms—‘241 Eglinton Street, Glasgow, 18th May 1910. From Edgar's Antique Stores, dealer in furniture, curios, gold and silver watches, rings and jewellery of every description.—Bought of M. Edgar, set mahogany chairs, 6 small, 2 arms, for £120.—William C. Hector, 164 Bath Street. Same as two shown.’ When the defender agreed to buy the chairs he had only seen two of them, an armchair and a small chair, these being all that were in the pursuer's shop. The chairs were sold without a guarantee that they were antique. On 1st June the pursuer delivered ten chairs to the defender, and was paid £95 to account of the price. The pursuer granted a receipt in these terms—‘Received £95 in part payment of £145 for set antique mahogany chairs. June 1st 1910.’ (Signed) ‘M. Edgar.’ On 4th June he called upon the defender for payment of the balance of £50. Between the 1st and 4th of June the defender had ascertained, what has been proved to be the fact, that the chairs were not antique but were reproductions, and refused to make payment. He had contracted to buy originals, not copies. He was thus in error as to the identity of the subject-matter of the contract.’

“The defender's evidence is that the pursuer made statements to him which left the impression in his mind at the time that the chairs were antique, and what he was looking for. The material statements made by the pursuer to the defender before the contract was entered into were that ‘We could not get such work done now-a-days, and if we could we could not get the class of wood to do it, and we could not get the men to do it.’ The pursuer also said he thought they ought to be put in a museum, because they were too good for use. These were all statements calculated to influence the mind of a purchaser, who was in search of the antique. The fact in regard to the chairs that the pursuer so represented is that the pursuer had bought first of all eight of them from Alexander Bissett & Sons, cabinetmakers and upholsterers, 235 Hope Street. Mr Bissett was examined as a witness, and depones that he warned the pursuer, on more than one occasion, against selling them as antique chairs. In his interview with the defender the pursuer told him he found he could only give him eight chairs, because the people who had them had sold two of them to somebody else. It plainly appears from the evidence that the pursuer conveyed the impression to the defender that what he was getting was a set of ten chairs. It was not the case that there was a set of ten, two of which had been already sold. Bissett says he never told the pursuer that he had sold the other two, because he had never bought them then. He got other two chairs from the firm in London who make these things on the pursuer's representations that he could sell other two. In spite of this the pursuer told the defender at the meeting on the 18th of May that he had examined all the chairs himself, and that he could answer for them, and made this statement in consequence of an apprehension the defender had that some of the chairs which he had not seen might have been broken and replaced by reproductions. As has been already pointed out, the defender had only seen two of the chairs when he made the contract. The conclusion, therefore, to which I have come is that the defender's essential error was induced by what the pursuer told him at the meeting on the 18th of May. It is necessary to advert to one passage in the defender's evidence, in which he is represented as assenting to the view that the pursuer told him he could get no history of the chairs, and that he could give him no guarantee. This passage in the proof is not consistent with what the defender says earlier in his evidence, or indeed with what the pursuer admits in his own examination. As regards the receipt granted by the pursuer on the 1st of June, he states he would not have signed it if he had noticed the word ‘antique’ in it, but I do not think this can be taken off his hands.”

On 19th December 1910 the Sheriff-Substitute ( Craigie), after a proof, pronounced the following interlocutor—“Finds in fact (1) that the defender bought, under essential error induced by the representations of the pursuer, ten chairs at the price of £145, the representations being that said chairs were antique, whilst in fact they were not so; (2) that on 1st June 1910 the defender, whilst unaware of the true nature of said chairs, paid £95 to account of said £145: Sustains the plea-in-law for the defender in so far as it bears that the contract of purchase of the chairs was induced by the misrepresentations of the pursuer: Repels the pleas for the pursuer, and assoilzies the defender from the conclusions of the petition: Sustains the counter-claim for defender and decerns against the pursuer for £95.”

The pursuer appealed to the Sheriff ( Millar), who on 31st March 1911 adhered.

The pursuer appealed, and argued—The seller gave no guarantee that the chairs were antique, and there was no fraud. The fact that the chairs were intrinsically worth the price distinguished the case from that of Patterson v. Landsberg, May 24, 1905, 7 F. 675, 42 S.L.R. 543. The present case was not that of a wholesale dealer who knew all about the articles, but of a middleman. The passive acquiescence of the seller in the self-deception of the buyer would not entitle the latter to avoid the contract— Smith v. Hughes, 1871, L.R., 6 Q.B. 597. The defender might have bought the chairs believing they were old, but the question was whether he had bought the chairs believing that they were warranted old, and on the evidence this was disproved. Stewart v. Kennedy, March 10, 1890, 17 R. (H.L.) 25, 27 S.L.R. 469, was a case of essential error, and it did not apply here, because there was no error as to the identity of the thing sold—Pollock on Contract, p. 598. On the evidence there was here no representation of fact as to the chairs, but only of opinion. But even if there was a misrepresentation of fact,

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the defender must show that he relied on that and not on his own judgment.

Argued for the defender—The general question was one of representation, and as such the case was independent of fraud. The kind of case which would warrant rescission varied greatly between innocent misrepresentation and fraud or strong suspicion of fraud. In the present case statements had been made for the purpose of stimulating a belief in the subjects as antiques, and that they had a history and had come from a source which was quite consistent with their genuineness. The pursuer had held himself out as a dealer in antiques. He had admitted that the articles were faked, and he had concealed from the purchaser the fact that he had been warned by the dealer from whom he purchased the chairs that he must not sell them as antiques. It was sufficient for defender to show that he attached importance to pursuer's statements as inducing him to buy, and that entitled him to rescission. If, however, pursuer was right in saying that the articles were of the value sold, he had suffered no loss and could sell them elsewhere.

At advising—