Opinion.—[After dealing with another point ]—“As to the averment of custom, I doubt whether, even if the authorities cited applied to this case, it could be remitted to proof. It does not specify what were the causes beyond the pursuers' control that contributed to the delay. In the case of Taylors ( 1891, 19 R. 10) there was a distinct averment of what those causes were. There is here no sufficient specification of the facts and circumstances to which the alleged custom is to be applied. But assuming this to be relevantly averred, I think that the custom cannot be remitted to proof, because I read the pursuers' averment as being based on the assumption that there is here, as alleged by the defenders, a time limit to the contract, and it is alleged that there is a custom in such a case that delivery is to be subject to extension as regards time if the causes of delay were such as the pursuers were not responsible for. It is said that that extends to all cases where it is known that the merchants who are to supply the goods are to obtain them by an order from a third party manufacturing them. I think the case of Taylors does not go that length. There is an express reservation in the opinions of cases where there is a time limit in the contract. All the Court did was to explain the word ‘reasonable,’ so as to protect the defenders from liability for delays arising on the manufacturer's part, as to which the defenders had no responsibility, and to which they did not contribute. Where there is no limit the law allows a reasonable time, and the time allowed is to be extended to excuse delays for which the defenders had no responsibility. But where there is a time limit it must be observed.”
The pursuers reclaimed, and argued—The averments showed that this was a contract to be fulfilled within a reasonable time, and the custom of trade alleged was a relevant averment as to the meaning of such a contract in the particular trade— Taylors v. M'Lellans , October 21, 1891, 19 R. 10, 29 S.L.R. 23.
Argued for the respondents—This was an attempt to qualify a written contract by parole evidence. The averment of the defenders was that there was a time bargain, which distinguished the case from Taylors v. M'Lellans , cit. supra . If that averment was not proved, it was open for the pursuers to prove that they had made delivery within a reasonable time. “Reasonable time” meant reasonable time in the circumstances of the particular trade— Hick v. Raymond & Reid (1893), A.C. 22.
Lord M'Laren —It is always, in the first instance, a matter for the Lord Ordinary's discretion to determine whether a general proof shall be allowed to each party of all his averments, leaving open at the trial the exclusion of irrelevant matter, or whether upon the averments of parties some of them are so plainly irrelevant that a proof ought not to be allowed. On the question of discretion the practice of this Court has been not to interfere with the Lord Ordinary's decision, that is to say, if the Lord Ordinary has found himself unable to separate the irrelevant matter from the revelant in his interlocutor allowing a proof, we should be slow to interfere with his decision. But the case presents itself in a different way when the Lord Ordinary has excluded from the proof certain matters that are set forth on record, because in the reclaiming note we have then to consider whether averments which have been excluded as irrelevant may not be seen to have a bearing on the case when the facts of the case are more fully before the Court. Now on the best consideration I have been able to give to this discussion, raising two rather interesting points, I am satisfied with the judgment of the Lord Ordinary.
The first averment which the Lord Ordinary has excluded is the pursuers' averment relating to the custom of trade. The substance of that averment is in the last two sentences of the answer to article 3 of the statement of facts for the defenders, and is to the effect that in that branch of the iron trade in which Messrs MacLellan are engaged, owing to the impossibility of knowing in advance at what time the merchant may be able to get delivery of rails from the manufacturer, it is a matter of custom that they should be allowed to extend the time of delivery. I know of no authority or principle for such a deviation from a contract in deference to a custom of trade. If parties have agreed to supply goods within a definite time, they must be held to their contract, and if it is known that manufacturers are unable to get forward rails or will not undertake to forward rails by a definite time, I am afraid the only
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The Lord President and Lord Kinnear concurred.
Lord Adam was absent.
The Court adhered.
Counsel for the Pursuers and Reclaimers— Ure, K.C.— Spens. Agents— J. & J. Ross, W.S.
Counsel for the Defenders and Respondents— Campbell, K.C.— M'Lennan. Agents— Daleleish & Dobbie. W.S.