[ After considering evidence His Lordship proceeded ]—I therefore agree with the Sheriff-Substitute in his first view of the case, that the stokers did not get such fair play in the hands of the defenders as would entitle them to reject the stokers, even had they done so earlier than they did.
But even if it could be held that this was not a sound view of the evidence of fact, I should still feel compelled to hold that the defence put forward must fail. For I am unable to see any answer to the pursuers' contention that the defenders, by retaining the stokers and continuing to use them for a long period after they maintain that they rejected them, have altered their legal position. To me it appears quite certain that the decision in the case of the Electric Construction Company quoted at the debate is directly applicable to this case, and that, as a consequence, the defenders cannot now on the footing that they have retained the goods claim damages. Their case must be either that they rejected, which they say they did, and therefore are not liable in payment of the price, or that they retained subject to a claim of damages. But if they rejected, as they say they did, in September 1902, then under the case I have referred to they cannot claim damages.
Lord Kyllachy —In this case I agree with the Sheriff that the contract between the parties contained a condition or warranty to the effect that the defenders' apparatus should prevent smoke to the satisfaction of the Glasgow authorities. I also agree with him that this warranty was not fulfilled. I differ from him, however, when he proceeds to find that the failure of the apparatus “was caused not by defective construction of the stokers but by improper use of them by the defenders.” As to that I should be of opinion—having done my best to weigh the somewhat unsatisfactory evidence on the subject—that the pursuers have failed to prove that the defenders used the stokers improperly, or that thus or otherwise the non-fulfilment of the condition or warranty was due to their (the defenders') default.
But while so holding, and my conclusion being so far in favour of the defenders, it has still to be considered what was the effect in law of the defenders' continued use of the stokers down to the end of the year 1902—a fact as to which there is no dispute—and as to that I am obliged to say that I cannot distinguish the present case from that of The Electric Construction Company , 24 R. 312, decided by the First Division of the Court in 1897—a decision to
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The Lord Justice-Clerk intimated that Lord Young , who was absent, concurred in the judgment proposed.
Lord Kincairney , who was absent at the hearing, delivered no opinion.
The Court adhered.
Counsel for the Pursuers and Respondents— Campbell, K.C.— Spens. Agent— James G. Bryson, Solicitor.
Counsel for the Defenders and Appellants— Guthrie, K.C.— Hunter. Agent— Alex. Ross, S.S.C.