Wilson v Rickett Cockerell & Co Ltd

 

[1954] 1 Q.B. 598

 

Court of Appeal

 

Denning LJ

 

'In June, 1951, Mrs. Wilson ordered one ton of Coalite from Rickett Cockerell & Co. Ld., and it was delivered and paid for. In November, 1951, she took from the bin some of the material which they had delivered to her and which she thought was Coalite. She made up the fire with it on November 26 at about 7.30 p.m., because she and her husband wanted to listen to an item on the wireless which lasted from 7.30 p.m. until 8 p.m. Shortly before eight o'clock there was an explosion in the grate. A thick cloud of black smoke came out, the whole basket which held the Coalite was shot forward, the heavy curb was pushed forward, and most of the Coalite was scattered about the room, some of it falling on to Mrs. Wilson's dress. Bits of Coalite were found sticking to the wallpaper. The damage was considerable: it cost £117 4s. 1d. to put right. Fortunately, the plaintiffs were themselves uninjured. They now claim from Messrs. Rickett Cockerell & Co. Ld. for the damage done to the room and the furniture.

 

The judge has found that the explosion was due to something in the consignment which the defendants delivered. It was not a piece of Coalite itself, but something that came with it, such as a piece of coal, in which was embedded an explosive. The offending piece had not come from the manufacturers of the Coalite, but it had got mixed with it in the course of transit, such as in a coal truck or in a lorry. It was certainly in the consignment before it was delivered to the plaintiffs. The judge has found that neither of the coalmen employed by the defendants was negligent, nor were the plaintiffs negligent, in not detecting it; but, nevertheless, it did the damage, and the question is whether the plaintiffs can recover their loss from the coal merchants.

 

The judge for himself would have held that the plaintiffs could have recovered, but he felt that he ought to follow a decision of the Court of Session in Scotland, Duke v. Jackson. In that case a bag of household coal purchased from a coal merchant contained a detonator which exploded while the coal was being burned in the kitchen fire. The householder lost his eye, but the Court of Session held that, on the facts alleged in the pleadings, there was no breach of the condition implied under section 14 (1) of the Sale of Goods Act, 1894. The reasoning of the Court of Session was after this wise: the coal, as coal, was all right; it was fit for its purpose; the trouble was that there was something in it which the householder did not purchase, namely, a detonator; and as he did not purchase it, he could not complain of it as a breach of contract under section 14 (1); but only for negligence, if there was any.

 

With all respect to the Court of Session, I must confess that I do not understand this line of reasoning. Coal is not bought by the lump. It is bought by the sack or by the hundredweight or by the ton. The consignment is delivered as a whole and must be considered as a whole; not in bits. A sack of coal, which contains hidden in it a detonator, is not fit for burning, and no sophistry should lead us to believe that it is fit.

 

The Court of Session were referred to the English case of the milk which contained typhoid germs, Frost v. Aylesbury Dairy Co. Ld., where this court held that the buyer was entitled to recover damages; but the Scottish court pushed that case on one side on the ground that all the milk there was contaminated, whereas none of the coal was unfit; only the detonator. Again, I am afraid I cannot follow the reasoning. I can see no distinction in principle between liquids and solids. If the admixture of an injurious ingredient makes a liquid unfit for drinking, so does the admixture of an injurious detonator make coal unfit for burning. It is no answer for the seller to say that there was nothing wrong with the coal, as coal. There was a great deal wrong with the consignment as a consignment.

 

It is to be noticed that the Court of Session were not referred to another case in this court, Chapronière v. Mason, where a bath bun had a stone in it and the solicitor, who bought it, broke his tooth upon it. Lord Collins M.R. said that, speaking for himself, he would be inclined to say that such a bun was not reasonably fit for mastication. He was perhaps unduly hesitant when he said he was "inclined to say."

 

In these circumstances, I think that we should not adopt the reasoning of the Court of Session, but should see how the matter stands on the sections of the Act. The principal point made before us was that section 14 does not apply to this case, because both subsections (1) and (2), it was said, only refer to the contract goods, that is, to the goods which are the subject of the contract of sale: and, so here, it refers only to the Coalite proper and not to the explosive piece which was in it.

 

The answer to that argument lies in the opening words of section 14, which show that the section refers to the "goods supplied under a contract of sale." In my opinion that means the goods delivered in purported pursuance of the contract. The section applies to all goods so delivered, whether they conform to the contract or not: that is, in this case, to the whole consignment, including the offending piece, and not merely to the Coalite alone.

 

Nevertheless, in regard to section 14 (1), Mr. Mocatta put forward strong reasons for supposing that that subsection may be excluded in this case, because that subsection does not apply in the case of a contract for the sale of a specified article under its trade name. He said that "Coalite" was a trade name, that Mrs. Wilson simply ordered a ton of Coalite and the coal merchants purported to supply it. The parties knew, no doubt, that it was to be used as fuel for the fire, but Mrs. Wilson did not ask the sellers for any assurance as to its fitness for the purpose; she simply specified "Coalite," which was its trade name; and if she got Coalite, she could not have complained of any want of fitness. It is unnecessary to come to any decision on the merits of that argument. All I would say is that there is a good deal to be said for that point of view.

 

Putting subsection (1) on one side, the real question is whether subsection (2) covers this case. It provides: "Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality." Applying that subsection to the goods delivered in purported pursuance of the contract, it means that the consignment, which was delivered to Mrs. Wilson, ought to have been of merchantable quality. The proviso as to trade name does not apply to subsection (2). This consignment ought to have been of merchantable quality, and quite clearly it was not. The presence of the offending piece made it unfit for burning. No-one would buy the consignment if he knew that it contained somewhere in it an explosive piece. The case falls within the words of Lord Wright in Grant v. Australian Knitting Mills Ld.,4 where he said: "it is not merchantable … if it has defects unfitting it for its only proper use but not apparent on ordinary examination:"; and also within the words of Atkin L.J. in Niblett Ld. v. Confectioners' Materials Co. Ld.,5 when he said: "No one who knew the facts would buy them in that state or condition; in other words, they were unsaleable and unmerchantable."

 

In my opinion, therefore, this consignment was unmerchantable because of the presence in it of this explosive piece. That is sufficient to decide the case, but I would like to express my concurrence with what the Master of the Rolls observed during the course of the argument, that the more Mr. Mocatta sought to escape from section 14, the more he became impaled on section 13. Mrs. Wilson ordered Coalite from the coal merchants but they did not supply what she ordered; they delivered, not Coalite alone, but Coalite mixed with a dangerous piece of explosive.

 

I need not say more about that because section 13 was not pleaded, nor relied upon. Suffice it to say that section 14 (2), in my judgment, clearly covers this case. It is a subsection which was not relied on before the Court of Session in Scotland, but it covers this case. I would allow the appeal on that ground and let judgment be entered for the plaintiffs for the sum claimed.'