White & Carter (Councils) Ltd v McGregor

Parliamentary Archives,
HL/PO/JU/4/3/1094

HOUSE OF LORDS

WHITE AND CARTER (COUNCILS) LIMITED

v.

mcgregor

Lord Reid
Lord Morton of Henryton
Lord Tucker
Lord Keith of Avonholm
Lord Hodson

6th December 1961.

Lord Reid

My lords,

The pursuers supply to local authorities litter bins which are placed in
the streets. They are allowed to attach to these receptacles plates carrying
advertisements and they make their profit from payments made to them
by the advertisers. The defender carried on a garage in Clydebank and
in 1954 he made an agreement with the pursuers under which they displayed
advertisements of his business on a number of these bins. In June, 1957,
his sales manager made a further contract with the pursuers for the display
of these advertisements for a further period of three years. The sales
manager had been given no specific authority to make this contract and
when the defender heard of it later on the same day he at once wrote to
the pursuers to cancel the contract. The pursuers refused to accept this
cancellation. They prepared the necessary plates for attachment to the bins
and exhibited them on the bins from 2nd November, 1957, onwards.

The defender refused to pay any sums due under the contract and the
pursuers raised the present action in the Sheriff Court craving payment of
£196 4s. Od. the full sum due under the contract for the period of three
years. After sundry procedure the Sheriff-Substitute on 15th March, 1960,
dismissed the action. He held that the sales manager's action in renewing
the contract was within his apparent or ostensible authority and that is not
now disputed. The ground on which he dismissed the action was that
in the circumstances an action for implement of the contract was inappro-
priate. He relied on the decision in Longford & Co., Ltd. v. Dutch 1952
S.C. 15, and cannot be criticised for having done so.

The pursuers appealed to the Court of Session and on 2nd November,
1960, the Second Division refused the appeal. The present appeal is taken
against their Interlocutor of that date. That Interlocutor sets out detailed
findings of fact and, as this case began in the Sheriff Court, we cannot look
beyond those findings. The pursuers must show that on those findings they
are entitled to the remedy which they seek.

The case for the defender (now the Respondent) is that, as he repudiated
the contract before anything had been done under it, the Appellants were
not entitled to go on and carry out the contract and sue for the contract
price: he maintains that in the circumstances the Appellants' only remedy
was damages, and that, as they do not sue for damages, this action was
rightly dismissed.

The contract was for the display of advertisements for a period of 156
weeks from the date when the display began. This date was not specified
but admittedly the display began on 2nd November, 1957, which seems
to have been the date when the former contract…