Anchor December 23, 1916. OUTER Sought to limit their common law liability. The HOUSE. test of this, as expressed by Lord Justice Mellish Hood v. in Parker's case (Parker v. South-Eastern Railway The Co., 1877, 2 C.P.D. at p. 423), is that, if the Line Ltd. carrier does what is sufficient to inform people in general that the ticket contains conditions, then a particular pursuer ought not to be in a better position than other persons on account of his exceptional ignorance or stupidity or carelessness. In the general case I think that the carrier satisfies this test if, on the face of the ticket which he issues and which constitutes evidence of the contract of carriage, there is printed, in type such as ordinary persons can easily read, the conditions upon which he contracts, or if there is printed upon the face of the ticket a notice which calls the passenger's attention to conditions in similar type printed upon the back." essential particulars which the contract ticket must presumably set forth are these: (a) the names of the contracting parties; (b) the name of the ship; (c) the description of the voyage; (d) the date and hour of sailing; (e) the stateroom let; and (f) the amount of the fare. It is obvious that the contract ticket has more available space than is necessary for the setting forth of these essential particulars, and the passenger ought to haveexamined the ticket to ascertain how that available space was disposed of. (3) The conditions are all printed on the front of the ticket; they occupy a prominent position in the centre of the ticket; and they are printed in type which is quite legible. (4) The printed conditions are preceded by the word "notice" printed in arresting type and these words in a specially distinct type: "Thisticket is issued to and accepted by the passenger subject to the following conditions." The pursuer's counsel maintained that the defenders have proved nothing except that they delivered the ticket and that something addi- (5) At the foot of the document, and in a tional, by way of directing the passenger's atten- position and in type specially calculated to tion to the condition, must be established to catch the eye, there is printed this sentence: entitle the defenders to succeed. No authority"Passengers are particularly requested to carewas cited in support of this contention, and I am not prepared to assent to it. The defenders are entitled to assume that a passenger will look at his contract ticket and, if the contract ticket presents means of directing attention to the conditions, the defenders, in my opinion, discharge the onus which the law lays upon them. fully read the above contract." I am unable to conceive what further or bettermeans the defenders could have employed to bring to the knowledge of passengers the exist ence of the contract conditions. I shall therefore sustain the second plea in law stated for the defenders and dismiss the action. Counsel for Pursuer, Moncrieff, K.C., MacRobert; Agents, Macpherson & Mackay, S.S.C.-Counsel for Defenders, Macmillan, K.C., C. H. Brown ;: Agents, Webster, Will & Co., W.S. W. G., for A. N. S. It was also contended, on behalf of the pursuer, that the condition limiting liability was in effect an offer by the defenders requiring acceptance by the pursuer before it had contractual effect. I agree, but the assent of the pursuer to the restriction of the carrier's liability does not require to be express; it may be implied: and it will be held to have been given impliedly if the carrier takes reasonable means of directing the passenger's attention to the condition in question. The case of Robinson ([1915] A.C. 740) decided that a party who signed a contract of carriage was bound by all its terms although he had not troubled to read the contract. The same principle ought to prevail in the case of unsigned contracts if reasonable means have been employed to direct the passenger's attention to 17. Edinburgh and Leith Corporations the existence of conditions. OUTER HOUSE. 23rd December 1916. Gas Commissioners v. Smart. machinery and fixtures to new tenants of security subJects without consent of bondholders-Machinery and fixtures remaining in situ until tenants became bankrupt -Trustee under trust deed granted by tenants selling machinery and fixtures to a third party and causing them to be removed from the premises - Action of held to be relevant and competent although the security damages at instance of bondholders against trustee subjects had not been realised. In the present case the circumstances which, Right in security-Heritable machinery and fixturesin my opinion, called the attention of the Proprietor in possession-Proprietor becoming bankrupt passenger to the existence of conditions which-Trustee in proprietor's sequestration selling heritable it was his interest and duty to read were these: (1) The fact that in every case the defenders' officials in New York enclose a passenger's ticket in an envelope similar to No. 24 of process. The front of this envelope is covered with printed matter in varying type. The top line, on which the eye of an observer ought first to rest, consists of a hand with index finger pointing to these words printed in prominent type: "Please The Edinburgh and Leith Corporations Gas read conditions of the enclosed contract." Commissioners brought an action against (2) The size of the contract ticket. The William Hunter Smart, chartered accountant Edinburgh, as trustee under a trust deed for behoof of creditors granted by J. & G. Small and as an individual, for payment of the sum of £700. The following statement is taken from the -opinion of the Lord Ordinary (Cullen): "The pursuers are the creditors under a bond and disposition in security for £4000 granted in 1903 by Peter Dunbar over subjects in Leith, including a bakery known as 'Baynefield Bakery,' in which they are infeft. The period of loan, originally till Whitsunday 1908, was subsequently extended till Whitsunday 1913. "The bakery included machinery, plant, and fixtures of substantial value, alleged by the pursuers to have been heritable in character and thus to have been comprised within their security. "In May 1912 Dunbar became bankrupt and his estates were sequestrated, the trustee being Mr C. S. Romanes, C.A. Mr Romanes arranged with the pursuers that they should continue the loan for five years from Whitsunday 1913, and he obtained their consent to his letting the bakery to J. & G. Small. "In addition, however, to letting the bakery, Mr Romanes, without the consent or knowledge of the pursuers, as they allege, sold to J. & G. Small, inter alia, all the foresaid machinery, plant, and fixtures. These appear to have remained in situ until after J. & G. Small became insolvent and granted, on 31st August 1915, a trust deed in favour of the defender Mr. Smart. Subsequently, J. & G. Small's estates were sequestrated and the defender was on 19th October 1915 confirmed as trustee in the sequestration. "In Condescendence 7 the pursuers aver: 'On or about 2nd October 1915 the defender, acting or professing to act as trustee under the said trust deed, sold off and removed, or caused to be removed, from the foresaid bakery premises which formed part of the security for the foresaid loan granted by the pursuers, the machinery, plant, fittings, and fixtures, including all the heritable machinery, plant, and fixtures, and in course of removal of said heritable machinery, and others, caused great injury, damage, and dilapidation to the heritable subjects.' They further aver that the defender gave them no notice of his intention so to displenish the premises. "In Condescendence 8 the pursuers aver that the effect of the defender's said proceedings has been to reduce the value of the security subjects available for their recourse under their bond from £3750 or thereby to £3050 or thereby. The difference, £700, they now sue for. It is common ground that restoration of the subjects is impracticable. Accordingly if the pursuers have a remedy for the injury which they allege they have suffered it must be by way of a claim of damages. Corpora Commis "The pursuers propose that the said sum of OUTER £700, or such sum as they may recover as HOUSE. damages, shall be treated as a payment in Edinburgh extinction, pro tanto, of the sums due under the and Leith bond, or otherwise that they should grant to tions Gas the defender in exchange therefor a correspond- sioners v. ing assignation of part of the bond. They are Smart. also willing, alternatively, to assign the whole December 23, bond to the defender if he will pay them the whole sums due under it. These offers are not tabled on record, but I understood them to be made by the pursuers' counsel at the bar, and I take them into account in dealing with the case." The pursuers pleaded: "1. The heritable machinery, plant, and fixtures referred to upon record having been heritably disponed to and vested in the pursuers in security for the loan of £4000 condescended on, the defender was not entitled to sell, interfere with, or remove the same. "2. The removal by the defender of the said heritable machinery and others, and the consequent injury to and dilapidation of the premises forming the subject of the pursuers' security having caused loss, injury, and damage to the pursuers, the pursuers are entitled to reparation from the defender." The defender pleaded: "1. The pursuers' averments being irrelevant, wanting in specification, and insufficient to support the conclusions of the summons, the action should be dismissed. "2. The action in the circumstances being premature, should be dismissed." The following authorities. were quoted: Dowall v. Milne, 1874, 1 R. 1180; Brand's Trs. v. Brand Junior's Trs., 1876, 3 R. (H.L.) 16; Howie's Trs. v. Gebbie & Co.'s. Tr., 1902, 5 F. 214; Reynolds v. Ashby & Son, [1904] A.C. 466; Ellis v. Glover & Hobson, [1908] 1 K.B. 388; Urquhart v. Macleod's Tr., 1883, 10 R. 991; Gough v. Wood & Co., [1894] 1 Q.B. 713. Avizandum, 8th November 1916. On 22nd December 1916 the Lord Ordinary (Cullen) allowed a proof before answer. Lord Cullen [after the narrative quoted above].-The defender denies, in whole or in part, the pursuers' allegations, admittedly now relevant, bearing on the heritable character of the machinery, etc., in question, and this matter, taken by itself, would call for enquiry. The defender, however, contends that the pursuers' case otherwise is irrelevant. In the first place, he contends that as the pursuers, although infeft, had not entered into possession the proprietor of the subjects remained entitled to exercise, and accredited to third parties as possessing, powers of administration of the subjects, including power to alter, vary, and remove 1916. and Leith Corpora Commis 1916. dent in their interests it may be so to sell them. The pursuers aver, and offer to prove, that the removal of the machinery, etc., by the defender has de facto reduced the value of the security to the extent of £700. No doubt in the absence of actual realisation the evidence bearing on the question of damage must be by way of skilled opinion capable of leading to a conclusion which may be only approximately accurate. But the pursuers' readiness, to which I have referred, to assign the bond to the defender in whole or part in response to whole or part payment, seems to me adequately to meet this criticism. Following the views which I have above indicated, I shall allow a proof before answer. Counsel for Pursuers, The Solicitor-General (Morison, K.C.), Gentles; Agent, James M'G. Jack, S.S.C.-Counsel for Defender, Anderson, K.C., Gilchrist; Agent, Herbert Mellor, Solicitor. OUTER machinery, fixtures, and fittings. Now, I do not HOUSE. doubt that a proprietor who has granted a Edinburgh heritable bond to creditors who leave him in possession remains clothed with certain powers tions Gas of ordinary administration of the security subsioners v. jects which should be exercised by him in the Smart common interest of his creditors and himself; December 23, and that third parties may transact with him so far as these powers of ordinary administration extend. How far such powers extend must, I think, be a question of degree and of circumstance depending on the nature of the security subjects and on what the proper administration of them may, on a reasonable view, call for. In the present case the part of the security subjects here in question formed an industrial concern: a bakery, fitted with machinery, plant, and fixtures for carrying on business which represented a material part of their marketable value. Ordinary administration of such a subject leaves room for changes. Worn-out plant may have to be renewed or inferior plant replaced by what is esteemed to be better. But I do not think that, in the case of such security subjects, ordinary administration can extend to stripping them without replacement of the whole body of heritable machinery, plant, and fixtures forming an integral part of their marketable value as an industrial concern. That would seem to me to be not administration but despoliation. And on this view I think 18. Baird & Tatlock (London) Limited that a third party, who in course of proceedings for so despoiling the premises buys and removes material parts of them which are partes soli, is bound to see to it that he gets a good and unencumbered right to the heritable assets which he desires to acquire and remove. In the next place, the defender contends that the action is premature in respect that the pursuers have, as he says, suffered no realised damage. They have, he says, their bond; they have not resorted to sale of the security subjects; they may sell them hereafter, but it cannot be known at present whether, if and when they sell, the security subjects will produce enough to pay them or will not. In the meantime, he says, the pursuers have not realised a loss and so cannot sue on the footing of having actually suffered damage. Now, while the pursuers allege that the defender's proceedings complained of have reduced the value of their security to the extent of £700, the major part of the value of their security under the bond remains with them for such dealings with it as they deem most prudent and expedient in their interests. If it be the case, as the pursuers contend, that the defender has illegally despoiled their security to a material extent, I cannot think that their remedy for damages against him necessarily involves that they must at once sell the remaining security subjects, whatever the conditions of the property market at present may be, and however impru OUTER HOUSE. (Lord Cullen.) 22nd December 1916. J. A. L., for G. H. v. Baird & Tatlock Limited. ing on business in London and Glasgow-Partnership dis solved in 1896 and London business carried on by B. and Glasgow business by T.-London business transferred in Trade name-Passing off-Partnership of B. & T. carry 1903 to limited company named B. & T. (London) Ltd.Glasgow business carried on under style of B. & T. until 1915-Glasgow business transferred in 1915 to limited company named B. & T. Ltd.-Note of suspension presented by London company to have Glasgow company interdicted from carrying on business under style of B. & T. Ltd. company from the London company-Interdict refused. unless words were added to distinguish the Glasgow The following narrative of the facts of this note of suspension and interdict is taken from the opinion of Lord Cullen : "The complainers are Baird & Tatlock (London) Ltd., incorporated in 1903. The respondents are Baird & Tatlock Ltd., incorporated in 1915, and carrying on business in Glasgow, with branches in Edinburgh, Manchester, and Liverpool. The complainers seek to interdict the respondents "(First) from carrying on business under the style or title of Baird & Tatlock Ltd., or under any style or title containing the words 'Baird & Tatlock Ltd.,' unless there are words added to distinguish the respondents' company from the complainers' company, and to prevent the public from being deceived or misled into the belief that the complainers' company is the same as the respondents' company, or is a branch of or otherwise connected with the respondents' company; (Second) from issuing any catalogues, labels, circulars, showcards, advertisements, or bill-heads, or from exhibiting for sale or selling any goods not manufactured or supplied by the complainers, marked with a style or title containing the words 'Baird & Tatlock Ltd.,' unless there are words added to distinguish the respondents' business and goods from those of the complainers.' "The complainers and respondents carry on the same kind of trade, viz. that of dealers in chemicals, laboratory furnishings and scientific instruments and appliances, etc. The two businesses have a common origin in a partnership formed in 1881 in Glasgow between the now deceased Hugh Harper Baird and the now deceased John Tatlock with the firm name of Baird & Tatlock. The firm of Baird & Tatlock's business in Glasgow was successful, and in 1890 they were encouraged to open a branch in London. In contemplation of this extension of their field of operations the partners entered into a copartnery agreement which, inter alia, provided that the London business should be merely a branch' of the Glasgow one, and that both should be carried on under the name of 'Baird & Tatlock.' "Mr Hugh H. Baird went to reside in London and took up the management of the London branch, which proved a success. In 1894 or 1895 another branch was opened in Edinburgh. "In 1896 the two partners resolved, amicably, to dissolve their partnership as at 30th April 1896, on the footing of Mr Baird acquiring as his own concern the London branch and Mr Tatlock acquiring as his own concern the original Glasgow house with the Edinburgh branch. The terms of dissolution, etc., are contained in minute of agreement No. 16 of process. "This minute of agreement contained a special provision as to the use in the future of the firm name of Baird & Tatlock. Article 5 provided: 'For the period from the said 30th day of April 1896 until the 30th day of April 1900, but no longer, the said Hugh Harper Baird and John Tatlock shall be at liberty, in carrying on business alone or in conjunction with others in London and Glasgow and Edinburgh respectively, to use and retain the style or firm of Baird & Tatlock with or without the addition of words indicative of the individual or individuals carrying on business under said style or firm.' The reason for this provision would seem to have been mainly that the firm had put out a considerable amount of expense on catalogues and other business 'literature' under the name of Baird & Tatlock, and that it was desired to utilise these for the common benefit of the now independent businesses. "At the expiry of the period of five years, 30th April 1900, the stock of catalogues, etc., had not been fully used up; and, as there were difficulties about the further use of the original OUTER Tatlock firm name, the arbiter under the arbitration clause in the minute of dissolution was invoked. HOUSE. Mr Tatlock's contention was that he was entitled Baird & to design himself in his business as 'late Baird (London) & Tatlock,' or 'late of Baird & Tatlock.' On Ltd. v. 4th July 1901 the arbiter issued findings Tatlock expressing concurrence in these contentions, and Ltd. holding that it was unnecessary for him to December 22, interfere between the parties. No further steps took place in the arbitration proceedings. "Thereafter, both businesses continued to be carried on, as before, under the common name of Baird & Tatlock until July 1903, when Mr Baird had his London business converted into that of a limited joint-stock company under the Companies Acts, with the name of ' Baird & Tatlock (London) Ltd.' "From July 1903 until March 1915 the Glasgow business with its branches-one in Manchester and one in Liverpool having been added-continued to be carried on under the firm name of Baird & Tatlock, while the London business was carried on under the registered name of Baird & Tatlock (London) Ltd. For "Mr John Tatlock died in July 1909. Mr Hugh H. Baird died in February 1911. some time after Mr John Tatlock's death his Glasgow business, with its branches, continued to be carried on by his representatives without change, under the name of Baird & Tatlock. Owing, however, to the terms of the dispositions of his estate made by Mr Tatlock in his will, it became expedient to form a limited joint-stock company to carry on the business as a family concern. This was done in March 1915, the company being registered under the name of Baird & Tatlock Ltd. Up to this time no friction had arisen between the two businesses, and there were no complaints on the one side or the other in respect of any confusion which arose from the fact of both businesses using the name Baird & Tatlock in their designations, a state of matters which had existed for about nineteen years." At the hearing the following authorities were cited. By the Complainers: Buckley on Companies, pp. 14, 15 and 16; Merchant Banking Co. of London v. Merchants' Joint Stock Bank, 1878, 9 Ch. D. 560; Wotherspoon v. Currie, 1872, 5 E. & I. App. 508; Birmingham Vinegar Brewery Co. v. Powell, [1897] A.C. 710; Croft v. Day, 1843, 7 Beavan 84; Turton v. Turton, 1889, 42 Ch. D. 128; Fine Cotton Spinners' and Doublers' Association Ltd. v. John Cash & Sons Ltd., [1907] 2 Ch. 184; Tussaud v. Tussaud, 1890, 44 Ch. D. 678; Rendle v. J. Edgecumbe, Rendle & Co. Ltd., 1890, 63 L.T. 94; Saunders v. Sun Life Assurance Co. of Canada, [1894] 1 Ch. 537; Reddaway v. Banham, [1896] A.C. 199; Valentine Meat Juice Co. v. Valentine Extract Co. Ltd., 1900, 83 L.T. 259; The North Cheshire and Manchester Brewery Co. Ltd. v. The Manchester Brewery Co. Ltd., [1899] A.C. 83; Montgomery v. Thompson, Baird & 1916. (London) OUTER [1891] A.C. 217. By the Respondents: Palmer's HOUSE. Company Law, 10th ed., p. 27; Reddaway v. Baird & Banham, cit., per Lord Halsbury; Daimler Motor Tatlock Co. [1904] Ltd. v. London Daimler Co. Ltd., 1907, Ltd. v. 24 R.P.C. 379; Turton v. Turton, cit.; S. Chivers Tatlock & Sons v. S. Chivers & Co. Ltd., 1900, 17 R.P.C. Ltd. 420; Saunders v. Sun Life Assurance Co. of December 22, Canada, cit. Baird & 1916. Avizandum, 8th December 1916. have been sent to the other, causing some inconvenience. But, with good faith such as has prevailed on both sides, there has been only inconvenience, and no real case of loss by the complainers has been made out. The mistakes seem to have been more frequent since the war broke out, owing probably to the disturbance of business conditions. They have been sometimes on the one side and sometimes on the other. On 22nd December 1916 the Lord Ordinary make must be that the respondents are in fact, refused the prayer of the note. Lord Cullen [after the narrative above quoted]. -The present note of suspension and interdict was presented in April 1916, about a year after the formation of the Glasgow limited company, and the terms of its prayer are as I have already mentioned. In the complainers' pleadings there figures section 8 of the Companies (Consolidation) Act 1908, but it is fully allowed by the complainers that this statutory provision in the public interest affords no foundation for the present action, and that the action is purely one at common law. The foundation of a case for interdict at common law such as the complainers here seek to although not necessarily in intention, passing off their goods as those of the complainers, or at least, that there is sufficient ground for apprehending that they will in fact do so if not prevented from carrying on their business in the manner complained of. Now, there is no foundation for saying, and it is not contended, that any of the commodities in which both companies trade have become specially associated in the mind of the public with the name of the complainers' company, so that the respondents in continuing to trade in them are making, or are likely to make, to the public a representation that they are offering to supply the complainers' goods. In support of their action, as one at common law, the complainers, inter alia, aver (Statement 9) The complainers' case, indeed, as it seems to as follows: "It is believed and averred that me, comes to no more than this, that in consethe respondents adopted the name of Baird & quence of both companies using in their designaTatlock Ltd., and refused to distinguish it by tions the distinctive names of Baird & Tatlock, the addition of the word (Glasgow)' for the derived from the original Glasgow firm, their purpose of encroaching on the goodwill of the common parent, confusion will arise-as has complainers' business, and of acquiring for already although to no very serious extent arisen themselves the benefit of the reputation and the-through mistakes made by careless members wide business connection which the complainers' of the public intending to deal with the one or company have built up during the last twelve the other. It is, however, a possible and by no years." For this averment there is not the means unknown state of matters that there shadow of a foundation in fact. Mr Moncrieff, should be two businesses carried on quite lawfor the complainers, withdrew it at the hearing fully under names which have such a degree of on evidence in unreserved terms. It is, how-resemblance to each other that mistakes may be ever, to be regretted that it should have been made. Passing from it one comes to the substance of the complainers' complaint, which, shortly put, is this, that, owing to the similarity in the names under which the two businesses are carried on, confusion sometimes arises between them in the minds of members of the public dealing with them, so that orders and communications intended for the one company are sometimes sent to the other. In this way, the complainers say, orders intended for them may be sent to and executed by the respondents. Similarly, of course, it is possible that orders intended for the respondents may be sent to and executed by the complainers. As the record was originally tabled the complainers did not condescend on specific instances. Subsequently they condescended on a number which have been investigated in the proof. The result is to shew that in a variety of cases orders or communications intended for the one company made by people who are careless in their dealings. I may refer to the well-known case of Turton v. Turton (L.R., 42 Ch. D. 128). A rather striking example of what may happen in this way is furnished by the evidence of Mr R. T. Thomson in the present case. He carries on in Glasgow, in partnership with Mr R. R. Tatlock, the business of analytical chemists. The firm name is R. R. Tatlock & Thomson. The only point of resemblance between it and the respondents' name is the presence in each of the name of Tatlock. Tatlock, however, is a very uncommon name. The lines of the two businesses have a strain of chemistry in common, but otherwise differ widely. Yet it appears from Mr Thomson's evidence, corroborated by that of Mr J. Douglas Tatlock, that mistakes are quite frequent, and that many orders and communications intended for the respondents are sent to R. R. Tatlock & Thomson and have to be forwarded by that firm to the respondents. For this kind of confusion there is no legal remedy capable of putting an |