SHERIFFDOM OF NORTH STRATHCLYDE AT KILMARNOCK

KILMARNOCK : 20 July 2010

The Sheriff, having resumed consideration of the cause, reserves the Defenders' first plea-in-law; allows parties a Proof before Answer and continues the cause until 18 August 2010 at 10.00 am for consideration of expenses.

This Debate proceeded on the Defenders' Preliminary Plea, attacking the Pursuers' averments upon 3 separate fronts, all as I shall shortly detail.

Factual Background

The salient facts were not in dispute. The Pursuers, at the request of the Defenders, had hired to the Defenders a small excavator, for use at a house in Irvine where the Defenders were involved in the construction of a conservatory. The contract was oral, having been made during the course of a telephone conversation between the parties, on or about 29 January 2008. The Defenders, as well as their own labour force, used sub-contractors to carry out certain elements of construction work on the site. Shortly afterwards the Pursuers delivered the excavator to the site, along with a copy of a hire advice note, the reverse of which carried their standard terms and conditions. The hire advice note was signed by an unknown worker, and a copy given to him.

About 2 weeks later the Defenders telephoned the Pursuers to inform them that the work for which the excavator had been required, had been completed, and that it could now be uplifted. Before that happened, however, the excavator was stolen by an unknown party. Since about 2003 the parties had traded on a number of occasions, the Defenders having hired various items of plant and equipment from the Pursuers.

Submissions for the Defenders

Mr Lynch for the Defenders opening submission was that if the contract was concluded in terms of a single telephone conversation on or about 29 January, the Pursuers could not unilaterally vary its terms once concluded. Accordingly, the Pursuers' averments in Article 3, from line 5 to line 30, were irrelevant, and should not be admitted to probation. The Pursuers, he suggested, sought to obviate that difficulty by reference to the terms of Clause 22, which was expressly incorporated within Article 3 "the acceptance of any equipment or services from the owners, by the hirer on site, would constitute the acceptance of the terms and conditions as laid out in this contract".

What he argued, however, the Pursuers failed to do was to relevantly aver that anyone invested with authority, and entitled to bind the Defenders, accepted delivery and signed the hire advice note. All they averred was that a worker on the Defenders' site (whose identity was unknown), received and accepted the excavator, signing the accompanying advice note. The Pursuers further aver that they reasonably assumed that that same person had authority to bind the Defenders.

Mr Lynch attacked these averments. They did not even aver the worker was an employee of the Defenders. The Defenders' own averments were to the effect that that person was either a sub-contractor, or an employee of a sub-contractor.

Furthermore, there was no basis for the Pursuers to make the assumptions they claim. Whatever assumptions were made by the Pursuers' delivery driver, cannot he suggested, be converted into the mind of the Pursuers, to allow them to "reasonably treat the worker who signed for the excavator as having authority to bind the Defenders".

In this context he referred the Court to Continental Tyre and Rubber Co Ltd v Trunk Trailer Co Ltd 1985 SC 163 which he stated had many similarities to the present situation, and in particular, to Lord President Emslie's Judgement, at page 168 "where the delivery note fell to be regarded as a mere receipt for the tyres which had been delivered. The legend in the delivery note which has been quoted was accordingly, for that reason, incapable of having the effect of incorporating into the contract after performance Pursuers' Standard Conditions of Sale. It was simply proof that the quantity and description of the goods had been correctly received".

Mr Lynch's second submission related to the Pursuers' averments with regards to a course of dealing. Further reference was made to the terms of Article 3, from line 32 onwards, and to Article 5, from line 1 to line 32. Mr Lynch argued that the foregoing were irrelevant with the exception of those in Article 3, relating to Mr Murdoch on 23 January 2008. He submitted they were completely lacking in specification. He referred the Court in this context to McCrone v Boots Farm Sales Ltd 1981 SC 68 at page 72 as authority for the proposition that the fullest specification possible must be given of all transactions upon which it is intended to found, as demonstrating a course of dealing, in the interests of fair notice, and that in every case whether the proved material facts of previous transactions are sufficient to warrant the implications of inclusion of general conditions in the contract is one of degree.

No issue was taken by Mr Lynch with the Pursuers' averments in Article 5, from line 33 onwards, which gave specification of dates, items hired, and signatories to those items, but rather with the Pursuers' earlier general averments relating to their overall trading relationship since August 2003. He submitted that any enquiry should be restricted in this respect to those items and transactions listed in Article 5, from line 33 onwards. Reference was made to W McBryde The Law of Contract in Scotland 3^rd Ed para 7-21 7-32, and in particular to paragraph 7.25, outlining the necessary requirements -

1. a course of dealing,

2. knowledge of, and

3. assent to the term relied upon.

Knowledge and assent may be judged objectively, and not necessarily according to the subjective intention of the parties.

Against this background, Mr Lynch, returned to Article 3, line 32. He attacked the averment referring to Mr Gordon Arkinson as providing no specification, nor did the following averment referring to Mr J Murdoch specify what he had hired. In Article 5, line 33 to 52, he conceded that specification had been given of a series of hires in January 2008, but he said that it was significant that the Pursuers had not averred who these individuals were, nor what the relationship between these individuals and the Defenders was, nor in what respect knowledge can be imported to the Defenders from these transactions. Furthermore, he suggested, it was of the utmost importance that none of these transactions appeared to relate to the hire of an excavator. Turning to the Defenders' Answer 5, Mr Lynch referred the Court to lines 1-36 in respect of the Defenders' admissions about specific hire transactions (under explanation that the last of these, he claimed, was not a hire but a purchase). He drew attention to the various named individuals, and their averred relationship, or lack of such, with the Defenders. He referred back to the Pursuers' Article 5, that the Pursuers, he suggested, were not in a position to prove that the giving of advice notes to individuals, such as Alan Thom and J Todd, would be capable of importing knowledge to the Defenders. That left Mr Arkinson, and one other employee, Mr P Cran, as having signed hire advice notes. In total there were 2 transactions with Gordon Arkinson, and one with P Cran, who could be regarded as the Defenders' employees, albeit strictly Mr Arkinson was self employed.

A further perusal of Article 3 made clear that the Defenders' position on Record was that there was no basis upon which the Pursuers were entitled to assume that the person who signed the hire note was an employee of the Defenders, or was in any way invested with authority to bind the Defenders.

Again, in Answer 3, it was conceded that Mr Gordon Arkinson signed for hire items at the Pursuers premises, which he took away with him.

Whilst there was an averment that Mr Gordon Arkinson had never seen the Pursuers' general terms and conditions, Mr Lynch conceded, more correctly, that he had never read them.

Whilst Mr Arkinson had signed such hire advice notes, there was no reference to him having signed hire advice notes for excavators. Mr Lynch seemed to indicate that a distinction could be drawn between signing hire advice notes for smaller pieces of plant and equipment, and those involving larger items, and in this context referred to McBryde at 7.26, suggesting here that there were prior contracts involving different goods. He sought to draw further support in this respect from the case of McCrone v Boots Farm Sales Ltd, at page 72. His conclusion was that excavators were in a special category, and that such large equipment, Mr Lynch said, had always been delivered by the Pursuers, and uplifted when no longer required, a position with which in general terms the Pursuers agreed.

Clearly, he submitted, a practice can be established that the Pursuers undertook to uplift such large equipment whether there was a contractual obligation to do so or otherwise, there was certainly no indication that the Defenders ever returned such large items of plant themselves. He concluded, therefore, that the Pursuers were precluded from seeking to rely on what remained, 3 transactions involving smaller items of equipment, for setting up the case which involved the incorporation of their standard terms and conditions into what he called "the digger or excavator contract". There was, he said, no basis for saying the Defenders had knowledge that these conditions applied to large items of plant and equipment.

On that submission he asked me to accept that the Pursuers had failed the well known test as an enunciated in Jamieson v Jamieson 1952 SC (HL) 44, considered again recently in Mitchell v Glasgow City Council 2009 (HL) at 21. He made specific reference to page 26 of the latter case, and the conclusion that cases should not be sent to proof where even if all of the averments were proved the case would still fail.

He submitted that what was necessary was a legal analysis of whether the Pursuers' averments were sufficient to allow the Court to find as a matter of fact and law that the conditions of contract were imported into the contract relating to the excavator and any such analysis must come to the conclusion that there was simply insufficient averments to allow the Court to reach that conclusion, and accordingly the Pursuers must fail, and that they should not be allowed to proceed to proof in the hope that something will emerge and come to their assistance.

His final criticisms related to the Pursuers' esto case as set out in Article 7, and the brief averments surrounding the Defenders' failure to restore the excavator to the Pursuers.

He explained the Defenders' position by reference to Answer 3, line 5. It was clear there was a dispute between the parties about the time when the Defenders notified the Pursuers they no longer required the excavator. Reference was also made to Article 3, line 66 in this context. Once the Defenders advised they no longer required the equipment, Mr Lynch suggested the responsibility passed to the Pursuers, and the effect of this was, he submitted, that the chain of acquisition was broken, and that the Defenders were no longer the custodians of the item.

He submitted that no enquiry was necessary into these matters. He elaborated by stating that the Pursuers said nothing about what steps should have been taken to safeguard the excavator and prevent its theft, and in his submission, this was vital to this branch of the Pursuers' case.

He referred the Court to the latest edition of Gloag & Henderson commencing at paragraph 13-06, dealing with the obligations of a hirer. Paragraph 13-07 set out degrees of care required by the hirer, setting this at culpa levis, he suggested that the standard of care was not a high one. He referred the Court again to Gloag & Henderson at 13-08, dealing with fault, and particularly where theft occurs, indicating that a want of reasonable precautions to prevent theft would be a question necessarily of circumstances. Finally, he referred to paragraph 13-11, dealing with the hirer's obligations to restore the article on expiry of the agreed period. He thereafter returned to the averments as set out in Article 7. The Pursuers primarily rely on the Defenders' failure to restore the excavator, something which he suggested proceeded on a misunderstanding of the law. He drew support from the authority of Shaw v Symons (1917) 1 KB 799,, where no obligation to restore the article had been found to arise. In conclusion he said that the Pursuers therefore failed to say what reasonable precautions ought to have been taken by the Defenders, and that their failure to do so was fatal. Again he produced the authority of Davidson (1749) Mor 10081 which again made reference to culpa levis as the appropriate standard. He submitted that it was for the Pursuers to aver negligence on the part of the Defenders, and to aver what the Defenders ought to have done, and what steps they ought to have taken to safeguard the item, and as they had not done so, this branch of their case must fail.

Accordingly, for all of the foregoing reasons he invited the Court to sustain the Defenders' First Plea in Law, and to Dismiss the action.

Submissions for Pursuers.

Counsel for the Pursuers, Mr Gibson, accepted that in the simplest of situations, a contract is created by the end of a telephone conversation, where goods are requested on hire, and the other party agrees to supply. These terms can be varied if the parties agree to do so subsequently, and he submitted when read as a whole, the Pursuers' averments in Article 3, show that did happen by the delivery of the excavator to the site on 29 January 2008, along with the hire advice note 60932, and by a site worker on the Defenders' site signing the accompanying hire advice note.

Further averments support the submission that hire advice notes were intended to have contractual effect, and that such was not merely a receipt. It contained the Pursuers' general conditions of hire printed legibly on the reverse.

The Pursuers concede that mere delivery of a hire advice note is insufficient and that there must be acceptance by the Defenders, or by someone on their behalf, with actual or ostensible authority.

At page 4 within Article 3 the Pursuers aver that the Pursuers general conditions of hire were expressly incorporated into the contract of hire by means of a hire advice note 60932 being offered to the worker who signed the same, and received the excavator as having authority to bind the Defenders. In other words, that worker who signed the hire advice note, and accepted the excavator, had according to the Pursuers, actual or ostensible authority to bind the Defenders.

He conceded that whilst, prima facie, a bold averment, earlier averments supported the same, and he drew the Court's attention to further averments which set out that the worker who signed the hire advice note, received and accepted the excavator, that the Defenders were main contractors on the site, and that the Defenders had ultimate control of the site. They were entitled to control who was allowed onto the site, the hire advice notes were habitually delivered to the Defenders with the equipment hired by them. Further reference was made to Gordon Arkinson, the Defenders' Installation Manager, who received hire advice notes, and was said to be aware of their general conditions. Whilst these averments were attacked as lacking in specification, Mr Gibson argued that taken as a whole with those in Article 5, they provided fair notice of the Pursuers' position.

Reference was made to averments in respect of other employees receiving hire advice notes, and that the Defenders were aware that the Pursuers habitually hired out items in terms of their general conditions of hire.

The Pursuers went onto aver that the Defenders were in a position to organise how an item such as the excavator was received on their site, ie, who was there to receive it.

Taking the Pursuers' averments at their highest, he argued the Court could find that the worker had authority, and that the Court could infer the Defenders gave actual authority to sign and receive an excavator, thus incorporating the terms and general conditions of hire.

If, however, the Court was unable to draw that inference, the Court could at least infer that the worker had ostensible authority in the circumstances averred to accept and sign hire advice notes, and thus incorporate the terms of the general conditions of hire within the contract.

There was, he submitted, sufficient in Article 5 to allow inquiry into the facts, reserving any final conclusion until after proof.

Returning to legal authorities, Mr Gibson referred the Court to Gloag & Henderson, para 19.23 as to how ostensible authority might arise.

Thereafter, he referred to Armagas Ltd v Mundogas SA (1986) AC 717 and to page 777, and a passage from the judgement of Lord Keith of Kinkell. In particular he relied upon Lord Keith's statement, "ostensible authority may also arise where the agent has had a course of dealing with a particular contractor, and the principal has acquiesced in this course of dealing, and all the transactions arising out of it".

Here, he suggested, the Court could take account of a course of dealing, ie habitual delivery of items to sites, and workers being allowed to sign hire advice notes, and accept delivery of company items of plant.

He made reference to First Energy (UK) Ltd v Hungarian International Bank (1993) 2 Lloyds Reps 194 from which he took that a person in a relatively senior post may be clothed with ostensible authority in certain circumstances. Clearly, such was a reference to Gordon Arkinson, whom the Defenders conceded did have requisite authority to hire equipment and accept plant.

In respect of the present contract, both parties accepted that the identity of whoever signed the hire advice note was unknown, and that the signature was illegible.

Clearly, therefore, in the present case, the Pursuers could not say that the signatory was a senior manager of the Defenders' company. Gordon Arkinson was a senior manager, and had ostensible authority, and could bring knowledge of conditions attached to the hire advice notes to the mind of the Defenders.

The Pursuers' case avers 2 occasions when hire advice notes were signed by Gordon Arkinson, productions 5/2/3 and 5/2/9, a few days before this transaction. In the same period, 2 other employees, Cran and Murdoch, also signed hire advice notes, further strengthening the case that by allowing a sub-contractor to sign a hire advice note on 29 January 2008, they clothed him also with ostensible authority.

In this context he referred to Dornier GMBH v Cannon 1991 SC 310 and in particular to a passage at 314 "that lack of authority would not provide sufficient answer if at the end of the day the Court was able to conclude that the employees had ostensible authority", and by further reference to L J Diplock's observations on the same page, where a principal allows an agent to act in the management of conduct of the principal's interest. Therefore, he submitted, the law recognises it is the conduct of the Defenders' in allowing others to receive hire plant which may be important, and that the matter was best left for decision until after proof.

The second issue in relation to conditions of hire, concerns a course of dealing, and reference was made to the averment set out in Article 5, and those averments that pointed to and established a course of dealing between the Pursuers and Defenders. Reference was made to £36000.00 of business since August 2003. There then followed general averments about a hiring relationship between the parties, followed by specific averments about individual hiring transactions between the parties in the weeks leading up to 29 January 2008. These set out that general conditions of hire were issued to the Defenders with equipment on numerous occasions, and go on to specify some 7 transactions between the parties earlier in January 2008. These transactions on 15, 18, 19, 21, 22, 23 and 28 January 2008, all involved the hiring of equipment to the Defenders with a hire advice note being signed by different names persons. There is an averment that on each occasion the person signing the hire advice note received the item on the Defenders' behalf, and that the Defenders had knowledge of the Pursuers' conditions of hire.

Mr Gibson submitted there was sufficient in the foregoing for the Court to infer, after hearing evidence of the Pursuers' practice of issuing hire advice notes, and sufficient averments for the Court to conclude that these people who signed had actual, or ostensible, authority to accept.

He thereafter turned to the authorities and made reference to McBryde at para 7.25 and the requirement for 3 elements, (1) a course of dealing showing, (2) knowledge of general conditions of hire, and (3) assent to those general conditions of hire. Here, he pointed out, a course of dealing had been admitted in Answer 5, and therefore the main issue here was that of knowledge.

Mr Gibson then referred to a series of authorities beginning with Grayston Plant Ltd v Plean Precast Ltd 1976 SC 206, and to page 217 thereof, and to whether the Pursuers in that case "did what was reasonably sufficient to bring to the Defenders' notice the existence of the condition ....." "what is reasonably sufficient would be a question of circumstances in each case, and subject to any general principles of law will in effect be a jury question to be determined on all the facts of the case."

Grayston Plant Ltd v Plean Precast Ltd could be distinguished in that the Pursuers' conditions of hire had to be applied for and were not sent out with the hire advice note, but the case supported the proposition that it is for the Court to decide whether the Pursuers have averred sufficient facts to show that they had brought to the Defenders' notice the existence of their general conditions of hire.

Further, he submitted, it was not necessary for the Pursuers to establish that the Defenders had read the Pursuers' conditions. A person may be deemed to have knowledge if he or she knows of their existence, but has never read them. McBryde at page 729, and Wood & Co v G & J Burns, (1893) 20 R 602. In this context he also referred to J Spurling v Bradshaw (1956) 1 WLR 461.

Reference was then made to the Continental Tyre and Rubber Co Ltd v Trunk Trailer Co Ltd case which Mr Gibson said could be distinguished from the present situation as the delivery notes in that case were not contractual and fell to be regarded as a mere receipt for the tyres which had been delivered.

Thereafter, reference was made to Wm Teacher & Sons Ltd v Bell Lines Ltd 1991 SLT 876 at 877, and the views of Lord Marnoch "not least on the extent of the other parties' opportunity to see the conditions in question". Here, he submitted, the Pursuers were on more secure ground, given that the Pursuers' general conditions of hire were on every hire advice note.

In this context he referred to the averments on page 10 of Article 5, that "the Defenders had knowledge of the Pursuers' general conditions of hire". The Defenders met this averment by pleading that no one with the authority to bind the Defenders read or considered the conditions.

In conclusion, it was submitted that sufficient averments had been pled to support the Pursuers' case that they had brought home knowledge of their general conditions of hire to the Defender. Put briefly there was a course of trading since August 2003, £36000.00 of business had been transacted, hire advice notes had been habitually issued to the Defenders with items of equipment. The terms of the advice note were clearly contractual, all of the foregoing being supported by averments, thereafter, 7 particular transactions in January 2008 were averred where hire advice notes had been issued. In 2 of these, the Defenders' Installation Manager signed the hire advice notes, they were also signed by Cran and Murdoch who were employees. Other signatories were Strachan, Thom and Todd, who, of course, were not employees, but cumulatively, it presented a strong case that knowledge was brought home to the Defenders, and thus, they must have assented by continuing to order without complaint. Whilst the status of Strachan, Thom and Todd was unknown to the Pursuers, and they may not be employees, they can, at this stage, be added.

For all the foregoing reasons, Mr Gibson submitted that the averments should be held to be relevant and sent to proof, or at least the question of law should be reserved, and a proof before answer allowed.

Finally, Mr Gibson turned to the Defenders' attack on the Pursuers' common law case ie that the Defenders were obliged at common law to restore the item. In this context, the Court was referred to Gloag & Henderson paragraph 13.11 - he conceded there was a defence open to the hirer that he took reasonable care but the onus was, according to Mr Gibson, on the hirer to demonstrate such.

It was therefor for the hirer to set out the defence and bring it into play and it was not for the Pursuers to do so.

In support of such, reference was made to Wilson v Orr (1979) 7 R 266 and the dictum of the Lord Justice Clerk at page 268 ... ... "The hirer of an article under the contract of location is under an obligation to restore the commodity in like good condition as that in which he received it. If the subject of the contract perished without fault on the part of the hirer, it perishes to the owner and the hirer is sufficiently discharged of his obligation if he had taken reasonable care of it. But if the subject of the contract be not restored in the like good condition as that in which it was received, there is a certain burden of proof laid on the hirer. He must show the cause of injury or death, and at least produce prima facie proof that the cause was one for which he was not responsible."

It follows therefor, he submitted, it was for the Defenders and not the Pursuers, to aver sufficient facts to show that non return was not the Defenders' fault.

Similar support could be obtained from Copland v Brogan 1916 SC 27.

A more difficult case in the sequence of authorities was Moes Moliere and Tromp & Co v Leith etc Shipping Co (1867) 5 M 988. Mr Gibson suggested whilst apparently against him, this case may have turned on its own specific facts and the interpretation of the meaning of "accidental breakage" as an exemption within contractual terms.

Counsel for the Pursuers felt supported in taking this view by various authorities subsequent to Moes Moliere and Tromp & Co v Leith etc Shipping Co and in particular to Wilson v Orr, McLean v Warnock (1883) 10 R 1052 and Bain v Strang 1888 SC 186, where his general proposition as outlined was accepted by the Inner House.

In conclusion, he submitted that notwithstanding the difficulties of Moes Moliere, there was a consistent line of authority accepted by the Courts since then in support of his proposition which could be safely followed.

Indeed prior to 1867, there was as far back as 1749, a line of authority supportive of the Pursuers' proposition commencing with Davidson , Robertson v Ogle 23^rd June 1809 FC, Pyper v Thomson and Pullars v Walker 1858 20 Dunlop 1238 .

For all of the foregoing reasons, he submitted that the Defenders attack on the Pursuers' pleadings in this respect was without merit and that the Pursuers need not aver anything further than they had set out.

Discussion

It was clear from the many authorities referred to the the course of Debate, that there is a whole spectrum of situations where documents may be considered as administrative in nature, for example, a delivery note or receipt, in contrast with others which may have contractual effect. Furthermore, even where documents purport to be contractual, issues will arise concerning the sufficiency of notice given to parties such as the hirer.

Coupled with this, is the principle that a course of dealing can incorporate conditions which would not otherwise form part of the contract.

There is thus considerable overlap between Mr Lynch's first and second submissions relating to actual or ostensible authority and that of a course of dealing.

Mr Lynch's opening criticisms were that the Pursuers had failed to establish that their standard conditions of contract were incorporated by refererence to what he termed the delivery note which accompanied the excavator, such standard conditions being printed on the reverse side.

Mr Lynch founded in this respect on the case of Continental Tyre and Rubber Co Ltd v Trunk Trailer Co Ltd and claimed that it was on all fours with the present situation, except for the fact that the worker who had signed was unknown. However there are, in my view, other differences and important differences in that in Continental Tyre and Rubber Co Ltd v Trunk Trailer Co Ltd the delivery note carried the legend "all offers and sales are subject to the company's current terms and conditions of sale, a copy of which will be supplied on request".

In other words, this was yet another of those cases along the spectrum where application required to be made to the Pursuers for their standard conditions. That, of course, was also the case in Grayston Plant Ltd v Plean Precast Ltd where a manufacturing company, contracted with a hiring company, by way of a telephone conversation. In that case, no copies of the general conditions of hire had ever been sent by the Pursuers to the Defenders and the Defenders had never asked the Pursuers for their conditions. The Defenders conceded that a course of dealing had been established. It was held in that case that the Pursuers had failed to show that as a result of the references to the conditions in written documents involved in the prior course of dealing, they had done what was reasonably necessary to bring to the notice of the Defenders that the conditions would be implied in the present oral contract.

It therefor seems to me that such cases are materially different from those where a hire advice note (which is how the document was headed) containing all of the Pursuers' standard terms and conditions, accompanies each item of plant.

In Answer 5 there is an admission by the Defenders that there is an established course of dealing between the parties going back as far as August 2003. It is also self-evident that in the seven specific transactions listed in the weeks leading up to the present hire, all detailed in Answer 5, various persons had signed hire advice notes, not all of whom were employees of the Defenders. Perhaps most noteworthy is Mr G Arkinson, whom the Defenders describe as a self-employed sub-contractor, although they concede he was known as their Installations Manager. Some others were employees, ie Paul Cran and J Murdoch, others, J Todd and I Strachan, were also sub-contractors. Whilst I accept that it is no part of the Pursuers case that sub-contractors ordered items to be charged to the Defenders, it is clear that at least Mr Arkinson's position and authority will require further enquiry. There is at least an inference that despite not being an employee of the Defenders, he was held out by them as their Installations Manager and thus held a position of some authority. It seems to me therefore that full enquiry will be necessary as to how much authority Mr Arkinson had as Installations Manager and how he used such authority by way of delegation or otherwise.

To be a self-employed independent contractor and yet be known as the Defenders' Installation Manager, as the Defenders concede in Answer 3, is somewhat unusual and is clearly something worthy of further enquiry before the Defenders' first and second criticisms can be fully answered.

Nor would I be prepared to draw a distinction at this stage between hiring small items of plant uplifted personally by the Defenders at the Pursuers' stores and larger items such as excavators, which the Pursuers agreed to deliver. All were accompanied by identical hire advice notes. The aspect of such item being delivered by the Pursuers to a designated locus may have some relevance, but such is not immediately obvious at this stage.

I should make it clear on the present averments, they fall considerably short of any inference that the worker who signed the hire advice note for the excavator, had actual authority. Whether he had ostensible authority, will require further enquiry into the facts as to how this site operated in the broadest sense.

Looked at cumulatively, the Pursuers pleadings provide substantially more detailed information in respect of previous transactions with the Defenders than those set out in McCrone v Boots Farm Sales Ltd. In that case, it was not clear as to the nature and number of transactions which the Defenders intended to prove in support of their averments. There was clearly lack of fair notice contrasted with the present situation where there are both general averments and more specific averments of seven transactions in the few weeks prior to the hire of the excavator in question.

For the foregoing reasons, I am satisfied that the correct course is to reserve final determination of the question of law focussed by the Defenders in their preliminary plea in law in respect of Mr Lynch's first and second submissions, until after enquiry into the facts.

I therefor turn now to Mr Lynch's criticism of the Pursuers common law case. I am not persuaded at this stage by the Defenders' opening contention that by simply telephoning the Pursuers to advise that the equipment was no longer required, they were necessarily absolved of all subsequent responsibility.

His next criticism related to the Pursuers failure to specify what steps the Defenders should have taken to safeguard the excavator and prevent its theft. I do not consider that Shaw v Symmons supports the Defenders' position. That case concerned books entrusted by the plaintiff to the defendant, a bookbinder. The defendant failed to deliver them within a reasonable time and they were subsequently destroyed accidentally in a fire at the defendant's premises. The defendant was held liable and could not pray in aid the incident of accidental fire, as he had already been in breach of contract before the date of the fire. I do not consider that any ratio from this case detracts from the common law obligation to restore an item of hire, I accept there is considerable authority commencing with Bell's Principles as referred to in Copland v Brogan, Wilson v Orr and McLean v Warnock, all of which confirm such a common law obligation and place the burden of proof on the hirer to show the cause of loss and prima facie proof that he was not responsible for such.

I am inclined to regard the case of Moes Moliere and Tromp & Co v Leith etc Shipping Co as a somewhat special case which turned on its own facts and the particular complexities of the accidental breakage clause within the contract. All subsequent authorities appear to hold to the common law obligation I have outlined and I refer in this context to Pyper v Thomson 1843 5 Dunlop 498 and Pullars v Walker. Thus, it seems to me, that it is for the Defenders to explain what happened and what steps they took to prevent loss. I do not consider it necessary at this stage to make any comment on the degree of care required by the hirer, but agree with Mr Gibson's proposition that it is for the Defenders to aver sufficient facts to show they were not to blame.

For all of the foregoing reasons, I shall allow parties a proof before answer.