Scottish Court of Session Decisions

Lord Kincairney.—I have found this action confused, intricate, and difficult; but, after consideration, I have come to concur in the judgment of the Lord Ordinary.

The pursuer carries on business in George Street, Edinburgh, as a bookseller and printseller, and dealer in curios, and engravings; and the defenders design themselves as diamond merchants in London. The action relates to purchases from the defenders by the pursuer, made of course with the view of re-sale at a profit in the course of her business. The articles purchased purported to be (1) a necklace with a miniature of Flora Macdonald, (2) a medallion of Queen Victoria in coronation robes, (3) a brooch with a miniature of the Duke of Albemarle (General Monk), bearing the date 1650, and (4) an emerald brooch, the question about which has been decided by the Lord Ordinary for the defenders, and is not brought up by this reclaiming note. The questions debated have related therefore to the three articles first named,—The Flora Macdonald necklace and miniature, the medallion of the Queen, and the Albemarle brooch. These were purchased on 15th December 1902, 3d March 1903, and 3d July 1903, at the prices of £150, £250, and £150. This last sum of £150 includes the price of the emerald brooch which is not within the reclaiming note, and the parties seem to be agreed that £85 of that sum shall be held as paid for the Albemarle brooch. These prices have been paid by the pursuer except £50, being part of the price of the medallion of the Queen.

By this action the pursuer seeks repayment of the sums so paid by her. The action is in a somewhat unusual form, but is in substance a reduction of the sales.

The three articles to which the action now relates are of the same general character. They are all ornamental and artistic, set with gold enamel and various gems, chiefly diamonds and pearls, and each forms a single piece of bijouterie or object of vertu. It is averred, and I think it is proved, notwithstanding considerable differences in the evidence of the skilled witnesses,

that the prices charged by the defenders and paid are exorbitant, a point to which I need not return; but it is not said that the jewels and gold with which they were ornamented are false, although it is said they are of poor quality and small value; still it is not said that they are essentially different (except in one important particular) from what they purported to be, and, apart from that particular, it is not suggested that there is any ground on which the sales can be set aside. That particular is, that whereas they were sold as antiques, apparently of value on account of their antiquity and associations, they are not really antiques or relics or rarities at all, but are modern fabrications, and have really no associations; perhaps not wholly without value as deceptive objects of art, but of no value as relics or antiques.

The first articles of the record are vague and general, and it is not until the sixth condescendence that the pursuer distinctly avers that the articles sold “are modern productions, made-up goods, and of inferior quality, that the respective prices obtained by the defenders from her therefor were unconscionable and out of all proportion to their true value. Of this the defenders were, at the time of the respective transactions aforesaid, well aware, while the pursuer was in ignorance thereof.” The essence of the case seems to lie in this ill-framed averment, which I take to mean that the defenders, when they sold the articles, knew that they were “modern productions, made-up goods.” The word “fraud” or “fraudulent” is not in the condescendence, although I think that falsehood with the knowledge that what was said was false is averred, and that, I take it, amounts to an averment of fraud.

The defences are equally unsatisfactory. They consist mainly of denials that the defenders made any averment about the articles or gave any warranty; and, although they were the sellers of the articles, and though Louis Landsberg brought them personally to the pursuer, the defenders assert that they said nothing to her about them but merely exhibited them, leaving her to form her own judgment; and, although there is no admission that they were represented to be antiques, the answers suggest that they might be so for anything the defenders knew to the contrary. Now, that was the nature of the record on which parties went to proof, and it is startling to find it now admitted that the defenders not only knew all about the articles sold, but made them themselves or had them made for them.

I find it impossible to avoid the conviction that the defenders intended to mislead, and did mislead the pursuer.

It may be true, however, that the case cannot, or at least need not be, decided against the defenders on the ground of their silence and non-disclosure only, nor on the ground of the apparent antiquity of the articles, nor because the pursuer believed them to be old, nor even that the defenders were aware that the pursuer was under that belief and did not undeceive her, because the defenders' contention in law that when a seller gives no warranty the buyer must protect himself must be conceded. But when a seller knows that a buyer is purchasing under a false impression, he certainly must take care not to go a step beyond what the law does not prevent. But the Lord Ordinary has not proceeded on mere misapprehension, but on active, direct, aggressive falsehood, which he finds proved against the defenders, and which forms the ground of his judgment.

The question, therefore, seems to be this question of fact, depending on conflicting evidence, whether, in any of the three cases, or in all of them, the transactions were induced by the active and positive misrepresentation of the defenders.

The first of the sales in date is that of the Flora Macdonald necklace and miniature. Was that transaction induced by the false statements of the defenders? The Lord Ordinary has decided that question against the defenders, and I agree, although not without hesitation. On this point, as throughout the action, the defenders give no assistance. They assert that they said nothing whatever, and merely stand on the ground that they gave no warranty and made no representation.

The question, therefore, is whether the defenders passed the limits sanctioned or overlooked by the law, and made some false averment of a material character which persuaded the pursuer to purchase this article. The pursuer depones that Mr Landsberg, when he called at her shop with the necklace and pendant, stated that “the necklace had been given by one of the Stuarts to Flora Macdonald in recognition of her devotion to the cause of the Stuarts.” The pursuer's case is that she believed that statement, and in that belief, and because of it, bought the necklace and miniature. There seems no doubt that that was the pursuer's understanding, but how that understanding was reached is not explained. Mr Landsberg has no suggestion to make about the portrait from which the miniature was taken, but it may be readily believed that the pursuer would recognise the portrait. It is, however, next to impossible to suppose that having got this miniature painted by Mr Soper, the defender said nothing at all about it to the pursuer, whether he intended to tell the truth or to deceive, but merely laid it before her, leaving her to name the miniature for herself.

On the whole, I am not prepared to dissent from the Lord Ordinary's conclusion that Landsberg falsely represented to the pursuer that the portrait, necklace, and pendant formed a genuine Stuart relic, and induced her to buy it on account of that false belief.

The second article is the medallion of the Queen. It represents the Queen in coronation robes, but it was not of the date of the coronation. but was made up by the defenders, and the portrait was painted by Soper on the defenders' employment. Here, again, the proof of representation is incomplete and unsatisfactory. Landsberg says he made no representation of any kind. The pursuer depones that Landsberg asserted that it had been presented by the Queen on her coronation to a lady of rank, which, if said, was of course false. It does not appear that he named the lady, but it is difficult to understand how he could possibly have avoided some statement, true or false, about the portrait. The Lord Ordinary finds his positive falsehood in the assertion that he, Landsberg, knew nothing about the medallion and could give no history of it. That was positively false, seeing that he knew everything about its history from beginning to end.

The pursuer advertised this medallion in the Connoisseur, and she does not state in the advertisement that it represented the Queen at her coronation, which was what Landsberg, according to her, had told her. But she advertises it to the public as the work of Chalons, a miniature painter of the period, which seems to have been a gratuitous invention of her own, and which leads one to receive her evidence with considerable doubt. I believe, however, that Landsberg did represent that it was a work of the time of the coronation, and deceived the pursuer by that falsehood.

Some difficulty, however, is occasioned as to this part of the case by a second transaction between Landsberg and the pursuer about this medallion, which took place at or about 2d January 1904, at which date I do not think she was fully aware of the defenders' deception. But I consider that the arrangement then made was afterwards cancelled.

The only other point remaining regards the Duke of Albemarle's miniature.

Here also there is a narrow question whether the defenders' representations went so far as to entitle the pursuer to rescind the sale. The question resembles that raised about the medallion of the Queen. The miniature was made by Soper by the directions of the defenders. General Monk seems a somewhat singular person about whom to practise such a deception, and one would hardly have expected his name to raise a very large price. The defenders were no doubt very reserved, but Mr Landsberg did assert that he knew nothing about the miniature, which was the same untruth as that about the medallion of the Queen. Perhaps the erroneous date on the miniature may be noticed, as well as the other mistakes mentioned in his evidence. These, however, are not of importance now that the manufacture of the article has been admitted.

I think it proved that in these three transactions the defenders practised a system of deception, against which possibly the pursuer might have been unable to find a remedy, had not the defenders gone the length of positive misrepresentation.

Lord Kyllachy.—In this case I have since the hearing carefully read the proof, and the result is, I have come generally to the same conclusion as that which has just been expressed.

I confess to having some doubt as to whether the defender's representations were in all respects so explicit as might be inferred from the pursuer's evidence. I think it quite possible that the defender at all events believed that he had sufficiently guarded himself against what he calls guarantees (or as he probably means representations) as to the character and history of these articles. But on full consideration I have been unable to conclude otherwise than that, in one way or another, he (the defender), knowing the contrary, conveyed to the pursuer that the Flora Macdonald and the General Monk jewels were what are commonly called “antiques,” and that if the Queen Victoria miniature was not an antique, it was at least a contemporary portrait having a history. That is the Lord Ordinary's view who saw the witnesses and took the proof, and I am unable to say that he had not sufficient grounds for that conclusion. It is probably true that with respect to the Flora Macdonald jewel the Lord Ordinary's reasoning partly proceeded upon a misapprehension as to the source of the pursuer's knowledge that the portrait was one of Flora Macdonald. The parties were agreed that that was so. But it does not seem to me that that is a matter which at all affects the substance of his Lordship's judgment.

It is not perhaps necessary to say more. But I may add that I am personally disposed to think that the case might be decided upon a ground which does not involve a solution of the conflict of testimony between the pursuer and the defender, and which would apply even if there were no adequate reason for preferring the testimony of the one to that of the other.

I must say I incline to hold upon the proof, and indeed upon the defender's own evidence, (1) that the appearance of age and other appearances presented by these articles constituted by themselves misrepresentations; in short, that the case is really one of res ipsa loquitur; (2) that this being so, the defender was not entitled to leave, as he says he did, the articles to speak for themselves, but was bound to displace the inferences which the appearance of the articles was to his knowledge bound to suggest; and (3) that the defender not only failed to do this, but by the use of equivocal language and assumption of airs of mystery and otherwise, indorsed and helped to encourage the inferences which the appearance of the articles suggested. I refer in particular to such things as (1) the attachment of the £350 ticket to the Victoria miniature, as to which the defender can give no explanation; (2) the statement as to the same miniature that he knew nothing about it, and could give no history; (3) the similar statement as to the Albemarle jewel; and (4) the conversation of a similar import as to the ribbon required (as shewn in old pictures) to be used in wearing the Flora Macdonald necklace.

It appears to me that it is difficult to say that the defender has discharged the onus which in these circumstances rests upon him, and I am disposed to think that in this view alone the pursuer is entitled to judgment.

The Lord Justice-Clerk concurred.