Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

Thomas Leitchfield
v.
Charles Pott

1662. July.

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Thomas Leitchfield, Englishman, pursues Charles Pott, in Kelso, for £47 sterling, as the price of two hogsheads of canary and two hogsheads of French wine, sent by the said Thomas to him, conform to his two missive letters to the pursuer for that effect. It was alleged, Absolvitor, Because the first missive letter directed the pursuer to send the best canary and best French wine; whereas it was offered to be proven, That the canary was most insufficient, spoiled malaga; and the French wine was old spoiled claret; and that the defender did write to the pursuer of the insufficiency thereof, and desired them to be taken back by him. It was answered, That the defender should have, immediately after his receipt thereof, sent and intimated the same to the pursuer, and required him, by way of instrument, to receive the same under protestation; whereas, on the contrary, he did, notwithstanding of his letter sent to the pursuer, sell and dispose thereupon; and, after the receipt of the wine, he, by his second letter, desired the pursuer to send him more. It was replied, There was no necessity of a notary and instrument: seeing, by the first letter, he desired the pursuer to send him special good wine; and by the other letter he told him of the insufficiency of the first: and though, by a second letter, he did write for more, that letter was sent within a few days after the first wine came; at which time, being troubled with the carriage, it was not ready to pierce; nor could it be known whether it had been good or bad wine, till after many months that the pursuer had refused to take away the wine. Neither did the defender dispose upon the wines till many months after the pursuer had refused to take away the wine; and then he sold it at a small rate and avail, lest it should altogether perish. The Lords, before answer, ordained the pursuer to adduce witnesses for proving the sufficiency of the wines when they were sent from Leith, and that he sold of that same wine to others as sufficient, and for what price; and ordained the defender to adduce witnesses for proving the condition of the wine when it came from Leith to Kelso, and when it was settled and sold.

No. 53, Page 37.