Acts and Deeds are presumed to have been done according to what is common and customary.
Douglas v. Cowan and Russel
Date: 29 July 1665 Case No. No 297.
A bond obliging a person to pay the price of wine according to certain conditions, the ordinary price was found due, unless the debtor would prove that the conditions affected it.
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Peter Russel, by his ticket, acknowledged him to have received a certain quantity of wine, and obliged him to make payment thereof, according to the condition agreed upon, Douglas being assigned to the ticket, insists for the ordinary price of wine. It was alleged no process, for the ordinary price of wine, but only for the price agreed on, which behoved to be condescended on, and proved by the debtor's oath, being above L. 100. It was answered, That, seeing these conditions were not adjected, the ordinary price was to be understood, unless it were proved by the debtor, what they were, and that they differed from the common price.
The Lords found, That the debtor, by his ticket, behoved to condescend on the conditions, qui potuit legem apertius dicere, and not the pursuer, but they found witnesses might prove the condition.
Fol. Dic. v. 2 p. 161. Stæir, v. 1. p. 305.*** Gilmour reports this case:
Peter Russel and James Gordon gave a bond to Cowan for payment of the price of certain wines according to condition (these are the very words.) The bond is assigned to Stephen Douglas, who charges the debtors, and they suspend upon this reason, That the bond being relative to a condition agreed upon, he is obliged to condescend upon and prove the condition. It was answered, That unless the suspenders condescend upon, and prove the condition, they must be obliged to pay the ordinary price of wine as wine then gave.
The Lords found no necessity to the charger to condescend upon, and prove any condition, he nevertheless proving the sufficiency of the wine the time of the delivery, and the price which such wines gave the time of the bond or delivery.
