Delivery of victual, by an ordinary buyer and seller thereof, found to infer the ordinary price, unless the defender would instruct an other cause of delivery than a sale or definite price.
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David Hume having obtained decreet before the Bailies of Kelso for certain victual sold and delivered by him to Jamieson, he suspends, on this reason, That the decreet is null for want of probation, there being nothing proved but the delivery of the victual, and nothing of bargain or price, though it was so expressly libelled; and delivery alone would not be relevant, for delivery might have been as a donation, or for payment and satisfaction of debts, and upon many other accounts. It was answered, That delivery of a considerable quantity of victual presumeth that it is in the ordinary way by sale, unless the receiver prove another cause; for merchants are never put to prove more but the taking off and delivery of ware, for which their apprentices are admitted, and which will burden the receiver to prove payment, though of times it be made at the delivery of the ware; and where the special price cannot be proved, it is presumed to be the ordinary price, and so is modified by the Judge. It was replied, That the probation in merchant ware is not sufficient by witnesses proving the delivery, without the concourse of a merchant count book, wherein all parties may have inspection, and see that the ware be marked for present payment, or if to a day, it be delete when paid; but in bargains of victual, there are no such adminicles.
The Lords found, That if the defender was an ordinary buyer of victual, the delivery was sufficient to infer the ordinary price, unless the receiver should instruct another cause; which they admitted him to prove, in corroboration of the decreet.
