Lesio ultra duplum. - Sale by sample, - weight, - measure, &c. - Actio redhibitoria et quanti minoris.
Shewell v. Mowbray
Date: 7 February 1678 Case No. No 57a.
Click here to view a pdf copy of this documet : PDF Copy
A charge upon a ticket is suspended, because it was granted for the price of some silk, and offered to prove by witnesses it was neither of the colour he commissioned, nor yet full weight. The Lords refused to divide the probation, since he had both granted bond, and intromitted with the silk, but found it only probable by the London merchant's oath, because of the trust among merchants, albeit the bond was given before receipt of the silk.
Fol. Dic. v. 2. p. 357. Fountainhall, MS.*** Stair reports this case:
Mowbray silk-weaver in Edinburgh having desired Shewell merchant at London, to send him parcels of silk, he sent the same in a box, delivered by his factor un-opened, whereupon Mowbray gave bond of borrowed money; and being thereupon charged, suspends on this reason, that the true cause was silk, which he took upon trust, without opening the box, but when he opened the same, he found it not of the colour or quantity for which he gave bond, which he offered to prove by witnesses who saw it opened.
The Lords refused to admit witnesses, seeing he had received the box, and had not opened the same in presence of the factor, but found it only probable by Shewell's oath, that the quantities and colour were not conform to the mandate or the price was exorbitant, and that cum onere expensarum.
