Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 6 March 1685
Calder of Muirton v. The Laird of Brodie
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Calder of Muirton having charged the Laird of Brodie on a contract, for delivery of eight last of salmon yearly, towards paying him £10,000 Scots, which he had lent Cromarty, for whom Brodie had become cautioner; the price of each barrel being £l6, and the price of each undelivered barrel liquidated to 40 merks; with annualrent from Martinmas, which was the time of the delivery:—the reason of suspension was, That this was truly mutuum, being the loan of £10,000 Scots; and therefore, his just interest resolves into principal and annualrent, and he cannot claim farther.
Answered,—This is truly a mercatorian bargain; and so he must not only have his damnum emergens, but his lucrum cessans, and he had suffered in both; for, by their failing to deliver the salmon, he, being engaged to others on the faith of this contract, was forced to furnish himself at a dear rate.
The Lords, on Boyne's report, modified, for every undelivered barrel, £4 Scots more than the L.16 which was the price liquidated for delivered barrels, and likewise decerned for the annualrents of these undelivered barrels.
But, on the 19th of March, on the King's Advocate's application, the Lords altered their former interlocutor, and found the contract is principaliter an obligation for principal sum and annualrent; and that the salmon is only adjected as the modus solutionis, and for his better security; and therefore decern only for the principal sum and annualrents, and assoilyied from the failyies of the undelivered fish, because the annualrent succeeds here as damage and interest, loco facti imprestabilis.
