Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Dick and Christie v. John Sawyers
Date: 27 January 1697
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Philiphaugh reported Dick and Christie, in Stirling, against John Sawyers, factor for the creditors of Bruce of Newton, upon a contract, by which he had sold to them 500 bolls of bear, crop 1695. His reason of suspension was,—Before I could deliver and fulfil my bargain, I was turned out of my factory by the Lords, on a bill given in by some of the creditors; and so, my title and right to uplift failing, I cannot be liable, it being factum imprœstabile to me.
Answered, 1mo.—You have obliged yourself in absolute warrandice to us, are tied to pay two merks for each undelivered boll, which will not compense the damage we sustain by the want of the victual. 2do. You should have suspended that act of the Lords, and represented that res was not integra, because you had sold the victual; and so you was in culpa et mora, et loco facti imprœstabilis venit damnum et interesse.
The Lords looked on it as a fraudulent contrivance amongst them, the victual being sold to others for a greater price than the chargers were to have paid: Therefore they decerned against him; though, in the general, such casual events and obstructions, disabling one from performing his bargain, should liberate him from the same. Vid. l. 33, De locati. But, in all such contracts, they should only give warrandice from their own facts and deeds.
