A bargain of victual sustained to be proved by witnesses against the seller's representative, though nothing had been done in consequence of the bargain.
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Gilbert Hamilton pursues Katharine Richard, relict of Adam Gairdner baxter in Maybole, before the bailie of Carrick, on this ground, that your husband, within these twelve months, sold me ten bolls of bear, for which I was to pay him L. 9 the boll; and he failing to deliver the victual, I was damnified in L. 7 per boll, I could have made by retailing it in malt: And her husband being since dead, he offered to prove the bargain completed betwixt them by witnesses; which the judge having sustained, she advocates the cause, and insists on this ground of iniquity, that nothing ever followed on this pretended bargain, neither victual delivered, nor any part of the price paid; and one of the parties being medio tempore deceased, it ought not to be proved now otherwise than scripto; because the common discourse of country-folk when they meet is ordinarily in relation to bargains, without design to engage themselves; and witnesses may easily mistake such rambling discourses; and therefore the Roman law did not sustain such loose communings as nuda pacta, without the formality of a stipulation likewise intervened; and with us, promises and naked emission of words, are only probable scripto vel juramento; because the witnesses altering the very position of words and expressions may cause a great variation in the sense. Answered, The bailie committed no iniquity; for though the victual was not delivered, that was your husband's fault, and there was rei interventus by his accepting of arles; and all bargains anent moveables, by act of Parliament 1669, prescribe quoad modum probandi in five years if not pursued; ergo, they are probable by witnesses, if insisted for time; and there is no hazard of mistaking here, for these were not verba jactantia, but expressed animo contrahendi et se obligandi; and Stair, lib. 4. tit. 43. Of Probation by Witnesses, is clear that all such bargains are so probable. The Lords found this of the nature of a bargain, and probable prout de jare; but in regard he libelled L. 7 of profit for each boll he wanted, the Lords only considered this as his lucrum cessans, and too exorbitant; and therefore remitted it to the bailie, with this direction, that he should not exceed L. 4 per boll at most.
Fol. Dic. v. 2. p. 230. Fountainhall, v. 1. p. 812.
