Effect of a resolutive condition. - Conditional provisions to Daughters. - Condition in a contract for Mariners' wages.
Sir Gilbert Elliot Lord Minto v. William Gordon, Merchant in Edinburgh
Date: 27 July 1705 Case No. No 50.
A party bound himself, to pay a hogshead of wine, upon the safe arrival of a particular ship. This wine was to be the douceur for a recommendation in order to procure a pass to retire effects from France. The pass was not procured, yet the wine was found due, without regard to the arrival of the ship.
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William Gordon merchant having granted to my Lord Minto, when clerk to the Privy Council, an obligement in the terms following:
“Upon the safe arrival of my ship, the Royal Ann, at Leith, for which the Lords of her Majesty's Privy Council have been graciously pleased to recommend me to her Majesty, for procuring a pass to retire my effects from France, I promise to deliver, to Sir Gilbert Elliot, an hogshead of the best wine aboard as payment of his dues for extracting the said act of recommendation.” The Lord Minto being informed that Mr Gordon had some wine arrived at Leith, pursued him before the Judge-Admiral for delivery of the piece of wine, or L. 12 Sterling as the price of it, and obtained decreet.
Mr Gordon offered a bill of suspension, upon these grounds, 1st, The performance of the obligement being conditional upon the recommendation's taking effect, and the arrival of the ship the Royal Ann at Leith, and the condition never existing, the obligement fell.
Answered for the charger; The condition of the obligement could not be taxative as to the Royal Ann; for the wine might have been shipped in the Royal Ann, and she perishing by the way, brought home in another bottom; or Gordon, who inclined at the date of the obligement to transport his effects in the Royal Ann, might have afterwards altered his resolution, or the name of that ship might have been changed, 2do, If Gordon had designed to oblige himself only upon the event of the success of the recommendation, he should have expressed it so; for, in dubiis, words are always explained contra proferentem.
