Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

James Corbet, Merchant in Glasgow,
v.
William Cochran of Kilmaronnock

Date: 25 July 1707

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Kilmaronnock and James Corbet, and other ten, being equal sharers in a ship called the Hopewell, and its cargo, to and from Guinea, Kilmaronnock granted bond the 29th of October, 1701, to James Corbet, in these terms:

“That where James Corbet has disponed to me his twelfth part, I oblige myself to pay to him therefore, the sum of three hundred pounds Sterling, at Candlemas next, with annual-rent from the term of payment; with this express provision, that the ship arrive safe in Scotland or England, and otherwise he should be free.”

And because James Corbet did at the same time insure to Kilmaronnock the said share bought by him, at ten per cent., he gave a separate obligement to Mr. Corbet of the same date, for thirty pound Sterling, as the premium of insurance. The ship and cargo came safe to Guinea, where negroes were bought and taken in; and sailed thence to America, where ship and all was sold by the super-cargo: the produce whereof being returned to London, Kilmaronnock received his own twelfth share. James Corbet pursued Kilmaronnock for the three hundred and thirty pounds Sterling contained in his bond; who alleged absolviture as to the three hundred pound, because the same was conditional, and conceived with an irritancy, which is incurred by the ship's never returning to Scotland or England.

Alleged for the pursuer,—The irritancy could not be understood incurred, because the ship and goods were sold in America by the super-cargo, for whose actions the pursuer was not answerable, after he had disponed his share to the defender. Besides, the price and produce of the ship and cargo returned to England, which was equivalent. And the defender having homologated the sale as to one twelfth part, he could not reprobate the same as to the share purchased from the pursuer. For had the price answered his expectation, he had uplifted that part also; and quern sequitur commodum, &c. 2. The pursuer was no otherwise liable for the return of the ship than as an insurer; and insurers are not liable for the deeds of super-cargos, but only for the accidents of hostility or piracy, or stress of weather, or fire, or the like.

Answered for the defender,—The plain words of his conditional obligement, whereby he secured himself, cannot be supplied by pretended equivalents. The loss by the under-valued sale in the West Indies, did not happen through any fault of the super-cargo, but through the insufficiency of the ship. The defender's receiving his own twelfth proportion of the price was most reasonable and warrantable, seeing he had no recourse for it in case of his refusal: for a creditor, to whom a debt is partly due proprio nomine, partly as assignee, having absolute warrandice, may take what he can get of his own proper debt, without being excluded from recourse upon his author's warrandice. Nor doth it follow, that because the defender would have had right to the product of the share bought, had the same been ever so profitable, that, therefore, he must be satisfied with it when disadvantageous. For, by his agreement he had right to the whole profit, whereas, the pursuer's right to the price was limited to the event of the ship and cargo's arrival to Scotland or England. 2. If there had been any insurance in this case, as there is none, it must have comprehended all imaginable events or damage arising by the insufficiency of the ship, or the infidelity of the masters, or arrestments, &c. which are usually comprehended in policies of insurance. Again, albeit the writ had carried the form of an insurance, and that were less comprehensive as it is, yet what hindered Kilmaronnock to add thereto (as he hath done for his security) a special provision beyond the common form? 3. As no action can be sustained on the first bond; the second must fall in consequence, as being pars contractus, and given in contemplation of the ship's returning, and cargo's being delivered at the respective ports, which hath failed.

Replied for the pursuer,—That he knew nothing of the ship's insufficiency, and he sold her talis qualis. Again, if through insufficiency she had perished in the voyage, the bond had not then indeed been purified: but insufficiency in a harbour, is capable of refitment.

The Lords found, That the ship and cargo being sold in America, and the price thereof returned, the condition of the bond is not purified: and, therefore, assoilyied from the three hundred pounds Sterling, but decerned for the thirty pounds.

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