Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION II.
The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. II.
Extraordinary Privileges of Bills.
Thomas Boyes, Writer to the Signet, v. William Schaw, Brother to Balgarren
Date: 5 June 1707 Case No. No 89.
Found as above.
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Forbes of Watertoun as principal, and Thomas Boyes as cautioner, being obliged, by contract, to deliver to William Schaw, or order, at Airth, upon the Forth, the number of 340 bolls meal, at a certain day, for the price mentioned in the contract, whereof L. 600 (Scots) was to be paid within some few days after the date thereof, and before delivery of the victual, and the rest at delivery: William Schaw accepted of a bill for the L. 600, of the same date with the contract, drawn by Watertoun, payable to Thomas Boyes, in part of payment of the price of the victual; and thereafter advanced L. 20 Sterling thereof. Thomas Boyes charged William Schaw upon his accepted bill; who suspended, upon this ground, That the bill had been accepted by him as a part of the price of a bargain of meal, agreed to be delivered to him by Forbes of Watertoun, for whose performance the charger was cautioner in the contract; and the meal not being delivered, the suspender cannot be liable for the bill.
Answered for the charger: That the sum in the bill was to be allowed in part of payment of the meal, is no argument for the suspender to retain the money, which was payable before delivery of the meal, and so had no dependence thereon: And the mentioning that it was to be allowed as a part of the price of the meal, concerned not the payment to the charger, but only the clearance betwixt the drawer and acceptor.
The Lords found, That Mr Boyes, being cautioner in the contract, the objection, that the meal was not delivered, being competent against Watertoun, was also competent against him.
Thereafter, July 26. 1707, Mr Boyes alleged, That the contract, upon Watertoun's part, was fulfilled; in so far as William M'Alpin, by the suspender's order, had received the meal, as appeared from his receipt; and the charger offered to prove, by the suspender's oath, that he gave orders to M'Alpin for that effect.
Answered for the suspender: That he offered to prove, by Watertoun's oath, that, after M'Alpin received the victual, Watertoun intromitted with the same, at least uplifted a good part of the price thereof out of M'Alpin's hand; whereby it appeared that he did not stand to the contract, or trust to the security given him by Mr Schaw.
Replied, It being cleared that M'Alpin, as trustee from Schaw, did once receive the meal conform to the contract, there remained no more to be done upon Waterton, or his cautioner's part, relative to that bargain: And if Watertoun afterwards intromitted therewith unwarrantably, Mr Boyes is not concerned.
Duplied, Contracts of sale are bonæ fidei, comprehending not only express obligements, but even what tacitely ex bono & æquo alterum alteri preæstare oportet; and the contract can never be thought fulfilled before a real and effectual delivery is made to the buyer.
The Lords found it relevant, That M'Alpin received the bargain of meal by the suspender's order, the order being proved by the suspender's oath. And repelled the allegeance, that, posterior to the delivery of the meal, Watertoun intromitted with a part thereof, or a part of the price; reserving to Mr Schaw to insist against Watertoun as accords.
