Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Gardner and Riddell v. Williamson
Date: 10 June 1709
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Lord Cullen, as Probationer, reported Gardner and Riddell against Williamson. By a contract in the 1702, Riddell sells to Williamson, Brown, and Spiers, sixty-eight dozen of gloves, at ten shillings sterling per dozen, and which are to be sent to Dantzic with the first ship that shall offer; and they are obliged, conjunctly and severally, to pay the price. The goods never being sent, Williamson pursues Riddell for his damage, et lucrum cessans, through his not implementing the bargain.
Alleged,—No damage; for per me non stetit that the contract was not fulfilled, seeing you did not provide nor seek out the ship to transport them; neither did you tempestive require performance, but only, after four or five years' cessation, required it by way of instrument, 2do, It was never a complete perfected bargain; in so far as there were three debtors in the price, and only two of them subscribed, and I entered into the transaction on the faith of all the three; and he who refused was the person I trusted to more than the other two. And President Spottiswood, in his Practiques, tit. Contracts, p. 72, in the Lady Ednam's case, found such a contract defective, null, and not obligatory, because not subscribed by some of the parties.
Answered to the first,—The looking out for a ship was an obligement incumbent on you; and though there was no time prefixed for doing it, yet prœsenti die must be the rule as soon as occasion offered, seeing dies interpellat pro nomine. To the second objection,—The two subscribers offer to implement, not only their own part of the bargain, but likewise the third non-subscriber's part; so nihil tibi decrit.
The Lords considered this was but a catch, after the five years, to crave implement; and that he was to deliver the gloves equally among them, pro rata, and not in solidum to any one; therefore they found the contract not obligatory, and assoilyied from damages. Some asked, What if they should charge him to implement the bargain yet, quid juris? But, this being decided as the process was laid, there was no need of determining who was bound to furnish and seek out the ship.
