Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. III.

Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.

George Gibson, Skipper in Borrowstounness, and Andrew Wilson, Writer his Assignee,
v.
Robert Leith, Writer in Edinburgh

Date: 2 January 1711
Case No. No 23.

A party accepted a bill for a sum, as the price of a part of a ship he had commissioned the drawer to buy for him, payable to the drawer or order, upon his delivering a vendition to the acceptor. The bill found due, although the ship was bought by the drawer in his own name, and he never offered the vendition till after the ship had been damaged; the constituent never having offered the money, or demanded the vendition.

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Robert Leith, writer in Edinburgh, and others, gave a commission to George Gibson to buy for them a ship in Holland, and accepted bills for the price of their respective shares; particularly Robert Leith accepted a bill of L. 50 Sterling, payable to George Gibson or order, at Martinmas 1709, as the price of a twelfth part of the ship, upon his delivering a vendition thereof to Mr Leith. Sometime after the ship was bought and brought home to Scotland, and had there suffered a disaster in breaking of her back. George Gibson offered a vendition of the twelfth part to Robert Leith, upon payment of the L. 50, his share of the price, and upon his refusal protested the bill, and charged him to pay. Robert Leith suspended upon this ground, That the vendition not being offered debito tempore, while res was integra, he is not obliged to accept of a damnified ship in place of a sound one for his money. And Gibson being dominus by buying the ship, and taking the right thereof in his own name, the periculum was his till he denuded by a vendition. For the commission gave not the suspender jus in re, but only jus ad rem, to claim a vendition by an ordinary action; notwithstanding whereof Gibson, having a complete right to the ship in his person, might have sold her effectually to another; and res perit suo domino.

Replied for the charger; Mr Gibson having bought the ship by the suspender's order, the latter was properly dominus; for mandatarius may take the right to be acquired either in his own, or the constituent's name. It was not reasonable for Mr Gibson to take the original right to the ship in the suspender's name, who had not paid the price; nor was he obliged to transmit the vendition, till he got payment. However, the same was in his name only as fiduciarius for the suspender; consequently, any damage the ship sustained must fall upon him.

The Lords repelled the reason of suspension, and found the letters orderly proceeded.

Fol. Dic. v. 2. p. 58. Forbes, p. 472.