Sale, when completed. - Price not stipulated. - Where the Buyer's faith is followed.
Daniel Hamilton, Clerk of the High Court of Admiralty, v. Alexander Piper of Newgrange
Date: 29 June 1711 Case No. No 33.
Ship goods having been inventoried, and some months after rouped, by warrant of the Admiral, and the highest offerer having given bond for the price, the goods were presumed to have been in the same condition at the roup as at the inventorying, unless the contrary was proved, and to have been in the same condition when delivered to the buyer, as they were in when rouped.
Click here to view a pdf copy of this documet : PDF Copy
The goods in the ship called the Happy Amady, that was wrecked near Inverness, having by warrant of the Admiral, been inventoried March 26th, and rouped and sold the first of September 1702, to William Simpson, merchant in Aberdeen, the highest offerer, who conveyed his right to Alexander Piper, who granted bond for the price to the Admiral-Clerk, and his successors in office; and Daniel Hamilton, present Clerk, having charged Alexander Piper for payment, he suspended upon this ground, that the goods were sold by inventory, and betwixt the inventorying and the rouping of them, they enlaked and were embezzled, as also all that were rouped were not delivered, or were not delivered in so good condition as they were in at the roup.
The Lords found, That the goods are presumed to have been in the same condition, the time of the roup, in which they were the time of the inventory, unless the suspender prove intervening embezzlements; and found, That the goods are presumed to have been in the same condition the time of delivery, in which they were at the time of the roup: Albeit it was alleged for the suspender, That the onus probandi, that the whole goods contained in the act of sale were delivered, lies upon the seller, because in all mutual contracts, such as sale, the party demanding performance should first instruct that he hath fulfilled his part: In respect it was replied for the charger, That seeing the goods were exposed some days before the roup, to be seen to all who had a mind to offer for them, and the suspender who offered did, after the roup, give a simple bond for the price without protestation or complaint, it is presumed, that he visited the goods, and found them to be such as the inventory mentioned; and no alteration in them betwixt the roup and delivery is to be presumed.
