[1716] Mor 10088
Subject_1 PERICULUM.
Subject_2 SECT. III. Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.
Date: John Young
v.
Colin Finlay
28 July 1716
Case No.No 24.
A shipmaster who had exceeded his commission, by buying goods with the proceeds of a cargo, which goods were lost, was found liable for the price of the first cargo.
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John Young having shipped on board the Phænix of Glasgow, Colin Finlay master, a parcel of salmon, whereof Colin grants receipt, and obliges them to deliver the goods to John Young's at Bilboa; thereafter Young gives him commission to dispose of them when he should come there, and takes his obligement, subjoined to the receipt, wherein he binds him to be comptable for the goods, sea-hazard excepted, and he receiving factor-fee: The skipper accordingly sells the salmon at Bilboa, but sent no advice to Mr Young, either at what rate they were sold, or how he should be paid of the proceeds; and having thereafter bought wines with the money, the ship coming from Bilboa, was taken up to England, and there condemned; so that these wines, bought with Mr Young's money, on his account, run the same fate with the rest of the cargo.
The question turning upon this, Whether, in the case above mentioned, the skipper was peremptorily tied down to return money for the salmon, or if, by his commission, he had the liberty, at discretion, to purchase for them such goods as were usually imported from that country, and to be comptable for these?
It was alleged for the defender Finlay; That the commission being general, seemed to lay no other tie upon him than what was incumbent to be done by factors in the like case; and, in that view, Young the pursuer ought to prove, that that was to center the salmon precisely into money; and then he behoved also to prove that the defender was obliged to remit the money by bills, or to carry it home in specie; if the last, then the ship having been taken without the defender's fault, and so it being indifferent what was the return he made, he was free. And, as to the first, the defender's commission was general. That it is impossible he could be made liable to do otherways than he did for himself and the rest of his employers; or, if the pursuer had inclined that his salmon should be managed in any singular manner from the rest of the cargo outward
bound, he should have taken the defender otherways obliged than he had done. Answered for Young the pursuer; That the obligement is clear, “that the defender was to dispose on the pursuer's goods:” Now, this can noways be meant of bartering the same with other commodities; because, the constant and current practice among merchants, when any such thing is intended, is to order the neat proceeds of the outwards cargo to be reinvested, and to mention the merchandise in which the same is to be so reinvested; nothing of which was done in the present case; and therefore the above clause of the obligement must be interpreted to be disposing of the merchandise by way of sale, for ready money, which the defender might have remitted or brought home: And, tho’ he did indeed get ready money for the goods; yet, he having bestowed that on other goods, the objection still recurs, viz. that this was ultra vires mandati; besides, that in this case the defender ought certainly to have sent the pursuer a bill of loading, or letters of advice, that such goods were shipped in return of the salmon upon the pursuer's own account: For, supposing the wines had come safely home, yet the pursuer not having any bill of loading or advice as above, he could have had no pretence to demand the wine, neither could he know what quantity, nor what number he was to call for; and the defender's obligement, could have afforded him no action, not having ordered wines, or any other commodities to be brought in return from Bilboa: So that, if the defender had offered the price he received at the port, he would have justly contended that he had satisfied the terms of his commission; and therefore, now that the wines are lost, he cannot be heard to turn over the loss upon the pursuer.
‘The Lords found, That the skipper having sold the salmon, and bought the wines for the price, without giving advice thereof to the pursuer, is liable for the prices of the salmon.’
Act. Grahame. Alt. M'Kenzie. Clerk, Roberton.
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