Dubious Clauses. - Revocation of a Tailzie. - Liberty to contract Debt. - Conjunctly and Severally. - Just and Lawful Debts. - Liferent and Fee. - Back-Bond. - Importing Property or only Servitude.
Robertson v. Melvill and Liddell
Date: 31 January 1749 Case No. No 42.
A letter from a seller to a buyer, promising to deliver goods free of all risk, found to import only, that the seller was to suffer the consequences, if lost before delivery, but not to be lible for damage if for damage if delivered.
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Robert Robertson, merchant in Eymouth, by his missive to John Melvill, tenant in Stonehouse, and James Liddell, tenant in Dalders, ‘accepted of their offer for his old oats he had on hand, which might he about 150 bolls; and promised by the first opportunity to ship them off for Carron-water, where they were to be delivered free of all charges and risk, upon their paying for each boll 10s. 8d.’ And he accordingly shipped off and insured them, and they arrived at the destined port, 91 bolls being damaged by a storm they had met with; whereupon the seller's correspondent applied to the Judge Ordinary for having them valued, in order to liquidate the damage against the insurers; and citing the purchasers as witnesses, they deponed they were only worth L. 5 Scots; whereas; had they come safe, they would have been worth L. 7: 10s.; but refused to take them at that price; and took them, as they said, to dispose of for the benefit of the seller.
Robertson pursued Melvill and Liddell for the price, who pleaded retention for the damages due to them, on account of the failure of the delivery; the seller having undertaken the risk.
The Lord Ordinary, 5th July 1748, ‘found the defenders liable for the price that they themselves had put upon the spoiled oats, in the question betwixt the pursuer and the insurers, since they could produce of sales; and found the seller liable for the difference between the L. 5 and the L. 7: 10s. in regard that if the victual had perished entirely, the seller would have been liable in the buyer's damages.’ And 22d, ‘Having considered the letter signed by the pursuer, whereby he was bound to deliver the victual free of all charges and risk, in pursuance whereof he insured the victual, whereof part was damaged adhered.’
Pleaded in a reclaiming bill, By the letter no more is imported, than that if the goods were lost or damnified before delivery, the seller was to suffer the loss thereof; but not that he was be liable in damages, if the loss happened through no fault of his; especially as it was not a sale of a genus, but a species, to wit, his victual on hand; and his subsequent insuring the cargo could not alter the terms of the bargain, which were made by his letter.
Answered, According to this interpretation, no greater prestation is undertaken by the express stipulation in the letter, than is incumbent on every seller by law; for though it is generally affirmed, § 3. Inst. de emptione venditione, that the risk is the buyer's; yet when the accident happens in the course of what was incumbent on the seller, in order to delivery, or by the nature of the thing sold, in that case the bargain is dissolved; as is explained by Cujacius, tractatu octavo ad Africanum, and proved from l. 13, 14, et 15. ff. de periculo et commodo; and therefore the seller having undertaken the risk, and not delivered sufficient victual, must be liable in damages.
The Lords found, That the seller was not liable in any damages.
Act. H. Home.Alt. Haldane.Clerk, Justice.
D. Falconer, v. 2: No 50. p. 49.
