Click here to view a pdf copy of this documet : PDF Copy
Melvil and Liddel farmers, bought a quantity of barley and oats from Robertson of Eyemouth in the year 1745, at 12 s. the barley, and the oats at 10s. 8d. the boll; and by the bargain, the seller was to deliver the victual at the Salt Pow in Carron water, free of all charges and risk. Accordingly the ship arrived at the port on the 27th of March; but having met with a storm, 91 bolls of the oats were somewhat damnified, which therefore the buyers were not obliged to take, as the seller run the sea-risk; nevertheless, they took them off the hand of John Kincaid, to whose care the seller had directed them, not at any settled price, but upon an obligation to hold compt to the seller for the same.
A difference arising between Robertson and the buyers about these 91 bolls of oats, he brought a process against them for L. 5 Scots for each boll thereof, which they did not controvert to be the value. But their defence was, that out of the said L. 5, they ought to have deduction of the damage they had sustained by the oats not coming safe, in which case they would have gained the the difference between 10s. 8 d. the stipulated price, and L. 7: 10s. Scots, at which they could have sold them. And so the Ordinary “found,” in respect as his interlocutor bore, “That if the whole victual had perished, the seller would have been liable in the buyer's damages.”
But upon advising petition and answers, the Lords “Found no damages due to the buyers.”
The notion the Ordinary had conceived of the matter was, That the seller was bound effectually to deliver the victual to the buyers free of damage, so as to make good to the buyers whatever loss they might sustain by the not delivery. But the Lords had a different notion of it; they considered, that as by the Roman law, so by ours, periculum rei venditæ est emptoris, and who therefore, if the thing sold perish casu, must nevertheless be liable in the price; as a few years ago was found in the case of spirits robbed from the custom-house of Kirkcaldy, the night after they had been sold and bill given for the price, which nevertheless the buyer was found obliged to pay; (No 5.) and they considered the seller's undertaking the risk in this case to have meant no more than that the buyers should be free of the risk, and not be liable, unless the cargo should arrive safe.
Fol. Dic. v. 4. p. 57. Kilkerran, (Periculum.) No 5. p. 378.
*** D. Falconer's report of this case is No 42. p. 2289. voce Clause.
