Scottish Court of Session Decisions

Subject_1 FRAUD.

Dunlop
v.
Cruickshank,&c

Date: 16 January 1752
Case No. No. 25.

Effect of dolus dans causam contractui.

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Forbes and Cruichshanks, merchants in Aberdeen, in Company, missioned some lawns from Dunlop in Holland, and the letters were sometimes signed by both, sometimes only by one of them; and in a post or two after their last letter, Forbes alone commissioned some spirits, but so as to give Dunlop reason to believe it also in Company, writing in the plural number “we,” and directing the marks to F. C., the initial letters of their two names, and wrote him that next day he was to take journey for Holland, which he did; and Dunlop shipped the spirits as directed, and sent the invoice and letter of advice to Cruickshanks and Forbes in Company. Forbes was then broke, and diligences against him begun; and he wrote to his friend Jopp at Aberdeen to receive and dispose of the spirits because he could not be home in time, which letter, and Dunlop's to Cruickshanks, came by the same post. Cruickshanks that very night gave the invoice to Jopp, and wrote to Dunlop that he had no concern in the spirits; and in a day or two the ship arrived on the coast with the spirits, and Jopp sold them partly to Dunlop himself and partly to sundry others. Cruickshanks bought of them about L.70 worth, deliverable at the mast, and which he sold with another parcel of his own on board the same ship, and got from Jopp a discharge of the price, and Jopp was creditor to Forbes in more than the value of the whole spirits. Forbes returned from Holland, and after a very short stay went to the West Indies, and his creditors arrested in the hands of Jopp, Cruickshanks, and sundry others, and pursued forthcoming, concluding also against Cruickshanks as partner. After a proof brought, at advising some of the Lords thought there was sufficient evidence against Cruickshanks of the copartnery, and there seemed indeed cause to suspect it, but the Court found the evidence not sufficient. The next point was Forbes's fraud, for that he was broke before giving the commission, and Ishould have thought the reason of reduction good had the spirits been extant, but as they were sold, my difficulty was the same as in the case of Christie, No. 20. supra. But I thought that here there never was a sale completed. Dunlop understood the commission to be from Cruickshanks and Company, and accordingly sent the goods with invoice and bill of lading to them two, and Cruickshanks refused to accept of them, and therefore the property never was transferred; and so the Court found, and found Cruickshanks and Jopp and other intromitters liable to Dunlop for the price. (See Dict. No. 14. p. 4879.)