Scottish Court of Session Decisions

Subject_1 FACTOR.

Hoy
v.
Kennedy and M'Lean, Merchants in Glasgow

Date: 6 December 1753
Case No. No. 11.

What diligence incumbent on factor?

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Hoy, factor in Holland, sued Kennedy and M'Lean, merchants in Glasow, for L.533, as the price of mader and tartar commissioned by them from him, and which he shipped for them in a ship to Leith; and produced bill of lading for two butts and one cask, and specifying the contents, with his invoice of the goods. They first obliged him to prove that these goods were packed in the butts and casks so shipped; and that being proved, their defence was, That he had not given them timeous notice of his obeying their commission, of his shipping the goods, or of the ship's name, or of the time of her sailing, so as they might insure; that the goods were shipped 12th August 1751, and the bill of lading then granted; that the ship sailed 25th August, and was cast away the 4th September; and the pursuer did not advise them of his shipping the goods till 14th September, which arrived at Glasgow only a few days before the news of the loss of the ship, so that it was not in their power to insure; and even that advice neither brought the bill of lading, nor invoice, nor ship's name; whereas by the custom of merchants, particularly of Glasgow, the factor should advise how soon he shipped the goods, or at farthest when the ship sails. Answered: In these short voyages, if the merchants intend to insure, they always send orders for that purpose to the factor; that the letter of advice and bill of lading are commonly sent with the ship, and if the ship perishes, must perish with her; and when it is sent by post, very often it does not arrive so soon as the ship. Lord Murkle repelled the defence; and we adhered and found expenses due; but the question is still kept open by a reclaiming bill and answers.*

See Executors of Ross, 13th January 1737, voce Annualrent.

See Lockhart against Heirs of Murdieston, 27th January 1736, voce Negotiorum Gestor.

See Notes.