Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION II.

Sale of Moveables.
Subject_3 SECT. I.

Sale, when completed. - Price not stipulated. - Where the Buyer's faith is followed.

John Graham and Co, Merchants in Glasgow,
v.
Robert Pollock and Thomas Caldwall, Merchants in Paisley

Date: 11 January 1763
Case No. No 35.

Sale sustained against the seller, altho' the buyer was not bound to stand to it.

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Robert Pollock and Thomas Caldwall sold 105 hogsheads of tobacco to John Graham and Co. upon the 3d of December 1755, at the rate of 2¼d. Sterling per pound weight; and agreed to furnish them with the shipping-book, (which contained an account of the quantities and qualities of each hogshead,) whereby they were to judge of the quality of the same, and determine whether or no they were to adhere to the bargain.

This shipping-book, however, they neglected to shew to the purchasers; and, upon the 20th of the same month, they thought proper to make a new sale of the tobacco to Messrs Pagan in Glasgow, at the rate of 21⅜d. per nound, upon receiving L. 300 in cash, and a promise to pay the remainder of the price in five weeks.

Upon the 8th January 1756, Graham and Co. required Pollock and Caldwall, under form of instrument, to furnish them with the shipping-book; and received for answer, that, though there had been no concluded bargain, they would shew the said shipping-book betwixt and Wednesday se'ennight, if they could command it; but not upon the supposition of any bargain having been made, as supposed in the protest.

Graham and Co. having thereafter insisted for implement of the bargain, Pollock and Caldwall wrote a letter to them upon the 4th of February 1756, offering to refer the affair to the purchasers themselves, and to wait upon them for that purpose, at any convenient time.

Upon the 29th of December 1757, Graham and Co. finding that Pollock and Caldwall were unwilling to meet with them in terms of their letter, required them under form of instrument to attend at the house of James Paterson, vintner in Glasgow, upon the 3d of January then next, betwixt the hours of twelve and two, to hear and see the matter determined; and they having failed to appear, another protest was taken against them upon the 9th of January, upon which Graham and Co. agreed to discharge their claim, upon receiving payment of 50 guineas.

To this last protest, Robert Pollock made answer, That he was willing to pay 20 guineas, but would go no farther; upon which Graham and Co. brought an action before the admiral-depute of Clyde, concluding for payment of a certain sum, as the amount of the damages sustained through not-delivery of the tobacco.

The admiral-depute having pronounced decreet in terms of the libel, the defenders brought the cause before the Court of Session by suspension; and a proof having been allowed, from which it appeared, that the greatest part of the tobacco might have been sold by Graham and Co. at a farthing per pound-weight of profit, the Lord Ordinary decerned against the suspenders for L. 88:8:7¾ Sterling.

Pollock and caldwall pleaded in a reclaiming bill, That in the contract empti venditi, there is no bargain where the sale or price is collata in arbitrium of either of the parties; and that, as in this case, the purchasers were not to be bound, unless, upon inspection of the shipping-book they should think proper to accept of the tobacco, so neither could the seller be bound to deliver.

Answered for Graham and Co.; The contract empti venditi may either be simple, and absolute, or Conditional, suspensive, or resolutive, according to the agreement of parties. In the present case, the bargain was compleat in all its parts, under this condition only, that if, upon inspection of the shipping-book, the quality of the tobacco should not be found to answer expectation, the pursuers should be at liberty to declare off; and that contracts of sale may be made under such condition, is evident from many texts of the Roman law, particularly from Inst. lib. 3. tit. 24. § 4. and L. 3. D. De contrah. empt.

‘The Lords adhered to the Lord Ordinary's interlocutor, and found expenses due.’

Act. Lockhart. Alt. Walter Stewart. Clerk, Pringle. Fol. Dic. v. 4. p. 250. Fac. Col. No 103. p. 242.