Where Writ is not necessary. - Where a Bargain is agreed to be perfected in writing. - Locus pćnitentić after Writ is interposed. - Where the Right to be granted is disputable. - Verbal Bargain for a Lease
Wallace, Gardyne, and Co v. Patrick Miller, and Others
Date: 13 June 1766 Case No. No 72.
When it is a part of the agreement, that the bargain shall be reduced into writing, there is locus pćnitentiae till that be done.
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Messrs Gibson and Balfour, and Patrick Miller, were engaged with John Weir in a co-partnery for selling and bleaching linen, under the designation of John Weir and Co.
In May 1766, Wallace, Gardyne and Co. of Arbroath, sent a parcel of linens to be bleached by John Weir and Co.; and, upon the 7th of that month, made offer to sell them the cloth at certain prices, upon two months credit.
By this time, the co-partnery of John Weir and Co. was dissolved, which John Weir mentioned in his answer of 16th May; and, at the same time, offered to take the linens upon his own account, on condition that the credit should be enlarged to 4 months.
Wallace, Gardyne, and Co. agreed to the condition, by letter of the 17th, adding, “You may compute the amount, and send us your acceptance, payable in 4 months;” with a postscript in these words:
“Since writing, we have made out an invoice of the linens, amount L. 426:18:11; for which, if found without error, you may send us your acceptance.”
Upon the 23d of May, Messrs Miller and Gibson and Balfour protested and registered, certain bills due by John Weir. Upon the 24th, a meeting of his creditors was held; and that same day, Weir wrote to Wallace, Gardyne, and Co. explaining the situation of his affairs, and asking their directions as to the bleaching of the linens, which he now declined purchasing.
These linens were poinded by Messrs Miller and Gibson and Balfour, upon the 1st of June, as creditors to John Weir, and claimed by Wallace, Gardyne, and Co. as their property.
Pleaded for the defenders; The contract of sale is completed by mutual consent, and, in sales of moveables, writing is unnecessary. This consent was signified by the letter of 16th May on the one hand, and the letter of 17th May on the other. Nor is it of any consequence, that Weir had not transmitted an acceptance for the price; that cannot be considered as a circumstance essential to the bargain; the pursuers demanded no additional security, but had betaken themselves to the credit of Weir alone.
Answered; When it is agreed that a contract shall be completed by writing, there is locus pænitentiæ, till that writing be delivered. The contract, therefore, was never completed in this case, as the acceptance was never granted. But even allowing the contract to have been completed, and the property transferred, Weir was bound in justice to give up the bargain, when he knew himself to be utterly insolvent. Accordingly, he did give it up by his letter of 27th May; and the protesting and registering his bills the day before, did not make him a notour bankrupt, or invalidate that act, even supposing it to have been necessary for the security of the pursuers.
“The Lords found, That the sale of the cloth to Weir was never completed, and repelled the defence.”
Act. Dav. Græme.Alt. Wight.
Fol. Dic. v. 3. p. 396. Fac. Col. No 34. p. 256.
