In a contract of sale for ready money, payment, by means of an indorsation to a bill of exchange, a few days after the bargain, and within sixty days of bankruptcy, cannot be reduced by the other creditors.
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Henry Thomson, corn-merchant in Newburgh, purchased 200 bolls of wheat from James Kinnear, tenant in Lord'scairnie, and 85 bolls from John Balfour, tenant in Ferneybarns. The wheat was delivered on 5th and 6th June 1804, on the last of which the money was to be paid. This, however, was not done. At last, on 11th June, Balfour, who acted also for Kinnear, called again for the money, but was obliged to accept of an indorsed bill for £290 in part payment, for which he granted the following letter:
“Mr. Henry Thomson,
Newburgh, 11th June, 1804.
I acknowledge to have received from you, George Maclagan's and Company, Kirkaldy, bill of
£290
0
0
Off discount,
3
10
0
£286
10
0
For which I promise to be accountable, in the following manner:
For myself,
£86
10
0
For Mr. James Kinnear, Lord'scairnie,
200
0
0
£286
10
0
And I am, Sir, yours, &c.
John Balfour.”
On the 14th of June, Henry Thomson stopped payment, and his estate was sequestrated on the 22d.
The trustee brought a reduction of the preference obtained by Balfour and Kinnear, concluding for setting aside the right, and for repetition of the money.
The Lord Ordinary (21st December 1805) pronounced this interlocutor:
“Having considered this condescendence, with the answers thereto, and whole process, and observing that the pursuer does not undertake to prove that the sale of the wheat was otherwise conditioned than as a ready-money transaction, in the common acceptation among merchants of that term, or that payment was otherwise made than usually takes place in such transactions, which are esteemed sales for ready money, though actual delivery of the cash, or a negotiable note, be a short time subsequent to the delivery of the goods sold, or that payment was not bonâ fide made and received; sustains the defences, assoilzies the defenders, and decerns, but finds no expenses due.”
To this judgment the Court adhered, by refusing petition without answers.
Lord Ordinary, Meadowbank.For Petitioner, D. Douglas.Agents, R. and N. Hill, W. S.Clerk, Home.
Fac. Coll. No. 240. p. 540.
