Scottish Court of Session Decisions

Outram and Company, merchants in Glasgow, in the end of May 1832, transmitted to Livingston, their agent in Edinburgh, various boxes and cases of lemons. In the end of June, when only twenty-four of these remained on hand, Fraser, sole partner of A. M. Fraser and Company, went to Livingston's, and having been shown these twenty-four boxes, which were in Livingston's cellar or sunk story, and four of them having been opened to ascertain the state and quality of the fruit, he agreed to purchase them at 9s. 6d. per box. The boxes were accordingly conveyed to Fraser and Company's wareroom, and immediately broken up, and the lemons cut and squeezed. On the 4th July, Fraser and Company wrote to Outram and Company in these terms:—“We were surprised, on taking delivery of the lemons from Mr Livingston, to find that twelve cases were of the description of large or usual sized cases, and twelve small or Palermo boxes: we really never for a moment contemplated but we were buying the regular sized cases, and when we refer yon to the conversation that took place in Mr Livingston's counting-room, as to the packages of lemons from Messina, when your Mr Outram disclaimed knowledge but of cases and boxes; now, really the disparity of size betwixt the regular cases and those of smaller description is so great, that, were we to admit both as equal, we would be considerable losers; but, unfond as we are of disputation, we will with pleasure refer the matter to your agent, Mr Livingston, with the stipulation, that the lemons were bought as regular Messina eases. Be so good as instruct Mr Livingston as to this in course.”

To this Outram and Company replied next day:—“As for our lemon transaction, we certainly considered it closed, on the fair principle of your having seen the goods before purchase, which, in our opinion, should set aside any reflections: but to satisfy you that we never had any intention of taking advantage, we have to-night written Mr Livingston to abate what he may consider fair and reasonable under the circumstances, which we expect will be trifling; and if you are not pleased with this, he can keep the lemons and sell them for us; that is, provided they are not already delivered, of which we are quite ignorant, not having heard from him since the writer loft Edinburgh.”

They also at the same time wrote Livingston in these terms:—“We have a letter from Fraser to-day, expressing dissatisfaction with the difference of size in the lemon cases, and wishing us to instruct you to make an abatement for the smaller ones. We think, that as he saw the lemons before he bought them, his reflections arc too late; but rather than have any altercation, you may abate what you think reasonable under the circumstances. We shall not forward you any lemons until we hear whether Fraser takes the smaller cases at your valuation.”

Fraser made no application to Livingston on the subject, and upon the 13th July, the latter wrote Outram and Company that he had called twice on Fraser, but had not seen him. Some communication thereafter took place between Fraser and Livingston on the subject, which was not intimated to Outram and Company, who pressed Fraser and Company for a settlement without getting any answer, till, on their employing a law-agent to make a demand for payment, and threatening legal proceedings, Fraser and Company wrote them, of date August 13, in these terms:—“We have received a letter from Bisset and Morrison, writers, of this city, demanding payment of £11, 8s. for lemons due you; also, 12s. 9d. for law expenses, for their making the demand. We were really much surprised at this communication, as had the contract been properly implemented on your part, this transaction might have been settled long ere now. On receipt of your accounts, we immediately waited on your agent, Mr Livingston, to fix the deduction that was to be made, but learnt he was in Stirlingshire. In the mean time, our A. M. Fraser had occasion to be in Glasgow for a few hours, but deemed it unnecessary to call for you, as the matter having been referred to Mr Livingston, we could not then come to a settlement. On his return, we arranged that a deduction of 3s. 6d. per box was to be allowed on the twelve delivered small in place of large cases; and with this understanding we agreed to settle the amount first time our A. M. Fraser was in Glasgow. Various causes have prevented him being ere now; and we are really, under all circumstances, surprised you should communicate with us through the medium of an attorney. But we are resolved not to pay more than the agreed on sum, i. e. £9, 6s., and not one farthing of your lawyer charges. For the said amount of £9, 6s. you may value on us at one day's sight, which shall meet due honour.”

Outram and Company, in reply, stated—“We cannot think that Mr Livingston could possibly agree to the deduction you mention. You must be mistaken;” and, in answer to an application by them on that subject, Livingston replied—“I am favoured with yours of 14th, and certainly did not agree to give Fraser and Company a deduction of 3s. 6d. on twelve cases. I only said I would mention such to you, and might have gone as far as to say I would recommend you to do so rather than have a dispute.”

Outram and Company thereupon raised an action against Fraser and Company before the Sheriff of Edinburgh, for payment of the full price, at 9s. 6d. per box. A proof was allowed, which established the circumstances above detailed; and, inter alia, Livingston deponed, “that the deponent has some recollection of Mr Fraser calling and speaking about a deduction on the price of the lemons, on account of the difference of size of the cases; and he recollects of writing to Mr Outram, recommending that a deduction should be given. Depones, that 3s. 6d. was claimed by Mr Fraser as a deduction on each of the small cases; but whether this sum was settled between the deponent and Mr Fraser at the time, he cannot recollect, but the sum would be mentioned previous to the deponent writing Mr Outram.”

On advising this proof, the Sheriff pronounced this interlocutor:—“Edinburgh, 19th February, 1834,—The Sheriff-substitute, having considered the observations for the pursuers, No. 46, answers thereto, No. 47, proof adduced, and whole process,—Finds it instructed that the defender, A. M. Fraser, saw the cases of lemons in question before his purchase, though he only got four or two of them opened, and that he purchased them without regard to the difference of size at 9s. 6d. each overhead; Finds, that the same cases were delivered to the defender, received and cut up by him without any communication to the pursuers, or to any other person authorized by them; and, therefore, that the defenders precluded themselves from demanding, and that the pursuers were entitled to refuse, a deduction from the price; Finds, that although the pursuers afterwards authorized Mr Livingston to give a trifling deduction, if he saw it reasonable, to avoid a dispute, it is not established that Mr Livingston actually agreed to the deduction claimed by the defenders, or settled any other, but only that ho would mention it to the pursuers, or, at the utmost, recommend it to their approval to avoid a dispute: Finds, that, in either case, without an actual and final settlement by Mr Livingston, the pursuers were not bound to accede to what he might mention, or even recommend for such an object, he having never seen the cases himself, and that, by the pursuers' rejection of it, the matter reverted to the right of parties at common law. Therefore, repels the defences, ordains the defenders to make payment to the pursuers of the sums concluded for, with interest as libelled: Finds the defender liable in expenses, allows an account thereof to be given in for taxation, and decerns.”

The decree having been extracted, and a charge given Fraser and Company thereon, they presented a bill of suspension, on the ground that Outram and Company had agreed to a deduction to be fixed by Livingston, and that he had admitted a deduction of 3s. 6d. on the small cases. Lord Balgray, Ordinary, refused the bill, “in respect it was the duty of the complainer, whenever he objected to the size of the boxes of lemons sold to him, to have ascertained the fact in a proper, judicial, and mercantile manner, and not to have taken delivery, or made use of the article at all.”

Fraser and Company then presented a second bill, which was ordered to be answered by Lord Mackenzie, his Lordship issuing, at the same time, the subjoined note. ^*

The bill, with answers, having come to be advised by Lord Cringletie, his Lordship refused it, “for the reasons assigned by the Sheriff, in his interlocutor complained of, and those given by Lord Balgray, in his interlocutor refusing the former bill.”

His Lordship added the note below. ^†