Scottish Court of Session Decisions

The Saint Anne's Bleaching Company raised an action before the Sheriff of Fife, against Andrew Pride, vintner and manufacturer in Ceres, setting forth that he had sent yarns to them to be boiled and cleaned, and that he had, by a mistake on their part, received back 250 spindles of yarn more than he had sent. The action concluded for restitution of these, or for payment of their value, £28, 18s. Pride denied having received any extra quantity. A proof was allowed, from which it appeared that Pride and another person named M'Intyre, who were customers, carrying on a course of dealing with the pursuers, had each a parcel of yarns, at the same time, in the pursuers’ hands to be boiled and cleaned, which yarns were made by the same maker, and were of the same quality and appearance. At the time that the pursuers alleged they had sent an excess of 250 spindles to Pride, they had made a short delivery of 250 spindles, of precisely the same sort of yarns, to M'Intyre The pursuers’ manager kept a book, in which were entered, regularly and progressively, the yarns received on account of each customer, and the yarns delivered to him, as also an operation-book, containing a statement of the yarns of each customer as they went through the various stages of boiling and cleaning. He also kept a third book made up from these two. These books exhibited, when summed up, an over delivery of 250 spindles to Pride, and a short delivery of 250 spindles to M'Intyre. On applying to the maker of the yarns, who had sent those of Pride directly to the pursuers’ work on account of Pride, it appeared that the books of the pursuers’ manager gave Pride credit for the whole yarns belonging to him which had been sent to their works. The pursuers’ manager being purged of all interest in the issue of the cause, confirmed, on oath, the accuracy of the books, and supported by his testimony the allegation of the over delivery to Pride. The general accuracy of the books was also confirmed by other testimony. Pride kept no books exhibiting either the quantities of yarns sent on his account to the pursuers, or those received from them. He made vague and unsatisfactory statements as to the transaction, and his manager refused inspection of some of his business books. In the, circumstances, the Sheriff found the libel sufficiently established, and decerned, as concluded for, with expenses. Pride brought an advocation, and the Lord Ordinary pronounced this interlocutor:—“Finds, that during the period from September, 1832, to October, 1833, the pursuers received at their bleaching works various parcels of yarns from the manufacturers, on account of the defender and advocator, to be bleached, or otherwise prepared, and delivered to the said defender: Finds, that during the above-mentioned period various deliveries of yarn were made to the defender, generally in quantities of 250 spindles at a time: Finds, that at the same time the pursuers were employed in the same way by other persons, and particularly by a person of the name of M'Intyre: Finds, that in the delivery of the yarn which they had received on account of M'Intyre, there was, during summer 1833, a deficiency of 250 spindles, which the pursuers were obliged to make good; and finds it proved, that during the period above mentioned, there was, in consequence of some mistake of the person employed at the bleaching-works, delivered to the defender a quantity of 250 spindles more than had been received on his account from the manufacturer: Finds that the defender has refused to restore the said 250 spindles, and is therefore liable for the price; and accordingly repels the reasons of advocation, and remits the cause simpliciter to the Sheriff of Fifeshire, and decerns: and Finds the said pursuers, the respondents in the advocation, entitled to their expenses.” ^*

Pride reclaimed.

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* “ Note.—The defence of the advocator was originally stated in very vague and general terms, viz., that he had not received more yarns than his own, without any explanation whether he denied the averment of the pursuers, of the quantity of the yarn dent to the bleaching-works on his account, or their averment of the quantity delivered to him. On the first point there can now be no doubt; and accordingly the defender is obliged to admit that the quantity sent from the manufacturer to the bleaching-works, on his account, is correctly stated by the pursuers, so that the only question is the sufficiency of the proof of the over delivery to the defender. That proof consists mainly of the books kept at the bleaching-works, and the deposition of Myles, the manager, who kept their books, and had the principal charge of the works.

“Considering the nature of the case—that it involves a long course of dealing and many successive deliveries of goods—that by the practice of dealing no receipts were given by the defender for the quantities of yarn delivered to him from the bleaching-works, and that he kept no books, nor any record of the quantities so delivered to him, the Lord Ordinary thinks that the books of the pursuers are admissible in evidence; and that those books, against the accuracy of which there is, in his opinion, no good objection, are, when combined with the deposition of Myles, and confirmed as to their general accuracy by the testimony of other witnesses, sufficient to establish the prusuers' case.”