Scottish Court of Session Decisions

The pursuer, as trustee on the sequestrated estate of Peter Hamilton junior, sole partner of the St Rollox Malleable Iron Company, sued the defenders for £5000 of damages for breach of contract. The pursuer averred that “on or about 14th January 1864 a contract was entered into whereby” the said iron company “sold to the defenders” 2200 tons of iron, to be delivered in the option of the defenders either as iron cut to dead lengths at £8, 5s. per ton, or as tie bars at £8, 12s. 6d. per ton, “conform to letter,” which was dated 14th January 1864. He also averred that the said contract had been followed by rei interventus, and had been homologated, but in March 1864, after the sequestration of Hamilton, had been repudiated by the defenders. The defence was that the offer had not been accepted, and that no damage had been suffered.

The pursuer proposed an issue which did not set forth the date of the contract. The defender objected on the ground that as in the record the pursuer had averred a contract entered into on a particular date he was bound to put that date in issue.

The Court held that although a contract was averred, it was said to be constituted by a letter only, which did not make a contract. The defenders themselves called it on record “a proposal.” They thought the pursuer was entitled to prove not only the offer but also his averments as to subsequent acts, and they therefore put in the issue as the date of the contract, the words “betwixt the 12th of January and 20th of February 1864.” In other respects the issue was approved of.