Scottish Court of Session Decisions

This is an action of damages for breach of contract. The pursuers, who are merchants in Leith, alleged that the defenders, who are distillers in Glasgow, had in 1862 contracted with them to supply a quantity of whisky conform to a certain sample as to strength, and conform to another sample as to colour. The whisky was to be exported to South Africa for the consumption of the natives there, who call it “white rum.” It seems, however, that some years ago “white rum” became unmarketable at Old Calabar, in consequence, it was said, of the importation of a cheap American white spirit, which had the effect, as the natives said, of “cracking their heads.” The Scotch traders thereupon resorted to the plan of colouring the whisky so as to make it resemble rum. The colouring substance used was burnt sugar or “caramel.” The pursuers allege that the defenders agreed to furnish whisky so coloured, and that they used, instead of caramel, some colouring matter of a noxious and deleterious character, in consequence of which the natives refused to purchase the liquor. The pursuers therefore averred that their pecuniary loss through this breach of contract was large; and also that “the stigma on their reputation in the minds of the natives, on whose goodwill the success of their trade chiefly depends, greatly diminished their trade and prospects.” The quantity of whisky supplied was 20,554 gallons, and the price was to be 1s. 4d. per gallon.

The defenders denied the breach of contract, and pleaded also that the pursuers had failed timeously to return the whisky as disconform to order.

The pursuers proposed an issue for trial, which the defenders objected to on the ground that it did not sufficiently specify the contract of parties and its alleged breach. The case relied on by the pursuers was that the colouring matter used was not what was agreed to, but something which was unwholesome. This was not brought out in the issue. The Court gave effect to the defender's contention; and after five or six editions of the issues had been printed, the following were to-day finally approved of, the pursuers being found liable in expenses since the date of the Lord Ordinary's interlocutor:—

“Whether, in or about September 1862, the defenders, on the order of the pursuers, agreed to supply to them a quantity of whisky coloured with burnt sugar or other innocent material, similar to a sample of Mackenzie & Company's

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whisky, then shown to the defenders? Whether the defenders delivered to the pursuers a quantity of coloured whisky, amounting to 20,554 proof gallons or thereby, for which the pursuers duly paid the stipulated price? And whether the coloured whisky so delivered by the defenders to the pursuers was disconform to the said order, inasmuch as it was coloured with some colouring matter not being burnt sugar or other innocent material similar to said sample—to the loss, injury, and damage of the pursuers?”

Damages laid at £6000.

Counter Issue for Defenders.

“Whether the pursuers failed duly to return the said whisky to the defenders?”