Scottish Court of Session Decisions

This was an advocation from Lanarkshire of an action at the instance of Richard Robinson, cattle and sheep dealer, residing at Arkholm, in the county of Lancaster, and Robert Boreland, farmer in Auchincairn, in the parish of Closeburn, in the county of Dumfries, his mandatory, against Thomas Morton, farmer at Nether Abington, in the parish of Crawfordjohn.

The summons concluded for £60, as damages sustained by the pursuer through the defender's failure to deliver 300 or thereby lambs, which the pursuer's mandatory Boreland had purchased for the pursuer from the defender at 16s. 6d. per head, and which lambs at the time of the sale were to be lifted or removed and taken delivery of by the pursuer within or during the week of the Lanark lamb fair, beginning on 18th and ending on 22d August 1863. The defence was that no such contract, in the terms stated in the summons, was entered into; and in particular it was denied that the time specified in the summons for the pursuer taking delivery of the lambs was correct, but it was admitted that there was a bargain entered into about the lambs, but that it was finally understood and stipulated that delivery of them was to be taken at latest on Tuesday the 18th of August.

The Sheriff-Substitute (Dyce), after evidence had been led, found it proved that Tuesday the 18th August inclusive was finally arranged as the last day within which delivery was to be taken; that on 17th August the pursuer Robinson wrote to the defender stating that he would lift the lambs on Friday morning (21st); and that before weaning the lambs the defender, on 18th August, wrote to the pursuer in reply, intimating that having broken his bargain he (Robinson) could not have the lambs. He found in point of law that the 18th August being the last day stipulated in the contract for taking delivery of the lambs, and the pursuer having failed to lift them within the stipulated limits, the contract was no longer binding on the defender, and that he was entitled subsequent to the said 18th August to refuse delivery, and to dispose of the lambs in dispute in any manner and to whomsoever he pleased. He therefore sustained the defences and assoilzied the defender.

The Sheriff (Alison) altered this interlocutor and found that, tota re perspecta, the pursuer had established his case, although the evidence was very contradictory, and that he was entitled to damages for breach of bargain. These damages he assessed at £15, for which decerned against the defender.

This judgment having been advocated, the Court today unanimously reversed the Sheriffs interlocutor, and returned to that of the Sheriff-Substitute assoilzieing the defender.