Scottish Court of Session Decisions

This was an advocation from Aberdeenshire. The respondent Alexander Forbes, preserver of fresh provisions, Aberdeen, sued the advocator James Garrow, fishmonger there, for the sum of £89, 11s. 4d., being damages sustained by him “in consequence of the defender, in breach of his contract with the pursuer, having delivered to the pursuer only 4252 pounds weight in place of 15,000 pounds weight of grilse, at 8d. per pound, during the grilse season of 1862, the quantity undelivered by the defender thus being 10,748 pounds weight, on which undelivered quantity the pursuer would have realised a profit of 2d. per pound.”

The defence was that as the pursuer had failed to implement his part of the contract, he could not recover damages from the defender for resiling from it. This defence depended upon an allegation by the defender that on 24th July 1862 the defender had furnished 1282 pounds of grilse, the full price of which the pursuer refused to pay on the ground that only 1182 pounds had been delivered. He therefore contended that the sum of £3, 6s. 8d. had been retained by the pursuer in breach of the contract, and that he was therefore entitled to resile.

After a proof in regard to whether 1282 or 1182 pounds had been delivered, the Sheriff — Substitute (Watson) found that 1282 pounds had been delivered, and he therefore assoilzed the defender.

The Sheriff (Davidson) reversed, and found that the defender had failed to prove his allegation that 1282 pounds had been delivered.

Thereafter a proof was allowed and led in regard to the damage sustained, and the Sheriff-Substitute again assoilzied the defender in respect that the pursuer had not proved any direct, but only consequential, damage.

The Sheriff again reversed, and decerned for damages to the extent of £67, 3s. 6d., being at the rate of three-halfpence a pound on the quantity not delivered.

The defender advocated.