Scottish Court of Session Decisions

Lord Cowan-Upon the findings in fact contained in the Lord ordinary's interlocutor, the principle of law on which this case has been decided may admit of question. It was ably argued on the part of the reclaimer that the delay in taking delivery of the potatoes beyond the period stipulated in the bargain was not in itself sufficient to entitle the seller at his own hand to sell them, to whatever claim for damages it might subject the purchaser. The law to that effect was stated by Lord Ellenborongh in the case of Greayes, 1813, in the passage referred to, and apparently adopted by Mr Bell in his Treatise on the Law of Sale. But this doctrine, it is thought, must apply to a case where there have been no intervening circumstances leading to the inference that both parties understood the bargain to have been abandoned. And in a case which occurred in England in 1825 ( Bloxam v. Sanders, 2 Ross' Cam. Cases, p., 51), I find Justice Littledale stating the doctrine of Chief-Justice Holt, that if “the vendee does not come and take the goods, the vender ought to go and request him, and then, if he does not come and pay and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person.” However, in the general case, irrespective of specialties, Mr Bell justly says that the correct course is that followed in Scotland, to apply for judicial authority to sell the goods, the buyer being cited as a party.

In this case delivery of the potatoes according to the written memorandum of sale subscribed by the parties, ought to have been taken on or before 26th November 1861; but delivery continued to be given and taken at various times until 7th December, after which date no more was delivered; and the question on the proof is whether there are not facts established sufficient to support the seller's contention that before the date of the application for interdict, 15th April 1862, the agreement as to the potatoes had come to an end by mutual consent.

On 25th January 1862 the agents for the seller, Messrs Clark & Boyd, applied to the purchaser for payment of a balance of £16, 9s. alleged to be due for the potatoes which had been delivered, and in the same letter they say “we are also instructed to call upon you to fulfil your contract by removing and paying the remainder of the potatoes immediate&.” To this no written answer was returned; but it is averred by the defender that on the evening of the day when this letter was written the pursuer, after he had received it, positively refused to take delivery of any more of the potatoes, and said that the defender might do with them as he pleased, and to this the defender alleges that he agreed. The Lord Ordinary does not refer to this matter nor to the import of the, proof regarding it. But on consideration of the evidence and of the intervening communications between the parties, I think it proved that the bargain was brought to an end by mutual consent, as alleged by the defender.

The pursuer in his evidence certainly denies that he had any meeting with the defender in the end of January, regarding the potatoes; that he ever stated that he would have nothing farther to do with them; and that he ever said to the defender that he might do with them as he pleased. But (1) the defender swears to his having had a meeting with the pursuer in January 1862, in the street at Coupar-Angus, when James Grant was present; that the pursuer said he had got a letter from Mr Boyd about the potatoes; that he would have nothing farther to do with them; and that he, the defender, then agreed to take the potatoes off his hands. (2) James Grant supports this statement in his evidence, for although he refers to the meeting having been about January 1st, he is certainly wrong as to the date, because he afterwards details what occurred thus—“The occasion that I met pursuer and defender in the street at Coupar-Angus, pursuer said he had had a letter from Mr Boyd, and that he would have nothing more to do with the potatoes. The defender said he would take the potatoes himself in that case. I consider the bargain was then at an end.” And (3), although there is no farther direct evidence as to this matter, the real evidence afforded by what subsequently occurred supports the statements of the defender and Grant.

On 30th January the threatened action for payment of the balance of £16, 9s. was instituted in the Sheriff Court. To this action the defence stated by the pursuer was that no balance was due by him, but that there had been, on the contrary, over payments, so that there was a balance due to him; and as arrestments had been used on the dependence of the action, he reserved his claim of damages in respect of the transaction, but no statement was made in the defence or throughout the proceedings by either party that there remained potatoes ta be delivered in terms of the original bargain. The proof in this action was led before the Sheriff-Substitute on 26th March 1862, when it appeared, on his own proof, that the pursuer had been misled by erroneous certificates of the weights of the potatoes sent down to be delivered at the railway station, and that the true weights of the successive deliveries of the potatoes as entered in the station steelyard keeper's books, proved that the defender was right in his statement that there was a balance due to and not by him. The Sheriff-Substitute thereupon held it unnecessary to examine any evidence in support of the defence; and of a subsequent date assoilzied the defender with expenses. This was on the 3d of April 1862.

Now, from the date of the meeting at Coupar Angus until the day after the proof had been led before the Sheriff-Substitute, nothing whatever passed between the parties as to the remainder of the potatoes. And this reticence is of itself very significant as regards the abandonment of the bargain made on 27th March 1862. On that day the agents of the defender ( pursuer of the other action), aware what would be the result of the proof led on the previous day, wrote the letter on page 82–83 of the print, containing an offer of compromise to which they thought their client would agree, although they had no instructions. This offer stipulates for a mutual discharge of all claims for loss and damage, in respect of the transaction and proceedings, and proposed that delivery of the remaining potatoes should be taken as payment—

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