Scottish Court of Session Decisions

This was an advocation of an action of damages for breach of contract raised before the Stewardcourt of Kirkcudbright. The pursuers, Thomas and William Helme, are bobbin turners at Dalbeattie and Gatehouse-of-Fleet, and the defender I is a wood merchant in that neighbourhood. The defence was that the contract which the pursuers alleged was not the contract which had been made by the parties, and that the contract which had really been made had been implemented by the defender.

The contract was a verbal one, and it was made by one of the pursuers and the defender in the beginning of 1865, no one else being present. The pursuers alleged that the defenders then agreed to sell to them the whole of the wood of the kind called “bobbin wood,” cut in the Killygowan plantation during the season 1865, at the price of 11s. per ton, the pursuers paying in addition the tolls of carting the wood to their mill. The defender's statement on record was that he did not sell the whole or any particular quantity of the bobbin wood; that he only sold bobbin wood at the rate of 11s. per ton; that no particular quantity was mentioned; and that he might have delivered as few tons as he thought proper.

It appeared from the evidence that, for about twenty years, the pursuers had bought wood from the defender in the same way as they alleged they had done on the occasion in question, and that in the year 1864 they had bought from him the bobbin wood of the same plantation cut in that year, and paid for the whole at the rate per ton which had been agreed on. It also appeared from the evidence that the defender's son, who had a bobbin mill at Creewood, near Newton-Stewart, and who had never before received wood from his father for his mill, removed his mill in the course of 1865 to Pulchree, near Gatehouse, in consequence of being unable to get “bobbin” wood from the Glentrool Woods, near Creewood; and that, after 212 tons of the Killygowan bobbin wood of 1865 had been delivered to the pursuers by the defender, the delivery was stopped, and the remainder, which was said to be 322 tons, was sent to the defender's son's mill at Pulchree.

The evidence of the pursuer, William Helme, in regard to the bargain was—“The defender came to me, and we verbally agreed that we were to have the bobbin wood at the same rate as last year, we paying the toll, and he the weighing machine. He expressly excluded the staves from this. He said particularly that we were to get the remainder of that Killygowan wood. There was no reservation of any of the cut, except the stave wood.” And in cross-examination he said—“There was no person present besides the defender and myself when we made the final bargain as to the rest of the Killygowan wood. We only agreed to the price on that day. There was no limitation of the bobbin wood we were to get. We were to get the remainder of the Killygowan wood the same as the year before, less the toll-bar, which we were to pay, and the weighing, which he was to pay. — It was to be 11s. a ton.”

The evidence of the defender on the same subject was—“Of the second year's hag (1865), I sold some to Mr Helme. I sold it to Mr William Helme. About the beginning of March I met him, and said ‘Can you be doing with some of yon wood?’ meaning the Killygowan wood. He said that they could. I said, were they not going to give more than the 11s. a ton? I said it was hard at that price for me to pay both the tolls and the weighing. He said then that they would pay the toll. I said I would reserve, out of what I then sold him, mast wood, truss wood, and staves. They never got such wood from me. They may have got stave wood

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sometimes. Whereupon Mr Helme said, ‘Then we're to get none but a little of the small wood.’ I said, ‘Just that. Isn't it best for bobbins?’ After that conversation, I considered I was entitled to retain half of the bobbin wood of that wood to my own purposes, as I only told him I had sold him some of that wood. I did not say anything exactly about keeping, to myself the whole half of the bobbin wood.”

The Steward-Substitute (Dunbar) found that the pursuers had not proved the contract averred by them, and therefore assoilzied the defender. The Steward (Hector) adhered.

The pursuers advocated.