Scottish Court of Session Decisions

This was an action in which Turnbull, Salvesen, & Co., merchants, Leith, and George Vair Turnbull and Christian Salvesen, merchants, Leith, the the individual partners of said firm, were pursuers; and the Shotts Iron Co., carrying on business at the Shotts Iron Works, in the country of Lanark, and at 69 West Nile Street, Glasgow; and William Crichton, of 17 India Street, Glasgow; Clement Ellis, merchant, Glasgow; and George Stewart Anderson, merchant there, three of the individual partners, and also three and a quorum of the directors of the said. Shotts Iron Company, were defenders.

The issue sent to the jury was in the following terms:—

“Whether, under the letters contained in the schedule hereto annexed, the defenders contracted and agreed to deliver to the pursuers in the year 1866, 3000 tons of Shotts Boghead gas coal, in the manner and upon the terms and conditions specified in the said letters?

And

Whether, in breach of said contract, the defenders failed to deliver to the pursuers, in the manner therein specified, 1000 tons, or any part thereof, of the said coals—to the loss, injury, and damage of the pursuers?”

Damages were laid at £1500, with interest from 1st May 1866, till payment.

Schedule referred to in the foregoing issue.

1.—Letter, the Pursuers to Mr Richard Brown, Manager of the Shotts Iron Company.

“ Leith, 25th July 1865.

Dear Sir,—We now beg to confirm the verbal arrangement made with you on Saturday. The arrangements of the 10th inst. with reference to the sale of 2000 tons is hereby cancelled. You are now to supply us with 3000 tons Shotts Boghead gas coal during 1866, and a like quantity of 3000 tons during 1867. Delivery to be given and taken at the rate of 250 tons per month, and if not so taken, we are to have liberty to do so during the following month, but thereafter to be paid whether taken or not. The price is fixed at the rate of 42s. 6d. per ton net, f. o. b. Bo'ness, with 8d. per ton extra if shipped at Leith. In the event of the coal becoming exhausted, you are not to be called on to give delivery, but our purchase is to rank equally with others, and according to date. In the event of a strike among the workmen, the delivery may be delayed until it is over, and the additional time added to end of contract.—We are, &c.

(Signed) Turnbull, Salvesen, &Co.

P.S.—Will be glad to hear from you in reference to the remaining 5000 tons.”

2. — Letter, Mr Richard Brown to the Pursuers.

“ Glasgow, 27th July 1865.

Dear Sirs,—I have yours of 24th inst., and have entered the contract for the 6000 tons gas coals, on the terms and conditions named, with the addition, as formerly agreed on, that they are to be paid for prompt cash against delivery. I have also arranged, and hereby agree, to give you the monthly balance of our output (if any) during the currency of 1866 and 1867, at 43s. 6d. per ton net, at Bo'ness, cash against delivery—the above contract, and others made prior to date, being first deducted from the output. Please confirm this, and oblige, yours, &c.

(Signed) Richard Brown.”

3. — Letter, the Pursuers to Mr Richard Brown.

“ Leith, July 28, 1865.

Dear Sir,—We are favoured with yours of yesterday, and, noting contents, we have pleasure in confirming the same. We are now desirous to know if you have any coal for delivery this year, and if you can book us for a quantity at 42s. 6d.

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We will also feel obliged by your saying what you consider will be the total output in 1866 and 1867, and the probable quantity at our disposal; this, of course, without prejudice to yourself.—We are, &c.

(Signed) Turnbull, Salvesen, &Co.”

The statement of the pursuers was to the effect, that up to the 1st of May 1866 the defenders had failed to deliver the 250 tons of coal each month, as promised, and that, through non-delivery, a contract which the pursuers had entered into with Messrs James Millar, Son, & Co., merchants, Glasgow, at the rate of 72s. 6d. a ton, had not been implemented to the extent of 1000 tons. Even if they had not entered into that contract, the pursuers averred that they would have been able to realise a profit of £1500 at least on the coal which they were entitled to receive in terms of their contract with the defenders. The defenders maintained that delivery was to be given to the pursuers at the rate of 250 tons per month, under a limitation for the purpose of protecting the defenders against the effects of strikes, and of blanks or wants, and they averred that from that reason they were unable to supply the coal.