Scottish Court of Session Decisions

Colonel M'Douall of Logan brought this action in the Sheriff-Court of Wigtownshire against Alexander Brown, dealer in dairy produce, for a sum of £55, as the balance of the price of cheese sold by the pursuer to the defender in October 1861. The principal questions were (1) whether a certain sum of £50 had been paid by the defender to Davidson, clerk to M'Culloch, the pursuer's factor; and (2) whether that was a good payment as against the pursuer.

The Sheriff ( Hector), adhering in substance to the interlocutor of his substitute ( Rhind), held it proved that for many years prior to 1861 the pursuer had M'Culloch in his service as factor, and Davidson as factor's head-clerk, and had under their management a home farm on his estate; that the factor and Davidson had power and were in use to sell the farm produce and receive the price, and had frequent dealings in that way with the defender; that in December 1861 the pursuer wrote to the defender intimating that he had parted with his factor, M'Culloch, and asking direct remittances on account of any cheese that might be purchased; that some time prior to that date, viz., in October 1861, and while the factor and his clerk were still acting for the pursuer, the defender purchased directly from Davidson two parcels of cheese; that on 8th October the defender admittedly paid £50 to account; that on 8th November 1861 the £50 in dispute was paid to Davidson by the defender in respect of said sale, and that the sale having been made by Davidson, and the defender having in bona fide made the payment of 8th November in respect thereof, the payment was effectual in a question between the pursuer and the defender.

The pursuer advocated.

Clark and Macdonald for advocator. .

Watson and Guthrie for respondent.

The first question was not disputed; on the second question the Court adhered, holding that as Davidson had sold the cheese in question, and had for many years been in the habit of buying and selling for M'Douall, the justice of the case required that if the money had not been accounted for by Davidson, and if M'Douall had not received the money (which was not proved), the loss must fall, not on Brown, but on the pursuer, who had not publicly disowned the factor's acting on his behalf.