Scottish Court of Session Decisions

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Cite as: [1869] ScotLR 6_628, [1869] SLR 6_628

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SCOTTISH_SLR_Court_of_Session

Page: 628↓

Court of Session Inner House First Division.

Thursday, June 29.

Lord President

6 SLR 628

Hinshaw & Co.

v.

Fleming, Reid & Co. et e contra.

Subject_1Reparation
Subject_4Breach of Contract—Jury Trial.
Facts:

Motion for a new trial refused, the issues, which involved questions under a mercantile contract, having been fairly and fully tried.

Headnote:

These were counter actions of damages for breach of contract. In the year 1866 Hinshaw & Co. had purchased from Fleming, Reid & Co. 8500 gross bank yarn, which was paid for. Hinshaw & Co. became desirous of getting quit of so much of this yarn as they had not used, and on 21st June 1867 the parties met at Greenock, and the following letters were exchanged, viz.:—

“Messrs Fleming, Reid & Co. agree to take back what we have of 30 L. hank yarn, about 6000 grs., at price invoiced, and we order in place thereof about 10,000 grs. B. qu. spool, to sample last submitted. For each gross of spool up to the quantity of hank returned, we pay 17/3, and for balance we pay 15/6 (fifteen and six), comn. colours. Yarn to be delivered, and to take date as our last orders of July 23d and August 10th, 1866.

June 21 st 1867. William Hinshaw & Co.

21 st June 1867.

We accept your order as contained in yours of 21st inst. Fleming, Reid & Co.”

In order to the manufacture of spool yarn it is necessary that the yarn spinner should have at an early period instructions as to the different colours and shades of yarn which are wanted. In this case no instructions were furnished until 10th September 1867, and the main question betwixt the parties was whether Hinshaw & Co. had furnished “dyeing instructions” in time, so as to enable Fleming, Reid, & Co. to deliver the spool yarn within the time specified in the contract.

The following were the issues in Hinshaw & Co. v. Fleming, Reid, & Co., viz.:—

“Whether, on or about the 21st June 1867, the pursuers and defenders entered into the contract contained in the documents Nos. 31 and 12 of process; and whether the defenders, in breach of said contract, failed to implement the same, to the loss, injury, and damage of the pursuers?

Damages laid at £6032, with interest at 5 per cent. from 9th December 1868.

Or,

Whether the pursuers, in breach of the contract betwixt the parties, failed to implement the same?”

In the counter action the issue was as follows, viz.:—

“Whether, on or about 21st June 1867, the pursuers and defenders entered into the contract contained in the documents Nos. 20 and 45 of process; and whether the defenders wrongfully failed duly to furnish the pursuers with dyeing instructions necessary to enable them to implement their part of the said contract, to the loss, injury, and damage of the pursuers?

Damages claimed £2000, with interest from 29th January 1869.”

The cases were tried together at the last Glasgow Spring Circuit, when the Jury returned verdicts for Fleming, Reid & Co. on all the issues, and assessed the damages due to them at £300.

Hinshaw & Co. moved for a new trial, on the ground that the verdicts were contrary to evidence. Rules having been granted,

Shand ( Burnet with him) shewed cause.

Watson (with him Clark) replied.

The rules were unanimously discharged.

Judgment:

Lord President—The case before us arises upon two counter actions, one at the instance of Hinshaw & Co. against Fleming, Reid & Co. and the other at the instance of Fleming, Reid & Co. against Hinshaw & Co. These parties were under a contract for the supply by Fleming, Reid & Co. to Hinshaw & Co. of a certain quantity of spool yarn. In these actions they charge one another with breach of contract, and perhaps it is not very easy to say that either of them is absolutely free from the imputation of breach of contract; but the case is one purely of a mercantile character, and therefore eminently fitted for the determination of a jury. The contract is contained in the letters which occur in the course of a correspondence between the parties, and while we don't at all doubt that the construction of the letters which constitute the contract was for the Court—that is to say for the Court after hearing the evidence and understanding the whole circumstances of the case—the question whether there was breach of contract on either the one side or the other, and, above all, which party was in the end mainly in the right or mainly in the wrong, was entirely for the jury. The jury

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have returned a verdict in which they find for the defenders upon the issue in the action at the instance of Hinshaw against Fleming Reid & Co., and in the counter action they find in favour of Fleming, Reid & Co., with a verdict for £300. We have heard the case very elaborately argued, and we have studied the evidence with all attention. We have also had the benefit, under the recent arrangement of the Act of 1868, of the presence of our brother the Lord-Justice Clerk, who tried the cause, and we certainly have derived very great advantage from the information which he has communicated to us as to the course of the trial. We learn from him that the jury who tried this cause was a jury certainly of average intelligence, if not more so; that they bestowed great attention and pains upon the case, and seemed thoroughly to comprehend the question which they had to dispose of. There is no reason at all, either in the opinion of the Lord-Justice Clerk or in the opinion of any member of the Court, to doubt that the construction of the contract given to them by the presiding Judge was followed by the jury. The question therefore which they had to determine was a purely jury question, arising in the course of mercantile dealing, and we should not be ready to disturb a verdict in such a case under almost any circumstances. But it is enough to say that, as regards the present case, we see no reason whatever for disturbing either the one verdict or the other. The rules therefore which have been granted will be discharged.

Counsel:

Agents for Hinshaw & Co.—Murdoch, Boyd & Co., S.S.C.

Agent for Fleming, Reid & Co.—William Mason, S.S.C.
1869