Scottish Court of Session Decisions

This was an appeal at the instance of Mr Duncan, the pursuer in the action in the Inferior Court, against the judgments of both the Sheriff-Substitute and Sheriff of Dumfriesshire. The case was one in which the pursuer sued the respondent for the price of a horse which it was alleged had turned out unsound, and in regard to which it was maintained that on the day of sale there was an express warranty given as to its soundness. This was denied by the respondent, and a proof was led in the Inferior Court. The evidence led was very conflicting, and it became necessary to look narrowly into the correspondence produced in process to see if there was anything stated therein that would support the pursuer's averment of express warranty. The Sheriff-Substitute held that the pursuer had completely failed on the oral proof, his only witnesses being himself and a person of the name of Peter Elder. In his Note the Sheriff-Substitute stated on this subject, as the ground of his decision—“Both witnesses speak to a renewed guarantee the next day, when the price was paid, but they differ most materially in regard to the question of a written warranty, pursuer saying that defender offered one, and Elder that he refused it when asked. This throws doubt on the whole story. Pursuer's denial of connection with Elder, and his styling him a horse-dealer in Liverpool, when he had ceased to be so for eight years or so, and was living in Aberdeenshire, and occasionally assisting the pursuer, is a very suspicious circumstance, besides which, his evidence was given in anything but a straightforward manner. His case, being thus not unimpeachable when taken by itself, is insufficient to prevail against the evidence led for the defender, into which it is not necessary to enter. The only other point requiring notice is the import of the documentary evidence, which the pursuer's procurator contended is not consistent with the defence. The Sheriff-Substitute is unable to see that defender has compromised his case by anything he wrote to the pursuer himself. His letters to Bell may be read, perhaps, as if there was a fear in his mind that he would be liable to the pursuer, but they are also explainable in another way—viz., that he was angry at Bell for having misled him, and so embroiled him with a customer, and at the same time anxious to do what he could for the pursuer, even to the extent of paying something himself, although not considering himself liable.” The pursuer appealed to the Principal Sheriff; but the Sheriff-Substitute's interlocutor was simpliciter adhered to. The present appeal was then brought to the Court of Session.

Shand and Mair for pursuer.

Millar, Q.C., and Scott in answer.

Judgment was given to-day by Lord Benholme. The Court unanimously adhered to the Sheriff's judgment, and found the respondent entitled to the additional expenses incurred by him since the date of the Sheriff-Substitute's interlocutor.