Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Lanarkshire. In 1865 an agreement had been entered into between the appellant and the respondents, whereby the respondents undertook to erect an ice house beside Hogganfield Loch capable of containing at least 300 tons of ice—while the appellant bound himself to take annually for ten years from the respondents 300 tons of ice, at 16s. a ton, provided that quantity could be obtained from Hogganfield Loch; delivery to be made to him free of expense whenever and in such quantities as he might require. It was farther stipulated that the respondents should be entitled to store any larger quantity of ice they chose, but that the appellant should have the right of pre-emption of such surplus quantity. Payment was to be made by instalments on receipt of each 50 tons of ice.

On 24th January 1867 Stevenson & M'Kellar wrote M'Allister, informing him that they had a considerable quantity of ice on hand over and above the 300 tons, and offering it to him in terms of their contract, provided he took delivery before the following 20th August. M'Allister replied that he would take the whole surplus ice, but would only take delivery in terms of the contract. At the end of October 1867 there remained in the respondents' ice house more than 250 tons of surplus ice still undelivered; and of the whole of which the appellant refused to take delivery, when required to do so, except in such quantities and at such times as suited him. The respondents, on 8th November 1867, in consequence of the approach of winter, presented a summary petition to the Sheriff, craving that he would ordain the appellant to take delivery of the whole ice in question, within a certain short time to be fixed; and failing his doing so, that he would grant warrant to the respondents to remove and store the said ice at the appellant's risk, or grant warrant of sale.

The Sheriff found that the only sound interpretation which the agreement of parties admitted of, was that the appellant was to take delivery of the 300 tons, and also of as much of the surplus ice of any one year, as he consented to take, within the year itself, commencing with the beginning of winter, that is the 1st November, and ending with the 1st of November of the following year. Delivery of the ice was therefore ordained to be taken by the appellant when tendered by the respondents in certain specified quantities.

The appellant advocated this judgment (see S. L. R., v., 404); but the Court substantially adhered. Delivery having been tendered in accordance with the judgment in the previous case, and refused by the appellant, the respondents thereupon broke up and stored the ice. They then brought the present action in the Sheriff-court, concluding for £209, being the contract price of the quantity of ice of which the appellant had refused to take delivery, and for certain other sums of expenses incurred by them in consequence thereof. The Sheriff found “that the final judgment in the previous case instructed that it was res judicata that the appellant was bound to have taken delivery before the 1st November of the whole ice in the pursuer's ice house at Hogganfield; but that what that quantity was was not res judicata.” He further found “that, although the pursuers could not then give delivery of said ice, there was no incompetency in the primary conclusion of the summons, which was for payment of the contract price, in respect that the ice, after delivery was tendered and refused, lay at the risk of the appellant, and perished to him.” He thereupon proceeded, from the evidence, to determine the amount and the price.

Against this interlocutor of the Sheriff, M'Allister appealed.

Watson for the appellant.

Shand and D. Brand for the respondent.