Scottish Court of Session Decisions

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Cite as: [1871] ScotLR 8_633, [1871] SLR 8_633

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SCOTTISH_SLR_Court_of_Session

Page: 633↓

Court of Session Inner House First Division.

Saturday, July 8. 1871.

8 SLR 633

Henderson

v.

Davidson.

Subject_1Sale
Subject_2Contract
Subject_3Nullity
Subject_4Weights and Measures — Statutes 5 Geo. IV. c. 74, and 5 and 6 Will. IV. c. 63.
Facts:

Orders were given for meal by the boll. The meal was delivered and accounts rendered at so much per stone. Held that the contract was not null under the Weights and Measures Acts.

Headnote:

This was an appeal under the Debts Recovery (Scotland) Act 1867, from the Sheriff-court of Caithness, &c.

James Henderson, Pulteneytown Mills, Wick, sued David Davidson junior, fishmonger, for £45, 5s. 6d., being the balance of an account for meal.

The defender admitted that he gave orders to the pursuer to furnish meal to sundry fishermen, and that the account was rendered, but claimed credit for £30, 1s., alleged to have been paid to account.

At the proof the pursuer produced the orders. The defender requested time to examine them, and craved a continuation for that purpose. He led no evidence in support of his statements. The Sheriff-Substitute continued the case till next Court-day, and then, the defender failing to appear, circumduced the term of proof, and pronounced an interlocutor decerning against the defender for the sum concluded for.

“ Note—It is very seldom that furnishings made in the course of trade, in addition to being duly entered in duly-kept books, are so verified as by the productions and proof furnished by the pursuer in this case. An opportunity was given to the defender to examine and redargue the evidence thus supplied, but he has been confessedly unable to impugn the same.”

The defender appealed.

The Sheriff ( Thoms) altered, and found the defender only liable in payment of £14, 2s. 3d.

The grounds of the Sheriff's judgment were— (1) that all the orders were not proved to have been signed by the defenders; (2) that none of the orders refer to stones, while the entries in the account refer mostly to stones, and the rest to sacks; (3) that 22 of the orders refer to bolls, which is not an imperial measure, and the contracts thereby evidenced are null under 5 Geo. IV. c. 74.

The pursuer appealed.

Mackintosh for him.

Burnet and M'Kechnie for the defender.

At advising—

Judgment:

Lord President—The judgment of the Sheriff cannot be supported. I see no justice in it, nor good law either. The objection that the contract was illegal under the Weights and Measures Act is quite untenable. The contract was completed by delivery of the meal, rendering of the accounts by the pursuer, and acceptance of the accounts by the defender without objection. In the accounts the meal is charged at so much the sack or stone. The Sheriff seems to think that the pursuer was not justified, or at least that he has not proved that he was justified, in sending the quantities of meal which he did, because it is not proved that the quantities sent corresponded with the quantities ordered. The answer to this is, that the account was several times rendered, and no objection taken. He had a very good opportunity in the proceedings before the Sheriff-Substitute. He takes time to look through the orders, and never appears again; a practical confession that he had no good defence. The same answer applies to the objection that it is not proved that the orders were signed by the defender. He was in the witness box, and he never denies his signature. The Sheriff-Substitute is quite right.

Lord Deas—I concur, both as to the question under the Weights and Measures Acts and as to the merits. The defences are stated by the defender himself, and that makes them all the more valuable in ascertaining the facts. He admits that the account was rendered as far back as September 1866, and twice subsequently; that during the whole of that time he never made any objection, except one which strengthens the pursuer's case. He sends back the account on one occasion, not to make objections to it, but in order that credit might be given for alleged payments; which payments he has failed to prove.

Lords Ardmillan and Kinloch concurred.

The Court recalled the interlocutor of the Sheriff, and found the defender liable in expenses in both Courts.

Solicitors: Agents for Pursuer— Horne, Horne & Lyell, W.S.

Agent for Defender— John A. Gillespie, S.S.C.

1871