Scottish Court of Session Decisions

The Lord Ordinary ( Mure) pronounced an interlocutor in both actions at the instance of Jackson, repelling the objections for the defender, and allowing the parties a proof, to be taken before his Lordship; and pronounced the same order in the counter-action.

“Note.—This action resolves substantially into one of damages for breach of contract, and may be said to fall within the class of causes enumerated for jury trial, which cannot be tried otherwise except by consent of parties or on special cause shown. But the Lord Ordinary, upon examining the records in the various actions between the parties, has come to the conclusion that the pursuer has shown sufficient cause why the cases should not be sent to a jury, for the leading question at issue, viz., whether there had been a breach of contract or not, depends mainly upon the construction of the letters founded upon, as to which parties materially differ, and which would be matter for direction, in point of law, to the jury; while, in the event of a breach of contract being made out, as alleged by the pursuer, the measure of damage claimed will turn almost entirely upon an account as to the difference between the contract price of the coal and shale and the price at which the pursuer had to supply himself with these articles in the market,—a species of damage which does not appear to be in any peculiar respect more proper for disposal by a jury than before any other tribunal.

With reference to the objection taken to the form of the action, as containing a reservation of the pursuer's claim for the loss sustained between the date of the action and the expiry of the contract, and to the competency of the second action, it appears to the Lord Ordinary that there is no absolute incompetency, in a case of continuous accruing loss, in so proceeding to constitute the amount of that loss. The more correct and least expensive course, seeing that the defenders have ceased to make a partial delivery of coal on the 7th of December 1871, might perhaps have been to have inserted in the first action conclusions for implement of the contract daring the remaining period of its duration, with an alternative conclusion for damages for the loss that might be sustained through non-implement. But, as the Lord Ordinary sees no actual incompetency in the course which the pursuer has adopted in bringing a second action to constitute the amount of loss sustained during the remaining period of the contract, and which could not very well be estimated till the expiry of the six months during which the contract has to run, he has pronounced a similar order for proof in the second action, as well as in the counter action at the instance of the defenders, in order that the whole questions at issue may at once be disposed of.”

Messrs Cowie & Sons reclaimed.

Solicitor-General and Guthrie Smith, for them, supported the objection taken in the Outer House, and also maintained that the case should be sent to a jury.

Watson and Gloag for Jackson.