Scottish Court of Session Decisions

Lord President—This action is brought for £30, 15s. The pursuer avers—“On or about the 1st day of February 1873 the pursuer sold to the defender three stots, at the price of £30, 15s., and the same were taken delivery of by the defender on or about the 11th day of same month,” and that is simpliciter admitted. He then avers—“The defender refuses or delays to make payment of the said price, and the pursuer has in consequence been compelled to raise the present proceedings,” and that too is admitted.

In that state of the record the pursuer is apparently entitled to decree, but the defender pleads compensation as damages to the amount of £12, 10s. The pursuer has added an additional plea in law “In the circumstances above set forth, the defender is not entitled to plead compensation; and his statement of facts and pleas in law being irrelevant, unfounded in fact, and untenable in law, ought to be repelled.”

In my opinion the first of these should have been sustained at once, and decree given in favour of the pursuer. His claim being admitted, and the defender's counter claim being illiquid, the rule of law is quite settled that there can be no compensation. It is quite needless to go into the case. The case of the North-Eastern Railway Co. v. Napier, 21 D. 700, is on all fours with the present, and I am quite clear that all that has been done in the Sheriff-Court must be swept away. As the parties are here, however, it may be a kindness to them to express an opinion as to the counter claim. I am quite clear that warranty has not been proved, and that it cannot be proved. There is one observation which the Sheriff makes which I think a very good one; he says—“A purchaser intending to rely on an express warranty must either have it in writing or take care to have evidence sufficient to prove the fact and terms of the warranty.”

I quite concur in that. The Mercantile Law Amendment Act requires in such a case express warranty; here there is a total absence of anything of the kind.

Lord Deas—It is quite true that this action is brought for a claim which is not liquid, and, that being the case, Mr Mackie has been a little misled. If another claim of the same kind had been specifically made by him, a question might have arisen, but it is quite plain that the admissions on record by the defender exclude his claim of damages. Here there can be no doubt that the transaction between the parties is admitted, and the defender says in statement 7, “that the defender is willing, and has always been so, to pay the sum of £18, 5s.. being the balance due by him for the said stots.” The only thing he calls a plea in law is a repetition of this statement. Going no farther than this, there could not be a more express admission of debt subject to a counter claim of damages, and, the debt being admitted, the pursuer is entitled to decree. The only plausible thing said for the defender is at the top of page 5:—“The defender received from the pursuer authority to dispose of the said filly to the best advantage, and he, the pursuer, would ‘stand’ the greater part of the loss sustained; and at the time the stots were purchased by the defender from the pursuer he was to be allowed to retain the said loss sustained by him at the payment of the price of the same.” But what is the result of that? The Sheriff might have allowed a proof of that, and, if proved, there would have been an end of the matter; but, if unproved or disproved, it cannot alter the facts of the case. Correctly stated, the pursuer's claim is an admitted claim, and that is a great deal stronger than one merely liquid.

Lord Ardmillan—I agree entirely with your Lordship's opinion in the case of the Scottish North-Eastern Railway Company. The same plea here is equally well founded, and the only plea for the defender is his statement on page 5, which Lord Deas read; but it is not the statement of that qualification which is important, but the proof of it, and that proof does not exist. On the other part of the case I should have had some difficulty if the defender's materials had been better dealt with, but I think the warranty has not been proved, nor even the unsoundness. The animal was young and untried, and warranty is not usual in such cases.

Lord Mure concurred.