Scottish Court of Session Decisions

On 10th October 1877 Charles Christie, a fruit and potato merchant in Dundee, and the pursuer in this action, purchased from Patrick Hunter, the defender, at a public sale upon his farm of Ardgaith, Perthshire, a quantity of turnips for £135, 3s. 11d. The pursuer averred that “it was a condition of said sale and purchase, verbally stated by the auctioneer at the time of the sale, and shortly after the sale had commenced, and evidently in consequence of the sale being likely to prove a flat one, that whatever turnips were wished to be pitted should be so pitted on the ground by the defender free of expense, and that the defender would drive, free of expense, any turnips purchased to the station, or any similar distance, provided the tops or shaws were left with the defender; and relying upon these conditions, the pursuer was induced to bid more for the turnips than he otherwise would have done.” The turnips were not pitted, and in consequence of this neglect they were, as the pursuer averred, so damaged by frost as to bring when sold £70 less than the price paid for them. After certain correspondence this action was brought for recovery of that sum. The defender averred that “the sole conditions on which the sale took place are embraced in a written agreement of sale signed by the pursuer, dated the said 10th day of October 1877. This document was read to the public

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assembled previous to the commencement of the said sale. The said agreement of sale contains no obligation on the defender to pit any of the said turnips sold in terms thereof.” The defender further denied that any such obligation had been announced by the auctioneer verbally.

The agreement of sale in question was an instrument signed by the defender only, and tested in the usual way. It did not contain any obligation on the defender to pit the turnips sold.

The pursuer pleaded—“(1) It being part of the conditions of said sale that the defender should pit said turnips, and the defender having refused to do so after having been required, and damage being thereby occasioned to the extent of at least £70, the defender is liable therefor, and decree ought to pass against him for said sum.”

The defender pleaded—“(2) In any event, the conditions of sale having been reduced to writing, it is incompetent for the pursuer to modify, contradict, or in any way alter the same by parole proof.”

The Sheriff-Substitute ( Barclay) before answer allowed parties a proof of their respective averments, and on appeal the Sheriff ( Lee) adhered.

A proof was led, the import of which sufficiently appears from the judgments infra.

The following memorandum from the auctioneer to the defender, dated 20th Dec. 1877, was produced:—“Dear Sir—Please deliver to the bearer, Mr Chas. Christie, the turnips purchased by him at the roup; and please to pit what quantity he wants.”

The Sheriff-Substitute thereafter pronounced an interlocutor finding—“First, On the 10th day of October 1877 the defender exposed to public sale a quantity of turnips then growing or situated on the farm of Ardgaith: Second, The pursuer purchased a certain quantity of the said turnips, paid the price, and took delivery at sundry times: Third, It formed no part of the written conditions or articles of sale that the defender was to pit the turnips so sold, and it is not proved that any verbal announcement was made by the auctioneer that such was to be done, or that any obligation to that effect was undertaken by or with the sanction of the defender: Therefore assoilzies the defender from the conclusions of the petition.

“ Note.— The pursuer's solicitor very ingeniously argued the case for his client. There is no doubt that clear and direct evidence is always to be taken in preference to mere non memini. Words may be spoken at a meeting though some present may not have heard them. There is also the memorandum from the auctioneer, which gives no small colour to the pursuer's claim, though it admits of some explanation. On the whole, the pursuer has failed to establish a distinct condition of sale that the turnips were to be pitted. Though the auctioneer had verbally superadded that stipulation to the written articles of sale, it would require to have had the sanction of the defender. A Vendue master is merely to sell according to the conditions of sale, and under the beat of his hammer. It is notorious that this class are apt to puff their articles, and spout much nonsense to encourage competition. The seller is bound by his articles, but it would require the express sanction of the exposer to place important obligations on him. There indeed was another addition admitted and implemented by the defender, and the pursuer's solicitor argued that this went far to support the obligation libelled. But there was this obvious distinction—that the obligation implemented was mutual and remunerative to both parties, whereas the one now set up was onerous only on the exposer. Besides, it is possible that some of the persons present on the field, moving to and fro, with the accompanying noise, may have mistaken the one stipulation for the other. After the defender in December refused to perform the pitting of the turnips, the pursuer ought to have done so himself, and charged the expense, or then distinctly given notice of the claim of damage, which he did not until long after. The amount of damage is far from being satisfactorily ascertained, even though a distinction be allowed between the requirements of a farmer and those of a greengrocer in a town.”

The Sheriff adhered, adding the following note:—

“ Note.—On the question as to the competency of evidence qualifying the conditions of sale, the Sheriff is of opinion that it is a mistake to represent that document as constituting a written agreement. On the evidence in this case he is unable to say that the sale took place on these conditions. There was admittedly a variation as regards the lifting of the turnips; and he has no doubt that the auctioneer, in the presence and with the authority of the exposer, might competently be proved to have, on reading them over, made an additional intimation.

But then it is clearly necessary that any such additional condition should be proved to have been so announced as to be one of the generally understood conditions of the sale.

Upon this point the Sheriff, after full consideration, has ultimately come to the same conclusion as the Sheriff-Substitute. He was at first much impressed by the evidence as to the memorandum dated 20th December 1877, from the auctioneer to the defender. But, on the whole, he thinks it insufficient to supplement the undoubted weakness of the pursuer's evidence apart from that item. It is scarcely possible that the other persons present at the sale should have been unable to corroborate more distinctly the pursuer's statement if the auctioneer had in any sufficient way announced the alleged variation of the conditions.

In this view it is unnecessary to give any opinion on the question of damage. But there is certainly difficulty in finding sufficient evidence on that subject to support the pursuer's claim.”

The pursuer appealed.

Authority— Lang v. Bruce, July 6, 1832, 10 S. 777.

At advising—