Scottish Court of Session Decisions

In August 1883 Robert Campbell Auld, a farmer and breeder of Angus polled cattle at Alford,

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* Decided 19th March.

advertised a sale of a herd of 50 polled cattle to be held at Aberdeen on 13th September. Catalogues were issued describing the animals, and stating that the auctioneer would be James Far—quhar, and the judge of the roup would be James Reid, Greystone. The catalogue contained these conditions of sale—“(1) The stock will be exposed separately, according to the numbers of the following catalogue, and the highest offerer on each lot will be preferred to the purchase. (2) The statements in the catalogue are correct so far as known to the exposer, but he shall not be bound by them in any respect. (3) All purchases shall be settled for immediately after the sale in ready money. Parties failing so to settle will in the exposer's or judge's option either forfeit the purchase and be liable in one-fifth part of the price as the stipulated damage, or be bound to abide by and implement their purchases. (4) Immediately after each purchase is declared the risk of the animal shall be exclusively with the purchaser; and it is declared that until a settlement shall be made in terms of these conditions the delivery of the animal shall be suspended. (5) Mr James Reid, Greystone, is judge of the roup, to whom are hereby submitted all disputes and differences of every kind which may arise in relation to the sale either between the exposer and offerers or among offerers themselves, and his decision shall be final and binding on all parties.”

On 13th September the sale was held. One of the animals exposed was a two-year-old heifer, described as “Pride of Aberdeen 30th, 5209, got by Knight of the Shire, 1699, dam Pride of Aberdeen 9th, 3253.” Of this animal James Walker was declared the purchaser at 510 guineas, the last offer before his being 505 guineas, offered by George Wilken.

In December following John Strachan raised this action against the exposer Auld and against Walker for declarator that the pretended purchase by the defender Walker was for and on behalf of the defender Auld, was fraudulent, and fanditus null and void; that the Marquis of Huntly was the true purchaser of the heifer at 300 guineas, and entitled to the heifer on payment thereof; that pursuer was now in right of the Marquis of Huntly, as such purchaser; or otherwise, as might be determined in the course of the process, that the pursuer in his own right was the true purchaser of the heifer at 325 guineas, or at such other price as might be fixed and determined by the Court in the process, and entitled on payment of that or such price to delivery of the heifer; further, he concluded against Auld for decree of delivery of the heifer on payment of 300 guineas, or otherwise for £300 as damages.

He set forth in his condescendence the advertisement and issue of catalogues as above narrated further, that immediately before the sale the auctioneer stated to the company assembled, in presence and by authority of the defender Auld, and as an inducement to offer, that the sale was “entirely unreserved.” He then set forth the bidding as above narrated, and then—“(Cond. 4) The bidding was begun by the Most Honourable Charles Gordon Marquis of Huntly, who offered 200 guineas, and after several other offers had been made he offered 300 guineas, whereupon the defender James Walker, farmer, Westside of Brux, offered 320 guineas. The Marquis of Huntly then

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gave up bidding, and the pursuer offered 325 guineas, and continued to offer as against the said James Walker, in the belief that he was a bona fide offerer, till the price reached 495 guineas, when the said James Walker offered 500 guineas. At this stage George Wilken, farmer, Waterside, Alford, acting as after mentioned, offered 505 guineas, and no other offers having been made the said James Walker was declared the purchaser. (Cond. 5) The sale in question was not a bona fide unreserved sale. On the contrary, it had been arranged beforehand between the defender the said Robert Campbell Auld and the said James Walker that the latter should appear at the sale and make offers for the animals, and in particular the animal in question, of a higher price than would be offered by any other offerer at the sale. Such higher offers were to be entirely in the said Robert Campbell Auld's own interest, and with the object as after stated. Accordingly, the said James Walker, when he made the offer of 320 guineas, and all the offers above that sum, did so in the interest and on the behalf of the defender the said Robert Campbell Auld himself; and the animal, along with a number of others which the said James Walker ostensibly purchased, were removed from the sale-yard and kept in possession by and are still retained in the possession of the defender Robert Campbell Auld, who refuses to deliver the said animal to the pursuer.” In condescendence 6 he averred that Wilken, who, as above stated, bade 505 guineas, was not acting with the intention of buying, but knew that Walker had instructions from Auld to outbid any other offerer, and that his offer would therefore not be accepted, and did not abide by the offer. The condescendence then went on to state that the pursuer “believed and averred that the object which the defender Auld had in asking parties, including the other defender Walker, to offer was if possible to have the reputation and price of his herd of animals raised, and in particular to have an offer of upwards of 500 guineas made at a public sale for one of the ‘Pride’ breed to which the heifer in question belonged—that having been the highest price paid for any animal of the ‘Erica’ breed of cattle, the two breeds being considered of about equal standing, and the defender wishing to increase the value of his own herd, being the ‘Pride’ breed.”

The pursuer further stated that he held an assignation from the Marquis of Huntly transferring to him all his interest in the animal.

He pleaded—“(1) The offers made by the defender Walker at the sale mentioned on record having been made in the interest and on behalf of the other defender, and not being bona fide offers, were illegal, and the defender Walker is not entitled to retain possession of the animal. (2) The pursuer is entitled, upon the facts stated being admitted or proved, to obtain possession of the animal in question on payment of the sum offered by the Marquis of Huntly. (3) The pursuer, either in right of the Marquis of Huntly or in his own right, is entitled to obtain decree of declarator and delivery in terms of the conclusions of the summons. (4) The pretended sale to the defender the said James Walker having been fraudulently carried through as condescended on, is null and void, and is not binding upon the pursuer or the other bona fide offerers at the sale, and the pursuer is therefore entitled as a bona fide offerer to obtain possession of the animal in question on payment of the highest sum offered by the Marquis of Huntly, or otherwise on payment of the sum first offered by himself.”

Walker did not appear to defend the action.

Auld defended the action. He denied the pursuer's averment that the sale was not a bona fide unreserved one, and that the offers of Walker and of Wilken were not made in bona fide. He stated that “by the conditions of the sale the question raised falls to be decided by the judge of the roup. The defender is willing, and hereby offers to accept and abide by the decision of the said judge.”

He pleaded—“(1) Assuming the pursuer's averments to be founded on fact, he has no title or interest to insist in the action. (2) In respect of the conditions of sale the action is incompetent, or at all events the question raised therein falls to be decided by the judge of the roup. (3) The pursuer's averments being irrelevant, the defender ought to be assoilzied with expenses.”

The Lord Ordinary (Adam) repelled the defender's second plea-in-law, and allowed the parties a proof before answer of their respective averments.

The defender reclaimed. He argued — By the conditions of sale any such question as was here raised fell to be decided by Reid, the judge of the roup. It was such a question as might have been expected to arise and to require to be referred to him, and the clause of reference to him in the conditions of sale quite covered it. The position of a judge of the roup was one well suited for determining such a question.

Authority — Ewing v. Laurie, January, 13, 1825, F.C.

The pursuer's counsel were not called on.

At advising—