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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Semple v. Wilson [1889] ScotLR 26_582 (11 June 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0582.html
Cite as: [1889] SLR 26_582, [1889] ScotLR 26_582
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SCOTTISH_SLR_Court_of_Session
Page: 582↓
Court of Session Inner House Second Division.
[Sheriff of Stirling.
v.
Facts:
A merchant who had bought goods from a farmer whose crop and stock had been sequestrated at the instance of his landlord, agreed to pay cash to the landlord's factor on the condition that he should guarantee delivery of the goods, and in sending a cheque for the price he stipulated that such guarantee should be granted. The factor retained and cashed the cheque, but refused to guarantee delivery of the potatoes.
In an action by the merchant against the factor for re-delivery of the cheque, or for the amount thereof, held that the defender was not entitled to retain the cheque except on the condition attached by the pursuer, and that he was bound to repay the amount.
On 2nd November 1887 Thomas Semple, grain merchant, Glasgow, bought 60 tons of potatoes from James MacAuslan, Kirkmichael Farm, Helensburgh, at 40s. per ton, for delivery up to 1st March 1888, payment to account to be made in eight days. MacAuslan's crop and stock having in August previously been sequestrated at the instance of his landlords, the trustees of the late Sir James Colquhoun, he applied to their factor James Wilson, Helensburgh, for permission to carry out the sale, who gave his consent on condition that the price was paid to him, to be applied in payment of rent then due. Shortly after the sale MacAuslan informed the pursuer of his position, and at a meeting with Wilson it was agreed that the price should be paid to him by Semple.
Semple received the account, and acting on his understanding of the agreement concluded at the meeting, he sent on 18th November his cheque for the price, £120, and requested the defender to grant a receipt in the following form:—“£120.—Received from Mr Thomas Semple, grain merchant, 57 West Nile Street, Glasgow, the sum of £120 stg., in full payment of sixty tons potatoes—‘Champion’—to be delivered free on rail at Helensburgh, in good order and condition, at time specified, from Mr James MacAuslan, farmer, Kirkmichael, which I bind and oblige myself to deliver.”
Wilson next day forwarded to the pursuer a receipt for £120, the price of 60 tons of potatoes sold to him by MacAuslan, to be delivered as per agreement entered into between the parties. On the same day Semple wrote to Wilson that he would prefer something more definite, and again requested a guarantee of delivery, to which no written answer was made, although Semple was informed by Wilson's clerk, when he called shortly afterwards at the office, that no further guarantee would be granted.
In March and April following Semple would have taken delivery of the potatoes, but this was not given. Finally he repudiated the bargain, and raised this action in the Sheriff Court of Dumbarton against Wilson for re-delivery of the cheque for £120, or failing re-delivery for payment of the amount, with interest from 18th November 1887.
After a proof the Sheriff-Substitute ( Gebbie) assoilzied the defender, and the Sheriff ( Muirhead) on appeal adhered.
The pursuer appealed to the Court of Session, and argued—The cheque was given only upon the condition that Wilson should guarantee the delivery. If he did not undertake to carry out that condition, then he ought to have returned the cheque. To keep the cheque after he had received information that there was a condition attached to the bargain was to intimate that he intended to observe the condition— Dominion Bank of Toronto v. Anderson & Company, February 10, 1888, 25 R. 324; M'Grigor v. Alley & M'lellan, March 4, 1887, 14 R. 535; Bell's Prin. 1244; Rankine on Leases, 355, and cases cited there.
The defender argued—The pursuer and MacAuslan had entered into a bargain for the sale of a specified quantity of potatoes. After Semple learned that MacAuslan was under sequestration at the instance of his landlord he wished to have a guarantee that the latter would not interfere to prevent the execution of the bargain, but the original bargain between pursuer and MacAuslan still subsisted. There was no assignation by MacAuslan to Wilson, and if the pursuer had applied to MacAuslan at the proper time he would have got delivery of the potatoes without any interference from the landlord. Wilson was therefore entitled to keep the cheque, and apply it to the purpose of reducing MacAuslan's rent.
After the hearing the Court ordered the case to be argued before five Judges.
At advising—
Page: 583↓
This being so, the Court is further of opinion that the defender, being informed that such was the pursuer's understanding, was not entitled both to reject the condition and to retain the cheque, but was only entitled on discovering the misunderstanding, to withdraw his consent to the sale of the potatoes, and to fall back on his rights under the landlord's sequestration.
The judgment of the Court therefore will be to recal the interlocutors appealed from, and to decern in favour of the pursuer, with expenses.
The Court pronounced this interlocutor:—
“Find in fact (1) that the pursuer purchased the potatoes in question from James MacAuslan, and agreed to pay cash to account, subject to the condition that the defender, as representing the landlord at whose instance MacAuslan had been sequestrated, should guarantee delivery of the same, and in sending the defender a cheque for the price, stipulated that such guarantee should be granted; (2) that the defender retained and cashed the cheque, but refused to guarantee delivery of the potatoes: Find in law that the defender was not entitled to retain the cheque except upon the condition attached by the pursuer, and find accordingly that he is bound to repay to the pursuer the amount of the cheque with interest as concluded for: Therefore sustain the appeal, Recal the judgments of the Sheriff and Sheriff-Substitute appealed against,” &c.
Counsel for the Appellant— Murray— Dickson. Agent— Thomas Carmichael, S.S.C.
Counsel for the Respondent— Gloag— Lorimer. Agents— Tawse & Bonar, W.S.