Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Aberdeenshire of an interlocutor pronounced by the Sheriff-substitute ( Comkie Thomson), allowing a proof in a case in which the appellants were pursuers. In 1867 the appellants had sold to the respondent 300 quarters of seed, the price of which was to be paid six months after the date of sale, and the seed was in the meantime to lie with the sellers. The seed was sold by sample. About the time of payment the respondent, Roy, wrote to the appellants asking for a bulk sample, which was forwarded. Roy then objected that the bulk sample was disconform to the sale sample—that the seed was dirty and mixed with goose grass. After some correspondence, the parties agreed to refer the matter to Mr Edgar, seed merchant, Edinburgh.

The reference was merely made by letters holograph of the parties. Mr Edgar, after examining the samples, wrote a letter to the parties intimating his decision to be that there was a slight disconformity in the samples, and that the grass tendered was in some respects inferior to the grass sold. He thought, however, that this was no sufficent reason why Mr Roy should not take delivery; and he decided that he should do so on the seed being put through the machine of the appellants.

Some correspondence followed upon this award, the appellants maintaining that it was an award in their favour, while Mr Roy contended that nothing had been referred to Mr Edgar but the question of alleged disconformity between the sale and the bulk sample. In the end the appellants raised an action for the price of the seed.

A record having been made up, the Sheriff-substitute pronounced the judgment appealed from. The Sheriff-substitute was of opinion that, apart from the improbativeness of the award, which was neither holograph nor tested, it was ultra vires of the referee to make such a compromise between the parties.

The pursuers appealed, with a view to jury trial.

Giffokd and Gebbie for appellants.

Mackintosh for respondent.

The Court recalled the interlocutor of the Sheriff-substitute, and decerned in terms of the conclusions of the summons. The judgment was rested on these grounds—(1) that the award had been homologated; (2) that it was in favour of the pursuers; (3) that the referee had not exceeded his powers. Lord Cowan and Lord Neaves were further of opinion that the award, apart from the question of its probativeness, was valid, because the reference itself was informal, and was privileged in respect it was in re mercatoria.

It is worthy of note in this case that the interlocutor of the Sheriff-substitute was pronounced on the 11th of December, that the appeal was sent to the roll on the 6th of January, and was finally disposed of on the 13th.