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Cite as: [1816] ScotJCR 1_Murray_55

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SCOTTISH_HoL_JURY_COURT

Page: 55↓

(1816) 1 Murray 55

CASES TRIED IN THE JURY COURT.

No. 7

Dicksons Brothers,

v.

Dicksons and Company.

1816. March 18.

Present, The Three Lords Commissioners.

Damages found due by one company of merchants for executing an order intended for another.

An action of damages against one company for executing an order intended for another.

Defence.— Bona fides.

ISSUES.

“Whether the defenders did receive, or get into their possession, certain letters from the Reverend William Carr, factor for, or acting on behalf of, his Grace the Duke of Devonshire, viz. one letter directed Messrs Dickson, Nurserymen, Edinburgh, dated Bolton Abbey, 11th October 1813, containing an order to furnish the said Duke of Devonshire with 150,000 best seedling larch; another letter, dated Londesborough, 19th October 1813, relative to the said order of 150,000 seedling larch, and making a further order for 5000 weeping birch; and another letter, dated Bolton Abbey, 16th December 1813, relative to the former order of 150,000 seedling larch, and making a further order of 10,000 birch seedlings, and 20,000 Scots, (meaning Scots fir,) all which letters and orders were written and intended for the pursuers? And,

Whether the said defenders, knowing the

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said letters from the said Reverend William Carr, with the orders therein, not to be intended for them, the said defenders did nevertheless, knowingly and fraudulently, reply to the said letters so meant and intended for the said pursuers; and did farther execute the orders contained in the said letters, concealing the said mistake in delivery and receipt of the said letters from the said pursuers, and from the said Reverend William Carr, to the great injury of the pursuers in their trade and business, and to their damage in respect to the said orders?“

“N. B. The damages are laid at L. 500.”

Mr Carr, not knowing that there were two companies of Dicksons in Edinburgh, addressed his letter «Messrs Dickson, Nurserymen, Edinburgh.” This, though intended for the pursuers, was carried to the defenders, and they proceeded to execute the commission. One of the partners of the house of Dicksons, Brothers, having met Mr Carr, an explanation took place. A correspondence ensued betwixt the two companies, in which the defenders stated, that the first letter was addressed properly to them; and though, in the second letter, Mr Carr referred to orders of former years,

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they could not from that circumstance discover the mistake, their books being in the hands of an accountant at the time.

After the defender has opened his case, the pursuer may read documentary evidence, but the defender is entitled to observe upon it.

After Mr Cockburn's speech for the defender, Mr Clerk said, he wished to read certain documents which he had omitted to notice.

Lord Chief Commissioner.—The documents may be read, and Mr Cockburn may then observe upon them.

The rule that cross questions are incompetent, if they do not arise out of the examination in chief, was also held as fixed, till the bill of exceptions in the case Hyslop v. Staig, supra, p. 18, shall be discussed.

Lord Chief Commissioner to the Jury.— The question here is not whether this is a criminal fraud, but whether there is such a deceit as the law construes to be fraud, and which will subject the defenders in damages.

Mr Carr's letter of the 11th October 1813 is so short, that the defenders ought to have suspected that it was not a first order, and the other letters refer expressly to orders of former years.

After detailing the circumstances of the case,

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his Lordship said, the pursuers are entitled not merely to the profit on this particular order, but to a compensation for the injury done to their business, and the trouble and anxiety this action has occasioned.

Verdict for the pursuers, damages L. 150. ^*

Counsel: Clerk, Cranstoun, Jeffrey, and Brownlee, for the Pursuers.
Cockburn, Drummond, and Rutherford, for the Defenders.

Solicitors: (Agents, John Joncs, w. s. and Jardine and Wilson, w. s.)

_________________ Footnote _________________

* The Jury, in this and several other cases, found the pursuer entitled to costs, but were informed by the Court that this was not within their province.

1816

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