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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Bell v. Leighton and Donald. [1819] ScotJCR 2_Murray_73 (18 January 1819)
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Cite as: [1819] ScotJCR 2_Murray_73
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SCOTTISH_HoL_JURY_COURT
Page: 73↓
(1819) 2 Murray 73
CASES TRIED IN THE JURY COURT.
No. 12.
v.
PRESENT,
Damages for breach of contract by not delivering tallow.
An action of damages for breach of contract against Leighton as principal, and Donald as agent and broker, for not delivering a quantity of tallow sold to the pursuer.
Defence for Leighton.—No authority was given to make, nor did he confirm the bargain.
The
Page: 74↓
“What loss and damage has been sustained by the pursuer, in consequence of the non-delivery of 12 casks best yellow candle-tallow sold to him by the defender, William Donald, as agent for the other defender, George Leighton, in October 1813, at 94s. per cwt.?”
Belief of a general agent held evidence of current prices, though he did not make sales at the time in question.
One of the witnesses, on his re-examination, was asked, whether there were not circulars printed of the prices of tallow at different times? and what was the price of tallow in January and February 1814?
Jeffrey, for the defender, objected.—The witness has stated, that he made no sales at that time, and therefore cannot prove this fact.
Fletcher opened the case for the pursuer, and maintained, that, as damages were found due, the Jury must find him entitled to some; but to shew that there was no foundation for Leighton's defence, he read the letters from
Page: 75↓
Morison v. Boswell.
The pursuer is entitled to the highest price he can prove that he might have got for the tallow.— Morison v. Boswell, 4th March 1806, M. App. Dam. & Int.
Boyd v. Siffkin.
Idle v. Thornton.
Robertson v. M'Culloch.
Jeffrey, for the defender.—If no damages are proved, none can be found. The pursuer has not proved that the tallow arrived; and if it did not arrive, the loss ought not to fall on Leighton, as there was nothing fraudulent on his part.— Boyd v. Siffkin, 2 Camp. 326.—Idle and Others v. Thornton and Others, 3 Camp. 274. If it arrived, and he proved actual loss, I must have repaired this loss, whether my failure was fraudulent or not. In the case of Boswell, there was an attempt to cheat. A case nearer the present is Robertson v. M'Culloch, 23d December 1808.
In my opinion, it was quite unnecessary to lay these letters before you; and the argument
Page: 76↓
It is said no damages are due, as, in October, the pursuer might have bought other tallow at the same price. If this is to be listened to, there can be no damages in any case. It is said we must find the defender's conduct fraudulent. This may be necessary to entitle the pursuer to a solatium, but in the present case, it is not necessary to impute blame to any person. The defender appears to have acted with propriety, but he did not implement his bargain, and must therefore pay what the pursuer has lost.
The bargain is 90 cwt. at 94s. If you think 110s. has been proved as the selling price, then you will give 90 times 16s.
Cockburn.—I hope your Lordships will think, that the Jury may give a slump sum.
Jeffrey.—I consent to holding the quantity 90 cwt.
Page: 77↓
Verdict—“For the pursuer, damages L.92 12s. 6d.
Counsel:
Cockburn and
Fletcher for the Pursuer.
Jeffrey and
Hope for the Defender.
Solicitors: (Agents, David Murray, w. s. Gibson, Christic, and Ward-law, w. s. and Dugald Mactavish, w. s.)