Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Wilson, &c. v. Wilson. [1828] ScotJCR 5_Murray_1 (4 November 1828)
URL: http://www.bailii.org/scot/cases/ScotJCR/1828/5_Murray_1.html
Cite as: [1828] ScotJCR 5_Murray_1
[New search] [Printable PDF version] [Help]
SCOTTISH_HoL_JURY_COURT
Page: 1↓
(1828) 5 Murray 1
CASES tried in THE JURY COURT, 1828 to 1830.
GLASGOW.
No. 1
v.
PRESENT, LORD CHIEF COMMISSIONER.
Finding for the defender on a question of guarantee and negligence in delivering and recovering the price of goods transmitted to him for sale.
An action to recover the balance of an account due by one Mason, on the ground that the defender had introduced him to the pursuers, and had failed to recover from him the sum claimed.
Defence.—The defender did not guarantee the payment. He was not agent for the pursuers, and acted as he would have done for himself. Mason consigned coffee to the pursuers, which, if sold on its arrival, would have paid the sum due.
Page: 2↓
“It being admitted, that in the month of December 1813, the pursuers transmitted to Jamaica, certain goods and furnishings ordered by Richard Mason, residing at York-Valley, in the said Island; and in the month of October 1814, certain other goods and furnishings, also ordered by the said Richard Mason:
It being also admitted, that the said Richard Mason transmitted to the pursuers certain quantities of coffee, viz.—in the month of April 1814,18 tierces in the Perthshire; in the month of May 1815, 20 tierces in the ship Lincoln, and three tierces in the Berlin; and in the month of June 1815, 17 tierces in the Marquis of Wellington,—the proceeds of which were to be applied in payment of the goods aforesaid:
It being also admitted, that in the year 1819, the said Richard Mason died insolvent:—
Whether the defender guaranteed to the pursuers the payment of the price of the said goods transmitted in December 1813, and is indebted to the pursuers in any, and what sum, as the said price, or part thereof?
Whether the said goods, sent out in October
Page: 3↓
Whether the defender promised and agreed to recover from the said Richard Mason, the price of both or either of the said parcels of of goods; and whether the defender failed to recover the said price, to the damage and injury of the pursuers?”
Hope, Sol.-Gen. opened the case for the pursuers, and said, This is a case of guarantee, and of undertaking on mercantile correspondence, and of gross negligence in fulfilling it. The defender clearly was agent, and was not entitled to deviate from his instructions. We do not admit acquiescence in the deviation.
Jaffray v. Boag, Dec. 7, 1824. 3 Sh. and Dun. 375.
Tidd, 593.
Jeffrey, for the defender, denied the guarantee, as the only promise was, that a certain quantity of coffee should be sent, and nearly double the quantity was sent. The defender did all he was bound to do for recovering the money, by getting Mason to confess judgment for the amount.
Lord Chief Commissioner.—This case
Page: 4↓
If the first question were a pure question of guarantee, it would not require the interposition of a jury to tell the Court the construction to be put upon it—but here it is to be drawn from a train of correspondence; and the question is, Whether it is a guarantee or recommendation? Were this brought neatly before me for an opinion in law, I should be disposed to say, on the terms of the letters, that they amounted to a guarantee. But you are to consider whether they are so, or merely a recommendation. If you are of opinion that it is a guarantee, you must next consider whether the terms of the
Page: 5↓
The second issue contains a question of fact, and then the question of liability. The goods, for the price of which the action is brought, were sent by the pursuers at Mason's request, but the bill of lading was sent to the defender; and it is contended, that, by receiving the bill, he received the goods, and is liable for the price. It appears that the goods were intended for Mason; and the question is, Whether there was sufficient caution in delivering them? Whether the defender is indebted depends, under this issue, on the series of transactions.
The third issue is added, in case the pursuers have failed on the two first; and the question is, Whether the defender failed in getting good security, or doing diligently what was necessary to recover this money? If the defender had been an agent charging commission, he might have been liable; but in this case slight negligence is not sufficient; but to render him liable, there must be gross negligence, which is fraud. It appears that he took steps to get a confession of judgment, which would have been a security upon which the person or property might have been taken. But it does not appear distinctly what he did in following this
Page: 6↓
Verdict— “For the defender on all the issues.”
Hope, Sol.-Gen. and
Buchanan, for the Pursuers.
Jeffrey and
Hunter, for the Defender.
Solicitors: (Agents, Hugh Macqueen, w. s., Gibson and Hector, w. s.)