United Kingdom House of Lords Decisions

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Cite as: [1770] UKHL 2_Paton_215

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SCOTTISH_HoL_JURY_COURT

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(1770) 2 Paton 215

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

No. 50.

William Gray and William Stuart, Merchants, Perth, Appellants

v.

Alexander Ogilvie, Merchant, Leith, Respondent

House of Lords, 2th March 1770.

Subject_Sale.—

A bargain was entered into for the sale of 100 hogsheads of Philadelphia lintseed, of Messrs. Alexander's Importation, for which £4. 4s. per hogshead was agreed to be paid. Instead of this, the seller purchased himself Virginia lintseed of inferior quality, at £3. 10s. per hogshead, and sent it to the buyer as the Philadelphia lintseed which he had bargained for. Held, reversing the judgment of the Court of Session, that the buyer was not liable for the price.

William Gray bargained for 100 hogsheads lintseed, of Philadelphia quality, with the respondent, a merchant in Leith, who stated in answer, “the Philadelphia flax seed is nowsome “time arrived in Clyde, and there is part of that cargo ordered

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here overland; none yet arrived, but will be here in a few days. You may, if it can be brought forward in time to ship for you, have the quantity you mention, being 100 hogsheads at £4. 5s. a hogshead, delivered here, and payable in six months.—This, you may be satisfied, is as low as it can be sold, considering the original cost and land carriage from Clyde here, and should the 100 hogsheads be too much for you to venture on, in case of its being by accident too late of coming to your market, you may, in the first instance, confine it to a less quantity, but I cannot propose keeping it for you after other purchasers offer.”

The appellants answered:—

“We are favoured with yours of the 19th, and notice that your lintseed is arrived in Clyde. We will take fifty hogsheads, although the price is very high, £4. 5s., payable six months after delivery, besides the freight. We think you should deliver it here as you did last year. And this we hope you will do, considering the risk we run of the markets. We have sent the bearer, William Gray's son, to be satisfied on the above particulars.”

Instead of the Philadelphia lintseed, he sent Virginia lintseed, which was of inferior quality, and which had arrived the same day in Leith as the above letter, consigned to one Mason, merchant, Leith. Gray's son was taken to the warehouse to be shewn this lintseed; on looking at it he remarked that it was “dirty;” but as he was only authorized to settle the price and carriage, he had nothing further to say. Ogilvie never said any thing to make the son understand that this was not the lintseed his father had bargained for. The sum of £4. 4s. per hogshead was agreed on as the price. Thereupon Ogilvie bought from Mason 62 hogsheads at £3. 10s. per hogshead, and sent it to Gray and Stuart that night for £4. 4s. In the bill of parcels, the seed was described as American flax seed at four guineas.

On the faith of this bargain, the appellants had sold several hogsheads of Philadelphia lintseed. But on arrival of it in Perth, and about two or three days afterwards, it was discovered to be bad, whereupon they wrote the respondent stating that it was unsaleable,—that it was old lintseed, abounded with mites, and by quantities run together in it, not at the sides of the casks, but rather in the heart of the casks, it was shewn plainly, that it had been dried and turned over from damaged casks into these;—and asking “orders what to do with it.” The respondent came to Perth, and inspected

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the seed; but refused any satisfaction, or to take back the lintseed.

The lintseed was thereafter seized, under the act 13 Geo. I., against the importation of mixed or damnified seed.

Thereafter Ogilvie raised action for the price, to which the defence stated by the appellant was, that the seed was unsaleable, and unfit for the purpose for which it was bought. That he had all along bargained for Philadelphia lintseed, shipped by Messrs. Alexander, and not for Virginia seed, as that sent turned out to be.—That even the lintseed sent was so bad as to come under the operation of the act 13 Geo. I., and was seized accordingly. Answered:—That the appellant's son had purchased the seed in question, after having carefully examined it, and being satisfied of its goodness. That the bill of parcels or invoice sent, bore American seed; and the last paragraph of his letter, which accompanied these invoices, plainly inferred that it was not the growth of Philadelphia. This letter said, “62 hogsheads of lintseed,—you will, I am hopeful, bring it to a good market, as there is no appearance of your being rivalled from this quarter. There is now some hogsheads Philadelphia seed come in here overland, but they are sold at £4. 5s., ready money.”

After various steps of procedure, the Court of Session, on advising the case on informations, pronounced this interlocutor:—

“Repel the defences proponed for Gray and Stewart, and therefore find them conjunctly and severally liable to Alexander Ogilvie, in the price of the lintseed sold by him to them, amounting to the sum of £260. 8s. Sterling libelled, with the interest thereof, from and since 26th October, 1765, until payment, and decern.”

On reclaiming petition the Court adhered.

Mar. 7, 1769.

Pleaded for the Appellants.—The appellants have been grossly defrauded by the respondent, in the present case, they treated with him for, and he agreed to sell them, Philadelphia seed of Messrs. Alexander's importation, and the whole correspondence that passed proves this. Instead of sending Philadelphia he sent Virginia seed, by a scheme which enabled him to pocket the difference between £4. 4s. and £3. 10s. on each hogshead sold, effecting thus a profit of 14s. per hogshead. Besides, the Virginia seed sent was bad and unsaleable, it was so bad, as finally to be condemned under the 13 Geo. I.

Pleaded for the Respondent.—The transaction on the respondent's

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part was fair, open, and candid. Had he meant to pass the seed bought of Mason, for seed imported from Philadelphia by Messrs. Alexander, the seed would have been moved to Messrs. Alexander's warehouse, and there sold. The fairness of his dealing is further made manifest, by his letter to the appellants sending the seed, and acquainting them that young Gray had likely reported their agreement; and concluding there is now some hogsheads of Philadelphia seed come in here overland. In his answer, complaining of the seed, when its defects disclosed themselves, he does not object to the bargain, on the ground that one kind of seed had been substituted for another, and that the seed sent was not the seed bargained for. Besides, it was too manifest that the subsequent seizure of the seed arose from the appellants acting in collusion with the officers of the customs.

After hearing counsel, the Lords

Ordered and adjudged that the interlocutors complained of in these two appeals be reversed.

Counsel: For Appellants, Al. Wedderburn.
For Respondent, Ja. Montgomery, J. Dalrymple.

Not reported in Court of Session.

1770