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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Reid & Co. v. Sinclair. [1827] ScotJCR 4_Murray_378 (3 December 1827) URL: http://www.bailii.org/scot/cases/ScotJCR/1827/4_Murray_378.html Cite as: [1827] ScotJCR 4_Murray_378 |
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Page: 378↓
(1827) 4 Murray 378
CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.
No. 45
PRESENT, LORDS CHIEF COMMISSIONER AND
Damages for breach of contract in not delivering marketable staves.
This was an action to recover the price of certain pipe and hogshead staves.
Defence.—The staves sent were not marketable.
“Whether, on or about the 5th day of December 1825, the defender agreed to purchase from the pursuers 3000 Dantzic crown hogshead staves, at L. 82 per thousand, and 3000 Dantzic brack hogshead staves, at L. 72 per thousand, to be imported without delay from Dantzic, at six months credit from the date of the arrival?—and, Whether the defender failed to implement the said agreement, to the loss, injury, and damage of the pursuers?”
Neaves opened the case, and stated the date of the bargain and transmission of the staves:
Page: 379↓
Competent to prove the circumstances in which a written agreement originated.
A witness, on cross-examination by the defender, was asked, whether a verbal bargain was made for these staves in October.
Jeffrey objects.—The bargain is proved by the bill of lading, and parol evidence is incompetent.
Cockburn.—The statement in the pleading is, that they were sold by a verbal bargain, and the date is material.
Lord Chief Commissioner.—There is no doubt that this is competent. It is established that the staves were delivered in March, and the invoice is the 5th of December; but it is competent for the defenders to prove a prior agreement, and the circumstances in which the bargain originated.
Cockburn, for the defender.—The issue turns on whether the defenders failed; and we maintain that the failure was by the pursuers. The date is material; for the pursuers say, in December the demand was so great, that the best staves could not be expected. We say the bargain was in October, as the number and price
Page: 380↓
Jeffrey.—There was a communing in October, but the invoice is the written agreement; and if the pursuers furnished a good article, you cannot find against them on this issue, which is limited to the 5th December. I admit that the defender was entitled to a fair marketable commodity, and that these staves are not of prime quality; but there is no evidence that a good stave is not marketable, because it is under inches thick.
Lord Chief Commissioner.—This case has turned out one purely for your consideration, and there are two questions, 1, Whether there was a contract completed? and 2, Whether it was broken? On the whole circumstances, it is not easy to say the contract was not completed, but up to the 5th December it was only in progress. In this case there was no special warranty, and therefore, the question is not whether the staves were of a particular description, but whether they were a good marketable article. The only question is on the thickness, and the contract does not specify any scantling. The
Page: 381↓
Verdict—For the pursuers, damages L. 362.
Counsel:
Jeffrey and Neaves, for the Pursuer.
Cockburn and Rutherford, for the Defender.
Solicitors: (Agents, John Murdoch, s. s. c. and John Harvey.)