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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paton v Lockhart. [1675] Mor 14232 (7 July 1675) URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor3214232-056.html Cite as: [1675] Mor 14232 |
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[1675] Mor 14232
Subject_1 SALE.
Subject_2 DIVISION II. Sale of Moveables.
Subject_3 SECT. IV. Lesio ultra duplum. - Sale by sample, - weight, - measure, &c. - Actio redhibitoria et quanti minoris.
Date: Paton
v.
Lockhart
7 July 1675
Case No.No 56.
Goods were alleged to have been insufficient. No intimation having been given of this for two years, it was found, the insufficiency could be proved only by the oath of the seller.
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Paton having charged Lockhart upon his bond of L. 200, he suspends, on this reason, that he offered to prove by the charger's oath, that the bond was granted for certain packs of skins, bought and received from the charger, and which the charger sent to the suspender, and were received by him, upon confidence of the charger, that they were sufficient; but offered to prove by witnesses; that they were insufficient. It was answered, Non relevat, unless it had been a latent insufficiency, and that the suspender had offered to return the skins; but after he had sold them, to pretend insufficiency was not sustainable, and would destroy all commerce; but especially witnesses could not be received to prove the insufficiency, seeing they were not at the bargain, but the suspender saw the skins when he bought them, and none but those that were present, could know whether the pretended insufficiency was then visible, and so was accepted by the suspender.
The Lords refused to admit witnesses, but found the insufficiency latent, and the trust or delivery probable by the charger's oath.
*** Gosford reports this case: In a pursuit at Paton's instance against Lockhart, for payment of 238 pounds Scots, as the price of a parcel of skins bought by Lockhart from the pursuer, which was advocated of consent, it was alleged by the defender, that he offered him to prove by the pursuer's oath, that the ticket was granted for a parcel of skins, as being good and sufficient; and he offered him to prove by witnesses, that the same being sent after the ticket, by the pursuer to Leith, they were most insufficient, being spoiled and eaten with rats, whereupon the defender
suffered a great loss, and so ought to have a proportional abatement of the price thereof. It was replied, That the pursuit being founded upon a written bond, could not be taken away by witnesses, especially seeing the pursuer, after sight of the commodity, did buy the same, and granted tickets for the price, and the same being accordingly delivered by him, they were received without any protestation, or offer to send the same back to the seller; but on the contrary, sent the same to Holland, and disposed thereof, without intimating any loss he had sustained, by the space of two years after the receipt; so that the allegeance could not now be received to be proven by witnesses, as to any part thereof, but ought simply to be referred to the pursuer's oath. The Lords did find that the defence could not be divided, but ought altogether to be referred to the pursuer's oath, in respect that this was not a case of vitium latent, which could not be seen, but was of a parcel of goods wherewith he himself was satisfied to buy them as they were, the time of the bargain, and accordingly had received them without any protestation.
The electronic version of the text was provided by the Scottish Council of Law Reporting