Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.

The Merchants of Edinburgh
v.
The Vintners

1698 and 1699.

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1698. June 28.—Phesdo reported the advocation raised by Mr Charles Dallas, William Ross, and other Vintners, against Robert Watson, and sundry merchants in Edinburgh, of the pursuit raised by them against those vintners before the bailies, for payment of £48 sterling per tun of the wine sold to them. The reasons of advocation were, 1mo. The bailies were both judges and parties, in so far as Bailies Menzies and Nairne were traders in wine; and though Bailie Menzies was one of the tacksmen of the King's customs, yet he drove a covert trade notwithstanding. 2do. They committed iniquity in finding this defence only probable scripto vel juramento,—that the current price was agreed on; whereas this being pactum ex incontinenti contractui adjectum, it must be probable by witnesses, as the contract itself would be.

Answered,—It is denied that the bailies who judged in this cause were concerned in the wine-trade this year; and the merchants are very well pleased to advocate to the Lords, if the vintners will find caution judicatum solvi; because, by the forms of process, it is long ere a probation taken comes in to be advised by the course of the roll, and they may break medio tempore, and so the pursuers lose their money; especially seeing, by a combination among the vintners, the price of the pint of French wine is lowered from thirty-two pence to twenty pence, at which rate they will pretend to make the merchants' price, to their great loss: for the Vintners pled, That, by the sudden falling of the price of the commodity, the merchants' price must also fall; and they cannot be liable any farther than what they actually got; as was found in the price of victual in Sir Patrick Home's case against his Brother, in January 1682; and in February 1682, between the Viscount of Oxford and his Curators, that the fiars of the year, or what price the neighbouring heritors got, was to be the rule. Vide l. 22. D. de Rebus Cred.

The Lords found that weight in the reasons as to pass the advocation; but, to prevent the Merchants' prejudice in the delay, they dealt with the parties to discuss the whole cause summarily on the bill, seeing they could not force the Vintners to find caution.

The Lords, upon a new hearing, decerned for the price at the rate of £28 sterling per tun, which the Vintners craved to be the price. And as to the remanent price, at the value of £48 per tun, as the Merchants claimed, the Lords allowed a conjunct probation as to the premier cost of the wine abroad, and the custom of setting a price between merchant and vintner, and the terms of payment, and the current rates.

Vol. II. Page 7.

1699 January 20.—The debate betwixt the Merchants and Vintners of Edinburgh, (mentioned 28th June, 1698,) was this day determined, anent what should be the current price of the wines of the growth 1697 vended in 1698. The Lords had ordained the wine to be sold at thirty-two pence per pint. There being great quantities imported after the peace, the price fell in May 1698, in most taverns, to twenty pence per pint; at which the Merchants reclaiming, that the Vintners' deed ought not to diminish their price, the question arose,— Where there is no settled price agreed on, but wines taken at an indefinite rate afterwards to be condescended on, whether the current rate wines gave at the time of delivery must be the rule, as the Merchants contended, or if it should be regulated and constituted by the retailing price, as the Vintners pled; or if some other period or medium ought to be struck. The Merchants claimed £48 sterling per tun, as the price at their delivering the wines. The Vintners offered but £28 sterling per tun, conform to their retailing price; which they contended to be the most equitable rule, on the sudden falling of the price by the Merchants importing too great quantities: and was so found in January 1682, betwixt Sir Patrick Home and his Brother, in the count and reckoning, that the prices of victual suddenly falling in 1655, Sir Patrick was not bound to count at the fiars, but only for what he got; and was also so decided betwixt my Lord Oxford and his Curators; and l. 15. D. de Peric. et Commod. Rei Venditœ, gives us a rule in such cases; and Cicero de Officiis, where a ship with corn arrives first at the market, and sells high, by concealing that a fleet of more ships will be there with relief, in a day or two, he does not act honestly in concealing.

Answered for the Merchants,—That their price must not depend on so lubrick and various a circumstance as the price of retailing, for that may vary every month; and no general rule can be formed out of this uncertainty, et res quœque perit suo domino; and consequently the property of the wines being in the Vintners, they must run the risk of the falling of the price, or other accidental unforeseen damages.

The Lords finding themselves straitened to determine a middle price, injure, prescinding from both extremes, they moved to the parties, if they would submit to the Bench as arbiters in the case; which they condescending to, the Lords fixed the price to be paid by the Vintners for the year 1697, to £35 sterling per tun.

Vol. II. Page 36.