Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Thomson and Duncan, Merchants in London,
v.
Andrew Logie, Merchant in Aberdeen

Date: 16 July 1754

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The pursuers claimed payment from the defender of L.44, 2s. as the balance of an account-current. The defender objected to this claim, on the ground that the pursuers were liable to him in damages for the loss he had sustained upon a cask of claret, which he had sent to them, to be disposed of along with other wines, they being commission-agents in London. It appeared that the pursuers, on receiving the wine, put it into the hands of a wine-cooper; and it was farther proved, that in consequence of the wine-cooper having neglected to fill up the cask regularly, while it remained in his possession, the quality had been so much deteriorated as to make it unmarketable.

The question was, whether the pursuers, who were not themselves dealers in wine, but to whom the wine in question had been sent, as factors and commission-agents, to be disposed of for the defender's behoof, were liable for the neglect of the wine-cooper, to whose custody they entrusted it. The Court held that the pursuers were liable. Lord Kilkerran's note of the proceedings is as follows:

“July 16, 1754.—The Lords, by the President's casting vote, found the pursuers liable for the damages sustained in the hogshead of claret.

“For the negative—Milton, Minto, Kaimes, E. Marshall. For the affirmative—Drumore, Strichen, Kilkerran, Shewalton, Woodhall, and the President's casting vote.

“It was on all hands agreed that it was a trespass to let the hogshead of claret (for as to that only it was agreed the defender had any claim) stand so long unfilled up, and all the question was, Who was answerable for it?

“The minority were of opinion that where wines are sent to a factor to dispose of, there is no more incumbent on the factor than to put them in the hands of a wine-cooper of character, and if such wine-cooper should fail in his duty, no matter to the factor, who is bound to no more than to commit the wine to such wine-cooper, against whom the merchant may But the plurality were of a different opinion, viz. That the factor was answerable to the merchant, and who might seek his relief from the cooper; and, accordingly, found as above, on the supposal the hogshead of claret was yet on hand not disposed of by the defender, as to which fact, remit was made to the Ordinary.”