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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hutchison & Co. v. Henry & Corrie [1867] ScotLR 5_59 (26 November 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0059.html Cite as: [1867] SLR 5_59, [1867] ScotLR 5_59 |
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Page: 59↓
Held that the Mercantile Amendment Act does not apply to an executory contract which had no reference to a specific corpus, or specific quantity, and issue adjusted apart from the provisions of the statute. Pursuers, who succeeded in obtaining the issue in the terms which they first proposed, held entitled to expenses.
This was an action of damages, in which the pursuers were Robert Hutchison & Co., corn merchants in Kirkcaldy, and the defenders were Messrs Henry & Corrie, merchants in Leith. The issue proposed by the pursuers was as follows:—
“Whether, in March or April 1866, the defenders sold to the pursuers 3000 quarters or thereby of Petersburg oats for mealing purposes? And whether, in breach of said contract, the defenders failed to deliver to the pursuers 2000 quarters or thereby of oats fit for mealing purposes, to the loss, injury, and damage of the pursuers?”
Damages laid at £800.
The defenders objected to this issue, and contended that, having regard to the terms of the fifth section of the Mercantile Law Amendment Act, which assimilated our law on this subject to the law of England, the issue should be whether the defenders “expressly” sold the oats for mealing purposes. They also maintained that the pursuers were not entitled to schedule damages beyond the amount of the specific damage set forth in the condescendence, and amounting to £539; but this last matter was arranged in the course of the discussion by the schedule being restricted to £600.
The Lord Ordinary ( Barcaple) reported the issue to the Court without expressing an opinion.
Clark and Lancaster in support of the issue.
Young and Shand in answer.
At advising—
Their Lordships held that the provision of the Mercantile Law Amendment Act did not apply to a case like the present, where there was no purchase of a specific corpus, or a definite part of a specific corpus. The Act only applied to such cases. Any other reading of it was inconsistent with what it provided as to the passage of the risk. Here the contract was an executory contract, which had no reference to any definite subject; and the question would have been precisely the same if it had arisen in an action for implement instead of an action for damages. The Court accordingly approved of the issue in the terms in which it had been approved by the pursuers.
Lancaster, for the pursuers, moved for expenses, maintaining that they had been substantially successful, that they had got their issue, and that no discussion would have followed upon the issue but for the objection to it which the defenders had taken.
Young, in answer, argued that the defenders were reasonably entitled to come to the Inner House in the circumstances to have the issue adjusted, and that the pursuers having succeeded upon a point that was suggested by the Court, for both parties had originally contemplated the application of the Mercantile Amendment Act, they should not get expenses.
The Court allowed expenses, and modified these to six guineas.
Solicitors: Agents for Pursuers— Mackenzie & Kermack, W.S.
Agents for Defenders— Murray, Beith, & Murray, W.S.
