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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Helmes v. Swainson [1867] ScotLR 5_91 (6 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0091.html Cite as: [1867] ScotLR 5_91, [1867] SLR 5_91 |
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Page: 91↓
Circumstances in which a party found liable in £100 damages for breach of a contract of sale.
This was an advocation of an action of damages for breach of contract raised before the Stewardcourt of Kirkcudbright. The pursuers, Thomas and William Helme, are bobbin turners at Dalbeattie and Gatehouse-of-Fleet, and the defender I is a wood merchant in that neighbourhood. The defence was that the contract which the pursuers alleged was not the contract which had been made by the parties, and that the contract which had really been made had been implemented by the defender.
The contract was a verbal one, and it was made by one of the pursuers and the defender in the beginning of 1865, no one else being present. The pursuers alleged that the defenders then agreed to sell to them the whole of the wood of the kind called “bobbin wood,” cut in the Killygowan plantation during the season 1865, at the price of 11s. per ton, the pursuers paying in addition the tolls of carting the wood to their mill. The defender's statement on record was that he did not sell the whole or any particular quantity of the bobbin wood; that he only sold bobbin wood at the rate of 11s. per ton; that no particular quantity was mentioned; and that he might have delivered as few tons as he thought proper.
It appeared from the evidence that, for about twenty years, the pursuers had bought wood from the defender in the same way as they alleged they had done on the occasion in question, and that in the year 1864 they had bought from him the bobbin wood of the same plantation cut in that year, and paid for the whole at the rate per ton which had been agreed on. It also appeared from the evidence that the defender's son, who had a bobbin mill at Creewood, near Newton-Stewart, and who had never before received wood from his father for his mill, removed his mill in the course of 1865 to Pulchree, near Gatehouse, in consequence of being unable to get “bobbin” wood from the Glentrool Woods, near Creewood; and that, after 212 tons of the Killygowan bobbin wood of 1865 had been delivered to the pursuers by the defender, the delivery was stopped, and the remainder, which was said to be 322 tons, was sent to the defender's son's mill at Pulchree.
The evidence of the pursuer, William Helme, in regard to the bargain was—“The defender came to me, and we verbally agreed that we were to have the bobbin wood at the same rate as last year, we paying the toll, and he the weighing machine. He expressly excluded the staves from this. He said particularly that we were to get the remainder of that Killygowan wood. There was no reservation of any of the cut, except the stave wood.” And in cross-examination he said—“There was no person present besides the defender and myself when we made the final bargain as to the rest of the Killygowan wood. We only agreed to the price on that day. There was no limitation of the bobbin wood we were to get. We were to get the remainder of the Killygowan wood the same as the year before, less the toll-bar, which we were to pay, and the weighing, which he was to pay. — It was to be 11s. a ton.”
The evidence of the defender on the same subject was—“Of the second year's hag (1865), I sold some to Mr Helme. I sold it to Mr William Helme. About the beginning of March I met him, and said ‘Can you be doing with some of yon wood?’ meaning the Killygowan wood. He said that they could. I said, were they not going to give more than the 11s. a ton? I said it was hard at that price for me to pay both the tolls and the weighing. He said then that they would pay the toll. I said I would reserve, out of what I then sold him, mast wood, truss wood, and staves. They never got such wood from me. They may have got stave wood
Page: 92↓
sometimes. Whereupon Mr Helme said, ‘Then we're to get none but a little of the small wood.’ I said, ‘Just that. Isn't it best for bobbins?’ After that conversation, I considered I was entitled to retain half of the bobbin wood of that wood to my own purposes, as I only told him I had sold him some of that wood. I did not say anything exactly about keeping, to myself the whole half of the bobbin wood.” The Steward-Substitute (Dunbar) found that the pursuers had not proved the contract averred by them, and therefore assoilzied the defender. The Steward (Hector) adhered.
The pursuers advocated.
Burnet (with him Gifford) was heard for the advocators.
Thomson (with him Solicitor-General) for the respondent.
The Court unanimously recalled the interlocutors advocated, and found the defender liable in damages for breach of contract (which they assessed at £100) and expenses.
Lord President—The contract, which the defender alleges on record was made, is one of a very extraordinary kind, such as I don't remember to have ever heard of being made in any branch of trade. It is one most unfavourable to the purchaser, and it is highly improbable that any manufacturer, who requires at the beginning of every season to make provision for the supply of his raw material, would enter into such a bargain. But no doubt such a contract is legal, and if made it may be enforced. If, however, the defender, on the occasion in question, meant to make such a bargain, he should have done so in very distinct terms. He should have had it reduced to writing, or, if not. he should have made his meaning quite clear to the party with whom he was transacting. If he did not do so, I think the other party could not be bound. But what is the evidence? I hold that, in regard to what was actually said on the occasion, the pursuer, William Helme, and the defender are at one, and I consider it therefore altogether unnecessary to look at the rest of the evidence in the case. The defender says he sold some of the wood, and that he reserved “mast wood, truss wood, and staves,” but he does not say he reserved any bobbin wood. He thus expressed himself so as to lead Mr Helme to suppose that he was to get the whole bobbin wood as in former years. No doubt the defender goes on to say that he understood that, as he had only sold some of the wood, he was entitled to retain the half of it; but contracts are not made by mental reservations of that kind, but by express words. I hold, therefore, that the pursuers have proved the contract as alleged by them, and as there is no question that that contract has not been fulfilled by the defender, that he is liable in damages. These damages I propose to assess at the sum of £100.
The other judges concurred.
Solicitors: Agent for Advocators— W. S. Stuart, S.S.C.
Agent for Respondent— Hugh Milroy, S.S.C.
