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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Burrel &c. v. Hodge. [1821] ScotJCR 2_Murray_524 (21 July 1821) URL: http://www.bailii.org/scot/cases/ScotJCR/1821/2_Murray_524.html Cite as: [1821] ScotJCR 2_Murray_524 |
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Page: 524↓
(1821) 2 Murray 524
CASES TRIED IN THE JURY COURT.
No. 70.
PRESENT, LORD CHIEF COMMISSIONER.
Damages against a commercial agent, for neglect of duty.
Damages against a commercial agent for neglect of duty.
Defence.—The defender did every thing in his power for the interest of the pursuer. The pursuer cancelled the bargain.
It being admitted that, in the month of February 1820, the defender undertook to
Page: 525↓
Whether the pursuer intimated to the defender that he was willing to accept of said offer? and Whether the defender, contrary to his duty as agent for the pursuer, concealed from, or failed to make known to the said William Hall and Company, the pursuer's acceptance of their offer aforesaid, to the loss and damage of said pursuer?”
Incompetent to prove the opinion of a witness, as to the duty of a commercial agent.
A witness examined on commission, had been asked his opinion of the duty of an agent; and at the conclusion, a case was put, and the opinion of the witness asked upon the supposed case.
Lord Chief Commissioner.—Whatever may be the answer to the first question, I shall tell the Jury that they are to take my
Page: 526↓
Robertson opened the case, and stated, That the pursuer had employed the defender to sell a quantity of timber, and directed him to accept an offer made for it; but he concealed this letter, wishing to purchase the wood himself.
Jeffrey.—The question whether the letter was communicated is simple; but the real question is, Whether the defender is liable in damages for not communicating this letter, which was not an acceptance in terms of the offer, but left a discretion to the agent. The damage is not proved, as the wood was sold privately, and even at the time of the sale others were ready to give the price offered at first.
Cockburn—Said that one fact was sufficient. Hall and Company sent repeatedly to know if their offer was accepted, and the defender concealed the letter he had received from the pursuer.
Lord Chief Commissioner.—This question
Page: 527↓
The admissions in the Issue are most proper; and there are three questions on which you must make up your minds before returning your verdict, though it is not necessary that you find them separately; a general verdict for the pursuer or defender will be sufficient.
The first is, Whether Burrel the pursuer accepted the offer of Hall and Company? On this question the important letters are two by Burrel. The first is not an acceptance; but the defender having written that that was a house of undoubted credit, you will consider whether the pursuer's answer was or was not an acceptance.
In general the Court construe a written instrument, and the Jury take the direction of the Court; but this applies more properly to cases of deeds and solemn legal instruments, or to missive letters; but in a mixed case like the present, I think it right to submit it to you, merely stating my views on the subject, for your consideration. You will therefore take the letters, and say whether, when taken together, they can bear any other construction,
Page: 528↓
The second question is, Whether the defender concealed this acceptance from Hall and Company? If the question of damage had been left open, concealment might have been an aggravation of damage; but in the present case, it is merely a question of whether he did not communicate the acceptance. The whole, in my opinion, goes to shew that the communication was not made; and if you come to this conclusion, then the third question arises, which is the amount of the damage. On this subject there is no appearance of any vindictive spirit; there is merely a claim for the difference of price, and the expence of seeking a market, which the pursuer was not bound to do, after accepting the offer.
Verdict—“For the pursuer, damages L.203. 1s. sterling.”
Counsel:
Cockburn and
Robertson for the Pursuer.
Jeffrey for the Defender.
Solicitors: (Agents, Ro. Paul and John Young, s. s. c.)
