Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. III.

Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.

Lord Inverury
v.
James Gordon, Merchant in Edinburgh

Date: 7 March 1707
Case No. No 22.

A merchant who sold wine, was desired by the buyer to purchase a cask to put it in, to be carried by sea. The cask having been insufficient, the merchant was found liable to restore the price.

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Inverury having bought 18 gallons of Florence wine from Gordon, and he telling he had no less than a butt, he desired him to get him a cask and hogs-head to draw it off, to be shipped on board a vessel then lying at Leith, and shortly to sail to the north. Accordingly he went to a couper, and got him a cask, which he looked on as sufficient, and put the wine into it, and shipped it; but the ship being retarded with contrary winds, ere it came to Inverury, it was found the wine had syped out, and so was all lost and spilt. My Lord pursues Mr Gordon for the damage, he having furnished him with a leaky insufficient cask, though he had trusted the care of it to him.—Alleged, He can never be liable, for all his concern was to deliver him the wine; but to provide him a cask to put it in was a mere act of kindness and friendship done at my Lord's desire, to serve him tanquam quilibet; likeas it stood twenty-four hours before it was boated, and not the least appearance of any defect, and was shipped, and so received by the skipper in good condition; but a storm having risen, they were, driven into the Wemyss harbour, and, by the agitation of the ship, it might have got a dash, so that either the couper, furnisher, or the skipper may be answerable; but it is impossible to reach Mr Gordon, who only bestowed his pains; and so it was locatio operæ tanquam proxeneta, and no more.——The Lords, before answer, allowed a conjunct probation as to Bailie Gordon's undertaking the trust of furnishing a cask, and what trial was taken of it before the wine was put into it; and if the loss was casual and accidendal, or by any latent defect and insufficiency in the cask; and the Lords coming to advise the testimonies of the witnesses adduced hinc inde, Mr Gordon alleged, That no more diligence could be required of him than what he had done; for he being desired to look at a cask, he did so, and saw no visible fault in it; and by the custom of all the trading nations, the latent insufficiency of goods affording redhibition can never oblige the furnisher, as is clear by the Roman law, tit . Dig. et Cod. De edicto ædilitio, Si venditor vitium ignoraverti, non tenetur ad damnum ex re vitiosa provenientem, especially, si gratuito intervenerit; and although a man should, in selling a slave, commend him, that will not import he is endued the philosophical virtues, et consilii non fraudulenti nulla est obligatio; and where a loss is ascribeable either to fault or fatality, law presumes it rather to be ex casu quam ex culpa; and he cannot be supposed to have undertaken sea hazard. But the Lords, on advising the probation, found it proved, that Mr Gordon had undertaken to furnish the cask; and that the cask was insufficient, and through its insufficiency the wine had run out; and so found him liable; which would import, if he had received the price, then to restore it, and if not, then to assoilzie my Lord from payment of it. Some thought all that Mr Gordon did in this case was nudum ministerium to accommodate and serve my Lord, and that officium nemini debet esse damnosum, unless culpa vel dolus can be qualified; but here the Lords found he had interposed to uphold and warrant it, and had said a double cask was needless.

Fol. Dic. v. 2. p. 48. Fountainhall, v. 2. p. 356.