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Scottish Court of Session Decisions >>
Patrick Fletcher v Alexander Reid. [1708] 4 Brn 690 (13 January 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Brn040690-0183.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Patrick Fletcher v. Alexander Reid
Date: 13 January 1708
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Patrick Fletcher, factor at Rotterdam, pursues Alexander Reid, merchant in Dundee, for the price of some goods he sent him from Holland.
Alleged,—I must have retention and compensation for the price of a parcel of salmon I sent, by your order and commission, in January 1703; and, though they were taken into Dunkirk by a French privateer, yet unaquxque res periit suo domino: They were upon your risk, and I must have allowance for them.
Answered,—The hazard must lie upon Reid himself; for you did not observe the terms of my mandate, which was, to send them with that fleet which sailed with the Zeland convoy: but so it is, they came not then, but long after, when the lent-market of fishes was over; it fines mandati sunt in terminis cus-todiendi. And my letter had an alternative, either salmon or plaiding; and therefore you might have sent the last if you could not get the first.
Replied,—I acted for you as I did for myself; for I had a cargo of salmon in the same ship, which was lost as well as yours. And I gave you advice of their coming, which you did not countermand: and, though I had wanted a commission, yet it was negotium utiliter gestum upon my part, though, eventually, they were seized; for which the most prudent merchants, acting bona fide, cannot be answerable, otherwise all faith should be at an end: and mandates may be fulfilled by equipollents.
The Lords finding he gave no evidence, by bills of loading, that these salmon were shipped for Fletcher, as the proceeds of his goods, nor produced his letter-book to show that he had advertised him thereof, and that it seemed to be a story made up ex post facto; they repelled the compensation.
