Scottish Court of Session Decisions

Subject_1 MANDATE.

Smith in Yarmouth
v.
Fotheringham in Arbroath

Date: 7 December 1736
Case No. No. 2.

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Merchants in Arbroath commissioned their factors at London to find a proper person at Yarmouth to buy for them a cargo of red herrings, who accordingly commissioned Smith at Yarmouth; and upon his undertaking to purchase it, they advised him it was for the behoof of the Arbroath merchants, who were to send a ship with instructions, which he was to follow, and to draw on them the London factors for his reimbursement. The Arbroath merchants thereafter corresponded also directly with Smith, and ordered him on receipt of their letter to buy for them conditionally from 100 to 150 barrels more, (than the 450 that their London factors advised them he had already bought for them) as the ship can stow, “we being only obliged for that quantity, and our draughts on Yeaman, &c. for that we have further commissioned will be duly honoured, they having orders for that effect.” Smith sent his invoices, and the skipper's bill of lading, in name of the Arbroath merchants to the London factors, and drew on them as directed; and they having failed, now pursues the Arbroath merchants. But the Lords found that the bargain was made betwixt. Smith and the London factors upon the faith of these factors, and that the Arbroath merchants were not liable for the same; reserving to the pursuer to be heard on the additional 150 barrels;—and found the defenders liable for the said 150 barrels.