Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION II.

Sale of Moveables.
Subject_3 SECT. I.

Sale, when completed. - Price not stipulated. - Where the Buyer's faith is followed.

James Hill
v.
George and John Buchanan

Date: 26 January 1785
Case No. No 37.

Presumed delivery. - Symbolical delivery.

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George and John Buchanan having imported a cargo of tobacco, addressed the following letter, on 5th March 1783, to Wilson and Brown, merchants; “Gentlemen, We make you an offer of thirty hogsheads of tobacco, imported from New York in the Ruby, to be delivered to you or order, at Greenock, as it lies in the King's cellars, and at the weight it passed at the King's scales, one of which thirty hogsheads is still on board the ship, and shall be delivered to you when landed, at the price 23½d. Sterling per lb. you granting us bills for the same at six and seven months from this date. We are, &c.”

Of this offer Wilson and Brown notified their acceptance by a counter missive of the same date, thus; “Gentlemen, We are favoured with yours, of this date, making us an offer of your thirty hogsheads of tobacco, ex Ruby, at 23½d. per lb. for our bills at six months from this date, for the one half of the amount, and our bills for the other half at seven months from this date. We accept of your offer; and we are,” &c. On the same day, samples of the 29 hogsheads were delivered.

Here it is to be remarked, that by “King's cellars,” are not meant particular repositories appropriated for the service of the revenue, but all places in which goods are kept under the joint custody of the owner and of the officers of the customs. In this case the tobacco was lodged in Messrs Buchanan's own cellars.

Eight hogsheads were actually delivered to the order of Wilson and Brown, and shipped on their account. But, on the day following, Wilson and Brown became bankrupts; and then gave up to Messrs Buchanan the bill of lading that they had got on shipping these hogsheads, upon which the shipmaster, to whom the bill was returned, granted a new one in favour of Messrs Buchanan. An irregularity, however, having been committed in re-shipping the hogsheads, they were a few days after re-landed by order of the Custom-house officers, and placed in their former situation.

A sequestration of Wilson and Brown's effects having been awarded, under which Mr Hill was appointed factor, he instituted an action against Messrs Buchanan, for enforcing delivery of the tobacco; when the question occurred, Whether in those circumstances the sale had been so far completed as to transfer the property of the whole, or of any part of it to Wilson and Brown?

Pleaded for the pursuer; The bargain of sale was undoubtedly perfected by exchange of the missives, 1. 35. § 5. D. De contrah. empt. Voet, ad eund. tit. §24.; Erskine, B. 3. Tit. 3. By the same means, the transference of property was effected, even prior to any delivery; agreeably to the maxim established in this matter by the law of England; Blacst. Comment. B. 2. C. 30.; Assignees of Satterthwaite versus Devonshire; Burrow's Rep. v. 7, p. 931. Lewsley and Company versus Cam and Company, December 1777. Here, however, delivery has not been wanting. That of eight hogsheads is not questioned; and with regard to the remainder, besides the delivery of samples, which may justly be viewed as symbolical of the whole cargo, there is an implied tradition in the circumstances of the case. When goods in the possession of a third party are sold, the seller thus transfers the right under which that possession is held, and, by constituting the third party custodier for the purchaser, virtually makes delivery of the goods, or transfers the custody of them to the latter himself. Delivery is likewise implied of things placed out of the reach of the parties, such as goods when at sea, 13th June 1764, Buchanan and Cochrane contra Swan, No 42. p. 14208. Now, in the present case, twenty-one hogsheads being lodged under the charge of the revenue-officers, were truly in the custody of a third party; and such too was the case of the hogshead remaining on board; or perhaps it may be considered as in a situation inaccessible to the parties. The property thus vested in the bankrupts, is now attachable by their creditors.

Answered; It is established, both in the Roman law and in ours, that though the bargain of sale be completed, yet no transference of property can follow without delivery, which in this case was not made; the giving of samples having been intended merely to make known the respective qualities of the different parcels. Even the eight hogsheads, on the bill of lading being returned to the shipmaster, were again placed in the possession of their owners, along with all the rest of the goods; that hogshead included which was not brought ashore till after the missives were exchanged. It was in Messrs Buchanan's own cellars that they were lodged; and the circumstance of the revenue-officers taking charge of them there, cannot be imagined to have placed them in the custody of a third party. There was then, in fact, no delivery; neither could it, with justice, have been required, since the cause contracted for, on the other hand, was precluded by the bankruptcy of the purchasers. Not only indeed, the price could not be paid, but even the stipulation of previously granting bills was not complied with. Since, then, no delivery has intervened, nor any title been created for claiming it, the property in question still remains with the purchasers.

The cause was reported by the Lord Ordinary; when the Court seemed to approve of the defender's argument. At the same time, it was

Observed on the Bench; Even though delivery of moveables has been made in consequence of a sale, the seller, if by any lawful means the subjects sold have come again into his possession, is entitled to retain them until he is secured in the price. In heritage, if after the execution of a minute of sale, the purchaser shall become bankrupt, the seller is entitled to refuse implement on his part.

The Lords assoilzied Messrs Buchanan.

Reporter, Lord Gardenston. For the Factor, Morthland. Alt. Wilson. Clerk, Home. Fol. Dic. v. 4. p. 251. Fac. Col. No 196. p. 307. *** This case was appealed.

The House of Lords, 11th April 1786, “Ordered that the appeal be dismissed, and the interlocutors complained of be affirmed.”