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Scottish Court of Session Decisions >>
William Shaw v Duncan M'Donell, and Others. [1786] Mor 9185 (3 March 1786)
URL: http://www.bailii.org/scot/cases/ScotCS/1786/Mor2209185-040.html Cite as:
[1786] Mor 9185
Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum præstandum.
William Shaw v. Duncan M'Donell, and Others
Date: 3 March 1786 Case No. No 40.
A literary work having been anounced in proposals for publishing by subscription, as consisting of different parts, the subscribers found free from their engagement, some of those not being executed.
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Shaw gave out proposals for publishing, by subscription, a literary work, which he described as follows:
“A Dictionary of the Gaelic and English, and English and Gaelic languages; together with a Glossary of proper names of men and things, and Accounts of battles, warriors, affinities and feuds between great chiefs and clans; with Descriptions of mountains, rivers, vallies, islands, &c. in Scotland; proper references being made to the Welsh and other ancient dialects of the Celtic.”
The book, however, was published without any attempt having been made by the author to fulfil that part of his proposals respecting the glossary, the historical accounts, or the references. In consideration of these defects, and of alleged imperfections in those parts of the proposed work which was executed, several of the subscribers returned the copies delivered to them, and refused payment of the price.
Shaw having on that ground instituted an action against them,
The Court considered the author's total failure in performing a part of the work anounced in his proposals, as sufficient to liberate the subscribers from their engagement to him; at the same time that the allegation of the other parts of the book being less perfectly executed than was to have been expected, did not, so far as mala fides or gross negligence was not implied, appear to be deemed a relevant defence.
The Lords therefore assoilzied the defenders.
Reporter, Lord Swinton.Act. Solicitor-General, et Tait.Alt. J. Grant, W. Campbell.Clerk, Orme.
Fol. Dic. v. 4. p. 13. Fac. Col. No 263. p. 401.
