Scottish Court of Session Decisions

The Lord President said—As regards the position of the pursuers, it appears that they received their order through a Mr Fearby, a commission agent. The manure was sent off and received and used by the defender. The pursuers sent along with the manure an invoice which had printed on it this notice—“ All receipts in discharge of payment to be signed by George Hodgson & Son only.” This invoice, it is admitted, was received by the defender. There was also sent at the same time a circular letter in the following terms:—“We beg most respectfully to intimate to you that all our manure accounts this season must be paid to the firm direct. Our Mr Hodgson will have the pleasure of waiting upon you at stated times, of which you will receive due notice. In the meantime, should you be wishful to pay the account, you will please remit the money direct to Doncaster.” The receipt of this letter was denied on record, but is admitted by the defender in his evidence. The case of the defender is that he had a transaction with a Mr Buchan, whereby he agreed to furnish him with potatoes, in return for which Buchan agreed to furnish him with manure. It appears that Buchan did not fulfil his undertaking in due time, and that when the time for using the manure arrived, Buchan called on the defender, and brought Fearby with him, and that the order was then given for the manure. The defender says that he understood, and that it was explained at this meeting, that the manure so ordered was to be in lieu of the manure which Buchan had agreed and had failed to furnish. On the other hand, Fearby states that he got the order from the defender in the ordinary course, although Buchan was present; that he transmitted the order to Mr Leishman, the pursuer's agent at Berwick; and that he had no authority to receive payment in potatoes, or in any other form than money. The question is, can the defender maintain the defence he has stated? The evidence is contradictory. The defender says that his understanding was that the manure was to stand for that which Buchan had agreed to deliver; and farther, that on the faitn of this he handed over to Fearby, at Buchan's request, the potatoes which he had agreed to furnish, so far as not already delivered to Buchan. The evidence of Fearby and Buchan is opposed to this. I have no doubt that the defender states quite honestly what he truly believed to be the import of the transaction and its real character; but I think there appears to have been a want of proper explanation at the meeting. The defender seems to have assumed too readily that Fearby viewed the matter in the same light as he did. I don't think there is evidence sufficient to bind the pursuers to the bargain betwixt the defender and Buchan. Their circular letter states the footing on which the manure was sent quite distinctly; and having received it, the defender's eyes were opened, and he was put upon his guard. His duty was not to have taken the manure on that footing. The whole question is whether the pursuers are to lose the price of their manure or the defender is to lose the price of his potatoes; and although the defender, I believe, acted with perfect honesty, I think the pursuers, whose conduct was also open and above-board, are entitled to recover.

Lord Curriehill and Lord Deas concurred.

Lord Ardmillan also concurred but with very great difficulty. He thought that the evidence of the defender was much more reliable than that of Buchan and Fearby, and if this question had arisen in an action at the instance of Fearby he would have sustained the defender's plea. But in a question with the pursuers he thought the defender was liable.

The Court therefore decerned for the sum sued for with expenses, both in the Sheriff Court and the Court of Session.