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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Taysen & Co. v. Johnsen, et e Contra [1872] ScotLR 9_228 (19 January 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0228.html Cite as: [1872] ScotLR 9_228, [1872] SLR 9_228 |
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Page: 228↓
Circumstances in which the consignees of a cargo of dried fish were held warranted in rejecting the same as disconform to contract.
In June 1870 Christian Johnsen of Christiansund, in Norway, undertook to supply Taysen & Co., merchants, Leith, with a quantity of “new white hard dried ling” and “new white and well dried tusk.” On the arrival of the cargo it was rejected by Taysen & Co. as disconform to contrac t, and was subsequently sold under a warrant. Each party brought an action against the other—Taysen & Co., who had resold the cargo before its arrival, for the loss of profit which they would have made, and Johnsen for the difference between the invoice price and that actually realized.
The actions were conjoined, and a proof allowed. The question involved was whether Taysen & Co. were warranted in rejecting the cargo. For Johnsen it was contended that the fish were as white as Norwegian fish usually are, and that Taysen & Co., themselves Norwegians, having ordered fish from Norway, must be satisfied if they got what known in Norway as “new white hard dried ling” and “new white and well dried tusk.”
The Lord Ordinary ( Mure) found that the cargo consigned did not consist of “new white hard dried ling” or “new white and well dried tusk,” and that Taysen & Co. were warranted in rejecting the cargo as being disconform to contract, and decerned against Johnsen for £132, 10s. 5d., as the profit which Taysen & Co. would have made upon the sale.
In his note his Lordship observed that “the defence, even if relevant in law, which he is disposed to think it is not, was not borne out by the evidence.”
Johnsen reclaimed.
Asher and Darling for him.
‘Solicitor-General and Trayner in reply.
The Court adhered.
Solicitors: Agents for Johnsen— Scarth & Scott, W.S.
Agent for Taysen & Co.— P. S. Beveridge, S.S.C.
