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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Graham v. Fenton [1872] ScotLR 9_553 (27 June 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0553.html Cite as: [1872] ScotLR 9_553, [1872] SLR 9_553 |
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Page: 553↓
Circumstances in which it was held that a quantity of potatoes had been transferred by sale, and was not liable to arrestment used against the original owner.
This was an appeal from the Sheriff-court of Forfarshire (Dundee).
By letter, dated May 24, 1871, George Hall, potato-merchant, Montrose, agreed to send eighty or ninety tons of potatoes to be carried by ship ‘Euphemia’ from Dundee to Leven.
Thereafter, about eighty tons were sent to the ship's side by William Fenton, farmer, Kingennie, addressed “Mr Hall, p. ship ‘Euphemia.’” While the potatoes were being shipped Fenton informed the shipmaster that the potatoes were his property, and that Hall was acting merely as his agent; and he then and there made an endorsation on the back of Hall's letter:—“ Dundee 26 th May 1871—The price of the cargo of potatoes to be paid to William Fenton, farmer, Kingennie, by Monifieth, at the office of J. & R. Guild, Dundee.”— William Fenton.
On 30th May an arrestment was used in the hands of the ship-master by Robert Graham, farmer, Pitskelly, on the dependence of an action against Hall.
The potatoes were sold by warrant of the Sheriff, and the ship-master raised a multiplepoinding, the proceeds of the cargo being the fund in medio.
Fenton claimed the whole fund, in respect that the potatoes were his property.
Graham also claimed the whole fund, alleging that the potatoes were the property of Hall, and attached by his arrestments.
The Sheriff-Substitute ( Cheyne) allowed a proof. From the proof it appeared that the larger part of the cargo, about sixty-two tons, came from Fenton's farm at Kingennie, and the remainder from a farm near Carnoustie. It was hardly disputed by Graham that the Kingennie lot was the property of Fenton. In regard to the Carnoustie lot, there was no doubt that it was originally the property of Hall. The account which both Hall and Fenton gave in their evidence was, that Hall
Page: 554↓
had, as a friend, offered to give Fenton this lot at the price which was to be paid by the consignees, in order to make up the cargo to the amount promised to the captain, and that Fenton accepted the offer,—Fenton thus making no profit on the lot, but being saved the loss consequent on not filling the ship. The only evidence to the contrary was that Hall, in his correspondence with various persons, spoke of the whole cargo as his own. The Sheriff-Substitute sustained the claim of Fenton to a portion of the fund corresponding to the Kingennie lot, and, quoad ultra, in respect that the action of Graham against Hall was still in dependence, superseded further consideration till the determination of that action.
In his Note the Sheriff-Substitute, while stating his belief in the honesty of both Fenton and Hall, expressed his opinion that the transaction between Fenton and Hall in regard to the Carnoustie lot did not amount to a sale, and that in regard to this lot, Fenton had acted as the agent of Hall, just as Hall had acted as agent for Fenton in regard to the larger lot.
Fenton appealed.
The Sheriff ( Maitland Heriot) recalled the interlocutor of the Sheriff-Substitute, and found that the ‘Carnoustie lot’ was also the property of Fenton at the date of the arrestment, and remitted to the Sheriff-Substitute to proceed further, who accordingly sustained the claim of Fenton to the whole fund in medio.
Graham appealed to the Court of Session.
Asher for him.
Shand and J. P. B. Robertson for Fenton.
The Court refused the appeal, holding that, unless Fenton and Hall were to be held as carrying out a fraudulent conspiracy, and maintaining it by perjury, the Carnoustie lot had been sold by Hall to Fenton. Nothing whatever was adduced to shake that evidence, except that Hall, like many other agents, spoke of a transaction which he was managing as his own. Hall's letters in fact proved too much for the appellant, for, if they proved anything, they proved that the whole cargo was his, whereas it was now admitted that the larger part was Fenton's.
Solicitors: Agents for Appellant— M'Lachlan & Rodger, W.S.
Agents for Respondent— H. & A. Inglis, W.S.
