Thomas Boswall, late Merchant in Leith, now residing in Edinburgh v. James Morrison, Merchant in Leith [1812] UKHL 5_Paton_649

UKHL
Thomas Boswall, late Merchant in Leith, now residing in Edinburgh v. James Morrison, Merchant in Leith
[1812] UKHL 5_Paton_649 · 1812-07-20

(Fac. Coll. vol. xiii. p. 544. Mor. App. Damage and Inter. No. I.)

House of Lords, 20th July 1812 .

Subject_ Contract of Sale — Damages for Non fulfilment. —

non-fulfilment of the contract of sale. The spirits were purchased in the knowledge, on the buyer's part, that there was to be a rise in the price, and he bought at the old price. The seller was ignorant of this intended rise in the price, and of this information from London, which the buyer possessed. He afterwards refused to deliver: Held him liable in £200 of damages, being the sum concluded for, estimated according to the highest price of whisky that could be got at the time of pronouncing decree in the action.

Action was raised for delivery of four puncheons of spirits, or for damages for

Page: 650 ↓

This was an action raised by the respondent against the appellant, for delivery of four puncheons of spirits, or failing which, for damages for non-fulfilment by him of a contract of sale in regard to these spirits, entered into on 3d October 1799, in the following circumstances: It appeared that on 30th September 1799 an order had been made in the House of Commons for leave to bring in a bill to prohibit for a time the distillation of spirits in Scotland; and the respondent having heard of this early on the morning of the 3d of October, and perceiving that the effect would be to raise very materially the price of spirits, he resolved to purchase up as much spirits as he could at the old price, before information of the Goverment order became generally known. Accordingly he called on the appellant, and concluded a bargain for four puncheons, to be delivered to him at the rate of 5s. 4d. per gallon. After hearing of the news from London, which reached the same day, after the sale was effected, the appellant refused to deliver the spirits at the price agreed on, (the price having risen to 16s. per gallon), stating that he had been tricked and deceived in the matter, whereupon the present action was raised.Jan. 22, 1803.After a special interlocutor, stating the facts, the Lord Ordinary found the appellant liable in the sum of £200 damages for non-delivery of the spirits, the loss being estimated as equal to the sum of £200, concluded for in the libel on 1st November 1799, the date of citation to this action.Jan. 25, 1805.Mar. 4, 1806.Mar. 12, 1806.On reclaiming petitions to the Court varying interlocutors * were pronounced. At last the Court pronounced this interlocutor:the damages to £200 Sterling, and decern for payment thereof to the pursuer, with interest from the 1st Nov. 1799: Find expenses due from the date of the interlocutor of the Court of the 24th Feb. 1802.” *
“The Lords having resumed consideration of this petition, and advised the same, with the answers thereto, alter the interlocutor complained of, and in terms of the previous interlocutor of the Lord Ordinary, modify

Footnote

* The variation in the interlocutors of Court was upon the amount of damages, and the rule for estimating that amount.

Page: 651 ↓

Thereafter, on reclaiming petition, the Court adhered. And their Lordships, upon advising the account of expenses, with the auditor's report, modified the account to £101. 14s. 2d., and decerned.Against these interlocutors the present appeal was brought to the House of Lords.Pleaded for the Appellant .—The appellant maintains that the bargain into which he was betrayed, on the morning of the 3d October 1799, was of the nature of a catching bargain, and that it is not obligatory in law. The fact, as uniformly averred by him, has already been stated. On the forenoon of that day, several hours after the mail coach had passed through Leith, and after part of several of the English letters and newspapers had been delivered, Morrison came to the appellant's wareroom, and, under pretence that his stock of spirits was reduced, prevailed on the appellant to sell him four puncheons of whisky at 5s. 4d. per gallon, assuring the seller at the same time that he had no information of any probable rise in the price of the article. At the time this declaration was made, Morrison's stock was not reduced, and he was aware that an event had taken place in the House of Commons, of which the unavoidable consequence was, an immediate rise in the price of Scotch spirits. 2d. But, if this contract, in these circumstances, stands as binding, the appellant ought not to be subjected to the payment of £200 of damages. He is unable to discover on what grounds the Court has proceeded in giving that precise

Footnote

* Opinions of the Judges:—

It was held by the Court:
“1st, That the buyer's demand was not to be limited to the price at the stipulated day of delivery. 2d. That although the non-delivery be imputable to no fault, the buyer must be indemnified for his actual loss. 3d. That the price at the day of citation was not to be taken as the criterion, since the call to fulfil his engagement would thus discharge the seller from the bad consequences of his subsequent refusal. And, 4th. That it was not practicable, without throwing the matter entirely loose, to enter into the consideration of the probable time at which, had the delivery been duly made, the article would have been disposed of.”—Bell's Com. vol. i. p. 450.

Page: 652 ↓

Pleaded for the Respondent .—The facts above stated are not established by evidence; and even if they were admitted, they would not be relevant, inasmuch as it was competent, and perfectly legitimate for the respondent to avail himself of his superior information, in order to make the best bargain he could—a course which is well recognized in mercantile dealings. 2. The appellant contends that the amount of damages ought to have been estimated according to the selling price, when delivery ought to have been made, or from the date of raising the action; but if the first rule obtained, then no seller of spirits could fulfil his bargain in a rising market; and the second rule cannot regulate the amount of damages, because the date of an action is arbitrary. But it humbly appears that the soundest rule for regulating an assessment of damages, in a case of this sort, is to hold, according to the principle of the civil law, that the party committing the breach of contract is liable, according to the profits the purchaser would have gained if the contract had been implemented at any time during the contumacy of the culpable party. At all events, the decree of the Court of Session must remain effectual, which awards less than the highest profits that could have arisen to the respondent if the contract had been implemented.After hearing counsel,Lord Chancellor Eldon said,
“My Lords,
In this appeal, there are two questions: 1st, Whether the appellant was liable to an action of damages at the instance of the respondent or not? as to which I never had the least doubt.2d. Whether these damages had been properly estimated or not?It does not appear to me that, with regard to the second question,

Page: 653 ↓

“I therefore move to affirm.”

(Nothing was said about costs).It was ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.Counsel: For the Appellant, Wm. Erskine, Fra. Horner. For the Respondent, Robert Forsyth, Hen. Brougham.