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James Scot of Benholm v Couts, Ferrier, &c. [1694] 4 Brn 223 (11 December 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040223-0505.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Scot of Benholm v. Couts, Ferrier, &c
Date: 11 December 1694
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James Scot of Benholm, against Couts, Ferrier, and other merchants in Montrose, anent a bargain of victual. The price of the boll of bear in the contract was £5: 3: 4 Scots, but with this quality, that, being to be transported to Holland before the 1st of April, if they got more than £21 Flemish for the last of it, then he was to get 10s. Scots more on the boll; and, if the market fell low, so as they got less, he was to suffer the like abatement: ita est it never arrived, but the ship was cast away, (though the merchants had insured the cargo;) so they suspended, and craved an ease; for they passed from the first reason, that the victual should perish to him, and be on his risk; for the Lords found the merchants were proprietors of it. As to the defalcation, they answered,—That it was not provided for by the contract; seeing the case there mentioned was the arrival of the ship, which never existed. Yet the Lords thought this fortuitous event included therein; for it were an odd thing to give them abatement as the markets ruled, if the ship had arrived, and to give them none if it perished; especially seeing it bore “wind and weather serving and that Benholm, the charger, by a letter, seemed to undertake the hazard. Therefore the Lords directed a commission to Holland, to try what was the greatest price Scots bear then gave, that his might be regulated thereby, either as to augmentation or diminution.
