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Scottish Court of Session Decisions >>
Coutts and Company v Allan and Company. [1758] Mor 11549 (9 January 1758)
URL: http://www.bailii.org/scot/cases/ScotCS/1758/Mor2711549-224.html Cite as:
[1758] Mor 11549
Vitiated Writs when presumed Fraudulent, when Innocent. - An impossible condition in a Writ, presumed an error of the Writer.
Coutts and Company v. Allan and Company
Date: 9 January 1758 Case No. No 224.
The literal terms of an obligation corrected, from the circumstances of the case. The crop of one year had been inserted, when it was evident another was meant.
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On the 14th September 1754, Fairy, agent for Coutts and Company, wrote to Allan and Company, “Gentlemen, I acknowledge to have sold from 600 to 800 bolls of north-country meal, crop 1754, good and sufficient oat-meal, at 108. 8d. Sterl. per boll, deliverable at the harbour of Irvine, as soon as wind and weather will allow; payable at Martinmas next, and the 1st January, in equal proportions.”
Of the same date, Allan, in answer to this letter, declared his acceptance of the bargain; adding, that the meal should be delivered in three weeks.
Within the time appointed, Coutts shipped 600 bolls of meal, of crop 1753 from Portsoy for Irvine, and made offer of it to Allan.
Allan not having occasion for the meal, refused it, on this ground, That, in terms of the letter, it was not of crop 1754.
Coutts having brought a process against him, he founded his defence on the strict terms of the letters, which bound him to receive meal only of crop 1754.
Answered for Coutts, The words, “of crop 1754,” had been put in by the inaccuracy of Fairy, instead of “crop 1753;” that crop 1754 could not be in the intention of parties, because it was impossible it could be delivered of that crop from Portsoy to Irvine in three weeks after the date of the letters; seeing the gentlemens farm-victual in that country are not deliverable till betwixt Yule and Candlemas.
Replied, When an impossible condition is annexed to a bargain, the effect of it must be, to void the bargain altogether; 1. 31. Pand. De obligat, et act.; Stair, lib. 1. tit. 3. § 7.; and again tit. 10. § 13.
“The Lords found Allan liable for the price of the meal offered to be delivered.”
Act. Sir John Stuart, Ferguson.Alt. J. Dalrymple, Lockhart.
Fol. Dic. v. 4. p. 125. Fac. Col. No 81. p. 144.
