Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION II.

Sale of Moveables.
Subject_3 SECT. I.

Sale, when completed. - Price not stipulated. - Where the Buyer's faith is followed.

Charles Salter
v.
The Factor on the Sequestrated Estate of Knox and Company

Date: 7 February 1786
Case No. No 38.

How far, by the measuring out of goods, without farther delivery, the property is transmitted?

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On 13th December 1785, Charles Salter paid to Knox and Company L. 63 Sterling, as the price of sixty bolls of malt, to be afterwards delivered.

On 2d February following, Knox and Company gave notice to Charles Salter, that the stipulated quantity of malt had been then measured and set apart for him.

A few days after, however, Knox and Company stopped payment. The factor on their sequestrated estate took into his possession the whole malt found in their warehouses; and Gharles Salter petitioned the. Court of Session, that the sixty bolls, for which he had paid, might, as his property, be delivered up to him. He

Pleaded; The actual delivery of moveables, from hand to hand, is not in every case essential to a transmission of the property. Where the price has been paid or even ubi fides habila est de pretio, it has been found, that any act, expressive of the seller's design divest himself, is sufficient for this purpose. Thus even symbolical delivery has been sustained, in a question with one who had afterwards attained the natural possession; 1762, Gray contra Cowie; See Appendix. And, in express terms, it has been decided, that the weighing out of fungibles, whether the price has been paid of not, was equivalent to an immediate surrender of the property 27th July 1710, Main contra Maxwell, No 17. p. 9124.

Answered; The general rule of law is undoubted, that Traditionibus, non modis paotis, dominia rerum transferuntur. It is true, that in special circumstrances our customs have introduced certain modes of symbolical tradition wherein something else is delivered as representing the subject intended to be conveyed; Erskine, B. 2. Tit. 1. § 19. It is likewise true, that delivery may be effected without the personal intervention of the purchaser as in the instance referred to, of goods weighed out in the public office to the purchaser's wife, and afterwards marked with the initials of his name; in which case, as well as in those Where symbolical tradition is allowed, the seller has no longer any power over the subjects sold. The present case, however, is very different. That no symbolical tradition took place, must be admitted. It is equally plain, that no actual delivery was made, either to the purchaser, or to any one in his behalf. The goods still remained as before, in the custody, and under the administration of the original owners. They might have been, by voluntary conveyance to a third partys; they might have been attached by poinding at the suit of individual creditors; and the sequestration which followed gave to the whole creditors a right equally broad.

The Court were unanimous in rejecing this claim. It was observed by one of the Judges, That a purchaser had indeed an equitable claim to goods of which he had paid the price; but however equity may I afford relief, by undoing what has been illegally done, it cannot, in at question with third parties, supply the want of those things which, though required by the law, have been left undone.

The Lords refused the petition.

For the Petitioner, Dean of Faculty. Alt. Maclaurin. Fol. Dic. v. 4. p. 251. Fac. Col. No 256. p. 391.