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Scottish Court of Session Decisions >>
Grott v Sutherland. [1672] Mor 14631 (14 June 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor3314631-009.html Cite as:
[1672] Mor 14631
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. III.
Indivisible Prestation.
Grott v. Sutherland
Date: 14 June 1672 Case No. No. 9.
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Two owners of a ship being obliged by a contract to transport goods to a certain part; the Lords sustained action against one of them in solidum, for implement of the obligements in the contract being facti which is indivisible; and they being socii et exercitores, so that the freight might have been paid to one of them; and eadem ratione, any one of them is liable, and may be pursued in solidum.
Clerk, Gibson.
Fol. Dic. v. 2. p. 378. Dirleton, No. 166. p. 68.*** Stair reports this case:
Sutherland having by a minute with Grott and Elatt, two owners of a ship, agreed for the freight of some barrels of beef, belonging to Sutherland and his partners, which they were obliged to carry to Leith; and having failed; he pursued them for damage and interest, concluding against both to be liable, conjunctly and severally, for the whole damage. The defenders being absent, and the clerk having advised the relevancy of the libel with the Lords; this occurred to their consideration, whether that member of the libel was relevant, concluding against them both in solidum, or whether they were only liable pro rata, seeing the minute bears not conjunctly and severally; whereupon some were of opinion, that they were only liable pro rata, especially seeing the fact to which they were obliged principaliter, viz. to transport goods from one port to another, was divisible; and if it had been performed by the defenders severally, and by several vessels, the pursuer could not have refused the performance was sufficient, much more now when damage and interest was only pursued, for that terminating in a liquid sum, was unquestionably divisible.
The Lords found both the defenders liable in solidum, for they found that the damage and interest, albeit it terminate in a sum, yet seeing subiit vicem facti, it behoved to be ruled conform to the principal obligation, which being in facto, they found, that according to the meaning of parties in trade, who contract most summarily and plainly, it was not to be understood that every owner should only be obliged for his part of the cargo, and thereby oblige the merchant to attend and accept of payment by parts; and though, if all of them had brought their parts at the same day to the Port, and offered them together, the merchant could not challenge any of them for more than his own part, because he had nothing wanting to him; yet that inferred not, that when they all failed, each should only be answerable for his part.
