Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. III.

Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.

Hay
v.
Gray

Date: 4 June 1675
Case No. No 19.

A shipmaster who sold goods for a merchant, and bought others for him of a different kind from those ordered, was found liable; the goods having been taken by an enemy at sea, on the passage.

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A merchant having given a commission to a skipper, to carry a parcel of salmon to Bourdeaux, and upon the sale of the same there, to bring home wines and prunes; pursued the said skipper for the said salmon and profit thereof, and referred the libel to the skipper's oath; and the defender having qualified his oath on these terms, viz. that being upon his voyage to France, he was forced to go into Holland by storm of weather, so that he could not go to Bourdeaux, and that he was forced to sell the salmon in Holland, and with the price of the same did buy a parcel of cards and other goods mentioned in his oath, for the pursuer's use; and having embarked the same to be transported to Scotland, and in the interim war having arisen, the ship and goods were taken by the Dutch; and that he had done for the pursuer as for himself, and as other merchants had done for themselves; which oath being advised, it was debated amongst the Lords, whether the defender should be assoilzied, in respect of the oath and qualification foresaid; and it was found, that albeit the defender might be excused upon the account foresaid, for not going to Bourdeaux and fulfilling his commission in terminis, yet as to the buying of the parcel of cards with the product of the salmon, and the embarking of the same for the pursuer's use, for which he had no order, he was to be considered as negotiorum gestor, and upon his own hazard, and could not prejudge the pursuer by disposing of his money, unless he were able to say, gessit utiliter both consilio et eventu; specially seeing he might have secured his money in factors hands, or transmitted the same by bills of exchange, without employing, or far less hazarding the same without order.

Clerk, Hay. Fol. Dic. v. 2. p. 58. Dirleton, No 259. p. 105. *** Gosford reports this case.

In an action at Hays instance against Gray, for making payment of the price of ten barrels of salmon in trust by him, to the said Gray as skipper, to be carried in his ship to Bourdeaux, with an express commission, that he should sell the same, and with the price thereof bring home wine to Leith, which was referred to his oath; he having deponed, that he had received aboard the said quantity of salmon, with many other commodities of greater value from other merchants, and that he made sail to go for Bourdeaux, but by stress of weather was driven into Holland, after which time the war being declared betwixt the King and Holland, he did sell the said barrels of salmon, as other merchants did theirs, and with the price thereof, did buy a parcel of lint and hemp, which he did put in another ship going for Scotland, which was seized upon, and declared a lawful prize;—the parties’ advocates being heard at the advising of a cause, it was alleged for the pursuer, That the skipper ought to be decerned for the value of the salmon, because he had transgressed his commission, which was to buy wine and vinegar, and albeit he was forced by storm to go into Holland, yet the war being declared, he was in mala fide to buy commodities there to send to Scotland, seeing he might have remitted the money received, by bills of exchange, without any danger, It was answered, That he could not be liable as having received a commission, because it was impossible he could execute the same; neither could he be decerned as having brought the foresaid commodities into Holland to be sent to Scotland, because that part of his loading of salmon being but inconsiderable, he disposed thereof, and of the goods he bought with the price as he did with his own, and as others entrusted with the rest of his loading did with theirs. The Lords did find the skipper liable for the price, deducting so much for the exchange as it would then have given, if he had remitted the money, upon that reason, that the war being declared, he ought not to have bought goods in Holland, nor sent them to Scotland by sea under so great a hazard; which seems hard, seeing by the impossibility to execute the commission, he was in the case of negotiorum gestor, and disposed with that parcel as he did with his own, and as other merchants did who had a greater quantity, and run a greater hazard; and if he had remitted the money by bills, there might have arisen a great hazard, as well as by sending the goods by sea.

Gosford, MS. No 754. p. 468.