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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sidey and Crawford v. Munro [1866] ScotLR 1_140 (6 February 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0140.html Cite as: [1866] ScotLR 1_140, [1866] SLR 1_140 |
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Page: 140↓
A pursuer must take an issue in conformity with his averments on record.
This was a question as to the terms of an issue.
The pursuers, who carry on business in Montreal, and transact business with merchants in this country through agents appointed by them, averred that on or about 21st July 1864 the defender commissioned them, through their agents in Glasgow, to purchase for him and ship to Glasgow a quantity of butter. The pursuers proposed to put in issue, “Whether the defender ordered the pursuers to procure for him the butter.” The defender objected to this issue, that the order averred was to purchase and ship, and that these words must therefore be put in issue. The pursuers object in using the word procure was to meet the case of a purchase made before the order reached Montreal, which they hold would be, according to mercantile usage, fulfilment of the order as averred on record.
The Court held that the defender was right in his contention, and that the words “purchase and ship”
Page: 141↓
must be substituted in the issue for the word “procure.”
The Lord President said—It was a different question whether what was done was according to mercantile procedure. The pursuers must take the risk of that if they go to trial under this issue. We will not at this stage determine the point. The pursuers' statement is that the defender ordered them to purchase, and that is tantamount to an admission.
The other Judges concurred,
Counsel for Pursuers— Mr Clark and Mr Watson. Agent— Mr Lockhart Thomson, S. S. C.
Counsel for Defender— Mr Gifford, Mr Trayner, and Mr Deas. Agents— Messrs Duncan & Dewar, W.S.
