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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Johnston and Proudfoot v. Pennycook and Owler. [1818] ScotJCR 1_Murray_285 (16 February 1818) URL: http://www.bailii.org/scot/cases/ScotJCR/1818/1_Murray_285.html Cite as: [1818] ScotJCR 1_Murray_285 |
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Page: 285↓
(1818) 1 Murray 285
CASES TRIED IN THE JURY COURT.
No. 28
Present, Lords Chief Commissioner and Gillies.
Damages for breach of contract.
This was an action of damages against one of the defenders for not implementing a sale of cattle; and against the other defender for subsequently purchasing them, knowing of the previous sale; and for affronting, calumniating, and abusing the pursuers in a public market.
Defence.—The first bargain was not completed;
Page: 286↓
“Whether, on the 11th September 1816, or about that time, the defender, Alexander Pennycook, at the Falkirk Tryst or Fair, sold to the pursuers 40 stots or steers, at the price of L. 5, 12s. 6d. a-head, for which he agreed to receive their bill to him, payable at two months date?
Whether the said bargain was completed, and the cattle delivered to the pursuers' servants; and whether the said defender, Pennycook, to the loss and damage of the pursuers, and in breach of said previous bargain, shortly afterwards, on the same day, sold, or pretended to sell, said cattle to the other defender Owler? or whether the defender Owler bought them, knowing of any previous sale? or whether Owler was a real or fictitious purchaser?
_________________ Footnote _________________
* Before the trial commenced, the
Lord Chief Commissioner suggested, That though there were two defenders, and one of them had a separate defence, yet as the case was one, the Jury could not divide it, and it would therefore be better to allow the circumstances as to both defenders to arise in the course of the procedure.
Page: 287↓
Whether the said other defender Owler did, knowing of said previous sale to the pursuers, shortly thereafter, on the day aforesaid, come up to the place where the cattle were standing in the custody of the pursuers' servants in the said tryst or fair, and, assisted by several other persons acting under his directions, to the loss and damage of the said pursuers, drive away the said cattle, and take them by force from the pursuers' servants? or whether the said defender Owler did, during the altercation, offer to put the cattle into a neighbouring grass park, till the point of right should be determined?
Whether the said defender Owler, or persons under his orders, when they drove away the said cattle as aforesaid, struck the pursuers' servant; and whether the said Owler, or others under his orders, or by his instigation, did, on the same occasion, to the injury and damage of the pursuers in their character and reputation, calumniously allege that the pursuers intended to pay for the said cattle in base stuff, by which they meant bad bills or forged notes? or whether the pursuer first threatened to strike the defender Owler, and to drive the cattle over his head, and used opprobrious language towards him?”
Page: 288↓
“The damages are laid at L. 500.”
The parties, who were strangers to each other, met on the second day of the Falkirk Tryst in September 1816, and the pursuers wished to purchase 40 stots belonging to Pennycook. At first he refused to sell them, as it was proposed to pay the price by a bill at two months; but late in the day he agreed to take a bill if M'Ritchie, a person known to both, would indorse it. This person would not indorse the bill, but assured Pennycook that the pursuers were in perfect credit; and, from other circumstances, it appeared that there would have been no difficulty in discounting their bill.
After this the parties were seen striking hands, which was proved to be the common method of concluding bargains in the public market. The pursuers' servants proceeded to mark the cattle, which is never done till a bargain is concluded, though it is done before the price is paid.
The parties went to a tent to settle the price, but Pennycook soon left it, and sometime afterwards the servants of the other defender were found driving off the cattle. A dispute arose, and there was much abuse on
Page: 289↓
It is competent to put leading questions to a witness on his cross-examination.
The counsel for one of the defenders mentioned a particular expression, and asked a witness for the pursuers if he had heard the pursuer Johnston use it, to which an objection was taken that it was a leading question.
Another witness, in his examination in chief, having stated that Owler during the dispute
Page: 290↓
Murray, for Owler, asked him whether Johnston was a strong man,—whether he was good natured, &c.
Murray, for the defender, when another witness was called, took a distinction between the case of a defender attempting to make out his defence by the pursuer's witnesses, and his examining them as to the pursuers' case; he
Page: 291↓
Jeffrey objected,—Cross means cross to the examination in chief of the witness, not cross to the pursuers' case.
When two defenders have separate defences, both their counsel must address the Jury before the pursuer makes his reply.
As there were two defenders, and as it was doubtful whether both or either would lead evidence, Mr Jeffrey, when the evidence for the pursuer was closed, asked the opinion of the Court as to the form of procedure.
The case was then opened, and evidence led
Page: 292↓
Keay, for Pennycook, contended,—The first bargain was not concluded, as the agreement was to sell for money, and the pursuers offered a bill. There is no damage proved, as the markets fell. This is a mere question of humour, as, even according to the rise in the market alleged, (and that sworn to only by one witness,) the whole sum in dispute would not exceed L. 5.
Murray, for Owler, admitted,—If there was a breach of bargain from corrupt motives, the party will be liable in damages; but there was no concluded bargain, and no proof even of a bill having been drawn or offered. The second was a bona fide sale, and the only claim against Owler is on the ground that, by a fictitious sale, he enabled the other to break his engagement. The defamation is not proved.
Cockburn, who opened the case for the pursuer, and Jeffrey, in reply, insisted,—There was a concluded bargain; and Owler is liable whether he knew it or not, as he carried off the cattle after he was informed of the sale. The
Page: 293↓
Even if the market had fallen, the pursuer is entitled to damages on account of his disappointment, and to do away the idea that he is not to be depended on in his dealings. If Owler did not know of the first sale before, he is clearly accessary after the fact.
It is difficult to reconcile the testimony as to the proposal to put the cattle in a field till next day; but if Owler really wished this, why did he drive them away to his own farm?
The issues are more involved than those usually sent here. The first is clear, and on it the whole rests. The second involves a number
Page: 294↓
The last issue is given up.
The only question is, whether the first bargain was concluded. In a bargain for sale there are three things: 1 st, An agreement of two parties for a sale; 2 d, The price to be paid; 3 d, The mode of payment.
In this case the price was fixed, and, therefore, the questions are, if there was an agreement for a sale, and if the parties had settled the mode of payment.
That there was an agreement for a sale appears from their striking hands, from the cattle being marked, and other circumstances. In this case there was no attempt to prove that it was done fraudulently, or that Pennycook ever appeared and said it was done without his authority. There certainly is a prima facie case made out; and it was therefore incumbent on him to come forward and show that there was some misunderstanding, and that the bargain was not binding on him; but, instead of this, he absconds. A number of circumstances show that the payment was to be by bill. If you differ from me as to the bargain being completed,
Page: 295↓
All that has been said applies equally to the second issue. It was not a pretended sale, but a real one. The damages against Owler depend upon his knowledge of the first sale, and it is therefore important to decide whether he knew of it. His knowledge of it does not rest on positive testimony; but, if you are satisfied that he knew of it, I do not think it necessary to separate the damages.
As to the last issue, it is clear he drove them away and against the will of the pursuers. Both parties seem to have made a proposal to put them into a grass field.
Specific damages have not been proved, and, therefore, they must rest generally on the injury done and vindictive damages ought not to be given.
“Verdict for the pursuers, finding the defenders jointly liable in damages to the extent of L.20 Sterling.” *
_________________ Footnote _________________
* The Jury, in this and several other cases, gave a verdict for costs, as well as damages, but were informed by the Court that that was not within their province.
Page: 296↓
Counsel:
Jeffrey,
Cockburn, and
Sandford, for the Pursuers.
Keay and
Whigham, for Pennycook.
J. A. Murray and Alison, for Owler.
Solicitors: (Agents, N. W. Robertson, Macritchie and Murray, w. s. and R. Smyth, w. s.)
