JAMES WATT Junior v JOHN MITCHELL and Company (Court of Session)

Lord Medwyn .—The Lord Ordinary has adopted a very judicious course for bringing this question before us, by the manner he has done. It is important, it is difficult, and I do not know that any precise rule for estimating such damage has been fixed in our law, or by the practice of our courts. It is perhaps the most difficult case I have had to dispose of since I sat here.

The verdict finds that the defenders wrongfully failed to deliver the hemp, to the loss, injury and damage of the pursuer; and the jury assess the damages at such a sum as shall be the difference between the price of a ton of hemp, at the time which the Court shall fix upon as the period for ascertaining the amount of the pursuer's claim of damages, and L.20 per ton.

It is further found, that after the defenders' failure to deliver, the pursuer could not have supplied himself at St Petersburgh that season; and it is not stated that it was through inability that the defenders failed to deliver. During the whole period from November 1835 to January 1839, the price was progressively rising, till it reached more than double the original price.

The pursuer maintains that he is entitled to the highest price to which hemp rose in this country prior to decree. The defenders, on the other hand, argue that they are not bound to do more than give the increased value at or about the time of delivery, which would have been about the middle of November 1835.

It is true that in an early case in Elchies, Paterson v. Keith, 28th Feb. 1745, the damage for non-delivery of English wheat at Borrowstounness was estimated at the difference between the price at which it was sold and the current price at the time of delivery. Nothing more seems to have been asked, and the baxters had probably supplied themselves at the current rate in the market. Besides, the seller was not to blame for the non-delivery.