WRIGHT v Sir JAMES STEUART DENHAM (Court of Session)

Sir James S. Denham, &c. wishing to build a new farm-steading, entered into a contract for that purpose with James Bennet. The missive of agreement ran in name of James Bennet, and of William Cadzow and John Burns, as his cautioners. It provided, inter alia, that the contract price, viz. L.338, 16s., ‘should be paid in four instalments, according as the work goes on; it being always understood, that the value of work equal to one instalment of the money remains unpaid, until the whole work now offered for is completed and taken off our hands by the inspector.’

Of this decree Wright brought the present action of reduction, so far as concerned the finding with regard to the payment of the L.30, and certain findings as to expenses; and the record was closed by a condescendence for pursuer, and separate answers for Sir James and Burns.

The Lord Ordinary sustained the defences, and assoilzied the defenders, and found expenses due.

Note .—‘Though the Lord Ordinary may not feel very sure that the pursuer has got full justice in the transactions referred to, he thinks that the action cannot be maintained, and that it is impossible to give judgment to the only effect which is asked by the summons.

The case of Wright may be hard, if the slater work really was sufficiently done, though not to the taste of Davidson, who is said to be no slater: And perhaps it would have been better if Davidson's report had been made under judicial authority. But the pursuer trusted the credit of Bennet alone; and though he might arrest in the hands of Sir James Steuart, he could only arrest, subject to the conditions of Sir James' own contract; and it is by this natural course of the double transactions that he necessarily suffers.’