6

' of and receive the spirits because he could not be home so soon. Both letters came to Aberdeen by the same post, and that very 'night Cruickshank wrote to Dunlop that he was in a mistake, for that he, Cruickshank, had no concern in the commission, and was in no copartnery with Forbes, except for the lawns, and the same 'night gave the invoice to Jopp, and next day both of them set 'out to the place where they expected the ship, and she soon ' appeared. Cruickshank had on board a larger quantity of spirits belonging to himself, and by the way bought from Jopp ' about L. 70 worth of Dunlop's spirits deliverable at the mast, which, with his own, he sold to sundries, and Jopp sold the re'mainder of Dunlop's spirits to sundries, except a small quantity that he said was left to Forbes. Creditors had begun to use diligence against him before he went to Holland. Soon after the above transaction, he came home, and after a very • short stay went to the West Indies. After he was gone, Forbes's creditors arrested in the hands of both Jopp and Cruickshank, and among the rest so did Dunlop, after discovering how he had been tricked, and pursued both in a forthcoming, but 'concluded also against Cruickshank as a partner. The case came before me in the Outer-House, and I allowed a proof be'fore answer, and in the forthcoming the defenders to depone. At advising, the Lords thought, some of them, that there was suf'ficient evidence that Cruickshank was partner in the commission, 'but though there seemed great cause to suspect it, I thought the ' evidence not sufficient, and it carried that there was not. The • other point insisted on was to reduce the sale, because of Forbes's fraud, and though I would have had no difficulty, had the ' goods been extant, yet as they were disposed of, I should have had the same difficulty as I had in the case of Christie against Anderson's creditors, 1st and 17th December 1748, but here I thought there never was a sale perfected, for Dunlop never consented to sell to Forbes, but to Cruickshank and • Forbes in Company; and Cruickshank having refused to receive them, or to be concerned, there was no sale, and the property ◄ was not transferred, and therefore both Cruickshank and Jopp were liable for such parts of Dunlop's spirits as they intromitted with, and so we accordingly found. Cruickshank produced a receipt and discharge by Jopp of the price of the spirits he bought, dated two or three days after the arrestment, and Jopp

was creditor to Forbes in sums sufficient to exhaust the price of the whole, but we had no regard to either *."

222. In this case it appeared that the error in the name of the vendee was a material circumstance, and that the vendor would' have suffered a loss if it had been held that there was a valid contract notwithstanding the error. In the following case, decided int England, it appeared, on the other hand, that the error in the name was immaterial, and therefore it was held, in conformity with Pothier's rule, that the validity of the contract was not affected by it, unless the party founding upon the error could shew that he had suffered any prejudice in consequence.

The action was assumpsit, for a breach of contract, in not taking a quantity of hemp which the defendant had bought of the plaintiffs, through their broker, in March 1815. The hemp at the time was in Russia, and was to be shipped from Riga by the Alexander. Mr. Metcalf, the broker, who made the contract, had described it in the bought and sold note in these terms, "Bought for George Lapage, (the defendant) of Todd, Mitchell & Coy., 38 tons of hemp, &c.' The action was brought in the names of John Mitchell, George Armstead, and P. F. Graabner; but the old name of the firm was Todd, Mitchell & Coy. This firm had been dissolved in December, 1814, when Todd and James Mitchell retired, and John Mitchell, one of the plaintiffs, remained with Armstead and Graabner. Neither Todd nor James Mitchell had any concern with the hemp in question. The change in the firm had not been published in the Gazette, but was known to the clerks in the house. When Metcalf made the contract in

Dunlop v. Cruickshank, 16th Jan. 1752. (Elch. Notes, No. 25. Fraud.) I have taken the Report of this case as given in Lord Elchies' Notes, where it is stated more fully than either in his Dictionary or in Kilkerran's Report. It is of importance to attend to the distinction marked by Lord Elchies between this case and the case of Christie & Co. (Kilk. p. 216. Elch. No. 20. voce Fraud,) where the plea of the seller was, not that there had been an error in the person with whom he contracted, but that the purchaser had been guilty of fraud. Error renders a contract essentially null; fraud merely renders it voidable, but when the thing is delivered, does not hinder the transmission of the property in the first instance, and cannot therefore be pleaded against a lona fide purchaser from the party guilty of the fraud. Accordingly, in the case in the text, the Court held, that in consequence of the error in persong, there never was a sale perfected, and the property was not • transferred,' whereas it is settled that, in a fraudulent sale, followed by delivery, the contract is perfected, and the property transferred, in the first instance, although the contract is liable to reduction, and the property to be reclaimed from the fraudulent purchaser. See this matter treated of more fully infra, No. 597

question, he was not aware of the change. It was in evidence, that a letter from the present plaintiffs in the name of the new firm, had been sent to the defendant in August 1815, advising him of the arrival of the hemp, and calling upon him to fulfil his contract; that shortly after, the defendant expressed to the broker a wish to be liberated from his bargain; that he frequently spoke of the hemp which was to come by the Alexander; but latterly he refused to take it.

It was now contended for the defendant, that the error in the name of the sellers was fatal to the contract. But Gibbs, C. J. said, If the defendant could shew any inconvenience which he has sustained by the inaccuracy of the broker, it might be an answer to the present action. Metcalf has mis-described the ' names of his principals; and if by this mistake the defendant • was induced to think that he had entered into a contract with 'one set of men and not with any other, and if, owing to the 'broker, he has been prejudiced or excluded from a set off, it 'would be a good defence. But the defendant has notice, not 'from Todd & Coy., but expressly from the plaintiffs, of the arrival of the hemp. After that notice, he confers with the broker 'treating the contract as subsisting. He has notice from the new 'firm, and makes no objection. This is only a mistake of the 'broker; and unless the defendant shews that he has been pre'judiced, the plaintiffs have a right to recover,' Mitchell v. Lapage, Holt, N. P. C. 253.

223. II. The consent of parties must intervene upon the price, 1. 9. ff. de contr. empt.; Poth. Contr. de Vente, No. 36. If the seller, therefore, understands the price to be a larger sum than the buyer understands, and each party consents upon his own understanding of the price, there is no sale. On the other hand, however, if it is the buyer who supposes the price to be the larger sum, the sale is valid at the price consented to by the seller, because that price is included in the larger sum, and it is, therefore, true that both parties have consented, the one to buy, and the other to sell at that price, 1. 52. ff. loc. cond. Voet, 1. 616, § 5.; Poth. Contr. de Vente, No. 36.

These principles were applied in our law in the following case. Robert and Alexander Sinclair, merchants in Greenock, having a quantity of tea, wrote to Campbell at Glasgow, desiring him to sell part of it for them, not under certain prices annexed. In writing out the note of the prices, a mistake was made, the ordi

nary bohea being stated at 2s. and Sd. per pound, instead of 3s. and 8d. Campbell not adverting to this, sold 600 pounds at 2s. and 8d. to Sword, the pursuer, upon which the parties interchanged missives, the one to make delivery, the other to pay the price. The error being discovered, Messrs. Sinclairs refused to make delivery at the lower price, upon which Sword brought an action against them, concluding for delivery and damages. But the court dismissed the action with expences, Sword v. Sinclairs, 8th August, 1771.

Suppose that A., residing in Edinburgh, commissions goods from B. in London, at lowest price, by a letter, which B. receives upon a certain day, and agrees to furnish the goods; that the goods are not shipped till some days afterwards, on which day is the market price to be taken? In a case where this question occurred, the Court held, that goods commissioned at lowest price, are to be charged as at the date of receiving the order. This rule was • reckoned most conducive to the interest of trade, as well as most agreeable to practice *.*

224. III. The consent of parties must apply, in the last place, to the sale itself. Si in ipsa emptione dissentient, emptio imperfecta est, 1. 9. ff. de contr. empt. If, therefore, says Pothier, A. has agreed to sell his house for a certain sum, and B. supposing that A. meant only to let it in lease, has agreed to pay the same sum for a lease of so many years, there is here no contract either of sale or location; there being no mutual consent at all, Poth. Contr. de Vente, No. 37.

6

Champion and Kirby v. Milne, 14th January, 1811.

of this case, of which the circumstances are not stated,

It is added in the report

That the general rule was

⚫ departed from in this special case; but it was expressly stated from the bench to ⚫ be on account of the persons having omitted to answer a letter.'

161

PART II.

OF THE PARTIES TO THE CONTRACT.

225. IN treating of the subject of illegal sales, various cases were mentioned in which the contract was exceptionable on account of the nature of the thing sold. I propose, in this part of the subject, to consider what persons may legally enter into the contract of sale; and, as the general rule is, that all persons may both buy and sell, who are not prevented from doing so by nature or by positive law, the most convenient mode of treating of this subject will be, to ascertain who are so incapacitated from selling or buying.

226. As consent is the essence of all contracts, it follows that the contract of sale cannot be entered into by such persons as are incapable of giving that consent which is necessary to support a contract, Ersk. 3. 1. 16.

227. This incapacity admits of different degrees. In some cases it is absolute, in others it is limited, and exists only to a certain extent, and in certain circumstances. This will be best illustrated by an enumeration of the different classes of persons who are, in a greater or less degree, incapacitated.

228. I. Idiots, furious persons, and pupils, are absolutely incapable of entering into a contract, while their state of idiocy, furiosity, or pupilarity continues, Ersk. 1. 7. 14. 48. et seq.

229. But although the notion of law with regard to a pupil is, that he has no person, and is therefore incapable of acting, or even of consenting, (Ersk. 1. 7. 14.) yet the inference to be drawn from this must be qualified to a certain extent.

M