David Charles Guthrie, and Others v William Anderson, and Others

David Charles Guthrie, and Others,     Appellants.Spankie—Jones

v.

William Anderson, and Others,     Respondents. Campbell—Alderson

Feb. 18. 1830.

Lord Mackenzie.

Subject_Mutual Contract. —

Construction of letters constituting a mutual contract between merchants.

John Glen Johnston was indebted to Chalmers and Guthrie, merchants in London. He indorsed to them the bills of lading of the ship Trewe, and they accepted bills drawn on them at his desire by a Russian merchant, for the price of the cargo. Johnston being in embarrassed circumstances, Anderson, and others interested in the cargo, entered into an arrangement with Chalmers and Guthrie for a surrender and transference of the bills of lading. On the one hand, Chalmers and Guthrie wrote as follows:—

“Messrs William Thomson and Alexander Anderson,

GentlemenDundee, 12 th Nov. 1812.

To fulfil on our part an arrangement for the resignation to

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you of our account with John Glen Johnston, we inclose all the bills of lading per Trewe in our possession. We credit his account L.10,000 for goods per Condrillon received, for L.1000 expected to be the balance of loss per Palmbalm; added to which, we acknowledge having this day received L.13,000, say thirteen thousand pounds sterling, toward the settlement of our account. We are, &c.If the balance of Mr Glen Johnston’s account ultimately be less than L.13,000 now paid us, we hold ourselves responsible to you for the difference.”

Anderson and the others interested wrote in answer:—

“ Gentlemen, 12 th Nov. 1812.

We acknowledge receipt of your letter of this date, inclosing the bills of lading per Trewe, and resigning to us all your interest therein. We hereby agree to assume Mr John Glen Johnston’s debt, holding ourselves responsible for the amount, and for the consequences of any possible action that may lay against you by the said Mr J. G. Johnston, his heirs or assignees.”

The cargo of the Condrillon, and the balance expected by the Palmbalm, fell short of the sum stated; and in an accounting between Chalmers and Guthrie, and Anderson and others, the question arose, whether the L.10,000 and the L.1000, were a fixed and absolute credit, or only an approximation to what might possibly be the proceeds of the cargo of the Condrillon and per the Palmbalm. It was agreed upon by the parties, that if the first view were taken, the appellants were due to the respondents L.2653. 4s.; but if the latter view, only L.1738. 8s. 7d. The Lord Ordinary and the Court of Session, (22d May 1827), adopted the first view, and decerned accordingly. *

Guthrie and Chalmers appealed.

Appellants.—The account with Johnston was not fixed and settled. Guthrie and Chalmers merely struck an estimate from the data in their power at the moment; but Anderson and others were to be responsible for the real balance. Had not this been the view entertained by Guthrie and Chalmers, they would not

_________________ Footnote _________________

* 5. Shaw and Dunlop, No. 318. p. 694.

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have parted with the ample security which the bills of lading of the Trewe afforded them.

Respondents.—The transaction was explicitly detailed in the letters. Johnston was to be absolutely credited in L.10,000 and L.1000, and Anderson and others gave their bills for L.13,000, not in any circumstances to pay more, but to receive back if the balance proved less.

The House of Lords considered the construction adopted by the Court of Session as the most fair and probable, and therefore ordered and adjudged, that the appeal be dismissed and the interlocutors affirmed.

Solicitors: A. Gordon— Richardson and Connell,—Solicitors.

 

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