Taylor v Provan
| Jurisdiction | Scotland |
| Judgment Date | 16 June 1864 |
| Date | 16 June 1864 |
| Docket Number | No. 214 |
| Court | Court of Session (Inner House - Second Division) |
Lord Barcaple R.
Process—Res Noviter—Proof—Competency—Additional Evidence.—
Sale—Obligation—Constitution.—
THE pursuer raised this action in the Sheriff-Court of Stirlingshire, concluding for payment of L.465 sterling, being the price of thirty-one cattle, said to have been purchased by the defender from the pursuer on 19th December 1861, at the agreed on price of L.15 per head, payable before removal of the cattle, which it was agreed should be by the defender as follows, viz. fifteen to be removed on Tuesday 24th December, and the remaining sixteen on Tuesday following, but which the defender had failed to remove; also 5s. per head per week as the expense of keep from said 24th December.
The defences were—1st, The alleged purchase is denied, but if the defender entered into the bargain averred in the summons he was perfectly incapable, from intoxication, of entering into or completing such a bargain. 2d, The cattle were not worth L.15 sterling per head. 3d, The defender heard nothing of the bargain from the pursuer for some considerable time afterwards.
Proof was led for both parties, and the Sheriff-substitute assoilzied the defender. Upon appeal, ‘the Sheriff alters the interlocutor appealed against: Finds that the defender was bound to implement the bargain entered into by him on the 19th December, and to pay to the pursuer the sum of L.465, being the price of thirty-one cattle at L.15 a-head; but, in respect that the pursuer has already been allowed, by interlocutor dated 18th April 1862, to uplift the sum of L.380, 4s. 6d., consigned in Court as the price of the cattle as sold, decerns against the defender for the sum of L.84, 15s. 6d., being the difference between the purchase price and the amount of the sum consigned: Finds the defender liable in expenses,’ &c.∗
The defender advocated, and pleaded, inter alia;—(2) There being no evidence of a serious deliberate bargain having taken place, the interlocutor should be recalled. (3) The advocator, in consequence of intoxication, not having given to the alleged bargain that serious and mature consent which was suitable to it, it is not binding. (4) The advocator at the time of the alleged bargain having been perfectly incapable from intoxication of entering into or completing such a bargain, or having been absolutely drunk, or so drunk as not to know what he did, no effectual contract was concluded. (5) At least, the advocator having then been in one or other of such conditions, and the bargain having been greatly to his prejudice, the bargain is null, and cannot be given effect to.
At the hearing before the Lord Ordinary the defender tendered a minute craving to be allowed to lead additional evidence. The substance of this minute is sufficiently explained in the opinion of the Lord Justice-Clerk.
The Lord Ordinary pronounced this interlocutor:—‘Advocates the cause: Refuses the said motion: Finds, as matter of fact, first, that on the 19th day of December 1861 the advocator, James Provan, purchased from the respondent, Robert Taylor, thirty-one cattle at the price of L.15 each; second, That at the time of said purchase the advocator was intoxicated, but was not deprived of the use of his reason, and knew what he was doing in making said bargain; third, That during the dependence of the action in the inferior Court the said cattle were sold in terms of joint minute for the parties, No. 27 of process, and the balance of the price thereof, amounting to L.380, 4s. 6d., was consigned in the hands of the sheriff-clerk, and has been paid over to the respondent: Finds in law that the advocator was bound to implement the said purchase, and to pay to the respondent the sum of L.465 as the price of said cattle: Of new decerns against the said James Provan, advocator, to make payment to the said Robert Taylor, respondent, of the sum of L.84, 15s. 6d. sterling, being the difference between the purchase price of said cattle and the amount of the sum consigned and paid over to the respondent: Of new finds the advocator, and Mrs Elizabeth Reid or Provan, his mandatory, liable to the respondent in the expenses of process in the inferior Court: Further, finds the advocator and his said mandatory liable to the respondent in the expenses of process in this Court,’ &c.∗
The defender reclaimed, and argued;—It was competent for the Court to allow additional evidence to be adduced upon sufficient cause shewn. The evidence proposed to be adduced had only come to the defender's knowledge since the cause had come to an end in the inferior Court, and its nature and the reason for leading it were condescended on in the minute.1 The proof led shewed that the defender was in such a state of intoxication as to be incapable of making a bargain, and the alleged contract of sale was therefore null.2
The pursuer was not called on as to the merits, On the question of leading additional evidence he argued;—The proposal of the defender just amounted to this, that he had now got a better precognition, and that he wished to open up the whole proof by, first of all, calling certain witnesses for a new cross-examination, and then proceeding to disprove their evidence by witnesses whose evidence he might have had at any of the diets of proof in the Sheriff-court.
The advocator of a Sheriff-court action tendered a minute craving to be allowed to adduce evidence to shew that certain of the respondent's witnesses had made statements on a particular occasion, and to parties specified, different from what they had deponed to in evidence. The Court (aff. judgment of Lord Barcaple), in respect sufficient ground had not been stated for opening up the proof, refused the motion.
In an action for implement of a contract of sale, the defender pleaded that having been in a state of intoxication when the alleged...
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... ... This line of authority, which includes Taylor v Provan (1864) 2M 1226, Coul v Ayr County Council 1909 SC 422, Mitchell v Sellar 1915 SC 360, Gairdner v Macarthur 1915 SC 589, Cook ... ...
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