Weaver — Petition, 6 Dec 1766

Unto the Right Honourable the Lords of Council and Session, T H E P E T I T I O N O F m J ohn Low JohnoL w� Brechin Lo�w�w�� h� Dundee, Humbly s h eweth, THAT, in the year 1757, a proposal was made by Sir Alexander Ramsay-Irvine of Balmain, Ba­ ronet, to the weaver-trade in Brechin, to give them 400 bolls victual, two thirds oat-meal, and one third bear, of his farms in the county of Kincardine, yearly, for seven years, at L. 6 Scots per boll. In consequence of this proposal, the weaver-trade had a meeting on 13th October 1757, at which they did unanimously agree to accept of the said bargain, in name and for behoof of the incorporation; and they did nominate and appoint the deacon of the trade, together with several of their members, and, amongst others, the petitioner, in name, and upon account of the December 6� 1766 4 he trade, to enter into a contract with Sir Alexander # ' Ramsay, for the said victual, at the price foresaid; and to bind the community, and its funds, for payment thereof: They did also unanimously agree, That the said victual should be yearly divided amongst them, and delivered to each, according to the proportions specified in a list of the members, which was then made out, and signed by the deacon and clerk. By the divi- sion specified in this list, the proportion alloted to the petitioner, was 28 bolls of oat-meal, and 14 bolls of bear, yearly. In consequence of this act and resolution of the in­ corporation, a contract was executed on 10th October 1758, betwixt Sir Alexander Ramsay on the one part, and, upon the other part, the deacon and treasurer, together with several members of the incorporation, and, amongst others, the petitioner, “ for themselves, and as managers for the life and behoof of the said weaver-trade" whereby Sir Alexander sold, and became bound to deliver to the deacon, treasurer, and other persons therein named, “ counsellors, or any one of them, or their successors in office, managers in the affairs of the said incorporation for the time be­ ing, for the use and behoof of the said weaver-trade,” yearly, for the space of seven years, 300 bolls oat-meal, and 150 bolls bear, at the burgh of Brechin, with the common weight and measure thereof, beginning the first year’s delivery for crop 1760, in the months of Ja ­ nuary, February, and March 1761. On the other part, the deacon and treasurer, the petitioner, and other persons therein mentioned, “ as managers foresaid, bound and obliged T H E P I E O N E I F A, i T H E n t E h e ECUTORS AND SUCCESSORS WHAT SOEVER, and al- so so their successors in office, as managers of the said incorporation for the time being,” to pay to the said Sir Alexander Ramsay the sum of 225 Sterling yearly, during the term of the contract. The petitioner, for three years, viz. for the years 1760, 1761, and 1762, did regularly receive his st i- pulated proportion of the victual above mentioned but his brethren having thought proper thereafter to with-hold the same, he found it necessary to bring an ac­ tion against them, in order to oblige them to allow him his share for the remaining years of the contract. The petitioner, in the year 1763, when about to leave Brechin, wrote a letter to the weaver-trade, bear­ ing, That he would not have use for his full quantity, and was therefore willing to agree with them for a part of i t; but this offer was not accepted of, nor any no­ tice ever taken of it; so it could not bind the peti­ tioner. In the year 1765, the petitioner again wrote to the weaver-trade, making a demand of his proportion for that year, and saying, that if it was peaceably paid him, he would possibly pass from any claim of damages for the two preceding years; but neither was any notice taken of this proposal, so that the petitioner was laid under a necessity of bringing the present action. This process came before the Lord Hailes, as Ordi­ nary, and his Lordship, on 2d August last, pronoun­ ced this interlocutor; “ Assoilzies the defenders, and % decerns, superseding extract till the third sederunt day of November next.” Against this interlocutor the petitioner offered a re- presentation, which the Lord Ordinary, on 14th No­ vember last, was pleased to refuse. The The petitioner having given in another short repre­ sentation, the same was refused by his Lordship on 26th November. As this matter, though in itself inconsiderable, is of some consequence to a person in the pursuer’s situation he begs leave s hortly to submit the case to your Lord- ships review. The plea insisted on for the defenders was, That this bargain was made for the benefit of the weaver- trade of Brechin; that the pursuer, by having remo­ ved to Dundee, ceased to be one of the weaver-trade of Brechin, and must therefore be excluded from any Share of the bargain. The pursuer humbly apprehends this defence to be insufficient; for, supposing the bargain was to be con­ fined to the incorporation of the weavers of Brechin he submits to your Lordships if he is not still in that character intitled to his share of it; and he humbly contends, that he does not cease to be a member of the incorporation by having changed his place of resi- dence a few miles. But further, although the original idea of this agree­ ment appears to have been to provide this victual for the use of the weaver-trade of Brechin, yet the pursuer does, with great submission, apprehend it to be evi- dent, that when the bargain came to be executed, it was not confined to that original purpose, but was also intended for the proper and personal advan­ tage of those who entered into the contract. That this was the case is clear, from the terms of the contract it- self, whereby the persons who entered into that con­ tract, not only bind their successors in office for the be­ nefit of the incorporation, but also come under a per- sonal sonal obligation, and expressly bind themselves, and their executors and sucessors whatsoever, for the price. If Sir Alexander Ramsay had brought an action upon this contract against the pursuer and the other obligants, Will it be said, that the pursuer could have, been liberated from his obligation, because he hap­ pened to move his residence from Brechin to Dundee? This, it is believed, would have been found a very un­ availing defence to protect the pursuer from the con- sequences of his obligation, which is absolute and un­ conditional: How then can it be maintained, that the pursuer is not intitled to the benefit of a contract, when he stands bound for the counter-part thereof, and would have been obliged to fulfil the same. Supposin g the price of victual had fallen, and that the price stipulated by the contract had been above the ordinary selling prices of the country; if the pursuer had refused to accept of his share of the bargain, there is little room to doubt, that the now defenders would have in that case become pursuers, and it is humbly thought, that they could have forced the petitioner to accept of his proportion of the victual, and to pay his share of the price. The pursuer submits to your Lord- ships, if equity will permit that he should be de­ prived of all advantage from a bargain, which has turn­ ed out beneficial, when, had it proved otherways, he would have been subjected to a share of the loss. It not only the pursuer, but the whole other per- sons bound in this contract, had chanced to remove from Brechin, it will not be said, that the contract would have been thereby at an end, on the contra- ry it is evident, that both parties would have remain- ed ed bound; that, notwithstanding the removal, they could have obliged Sir Alexander to have fulfilled his part of the contract: and that, on the other hand, he could have forced them to pay the price: This ftjrk clearly proves, that the circumstance of the pursu- er’s changing his residence, cannot have the effect to cut him out of his bargain; had such been the inten­ tion of parties, it ought and would have been so pro­ vided by the contract. Upon the whole, the pursuer humbly hopes, your Lordships will think his action well founded, and will alter the interlocutors of the Lord Ordinary. * May it therefore please your Lordships to alter the Lord Ordi­ nary’s interlocutors, and to decern in terms of the libel. According to Justice, &c. * B r ' ‘ * * * W. N A I R N E.