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The Tutors of George Alison's Children v Anne Laurie and Andrew Dinnet. [1709] 4 Brn 749 (21 June 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040749-0252.html Cite as:
[1709] 4 Brn 749
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Tutors of George Alison's Children v. Anne Laurie and Andrew Dinnet
Date: 21 June 1709
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Anne Laurie, relict of George Alison, merchant, enters into a transaction with Denoon, Blackader, and others of her children's tutors, to inventory the goods left by her husband in his shop, and then, at the sight of a bailie, to get them valued and appreciated; which extended to £3866 Scots, at which rate she accepted the ware, and gave bond for the same, bearing this clause,—She always liferenting the said sum. After this, she marries Andrew Dinnet; and he, being pursued for the price of the shop goods, alleges his wife, by the writ founded on, must liferent it; and so they cannot uplift it during her time.
Answered,—However that clause was by surprise foisted in, yet it was contrary to law; for it being her own children, who were minors, their money, neither could she warrantably reserve her liferent, nor they yield it, the same being an evident lesion to the poor infants.
Replied,—In contemplation of her reserved liferent, she had condescended to a most exorbitant price, far above the value of such old-fashioned ware. And as to such perishable goods, where there is great appearance of loss, tutors have been ever allowed to make rational bargains, otherwise none would buy from them, if they lay under a perpetual insecurity of annulling such bargains; and therefore the civil law refuses minors restitution in such cases,—L. 7, sect. 8, D. de Minor. And, with us, minors merchandizing are never reponed, unless there appear evident fraud; because merchandize is like jactus retis; and such is the uncertainty of loss or gain, that it is impossible to fix a certain standard.
The Lords found no lesion to the minors, unless their tutors proved that the goods were so far underrated, that, laying aside her liferent, the prices were so low as she could not but make considerable profit by them. For the Lords thought, that, if the prices are either above or equal to the true worth of the goods, it was but reasonable to give her the liferent, to encourage her to accept them at such a high and exorbitant rate.
