Duthie & Co Ltd v Merson & Gerry [1946] ScotCS CSIH_3 (31 October 1946)

Duthie & Co Ltd v Merson & Gerry [1946] ScotCS CSIH_3 (31 October 1946)

Express notice by sellers discontinuing the allowance of discount was effective to exclude the implied term based on custom from subsequent contracts; buyers were not entitled to deduct discount after notice, and sellers did not acquiesce in the deduction.

Citation
[1946] ScotCS CSIH_3
Parties
Appellant/defender: Duthie & Co Ltd; Respondent/pursuer: Merson & Gerry
Jurisdiction
Scotland
Judgment Date
31 October 1946
Procedural Posture
Civil Appeal / Final Appellate Judgment
Outcome
appeal dismissed
Legal Topics
Sale of Goods, Custom of Trade, Implied Contractual Terms, Discounts in Commercial Transactions, Acquiescence
Commercial Law Sale of Goods Custom of Trade Implied Contractual Terms Discounts in Commercial Transactions Acquiescence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Duthie & Co Ltd

Appellant/defender

Merson & Gerry

Respondent/pursuer

Procedural Posture

Civil Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether a custom of trade entitling buyers to deduct a discount continued after express notice of discontinuance
  2. 2 Whether sellers' express notice could override an implied term based on custom
  3. 3 Whether sellers acquiesced in continued deduction of discount

Ratio Decidendi

Express notice by sellers discontinuing the allowance of discount was effective to exclude the implied term based on custom from subsequent contracts; buyers were not entitled to deduct discount after notice, and sellers did not acquiesce in the deduction.

Court Disposition

appeal dismissed

Orders

  • interlocutor affirmed except for the fourth finding in fact and in law
  • appellants liable for the sum sued for (£57, 18s. 4d.)