By statute 5 Geo. IV. c. 74, § 15, it is enacted, ‘That from and after the 1st day of May 1825, all contracts, bargains, sales and dealings, which shall be made or had within Great Britain and Ireland, for any work to be done, or for any goods, wares, merchandise, or other thing to be sold, delivered, done, or agreed for by weight or measure, where no special agreement shall be made to the contrary, shall be deemed, taken and construed to be made and had according to the standard weights and measures ascertained by this act; and in all cases where any special agreement shall be made with reference to any weight or measure established by local custom, the ratio or proportion which every such local weight or measure shall bear to any of the said standard weights or measures shall be expressed, declared and specified in such agreement, or otherwise such agreement shall be null and void.’ By 5 and 6 Will. IV. c. 63, § 3, it is enacted, ‘that so much of the said last-mentioned recited acts as require that all weights and measures shall be models and copies in shape or form of the standards deposited in the Exchequer, and also so much of the said recited acts as allow the use of weights and measures not in conformity with the imperial standard weights and measures established by the said acts, or allow goods or merchandise to be bought or sold by any weights or measures established by local custom, or founded on special agreement, shall be, and the same are hereby repealed.’ By § 6. it is enacted, ‘That from and after the passing of this act, the measure called the Winchester bushel, and the lineal measure called the Scotch ell, and all local or customary measures, shall be abolished; and every person who shall sell by any denomination of measure other than one of the imperial measures, or some multiple, or some aliquot part, such as half, the quarter, the eighth, the sixteenth, or the thirty-second parts thereof, shall, on conviction, be liable to a penalty not exceeding the sum of forty shillings for every such sale: provided always that nothing herein contained shall prevent the sale of any articles in any vessel where such vessel is not represented as containing any amount of imperial measure, or of any fixed local or customary measure heretofore in use.’ In September 1837, a specification for trenching a quantity of muir ground, on the estate of the defender, Garioch, was written out and signed by the pursuers, who thereby agreed ‘to trench, according to the above specification, Lot 8, at L.20, 2s.
per acre.’ On the back of this specification certain sums, as payments to account, on various dates, from 26th November 1837 to 28th April 1838, were written, amounting in all to L.23, 10s.; two of which receipts were signed by the pursuers, one by Alexander Thomson, and another by his father, Robert. Alexander addressed the following holograph writing to the defender's overseer: ‘
Benthoil, Suptember 03
th (30
th) 1837. Sir,—I make offer for Lot 8, according to your spesification, at 022 (L.20, 2s.) shilling
per acer (acre.) And I remain yours, (Signed) Alexr Thomson.
To John Sturt, (Stewart,) Oversier (Overseer) at Heathcot.’ In 1839, the pursuers raised an action against Garioch before the Sheriff of Kincardineshire, libelling that he was due to them ‘L.110: 16:7, with interest, for trenching a lot of ground at Findon, but deducting therefrom the sum of L.72, 15s. paid to account at different times, conform to an articulate account, herewith produced and referred to, and held as repeated.’ In the account annexed to the summons the pursuers' claim was thus entered: ‘
May 1838. To trenching lot of ground at Findon,
per agreement with John Stewart, your overseer, of date 30th September 1837, at L.20, 2s.
per acre, measuring five acres, two roods, two falls, imperial, L.110 : 16 : 10.’ The balance said to be due was L.38 : 1 : 7; and it was admitted that the work was done. In defence, Garioch averred that the agreement with the pursuers was, that they should trench the ground at the rate of L.22, 2s.
per Scotch, and not
per imperial acre. His agents, on 9th February 1839, wrote to the pursuers’ agent, ‘that Mr Garioch has always been ready to pay for the trenching in question at the price stipulated in the contract, according to Scotch measure, which was the measure agreed to when the contract was made; and as authorised to that effect, we now offer to make payment of the balance due, according to Scotch measurement.’ A record was made up, in which the pursuers,
inter alia, pleaded—(1.) The written agreement cannot be modified or cut down by parole evidence. (2.) The words ‘
per acre,’ in the agreement, must mean ‘
per imperial acre,’ in virtue of the above statutes. (3.) Any investigation as to any other standard having been understood relative to the bargain would be incompetent, as the act of Parliament is the rule, and any bargain made against its provisions would be unlawful. (4.) It is
jus tertii to found on the correspondence between the parties’ agents, which passed with a view to compromise another action which had been raised by one of the pursuers against the defender. The production of said correspondence in this action is therefore irrelevant. The record having been closed, the Sheriff allowed the pursuers ‘a proof
prout de jure of the agreement on which the claim in their libel is founded, and to the defender a conjunct probation.’ Both parties led evidence. The Sheriff-substitute ‘finds it proved, that the pursuers undertook to execute the trenching of the lot of ground in question at the rate of twenty pounds two shillings
per acre, and that it appears to have been verbally arranged between them and the defender's overseer, John Stewart, by whom the contract was entered into on the part of the defender, that the pursuers were to take the lot by the old Scotch measure, and that while the ground was to be measured by the imperial chain, the work was to be paid for by the Scotch acre: Finds, that the pursuers having, agreeably to that arrangement, proceeded to execute their contract, and having actually done the work, they are not now entitled to depart from the terms which appear to have been agreed on, and to insist for payment at a higher rate: Therefore restricts the claims of the pursuers to the sum of L.15, 5s. sterling, as the balance remaining due to them of the contract price, at the rate agreed on, after deduction of the payments made by the defender to account, as stated in the libel: Finds, in the circumstances of the case, and particularly in respect of the somewhat loose and inaccurate manner in which the bargain relative to the trenching work in question appears to have been gone about by the defender's overseer, the defender is not entitled to any expenses of process: Finds, therefore, no expenses due, and decerns.’ The Sheriff having adhered, the pursuers advocated. The Lord Ordinary, (20th November 1840,) ‘finds it proved that it was agreed that the advocators should trench the ground in question at L.20, 2s. ‘
per acre,’ without its being stated that the acre was to be either the standard or the Scotch: Finds, that, in this situation, the legal presumption is in favour of the standard measure: Finds, that this presumption is not removed by proof of a special bargain that the Scotch acre was meant: Therefore, on these grounds partly of law and partly of fact, recalls the interlocutors complained of: Finds, that the sum due to the pursuers amounts to L.38 : 1 : 7 sterling, for which, and interest libelled, decerns: Finds the respondent liable in expenses both in the inferior court and in this, appoints an account thereof to be given in, and when lodged, remits to the Auditor to tax and to report
The defender
reclaimed and
argued, that the writing was a mere offer, and not a contract, as it was not accepted in writing, but was verbally agreed to as
per Scotch acre. If, on this indefinite offer, there had followed a written acceptance as
per Scotch acre, that would have constituted a special agreement. If, according to the view of the Lord Ordinary, the written agreement is null and void, because the proportion which the Scotch acre bears to the imperial is not specified, then it is competent to prove by parole evidence the real bargain between the parties. If meal is purchased at a certain price ‘
per boll’ by a written agreement, and the seller refuses delivery, an action for implement of the agreement would doubtless be dismissed, because the proportion which a boll bears to the imperial measure was not specified. Neither would action under the agreement lie for the price, if the meal was delivered; for the agreement, under the statute, is null and void; yet the seller would have a good action for the value of the goods delivered; so, in the present case, the pursuers are entitled to value not in virtue of the agreement, but in consequence of performance of the work, and it is competent to determine by parole evidence, whether they were to be paid for that performance by the Scotch acre or not. The work having followed on the acceptance, the case is not within the statutes. To constitute the contract, there must be not only an offer, but acceptance; and if parole proof is necessary to bring out the acceptance, and so constitute the true contract, the defender is entitled to have the conditions of that acceptance proved by the same evidence. In point of fact it is proved that the bargain was to trench the ground at L.20, 2s.
per Scotch acre. The pursuers
argued—that as no special agreement was now permitted, parole proof of such agreement was incompetent. Besides, it is incompetent to control or fix a written contract by parole evidence. A written contract to trench ground at so much ‘
per acre,’ means,
vi statuti, ‘
per imperial acre.’ All local measures being now prohibited, it is not competent to prove that an agreement ‘
per acre’ means any thing else than an agreement ‘
per imperial acre.’ At advising,
Lord President.—I am entirely of the same opinion. I think we should recall the interlocutor of the Lord Ordinary, and insert a special finding in our interlocutor.
The
Court accordingly ‘recall the interlocutor of the Lord Ordinary reclaimed against; and find, that the advocator contracted with the reclaimer to trench the ground in question, by a written agreement, at L.20, 2s.
per acre, under which the work was done: Find, that, in terms of the statute 5 Geo. IV. c. 74, the word ‘acre’ in said agreement can be held to mean only the imperial acre: Find, that, in these circumstances, parole proof, that the agreement was by the Scotch acre, incompetent and inadmissible: Find, that the sum due to the pursuers is L.38 : 1 : 7, (under deduction of L.12 : 1 : 9,) for which, and interest thereon, as libelled, decern: Find the reclaimer liable in expenses both in the inferior court and in this, with additional expenses.’ Lord Ordinary, Cockburn. Act. Dean of Fac. (Hope,) C. Robertson. P. Hall Taylor, S. S. C. Agent. Alt. D. M'Neill, Monro. Gordon & Barron, W. S. Agents. N. Clerk.
Note.—The act of the 5 Geo. IV. c. 74, introduces certain measures, the use of which is enforced on grounds of public policy. The statute proceeds on the preamble, that uniformity of weights and measures is ‘
necessary for the security of commerce, and the good of the community.’ The second section enacts, ‘That all superficial measures
shall be computed and ascertained by the standard yard,’ and specifies the exact number of such yards of which an acre shall be composed. The 15th section enacts, that where there is no special bargain in favour of any local standard, all contracts and dealings ‘
shall be deemed, taken, and construed to be made and had according to the standard weights and measures ascertained by this act.’ Special bargains for local measures are not prohibited, but, on the contrary, are permitted; but then it is specially provided, that all such agreements shall be null and void, unless
the ratio and proportion which every such ‘local weight or measure shall bear to any of the said standard weights and measures shall be expressed, declared and specified in such agreement.’ The obvious object of this is to encourage the gradual adoption of the legal standard, by familiarising people with its precise nature; and were it not for this necessity of always stating the proportion between the two, the legal standards would be superseded almost constantly, because, where nothing but local standards are in common use, it might, in most cases, be justly inferred from this single fact, that it must have been in reference to them that the parties dealt. But the provision of the statute is, that though people may, if they choose, adhere to their local measure, the reverse shall be presumed, and that the temporary convenience of these measures, arising from their ignorance of any better, shall be diminished, by compelling them to know and recognise the legal standard, even when they bargain to avoid it. Now, the advocators made a written offer, which was accepted of, to perform work at so much ‘
per acre’ By the act the standard acre must be held to be meant; and the question is, whether the respondent, on whom the
onus probandi clearly lies, has established a special agreement in favour of the Scotch acre? The Lord Ordinary has some doubt whether parole evidence was competent in this case, because, if the agreement is to be read as containing the word
standard before the word acre, can this
written and
unambiguous contract be explained away without writing, and by parole testimony alone? The Lord Ordinary doubts this: But he has not proceeded on this ground, because there is another ground as to which he has no doubt whatever. The proof of the parties having dealt in reference to the Scotch acre is very contradictory; but on the whole, and especially considering the probability of people's using terms in their local sense, he rather thinks that it is established that the Scotch acre was understood between them. But it is not only not proved that the proportion between the local and the standard measure was expressed and specified in this special agreement, but there is clear proof of the very reverse. There is scarcely a single witness on either side who says that the proportion was even alluded to, except one; and he proves that, so far from being specified, it was pointedly disregarded. This witness is John Stewart, the respondent's overseer, who made the bargain; and what he says is, that when one of the advocators said ‘
he did not know the difference between the imperial measure and the Scotch measure,’ he (the overseer) answered, ‘
that it did not signify,’ as he could make his offer according to the Scotch measure. This absence of the condition on which alone the statute recognises special agreements, is the ground on which the Lord Ordinary proceeds. He holds this agreement to be null and void, and consequently holds that statutory presumption must operate. Opinion revised by his Lordship.