A contract, in which there was a single person on the one side, and a number on the other, was found not obligatory on the part of the single contractor, having been signed only by so many of the others.
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In an action pursued by the Lady Edenham for her conjunct fee against Sir John Stirling, and others of her husband's cautioners; alleged, she could seek no more than 2000 merks, because by a contract betwixt her umquhile husband and her on the one part, and a number of the friends of the house taking burden upon them for the debts, on the other part, she was bound to crave no more than 2000 merks if she outlived her husband, as long as the burdens of the house were not relieved. Replied, That contract was imperfect, in so far as the Earl of Roxburgh and other two of the friends had never subscribed the the same, and nothing had followed upon the said contract, it having remained ever since the making thereof in John Lermont's hands the writer thereof. Duplied, Nine or ten of the friends had subscribed the same, et nihil illi deerat, by reason that three of them had not subscribed, because they that had subscribed were content to fulfil to her all that was conditioned to be performed to her by the said contract. “The Lords found the contract not obligatory on the Lady's part, in respect of the reply.”
Fol. Dic. v. 1. p. 562. Spottiswood, (Contracts.) p. 72.
