Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum pręstandum.
Elizabeth Fleming and Sir John Gibson v. Fleming and Robert Baird
Date: 13 February 1663 Case No. No 15.
Acceptance of full satisfaction imports an obligation to denude of what is over.
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By contract of marriage betwixt the said Robert Baird and his spouse, he accepted 12,000 merks in name of tocher, in satisfaction of all his wife could succeed to by her father, mother, sister, and brothers, and discharged his mother as executrix and tutrix thereof; yet she having formerly put more bonds in the name of Robert's wife than this sum, and there being no assignation to the remainder in the contract, pursues the said Robert and his spouse, to grant an assignation thereof, and to pay what he had uplifted of the sums more than his tocher.—The defender alleged the summons is not relevant, he neither obliged ex lege nor ex pacto to assign.—The pursuer answered, This being bonæ fidei contractus, the meaning and interest of parties is most to be respected; and therefore, though it contains but expressly a discharge, which cannot be effectual to lift the sums from the creditors, but would lose them to both parties, he must assign; especially, seeing his acceptance of full satisfaction imports an obligement to denude himself of the superplus; and which the Lords found relevant, and sustained the summons.
