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.
Robert Hamilton Clerk v. Lord Balhaven
Date: 14 December 1667 Case No. No 18.
Debated, whether a clause irritant in, a mutual contract of sale was purgeable, but not decided.
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The Lord Balhaven having disponed the barony of Beill to John Hamilton, son to Robert Hamilton Clerk, reserving Robert's liferent, with power to dispose of forty chalders of victual at his pleasure, and to set tacks, for what time and duty he pleases, and containing an express provision, that it shall be leisome to Robert to do any deed in favour of my Lord Balhaven, and that the fee shall be burdened therewith; and it is provided, that all rights Robert shall acquire, shall accresce to his son, who is to marry Balhaven's oye, and failing of the son's heirs, mentioned in the disposition, Robert and his heirs are in the last termination. Thereafter Robert enters in a minute with my Lord Balhaven, by which he is obliged to accept an hundred and twenty-nine thousand merks; and therefore obliges himself, and as taking burden for his son, and as tutor and administrator to him, validly, and sufficiently to denude himself and his son of their rights, to any that he should nominate; but here is a clause irritant, that if money or sufficient persons to grant bond to Robert, be not delivered to Robert at Lammas last, and payment made of the money at Martinmas last, that the right by the minute should expire ipso facto, without declarator. The minute was put in the Duke of Hamilton's hand, that if these terms were not performed, he should cancel it. Robert Hamilton pursues now a declarator against Balhaven, concluding that he had an absolute and irredeemable right to the land, by his first disposition, and imfeftment granted to him and his son, and that the clause irritant is committed, and that thereby the minute is null; and concludes against the Duke, that the minute was put in his hands upon the terms foresaid, and that he ought to cancel, or deliver the same. The Duke's Advocate suffered him to be holden as confest, but did not produce the minute. It was alleged for Balhaven, no process till the minute was produced, for it could not be declared null till it were seen. It was answered, that the copy of it was produced, and verbatim inserted in the libel, and the pursuer craved the minute in the terms libelled to be declared null, without prejudice to any other minute, if they could pretend it.
The Lords ordained process, but ordained the pursuer before extract to produce the principal minute.
It was further alleged for Balhaven absolvitor, because the minute being mutual, there could be no failzie in the defender, because the pursuer neither was, nor is able to perform his part of the minute, in respect the fee of the estate is in the person of the son, who cannot be denuded by any deed of the father, for as legal administrator he hath no power; neither can any father or tutor denude a pupil of their fee, but there must be interposed the authority of the Lords in a special process, instructing a necessary cause for the minor's utility, which cannot be in this case; and though the father could denude the son, as he cannot, yet he is minor, and may revoke; and yet it was offered to fulfil the minute, if the pursuer would secure the defender against the minors, by real security, or good caution. The pursuer answered, That the defence ought to be repelled, because the defender at the time of the minute, knew his right and his sons, and cannot pretend an impossibility to have made any such minute upon a ground then palpable and known, and yet contend to keep the minute above the pursuer's head; but he must either take it as it stands, or suffer it to be declared void. 2do, The pursuer is in sufficient capacity to denude his son, by the foresaid reservations contained in the first disposition, whereby he has full power to dispose of forty chalders of victual, and also power to do any deed he pleased in favour of Balhaven, and there could be no deed more rational, than to give a reversion of his own estate upon payment of all that the pursuer, had payed to him, or for him. The defender answered, that this general clause cannot be understood to be prejudicial to the substance of the disposition, and special clauses in favours of his son, and the defenders oye and their successors.
The Lords repelled the defence, and declared; but of consent of the pursuer, superceded to extract for a time, and appointed two of their number, by whose sight the pursuer and his son should be denuded, and the defender secured; so that it came to no debate, whether such a clause irritant as this in a reversion of that which was truly bought and sold irredeemably before, and no wadset could be purged.
Stair, v. 1. p. 494.*** Dirleton mentions this case:
Robert Hamilton Clerk, pursued the Lord and Lady Balhaven to hear and see it declared, that a minute betwixt him and them concerning the tenor and articles libelled, is null, the clause irritant therein mentioned being committed.
The Lords refused to sustain the pursuit, unless the minute were produced; albeit it was alleged there could be no prejudice, in respect a minute of another tenor could not be prejudged; and a minute of that tenor libelled should be declared void upon the reason libelled.
