Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Milne v. Adam Gairden of Greenhill, and Robert Campbell
Date: 11 February 1697
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Robert Milne, mason, enters into a minute of sale for buying some houses at the Weigh-house, where the square is now built, with Adam Gairden of Greenhill, and Robert Campbell, as factors for Mr James Stevenson, heritor of the same; whereby they obliged themselves to procure a valid disposition of the tenements from their constituent, and he was to pay 4000 merks as the price. They failing to procure a disposition, and Mr James dying abroad within two years after the minute, or thereby, whereby the thing became imprestable, Deacon Milne pursues them either to obtain a right from Mr James's sisters, his nearest heirs, or else to refund his damages, as succeeding loco facti.
Alleged, 1mo. You were first to peruse the progress; and accordingly, having got in the writs, you never declared your satisfaction therewith; without which we were not obliged to proceed any further.
Answered,—His throwing down the houses, and rebuilding on the ground, and his joining with them in sending up the scroll of a disposition to London to Mr James, was declaration enough of his acceptance.
Replied,—It ought to have been explicit and intimated to them, else they needed not notice it. The Lords repelled the defence.
2do. alleged,—Their obligement was to procure a valid disposition from their constituent betwixt and a limited day, which can imply no more save to use their endeavours, which they offer to prove they did; but Mr James stuck both at the warrandice and price; and, in all such cases, verba non sunt Judaice sed civiliter interpretanda; as Faber shows the Parliament of Savoy found in
1695, in lib. 8. codic. tit. 26. definit. 14. promittens se curaturum tenetur soluvimodo ad diligentiam ut res fiat. Yet there he acknowledges, if there be a pœna adjecta, qui factum alienum promittit tenetur prœcisè ad effectum prœstandum. Vide Matthœum de Afflictis Decis. 195. et l. 8. D. de In diem addict.
Answered,—There is a great difference between a positive obligement to procure a disposition, and an obligement only to use their endeavours; and though thir factors were rash in undertaking on the assurance they had of obtaining it from their constituent, yet their failing cannot exoner them at Deacon Milne's hands.
The Lords thought it hard on the factors, but they behoved to find them liable in the precise terms of their own minute; and Robert Milne having followed their faith, they must make a valid right to him, and those who have bought from him: besides, it would discourage all such public works for the decoration of the Town, especially upon the High Street.
