Peculiarities in the Execution of Mutual Contracts and Decrees Arbitral.
Robert Smith v. The Duke of Gordon
Date: 17 June 1701 Case No. No. 239.
If a mutual contract is executed by two counterparts, it is sufficient if each party subscribe the paper containing what is prestable on himself.
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By contract betwixt them, in 1684, the said Robert was to serve the Duke and his family in chirurgery and physic, and also to supervise his buildings and architecture; for which services, the Duke is to pay him 200 merks of salary yearly and when he is at home to entertain him in his family, and when he is absent, he is to have allowance for his diet. Robert pursues the Duke, on this last clause, before the Sheriff of Edinburgh, and obtains a decreet for £2823, for so many years board-wages, during the years the Duke did not live at home, at the rate of 12 pence per day. This decreet the Duke suspended, on this reason, that by the contract produced by the charger himself, it appears, the clause pursued on is a marginal note, and which not being subscribed by the Duke, but only by Smith himself, can never oblige the Duke. Answered, 1mo, There remain some dark vestiges of a subscription, though by the badness of the ink and the wearing of the paper, it is not so legible now; 2do, Esto it were not subscribed by the Duke at all, yet the principal, in his own custody, has the same marginal note, and though it be not signed by the Duke, yet it is subscribed by Robert Smith, and being so accepted by the Duke, it must certainly bind his Grace; 3tio, It is homologated by an account made betwixt Mr. Dunbar, the Duke's chamberlain, and the said Robert, where an article of board-wages, during the Duke's absence from home, is stated and allowed. Replied to the 1st, They opponed the marginal note, where no subscription appeared, nor the least character of letters. To the 2d, Non relevat that the Duke's double was signed by Smith, seeing the Duke never having signed it, evidences that he never acquiesced thereto. To the 3d, the marginal note being a non ens, it can never be homologated. The Lords thought that mutual contracts having two doubles, needed not be subscribed by both parties-contracters, but it was sufficient in law if the Duke's principal was signed by Smith and his counter-part by the Duke; and it was so found lately, in a case of Sinclair of Ossory in Caithness; and therefore sustained the marginal note, though not signed by the Duke, seeing it was contained in his own double uncancelled: But in regard the said clause, in the two copies, seemed materially to differ, the Lords appointed them to be heard thereupon before the Ordinary.
