Sir John Cochran of Ochiltree v. The Lord Montgomery
Date: 9 January 1702 Case No. No 13.
The Lords acquitted one of many contractors, who had resiled, he paying the penalty, the words 'by and attour performance' not having been in the deed.
The tacksmen of a branch of the revenue assumed partners, under the proviso, that these partners should find caution by a certain day, or pay a penalty. One of them was found free on paying the penalty.
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The Lord Ross, Lord Montgomery, and seven others, gave a written commission to Sir John Cochran to bid at the roup of the poll, imposed by the act of Parliament 1693, and not to exceed L. 40,000 Sterling, unless he were allowed by Colonel Erskine and Sir Thomas Kennedy to bid further. Sir John was preferred as the greatest offerer, but he exceeded their commission in L.4100 Sterling. Thereafter the tacksman and partners entered into a contract, where-unto there were about 22 assumed; and the Lord Montgomery, by a missive letter, declared his willingness to be one of that number, and sent a commission and warrant to William Cunningham of Brownhill to vote for him at the meetings as his proxy, and accordingly he is marked in two sederunts as acting for my Lord Montgomery. The tack eventually falling to be detrimental, and my Lord Montgomery conceiving himself not bound by the foresaid letter and proxy, neither of them being formally recorded in the society's books, Sir John Cochran pursues him to relieve him of a proportional part of the loss and damage resulting from the tack.—Alleged for my Lord, absolvitor, because you exceeded our commission in bidding beyond the L. 40,000 to which you was limited.—Answered, I had the concourse and allowance of the two assessors adjoined to me, and they being present and not contradicting, are presumed to have given their consent.——The Lords found taciturnity was not a sufficient concourse nor acquiescence here, but ex officio ordained them to be examined upon oath if they consented.—2do, Alleged for my Lord, I cannot be liable as one of the 22, because my letter was not only an offer, and never accepted, but repudiated ay till they found they would be losers; and if it had been profitable, he could never have compelled them to communicate any share of the gain, and so it was plainly societas leonina as to him; and the first nine undertakers were to have been liable in solidum, because electa erat industria personæ, and they knew one another's solvency and sufficiency: But in 22 assumed they can only be liable pro rata for their 22d share, seeing they had not that knowledge and confidence in one another; and Sir John might as well have assumed 200 as 22, for whom it were absurd to think the Lord Montgomery should stand liable.—Answered, The letter is conceived in the most strong and obligatory terms of his design and willingness to continue a partner, and is further strengthened and adminiculate by his proxy given to Brownhill. In the reasoning among the Lords a decision was cited, (No 25. p. 8411.) between Sir Robert Montgomery and one Brown, where, notwithstanding of a letter declaring he intended to adhere to the bargain, yet there was found room to resile, et locus pænitentiæ; but here the Lords found Lord Montgomery liable for his 22d part upon his letter and commission.—Then my Lord alleged, in the third place, That the most he could be found liable in was only for L. 50 Sterling, as the penalty annexed to his non-acceptance, in so far as, by an express quality and condition of the contract, it is appointed that all the partners are, betwixt and the 6th of August 1694, to grant bond and caution for their proportion, and in case of failzie, their share is to be void and null as to them, but to accresce to the rest, and to be liable in L. 50 Sterling of penalty.—Answered, This being adjected in further corroboration of the contract, can never be detorted to liberate them from the same, but must be interpreted modo habili to be over and above implement; and if by your own fault you did not give bond and caution, you ought to reap no benefit thereby, else after your entering into the society it should be in your power to be a partner or not.——The Lords found, by the foresaid quality and conception of the contract, my Lord Montgomery was free upon his paying the L. 50 Sterling of penalty, by which interlocutor he was relieved of L. 200; for his 22d share amounted to L. 250 Sterling. As to the being liable in solidum or pro rata, I remember some decisions in the Rota Gennensis shews cases where socius non tenetur socio in solidum.
1702. February 21.—Sir John Cochran having reclaimed, by bill, against the interlocutor marked 9th January 1702, betwixt the Lord Montgomery and him, and the Lords adhering, he gave in his protestation for remedy of law to the Parliament; as also against the interlocutor assoilzing Tarbet and Prestonhall, his brother, from being partners of the poll, on the like or parallel grounds; for my Lord Tarbet, in absence of his brother, having signed for him, and he, on his coming to town, declining to accept, the Lords found Tarbet's obligation pro alio resolved only into the penalty, Vide § 3. Institut. De inutil stipulat, for which the doctors give this reason, that all contracts must take their origin ex nostra persona, and where they do not, non habet obligatio radicem unde fluat in paciscentem, nee basin ubi stabit; vide 1, unic, C. Ne uxor pro martito; and in these cases, some maintain they are obliged no further but to do their utmost diligence and endeavours to cause the other perform; but generally, they conclude he incurs the penalty expressed, et ejus solutione liberatur, unless where it bears salvo manente pacto, which we call over and above the premisses; and then both are due, and paying the penalty does not exoner.
Fol. Dic. v. 2. p. 54. Fountainhall, v. 2. p. 136. & 150.
