Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Daniel Campbell v. Sir Alexander Anstruther of New Wark
Date: 18 January 1706
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Lord Crocerig reported Daniel Campbell, collector at Port-Glasgow, against Sir Alexander Anstruther of New Wark, clerk to the bills. Sir Alexander having some lands lying about Ruglen, he, by a minute, sells a part of them to the said Daniel; and afterwards offering the rest to the Duchess of Hamilton, she did not incline to bargain for any of them, except she got the whole; and Sir Alexander having signified this by a line to the said Daniel, he returns an answer in thir terms:—“I shall be sorry if your bargain with me shall obstruct your selling the rest; if her Grace be ambitious of that little bargain, she shall be welcome to it for some consideration.” Sir Alexander, thinking himself free, enters into a second minute with the Duchess, whereby he dispones the whole to her Grace, even including that parcel formerly sold to Mr Campbell; who, getting notice of it, registrates his minute, and charges Sir Alexander to fulfil and implement it. He suspends, on this reason, That, by the foresaid clause in his letter, he had passed from the minute, and quitted the bargain; so he was in bona fide to enter into a new one with the Duchess, whose procurators likewise compeared, and founded on the posterior agreement with her.
Answered,—The sense of the clause was altogether mistaken; for though he designed a compliment to the Duchess, yet he never designed to free Sir Alexander: but he fulfilling his minute, by an extended disposition, whereon he might perfect his right by infeftment, then he would make both his word and writ good, by offering to quit the bargain to the Duchess, for such a valuable sum as they could best agree; otherwise he would keep the lands to himself: and civil expressions in letters are not to be strained to obligations; as was found 10th July 1672, Shaw against Bruce.
Replied,—The words, in their natural and grammatical sense, can admit no other construction but a plain abandoning and derelinquishing of the bargain; and letters may be as obligatory as any other writs; et verba sunt interpretanda contra proferentem, and not to be called verba officiosa, and mere civilities. And law determines, that, as emptio venditio is contractus consensualis, so contra-rio consensu dissolvitur; l. 35, D. de Reg. Jur. sec. 4. Institut. quib. mod. toll. obligat. Si Titius Seco vendiderit fundum Tusculanum centum aureis, pretio necdum soluto ncc fundo tradito, placet inter eos a venditione discedere, tunc invicem liberantur; which seems exactly to be Sir Alexander's case with Mr Campbell, especially being for liberation, cujus causa semper est favor abilis.
The Lords, by a plurality, found the letter was not an overgiving of the bargain, and so did not put Sir Alexander in bona fide to enter into a new minute with the Duchess; but that he must fulfil and perfect the first; which being-done, Mr Campbell may offer it to the Duchess; and if his demand of a consideration be high, that will be subject to a modification arbitrio boni viri.
