Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

William Bell, Portioner of Ridpeth,
v.
James Dunlop, Factor for Moristoun

Date: 25 June 1708

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James Dunlop having subscribed a writ, declaring that William Bell had agreed with him for the purchase of Brotherstanes, belonging to the laird of Moristoun, and was to pay 4600 merks as the price at the terms therein mentioned, and to give Moristoun good security therefore; and that he Moristoun was to give to Bell a disposition with absolute warrandice. And Mr. Dunlop having afterwards signified by a letter to Mr. Bell, that he had reported to Moristoun and his friends the bargain himself had made with Bell, and they would not resile from his agreement ; and therefore desired Mr. Bell and his son to hasten into Edinburgh, that the same might be perfected ; and, Moristoun having sold the lands to Sir William Scott of Harden : Mr. Bell required James Dunlop to implement the bargain, under form of instrument, and pursued him for payment of L1000 of damages.

Alleged for the defender,—The foresaid declaration was only writ memoriæ causa; containing no obligement upon him to cause Moristoun dispone, nor upon Bell to pay the price; and so is no contract, not being signed by Bell. And as such a writ could not oblige him to take the bargain, or make him liable for the price, neither could it tie Moristoun or his factor.

answered for the pursuer,—The declaration sufficiently instructed the tenor and conditions of the bargain, and so excluded locum penitentiæ allowed in ver bal agreements: consequently ought to be effectual to make the granter liable for the pursuer's damage sustained through not performance of the minute ; especially considering that he was ready to have performed his part.

The Lords found the declaration obligatory upon the defender to make up the pursuer's damage, through the not implement of the terms of the agreement prestable by Moristoun.

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