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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Law v Gibsone [1835] CA 13_396 (3 February 1835)
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Cite as: [1835] CA 13_396
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SCOTTISH_Shaw_Court_of_Session
Page: 396↓
v.
Subject_Proof—Lease—Process—Jury Trial.—
Alleged verbal agreement to allow an abatement of rent under a written lease not competent to be proved by parole. 2. That question determined before sending an issue to trial.
The pursuer, Law, held the farm of Morton, by written lease, from Mr Rigg of Morton, at a rent of £950 per annum. In 1830 the defender, Mrs Gibsone of Pentland, purchased the property, her right to the rents beginning with that of crop 1831, payable by equal halves at Candlemas and Lammas, 1832. Law paid the first half-year's rent, of £475, and thereafter some communications took place as to a deduction being allowed in future. At Lammas he only paid £200 to account of that half year's rent; and, after the first half-year's rent of crop 1832 had fallen due, he insisted that Mrs Gibsone had consented to a deduction of £100 a-year from the rent, and tendered payment under that deduction. This Mrs Gibsone refused, and on the 8th February she used sequestration for the full rent, which, after the lapse of a month, was withdrawn, on payment of the rent at the alleged reduced rate, and consignation of the balance. Law, however, thereafter raised this action of damages, on the allegation that the sequestration had been used “illegally, oppressively, and maliciously,” after a tender of the amount to which Mrs Gibsone, as he alleged, had agreed to reduce the rent. In his condescendence, Law set forth the sequestration as having been used “nimiously, wrongfully, and oppressively,” and made the following statement as to the alleged agreement to abate the rent, commencing with reference to a proposal from him on the subject.
“The defender returned no written answer to this proposal. She had numerous interviews, however, with the pursuer, and frequently visited his farm. And on or about the 23d of January, 1833, she expressly agreed to give an abatement of £100 a-year, making the rent £850, and to that extent the treaty and arrangement between the parties was completed; and the only question which remained in dispute between the parties was, whether the abatement should be limited to that sum, or should be extended to twenty per cent, being £90 more, or to some intermediate sum.
“The defender, Mrs Gibsone, thenceforth, in numerous transactions and statements regarding this farm of Morton Mains, and otherwise, admitted and set forth that the rent payable to her by the pursuer for the same amounted only to £850; and that she had agreed to abate £100 yearly from the rent of £950; and thenceforth, also, the pursuer proceeded
“During the period while the pursuer was repeating his applications, as above mentioned, for an equitable adjustment of his rent, the defender (unknown to the pursuer) was in a treaty with Henry Trotter, Esq. of Mortonhall, for selling the lands to him, and by missives, dated 28th January, 1833, she had concluded that sale. In the treaty for the sale, the defender admitted and set forth to all, or some of the persons connected with that treaty and sale, that she had agreed to make the above-mentioned abatement from the rent payable to her by the pursuer, and that the rent of the farm amounted only to £850. The sale was concluded upon the footing that the rent payable by the pursuer amounted only to that sum. And it was part of the bargain that Mr Trotter should have right to the rents of the farm subsequent to that for crop 1832; and the amount of these rents has been held by Mr Trotter, and all concerned, to be only £850 per annum.”
These averments were denied, and a draft issue was prepared for trial, which enquired whether Mrs Gibsone had “wrongfully” sequestrated for the full rent. Before remitting it to be tried, however, Mrs Gibsone raised a question of law how far the pursuer had relevantly averred a valid agreement to abate, inasmuch as he did not allege any written agreement, while no verbal transaction could affect an obligation constituted by a regular written lease.
The Lord Ordinary pronounced this interlocutor, adding the subjoined note: * “Having heard parties' procurators on the demand of the pursuer
_________________ Footnote _________________
* “When this case was debated, the record had not been closed. But as it was necessary that it should be closed before any judgment could be pronounced, the Lord Ordinary put it to the pursuer's counsel, after hearing the course of the argument, whether they chose to make any alteration on it, or to execute the diligence which they held for recovery of writings, before closing. They declined this, and the record was then closed as it stands.
“It will be observed that, though the summons bears that the defender did ‘illegally, oppressively and maliciously,’ cause the sequestration to be used and maintained, the word maliciously is thrown out of the condescendence, which (in Art. 21) merely states the sequestration to have been applied for ‘nimiously, wrongfully and oppressively;’ and the issues framed correctly use the word ‘wrongfully,’ as embodying the whole averment. It is on this footing that the question must be considered.
“In the beginning of the debate, some inclination was shown by the pursuer to avoid the question, by saying that he was not bound to state in what manner he meant to prove his averment But, in the end, it was fairly admitted that the question must be argued on the footing that he cannot prove the alleged agreement by written evidence.
“Looking at the 12th article of the condescendence, and the correspondence referred to there and in the answers, it is clear to the Lord Ordinary that the material averment is in the 13th article. Up to the date of 23d January there mentioned, there is no averment of an agreement by the defender to grant an abatement, and it is clear from the correspondence that she had refused to grant it. But the statement in that article clearly imports an averment of a verbal agreement only, and all that follows has reference to this, or imports a verbal repetition of it. It may be thought, and the Lord Ordinary owns he has a strong impression of it, that the assertion is in a great measure disproved by the defender's letter of the 4th February (the terms of which are strong and precise), followed by no averment in the letter of Mr Parker of the 5th, that any such agreement had taken place, or had been acknowledged to him. But this is not at present the question. The question is, whether the averment being distinctly of a verbal agreement, and there being no offer to prove any agreement scripto vel juramento, such an averment should be remitted to proof by parole.
“The pursuer referred to cases in which an offer in writing (for a lease, &c.) having been received, an acceptance of such offer has been allowed to be proved by parole. But the pursuer's proposals were very different from the offers referred to in the authorities. He was bound by a solemn written contract to pay a certain sum of rent which was actually due. What he calls his offer was simply a demand that the defender should give up a part of her legal constituted claim, then and in future. The question is, did she agree so to modify her written contract? The Lord Ordinary holds, that it is only competent to show that she did, by some written document under her hand, or for which she is responsible. If not, any written contract may be altered or extinguished by the party under obligation first coolly proposing that it shall be so, because he wishes it, and then attempting to convert loose words in conversations, artfully sought for, into a finished agreement to surrender the other's legal right. On this question, therefore, as it arises on the fixed rules of the law of Scotland, he has no doubt.—See Lawsons v. Murray, February 16, 1825; Lang v. Bruce, July 7, 1832.
“This question might have been left to be raised in the trial of the case. But there is great inconvenience in this, and a great hazard of occasioning serious expenses and injury to the parties unnecessarily. And where the point does necessarily arise on the face of the record, it would be unjust to allow a party to be dragged into an expensive trial, bills of exception, &c. in an avowed attempt to set aside his written contract by parole evidence, and on that pretence to make him liable in damages, as for a wrongful act. But the late case of Maclean v. Richardson, 1st July, 1834, in the First Division, fully on bill of exceptions, seems to settle this question, as to the expediency of the course of procedure here followed, if the opinion of the Lord Ordinary be right on the point of law, and it is clearly within the letter and the spirit of the act of Parliament.
“What may follow, if the interlocutor becomes final, the Lord Ordinary has not said. He will hear the parties. If the pursuer thinks he can recover written evidence, he may take and use the diligence of the law. If he means to refer to oath, he should say so, and the effect will be considered.”
for an issue to a jury, in terms of the first and second articles in the draft of issues reported by the issue clerks, and on the objections taken by the defender that the condescendence contains no averment that the defender entered into any written agreement to qualify or modify the regular deed of lease under which the pursuer possessed the farm in question,
Law reclaimed, and pleaded—
The judgment of the Lord Ordinary is not properly one determining a question of law on the relevancy, but prospectively deciding on the competency of evidence, while, in the course of the trial, circumstances may emerge materially affecting the competency of such evidence. On the merits, it is clear that writing is not required as a matter of solemnity in regard to an agreement of this kind. A verbal agreement would be binding if legally proved, and without insisting on the argument, that, if a verbal agreement be binding, it may be proven even directly by parole, as in the case of a nuncupative legacy, otherwise, the law being inconsistent, it cannot be disputed that such verbal agreement may be satisfactorily established to have taken place by facts and circumstances, which facts and circumstances may competently be proven by parole. There would have been less objection to the interlocutor if the Lord Ordinary had qualified it by finding it incompetent to prove the alleged agreement “directly” by parole, and as by evidence of parties present; but he has excluded all proof by facts and circumstances, and, so far at least, it is erroneous.
To this it was answered—
It is obviously most expedient for the parties that this point, which is sufficiently raised in this stage, should be decided without the expense of a trial and bill of exceptions; and, as to the question itself, whatever might be thought, were there averments of facts and circumstances inferring the subsistence of a verbal agreement, the record here substantially contains nothing more than an allegation of a bare verbal promise or agreement, without any offer to prove it otherwise than by parole, which is incompetent to cut down a written instrument.
The Court being thus equally divided, the cause was appointed (December 10, 1834) to stand over for further consideration, and was again put out this day, when the Lord Justice-Clerk stated that he had now come to be of opinion with Lords Glenlee and Medwyn.
_________________ Footnote _________________
1 July 1, 1834 (ante XII., 865).
2 May 28, 1829 (ante VII, 677).
The Court accordingly adhered.
Solicitors: Andrew Scott, W. S.— Cranstoun, Anderson, and Trotter, W. S.—Agents.