Scottish Court of Session Decisions

In October 1860 the pursuer, Mr Wallace of Auchinvole, let, on a fifteen years' lease, to the defender Walter Wingate, a seam of coal in his lands of Easter Shirva, in the county of Dumbarton. The lease secluded assignees and sub-tenants. In January 1862, Mr G. C. Bruce, C.E., entered into a contract of copartnery with Mr Wingate as coal-masters at Shirva and elsewhere. It was proposed that Bruce should become joint-tenant with Wingate in the colliery. To this the landlord's consent was necessary. Various correspondence passed between the parties. Towards the end of May there was prepared a draft minute of agreement between Bruce and Wingate, which narrated the lease to Wingate and bore that “the parties hereto some time ago agreed to enter, and have entered into, a copartnership in the trade or business of coalmasters, and that from and during the space yet to run of the said agreement of lease, to be carried on under the firm of Walter Wingate and Company; and, therefore, the said Walter Wingate hereby acknowledges and declares that the foresaid missive or agreement of lease is granted to him, and stands in his person in trust only, for the joint use and benefit of himself and the said George Cadell Bruce; it being understood that the said firm of Walter Wingate & Company, and the partners thereof, shall be bound to free and relieve me, the said Walter Wingate, not only of the whole arrears of tack-duty,” &c.

The pursuer brought an action of declarator and damages against the defenders, alleging that this draft was signed by both defenders in token of their approval, and that a suggestion was made by them, and agreed to, that the pursuer should become a party to the deed in evidence of his consent; that he became a party to the minute; and that the minute was extended and was signed by the pursuer and defenders in May or June 1862. The pursuer alleged, farther, that the defender Bruce had in many ways conducted himself as joint-tenant of the colliery. The object of the action was to make Bruce liable conjunctly and severally with the other defender in rent or lordship under the lease, and in damages for desertion of the works.

Decree in absence was taken against Wingate.

Bruce pleaded non-liability, on the ground that the draft-minute libelled on had never been executed by him, and that he had never been assumed as joint-tenant.

A proof was taken, and the correspondence between the parties was produced. Thereafter, the Lord Ordinary ( Jerviswoode) pronounced an interlocutor in which he found “as matter of fact, 1st, That by missive of agreement between the pursuer and Walter Wingate, who is called as a defender in this action, and which missive is dated 6th and 8th October 1860, the pursuer let, for the term of fifteen years, with certain breaks in favour of the tenant, to the said Walter Wingate and his heirs, that seam of coal then worked by William Dunsmure in the pursuer's lands of Easter Shirva, se-eluding assignees and sub-tenants: 2d, That in or about the month of January 1862, a copartnership was formed between the said Walter Wingate and the other defender, George Cadell Bruce, in relation to the trade or business of coalmasters, which copartnership was to subsist for and during the endurance of the lease above mentioned: 3d, That on application by the said Walter Wingate, and after certain inquiries regarding the position of the defender, the pursuer agreed, on or about the 20th January 1862, to assume the defender Bruce as joint-tenant with Mr Wingate in the lease of the coal above mentioned; and, on or about the 21st January foresaid, the defender (in terms of his letter of that date, No. 9 of process) stated that he would be glad to enter into a lease as soon as was convenient for the pursuer to get a regular lease prepared: 4th, That thereafter a meeting took place, towards the end of January 1862, in the office of Messrs Fisher & Watt, writers in Glasgow, and then the ordinary agents of the pursuer, at which the pursuer and defender and Mr Wingate were present, and on which occasion the defender Bruce requested the said Messrs Fisher and Watt to propose a draft-minute of agreement which, as then contemplated, was to be signed by the pursuer in testimony of his approval, and under which the said Walter Wingate was to acknowledge and declare that the missive of lease above referred to was granted to him and stood in his person in trust only for the joint use and behoof of himself and the defender Bruce: 5th, That thereafter a draft-minute was prepared by the said Messrs Fisher and Watt, and by the first transmitted to the pursuer, who personally returned it; and that the said draft was thereafter handed by Mr Fisher to the defender Wingate, who took possession of it for the purpose, as he stated, of submitting it to an agent on his behalf: 6th, That the said draft was thereafter handed by Mr Wingate, or sent by Mr Fisher, to the defender Bruce, who thereafter, and on or about the 27th January of the said year (1862), personally returned the same to Mr Fisher: 7th, That the said draft-minute when so returned bore the addition of the signatures of “George C. Bruce” and “Walter Wingate,” opposite to the title and on the margin thereof the words “by whom” (as referring to the pursuer) “these presents are also signed in testimony of his approval thereof:” 8th, That the said draft-minute, when so returned, did not bear the words “but without prejudice to the legal rights,” which now appear therein, and which words were added by Mr Fisher, acting on behalf of the pursuer, in the absence and without the knowledge or approval on the part of the defender Bruce: 9th, That Mr Fisher

Page: 43↓

having had said minute of agreement extended, including therein the words added as aforesaid, transmitted the same on 28th May foresaid to the pursuer for the purpose, as stated in the letter—of which No. 11 of process is a copy—of its being signeted by the pursuer, the defender, and Mr Wingate: 10 th, That the said agreement was signed by the pursuer and by Mr Wingate, but was not signed by the defender Bruce: and 11 th, That the pursuer has failed to prove that the defender approved of the draft-minute of agreement referred to on record, as the same was ultimately framed and extended, or that the defender ever subscribed or executed the same; and, with reference to the foregoing findings, sustains the plea in law stated on record on the part of the defender, and in respect hereof assoilzies him from the conclusions of the summons, and decerns; Finds the defender entitled to his expenses,” &c.

The pursuer reclaimed.