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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sinclair v. Weddell [1868] ScotLR 5_601 (13 June 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0601.html
Cite as: [1868] ScotLR 5_601, [1868] SLR 5_601
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SCOTTISH_SLR_Court_of_Session
Page: 601↓
Court of Session Inner House First Division.
v.
Facts:
An improbative agreement of lease, there being no rei interventus, held not binding.
Sinclair alleged that, in October 1866, the defender agreed to let certain premises to him for seven years, or at least for one year from Whitsunday 1867, at a fixed yearly rent. In January 1867 the pursuer asked and obtained from the defender a document in these terms;—
“ Woodend Farm, 28 th January 1867.
It is agreed by David Sinclair and James Weddell, for the public-house in Bathgate, for seven years' lease, the public-house to be £18 pounds yearly, the flesh shop to be £6 yearly, and killing-house and stable £4 yearly.
(Initialed) J. W.
(Signed) James Weddell. Woodend.”
the document being written by the defender Weddell. The pursuer now sought damages in consequence of the defender having failed to put him in possession of the premises at the term agreed on. After the action was raised the pursuer signed the document. The case was now reported on the adjustment of an issue, the defender contending that, as the only document founded on was neither holograph nor tested, and it was not alleged to have been followed by possession, no issue ought to be granted, and the action ought to be dismissed.
Thoms and Reid for pursuer.
R. V. Campbell for defender.
The following cases were cited:— Sproul, Hume, 920; Muirhead, M. 8444; Fulton, M. 8446; Barron, M. 8463; Fowlie, 6 Macph. 254.
Lord President—The facts of this case are sufficiently simple. There is a document which bears date 28th January 1867, and is in these terms [ reads]. Now that expresses—certainly not in very correct form—a mutual contract of lease. If not, it has no meaning at all. That is written by the defender Weddell, and signed by him. There is no other signature on the document until this action is raised, and, after the action is raised, the other party named in the writing appended his signature. There is no allegation of rei interventus, or any facts and circumstances to support this writing. It is needless to say that the document, being holograph of Weddell, cannot be holograph of the other party, and therefore is not binding on the other party, and it makes no difference that that other party is the party seeking to enforce it, for a party is not entitled to enforce as a mutual agreement that by which he is not bound. The case clearly comes within the rule of Sproul. The writing there bore to be a missive of tack, and was subscribed by both parties, being written by one, and on that the action was raised. The Lord Ordinary, “in respect that the minute of tack libelled on is neither probative in terms of law, nor has been followed by possession, finds that the pursuer cannot insist for specific implement thereof,” and assoilzied the defender from the conclusion of reduction; and to this part of the interlocutor the Court, on advising a petition and answer, adhered. It appears that the case was very deliberately argued, and it is impossible to read the judgment otherwise than as a judgment of authority. But if it were not, I see no doubt that the conclusion which it reached is sound. I think we must disallow this issue.
The other judges concurred.
Thoms contended that at least he was entitled to an issue putting the question of a lease for one year.
The Court allowed him to put in an issue, without deciding as to whether it would be allowed or not.
Solicitors: Agent for Pursuer— W. Officer, S.S.C.
Agent for Defender— A. Wylie, W.S.