Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0148.html
Cite as: [1869] ScotLR 7_148, [1869] SLR 7_148

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SCOTTISH_SLR_Court_of_Session

Page: 148↓

Court of Session Inner House First Division.

Wednesday, December 8 1869.

7 SLR 148

Leitch

v.

Muhro

Subject_1Tenant — Agreement — Evidence — Parole — Stock — Valuation.
Facts:

In the improbative lease of a public-house, the landlord was bound to take over the tenant's stock on his leaving at a
Page: 149↓
valuation. Held, on proof, that an incoming tenant, who had purchased the stock from the outgoing tenant, was entitled under a verbal agreement to have certain bad stock replaced by good stock by the latter.

Headnote:

Opinion, per Lord President, that an improbative written agreement became part of the evidence of the parole agreement.

At the beginning of December 1868 the defender was tenant of a public-house at Jock's Lodge, Edinburgh, which he was then endeavouring to dispose of. After some negotiation the pursuer took a lease of the premises from the landlord, Mr Adamson, and an arrangement was entered into between the defender and the pursuer, by which the latter agreed to purchase the whole stock of liquors in the shop, in so far as sound, at the invoice prices, under deduction of discount thereon at the rate of 25 per cent., being the usual trade discount. In virtue of this arrangement, the defender prepared an inventory of the whole stock of ales, wines, spirits, &c., then in the shop. On or about 7th or 8th December 1868 the pursuer and defender met at the shop, along with Mr Adamson and some other parties connected with the trade, who were present to inspect and value the stock. While the valuers were examining the stock they discovered various casks of ale to be sour. It was arranged between the pursuer and the defender that, as the pursuer was to obtain immediate possession of the shop, with the entire stock of liquors, &c., he should in the meantime pay to the defender, by a bill at 3 months' date, £92, 9s. 4d., consisting of (1) £86, 13s. 10d., being the amount (less 25 per cent, discount) of the full invoice price of the liquors, &c., and (2) £6, less 4s. 6d., in respect of licence, &c., the defender agreeing and undertaking that he should afterwards remove the casks of ale which had been discovered so to be defective, and any others which the valuators had not gone over and which might be afterwards discovered to be defective, and to replace them with ales of a similar value, and of a good marketable quality. The defender having thereupon stated that he would give 5 percent, off the amount of the bill to any one present who would cash it, the landlord, Mr Adamson, agreed to do so, and it was arranged between Mr Adamson, the pursuer, and the defender, that the bill should be granted in favour of Mr Adamson, which was thereupon done, Mr Adamson at the same time paying to the defender the amount less 5 per cent. The bill was accordingly granted.

The pursuer frequently requested the defender to have the defective casks of ale removed and replaced by others of a sound quality, in terms of his agreement to that effect and in virtue of the obligation to do so otherwise incumbent on him at common law, and according to the custom of the trade, or otherwise to pay to the pursuer the sum of £24, 15s., with interest, as the value of the ales not in good condition. In consequence of the defender's refusal to pay, the present action was brought. The defender alleged that his dealing was with Mr Adamson. But, on a proof being led, the pursuer's contentions were borne out by the evidence. The Lord Ordinary ( Ormidale) assoilzied the defender.

The pursuer reclaimed.

Black and Strachan for him.

Gifford and Mackintosh in reply.

At advising—

Judgment:

Lord President—I cannot agree with the interlocutor of the Lord Ordinary. He finds the pursuer has failed to prove the ground of action on which he has libelled. This was an alleged agreement on the part of the defender to see the sour ales replaced by good ones. This was the only statement necessary for him to prove, and he has done so. The defender says it was part of a contract of sale to Mr Adamson, the landlord. But this is, to say the least, very doubtful. It is, I think, plain that it was perfectly well known that Leitch was present at the meetings on the 7th and 8th December as the incoming tenant. Two of the parties were mere clerks, and they were there to inventory the stock. But there were other two persons there as judges of the ale. It is shown the ales were sour—such as brewers are in the habit of taking back. Now there are five witnesses who state it was expressly agreed that though these appeared in the inventory, they were to be replaced by Munro by good sound ale. And there is nothing in the evidence to justify us in setting aside the evidence of these five men in the assertion of the defender alone. But it is said that parole testimony is inadmissible to prove the conditions of a written agreement. If this agreement had been fully out written with the date and the price inserted I should sympathize with this argument very much. But it is itself only a part of the evidence to a verbal agreement.

The other Judges concurred.

Counsel:

Agent for Pursuer— David Forsyth, S.S.C.

Agents for Defender— Cotton & Finlay, W.S.
1869