Scottish Court of Session Decisions

In August 1869 a minute of sale was entered into between John Robertson of Blairbeth, of the first part, and Thomas Corbett, of the second part, by which the former agreed to sell to the latter a piece of ground on the road between Glasgow and Govan, containing 4818 square yards at 7s. 6d. per square yard. The fourth article of the minute was as follows:—“The second party shall forthwith proceed to erect on the said piece of ground dwelling-houses of a suitable description for working-people, and of a good and substantial style of workmanship; and the fronts thereof, towards said intended street, shall be built of at least good hammer-dressed or squared rubble, in courses; and the second party shall be restricted from erecting any other buildings than those above provided for on said ground, or making any other use thereof, or disposing of the same for any other purpose, during the period of ten years from and after said term of entry.”

In February 1870 Thomas Corbett entered into an agreement with the Trustees of the Clyde Navigation, by which he agreed to sell, at a price to be fixed by arbitration, the piece of ground mentioned above, “but subject to any obligations, restrictions, and others contained in the agreement as to the sale of the said ground between the said John Robertson and the first party, in so far as the said John Robertson has not discharged or agreed to discharge the said obligations, restrictions, and others.”

The agreement proceeded—“3. It shall not be competent for or allowable to either party, either verbally or in writing, to make any allusions in the proceedings in the arbitration to the fact that the first party bad purchased the ground with no view of personal gain, but with the intention of erecting a number of cottageson the English plan, as a model to the working men of Glasgow, nor to the obligation come under by the first party to build nothing but workmen's houses upon the ground; neither shall there be any question raised before the arbiters as to the possibility of the first party getting as suitable or more suitable ground for the purpose above referred to in other situations. 4. In addition to the price of the said piece of ground, as fixed by the said arbiters or oversman, the second party shall pay to the first party the expense paid or incurred by him in any way connected with his purchase of the said ground; and the second party shall also pay to Hugh Barclay, architect in Glasgow, the sum of £70 sterling as compensation for professional services to the first party in preparing plans, &c., which have been rendered unnecessary in consequence of the sale by the first party to the second party, and thereupon the said plans shall become the property of and be delivered over to the second party.”

The present action was brought by Corbett, with consent of the Trustees of the Clyde Navigation, to compel Robertson to grant a disposition in implement of the minute of sale of August 1869.

The defender averred—“1. The pursuer, in or about the month of April or May 1869, entered into a treaty or negotiation with the defender for the purchase of the piece of ground mentioned in the summons. His professed object was to acquire the same for the erection of model houses or cottages for working people, in the improvement of whose condition he professed to take a deep interest, and for that end had established the well-known cooking depots in Glasgow for their use. The defender, who had purchased the lands of Cessnock in 1868, was desirous of furthering the pursuer's scheme. 2. The pursuer, throughout the negotiation, assured the defender that the sole and exclusive object which he had in view was the erection of said model houses; he exhibited plans and elevations of his proposed cottages or houses, prepared by an architect, to the defender; and the price was discussed with express reference to that object. The pursuer stipulated that this matter should not be made a term of the bargain, but the defender declined to accede to that stipulation; and it was finally settled that the ground was to be sold by the defender, and bought by the pursuer, at the price of 7s. 6d. per square yard, exclusively for the building of model houses thereon; but the period of restriction was limited to ten years from the date of entry, viz., from Martinmas 1869. 3. The value of the ground thus agreed to be sold was then for general purposes (that is, not restricted to the particular use specified in the bargain) about 15s. per square yard, and is now worth a larger price. It is in, and has a considerable frontage to, the main line of road between Glasgow and Govan; is presently available for building purposes; is adjacent to or within the burgh of Govan; is in the near neighbourhood of large shipbuilding yards and other public works; is suitable for the erection of such works or for shop property, from which very large rents may be derived. Both the pursuer and defender were aware of these circumstances; and the defender was willing, and agreed to sacrifice a certain proportion of the value of his ground with reference to the object which the pursuer professed to have in view in making the purchase, and on the faith that it would be carried out.” … “5. The pursuer has never taken a single step to implement the terms of his contract by proceeding to build the houses stipulated for, and has no intention of doing so. 6. The pursuer, in or about the month of February 1870, entered into an agreement with the Clyde Trustees, whereby he sold to them, so far as he had power to do so, or professed to sell to them, the piece of ground in question, and he thereby ceased to have any interest in the ground, and put it out of his power ever to implement or carry out the terms of his contract with the defender; and the Clyde Trustees have no intention, and have no powers under their Statutes, to enable or entitle them to erect the houses stipulated for in the agreement, and they made the purchase for the purpose of forming a dock or harbour in communication with the river Clyde, or other works for the purposes of their trust.”

The defender pleaded:—“1. The pursuer having violated the said agreement ns condescended on, and incapacitated himself from implementing his part thereof, has thereby forfeited his right to enforce implement thereof against the defender. 2. In the event of the pursuer being found entitled, notwithstanding his violation of the said agreement, to a conveyance of the said ground from the defender, the latter is entitled to have inserted in the disposition to be granted by him such clauses as may be necessary for giving effect to the whole stipulations in the said agreement.”

Page: 633↓

The Lord Ordinary ( Jerviswoode) allowed parties a proof before answer of their respective averments, the defender to lead.

The pursuer reclaimed.

Watson and Maclean, for him, argued that the averments of the defender ought not to be admitted to probation either before answer or otherwise. The defender cannot found upon any alleged understandings of parties before the minute. These are entirely out of the field. It is not disputed that the minute is a binding and concluded agreement. The statement might be relevant in an action for setting aside the contract of sale on the ground of error or fraud; but they have no relevancy in this action. The pursuer is entitled to a disposition in terms of the minute; and when he has got his disposition there is nothing to prevent him selling, subject, of course, to the conditions. The interlocutor of the Lord Ordinary should be recalled, and a draft disposition ordered to be lodged.

Solicitor-General and Asher, for the defender—The pursuer has got the ground subject to an obligation to put it to a certain use. He has disclosed on record that it is not his intention to put it to that use. He has shown this by selling the ground as unrestricted ground to the Clyde Navigation Trustees, who have no power by their statute to erect workmen's houses.

The Court pronounced the following interlocutor:—Recal the interlocutor of the Lord Ordinary, and, before answer, appoint pursuer to lodge a draft of the disposition which he proposes that the defender should execute, reserving all questions of expenses.