Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Aberdeenshire, in an action at the instance of William Gordon, joiner, Aberdeen, against George Walker, farmer, North Mains of Barra, for “the sum of £1000 sterling, being damages sustained by the pursuer in consequence of the defender having fraudulently failed and refused to implement a written contract or bargain entered into and completed by him with the pursuer on or about the 21st day of November 1864, by which bargain the defender bought, and the pursuer Bold, for £440 sterling, the property marked No. 7 in the Square of Old Meldrum, belonging to the pursuer, with expenses.”

The pursuer founded on an offer to purchase, holograph of the defender, and his acceptance

Page: 340↓

thereof, which, however, was neither holograph nor tested. He also averred that the bargain was followed by rei interventus; but there was no specification of the acts alleged to constitute it.

After a proof, the Sheriff-Substitute ( Dove Wilson) pronounced the following interlocutor:—

“ Aberdeen, 15 th November 1871.—Having considered the cause, Finds in point of fact—(1) That the defender, on 21st November 1864, made to the pursuer an offer to purchase from him certain heritable property, ‘the transfer to be at Whitsunday 1865,’ and that the defender accepted said offer; (2) That the defender's offer was holograph, but that the pursuer's acceptance was neither holograph nor tested, having been written by the defender, and simply subscribed and addressed by the pursuer; (3) That the defender resiled from said bargain prior to the term of entry, and before the occurrence of any act of homologation or rei interventus: Finds, in point of law, that the bargain so constituted, and not followed by homologation or rei interventus, in regard to the sale of heritage, is not binding on either party, even to the extent of authorising a claim for damages for non-implement. Therefore assoilzies the defender from the conclusions of the action, and decerns: Finds the defender entitled to expenses of process; allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report.

Note.—The question as to the validity of a bargain as to heritage, made in a manner similar to the present, and not followed by homologation or ret interventus, having been settled by the recent case of Goldston v. Young, Dec. 8, 1868, 7 M. 189, it is needless to discuss it. Whatever may be thought of its equity, the law is quite settled that where a bargain about heritage stands on missives, both the offer and the acceptance must be holograph or tested, in order to make the bargain binding, even to the extent of authorising a claim of damages for its breach. It is considered of importance to the law that all such writings should be formal.

The only question for consideration in this case is therefore whether the bargain has not been followed by such homologation or rei interventus as would make it binding. Three acts were relied on by the pursuer to show that it had—(1) That the defender had let part of the property; (2) That he had paid part of the price; and (3) That he had entered on possession by removing the contents of an ashpit. The proof seems to the Sheriff-Substitute to have failed in each instance. The only evidence of the letting consists of the defender's admissions that he let part of the property to certain parties on condition of his becoming proprietor. The parties to whom he let the property were not adduced, and. therefore it must be assumed that this conditional letting was all that took place. Such acts were not the acts of a proprietor, but those merely of an offerer for the property. The alleged payments of part of the price are equally unproved. The £7 spoken of in the defender's evidence is said to have been advanced by way of loan, and as it was advanced some time before the price was due, there is no presumption that it was given on any other footing. The sum of £4 paid by the defender's present agent was not paid till long after the dispute had arisen; the obligation granted for it bears that it was a loan, and it is not made to appear that the defender had any connection with it. The alleged entering the premises to remove manure, if done at all, was not a thing done by the defender in the character of proprietor. His title as proprietor could give him no right to take possession of the moveables on the property. Considering the nature of the objection to the formality of the bargain, very slight evidence of homologation or rei interventus would have been sufficient, but there must be something which would fall within the principles applicable to those matters.

The Sheriff-Substitute has, for the reasons stated, come to the conclusion that there was no bargain between the parties which the law can enforce. As the pleas which the defender has maintained are of a very strict kind, and in themselves have not much equity, it is only fair to him to say that he did not maintain them until brought into Court to defend himself against a perfectly extravagant demand, and that immediately after resiling from the bargain he tendered to the pursuer a sum amply adequate to cover any damage which the pursuer had sustained.”

The pursuer having appealed, the Sheriff ( Guthrie Smith) pronounced this interlocutor:—

“Edinburgh, 17 th January 1872.—The Sheriff having heard parties' procurators on the pursuer's appeal against the interlocutor of 15th November last, and having considered the record, proof, productions, and whole process—dismisses the appeal, affirms the interlocutor appealed against, and decerns.

Note.—The contract founded on is not in a form which the law recognises as binding, and there are no circumstances inferring homologation or rei interventus. No part of the price was paid, for the small sums received by the pursuer were given as a loan, and although the defender said to one of the tenants that he was not to be removed, and promised to let a part of the premises to a new tenant, he did so in both cases conditionally on his becoming proprietor. It is plain that these cannot be founded on as acts of possession; they rather show that the defender was still doubtful whether he would complete the transaction. Matters being thus entire, the defender, in resiling from the transaction, was simply exercising his legal right, and no damages are due.”

The pursuer appealed to the First Division of the Court of Session.

J. A. Reid, for him, craved the Court to delay the hearing of the cause, in order that an opportunity might be given him to amend the record, by specifying the acts founded on as constituting rei interventus, and thereafter to prove them.

Mair and Rhind, for the respondent, were not called on.

At advising—