Scottish Court of Session Decisions

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This case came up by reclaiming-note against a decision of Lord Ordinary Mure in an action of declarator, implement, and damages, at the instance of William Mitchell, ironfounder in Grahamston, near Falkirk, against Robert Currer, watchmaker in Falkirk, and another, trustees acting under the trust-disposition and settlement of the late Oliver Scott, sometime stocking manufacturer, Alma Street, Grahamston. The summons concluded for declarator that the pursuer bad purchased from the deceased certain heritable subjects in Grahamston at the price of £540, and for an order on the defenders, as trustees of the deceased, to grant the pursuer a disposition of the subjects on payment of the price; and, further, for payment of £100 as damages in respect of the defenders' delay to implement the bargain now sought to be enforced. The action was defended, on the ground, inter alia, that the acceptance of the missives of offer constituting the alleged contract was not holograph of the pursuer, nor properly tested. The admission was made that the deceased signed the missives, but it was explained and averred that when he did so he was incapable of understanding the offer made him, and that they were not signed before witnesses.

The pursuer pleaded:—“(1) The offer by the late Oliver Scott, addressed to the pursuer on 21st August 1871, and the acceptance by the pursuer thereof of the same date, together with the writing by Mr John Smith, annexed thereto of same date, form a valid and formal contract for the purchase and sale of the subjects and others therein referred to, which the defenders are bound to implement. (2) The pursuer having paid one shilling to account of the price of the said subjects, is entitled to decree in terms of the conclusions of the summons. (3) The pursuer being ready and willing to implement the said contract, but the defenders having refused to implement the same, the pursuer is entitled to decree in terms of the conclusions of the summons. (4) The defenders having failed or delayed to implement their bargain with the pursuer, are liable in the loss and damage he has thereby sustained.”

The defenders pleaded:—“(1) The pursuer's statements are not relevant or sufficient in law to support any of the conclusions of the summons. (2) The action cannot be maintained, in respect that the missives alleged to constitute the contract of purchase and sale between the pursuer and Mr Scott are not holograph, nor tested in terms of the statutes. (3) Separatim, no concluded contract was ever entered into, in respect that the material alterations upon the terms of Mr Scott's alleged offer expressed in the pursuer's alleged acceptance were never accepted or adopted by Mr Scott, or by any one having his authority. (4) The defenders ought to be assoilzied, in respect that, at the date when Mr Scott signed his alleged offer, he was not compos mentis, and that neither the said offer nor any of the relative documents are his acts or deeds. (5) The pursuer is not entitled to decree as concluded for, in respect that the alleged contract libelled was departed from and abandoned by him as aforesaid. (6) Assuming a valid and effectual contract of purchase and sale to have been entered into with Mr Scott, the pursuer cannot obtain any decree applicable to any larger area of ground than that comprehended in lots 2 and 3 upon Mr Black's sketch, in respect that the alleged contract did not relate to or comprehend any ground other than these lots. (7) The pursuer's whole material statements being unfounded in fact, the defenders ought to be assoilzied, with expenses.”

The Lord Ordinary ( Mure), after a proof, pronounced the following interlocutor:—

“ Edinburgh, 14 th July 1874.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, Finds that the missive offer of the late Oliver Scott, founded on by the pursuer, is defective in the statutory solemnities, and that the acceptance of the said offer is neither tested nor holograph of the pursuer; sustains the second plea in law for the defenders, and assoilzies them from the conclusions of the action, and decerns: Finds the pursuer liable in expenses, subject to modification; of which appoints an account to be given in; and remits the same, when lodged, to the Auditor to tax and report.

Note.—The testing clause of the missive offer, which is quoted in the third article of the condescendence, bears to be written by ‘the said John Smith,’ who is also one of the witnesses; but on referring to the body of the writ the writer is simply mentioned as ‘Mr John Smith.’ He is not, therefore, designed; and although it may be conjectured, from its being stated that he is to prepare the disposition to follow upon the missive that he was a professional agent, that, according to the rules laid down in the cases of Percy v. Caldwell, 25th November 1808, F.C.; Lockhart, 16th February 1815, F.C.; and Callender, December 17, 1863, is not a mode of construction which can be adopted as sufficient to supply the requirements of the statutes. The offer is therefore null under the Act 1681, c. 5, and cannot of itself be made the foundation of the claim raised under the present action.

But it was contended on the part of the pursuer that the objection was obviated by the description given of Mr Smith in the acceptance of the offer, and also in the document signed by Mr Smith which is annexed to the acceptance, in both of which he is described as ‘agent for both parties;’ and it was also argued, upon the authority of the case of Callender, that this notandum was an adoption or homologation of the defective offer. The Lord Ordinary, however, has not been able to see his way to give effect to either of these pleas.

For, in the first place, as to the acceptance, it is not holograph; so that even assuming the designation contained in it to be sufficient, which is a point not free from doubt, it cannot, it is thought, be read as supplying the statutory defect in the offer. It is not, moreover, a part of the offer, but the writing of another party. And the Lord Ordinary is not aware of any authority for holding that a separate writing of this description, not engrossed by reference into the writ, the validity of which is in question, as was the case with the rental in the case of Callender, can be founded upon as explanatory of the defect in the writ under challenge. To hold that it could, would, in the opinion of the Lord Ordinary, amount substantially to admitting a condescendence in support of the offer, which is expressly excluded by the statute. And the same observation applies to the writing of Mr Smith annexed to the acceptance, which, though holograph, is no part of the offer.

But the question remains, whether that writing can be held to amount to such an adoption and

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corroboration on the part of the late Mr Scott of the defective offer as must have the effect of precluding Mr Scott, or the defenders as his trustees, from challenging the transaction? The Lord Ordinary does not think that it can. It is not the writ of Mr Scott; and the Lord Ordinary doubts whether the passage in Mr Erskine (3. 3. 47), which is generally relied on in such questions, can be held to afford any sanction to acts of homologation by any one other than the party himself whose writ is defective. It is not, as the Lord Ordinary conceives, within the ordinary powers and duties of a law agent himself to execute the writings by which a sale of his client's property is carried through. Nothing, in the opinion of the Lord Ordinary, short of express—and as he is disposed to think written—authority to that effect, of which there are examples in the Styles Books, ought to be held as sufficient to bind a client in such transactions; and the Lord Ordinary does not think that there is evidence of any such authority having been given in the present case.

On the question of expenses, the Lord Ordinary has found the pursuer liable, only subject to modification, because the statutory objection to the designation of the writer of the missive offer, in respect of which the case has now been disposed of, was not raised till after the whole proof had been led. It is covered, no doubt, by the plea in law which the Lord Ordinary has sustained, but it is nowhere specifically stated in the record, and was not mooted at the discussion which led to the record being amended before the proof was allowed. Had it been so raised, the Lord Ordinary would have considered it right to deal with it before a general proof was allowed, and the expense of that proof would, in all probability, have been saved.”

At advising—