Scottish Court of Session Decisions

This was an action by the trustees of the late Patrick Gibson, a farmer near Brechin, against Robert Fraser, who was to become tenant of the farm which Gibson had held, at Martinmas 1876. The summons concluded for declarator that an agreement, consisting of eight different heads, had been entered into between the pursuer and defender, whereby it was agreed that the defender should take over certain crops and implements at a valuation, and should accept the houses and fences as in the condition in which the outgoing enant was bound to leave them. The summons set forth the whole alleged agreement, and further concluded for decree ordaining the defender to implement it or to pay damages.

In the condescendence it was averred that a draft of the agreement had been written out, and that the defender had agreed to sign it when extended.

The pursuer pleaded—“The defender having entered into the agreement libelled with the pursuers, and having refused to implement the same, the pursuers are entitled to decree as concluded for, with expenses.”

Aften a proof the Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 13 th February 1877.—The Lord Ordinary having considered the cause, dismisses the action, and decerns: Finds the defender entitled to expenses, &c.

Note.—The Lord Ordinary regrets that he has been obliged to pronounce this decision. But from the form of the action he does not think that he can do otherwise. No proposal was made to amend the summons.

The only purpose of the action is to declare that the pursuers and defender entered into an agreement consisting of eight different heads. It is contained in an informal writing prepared by Mr Shiell, as the agent of the pursuers, and sent to the defender on 18th August 1876. It was not signed by the defender, but the pursuers alleged that rei interventus followed.

It is plain from the evidence that before the writing was drawn up no such agreement as that which it expresses was ever entered into between the parties. Certain obligations existed on the pursuers and defender as the outgoing and incoming tenants. But these were ascertained by the lease, and, with perhaps a small exception relating to the time when the turnips were to be removed, it had never been proposed to make them the subject of any agreement. Indeed, at the time when the writing was sent to the defender it is not contended by the pursuers that anything had been agreed on, except that the defender was to take over a number of farm articles, and that in consideration of his obtaining immediate access to the steading he should take over the houses and fences as being in the condition in which the pursuers were bound to leave them. The defender does not deny that he agreed to take the farm articles, but he maintains that he never undertook to accept the houses and fences.

After the writing was communicated to the defender, a meeting took place on 22d August. The pursuers say that the defender approved of it, and agreed to sign it, and indeed that it would have been signed then and there but that it was only in scroll. The defender says that he refused to sign it in consequence of his objection to the clause relative to the houses and fences, but he does not seem to have stated much, if any, objection to the other clauses. It is certain, however, that when it was sent to him on the 23d of August for his signature he refused to sign it and returned it.

The Lord Ordinary is of opinion that the pursuers have not established that the agreement libelled was concluded between them and the defender. It was intended to be reduced to writing, and the defender refused to sign it. Even assuming that the defender agreed to it, there was locus pcenitentice until it was signed; and in regard to the question whether the agreement as a whole was ever concluded, the Lord Ordinary is of opinion that nothing followed between the 22d and 24th of August to prevent the defender from resiling. On the 24th of August the defender definitely refused to sign, and his refusal was never withdrawn.

The real question between the parties was whether the defender agreed to take over the buildings and fences as in good order. On this question there is a painful conflict of evidence. But the Lord Ordinary forbears to express any opinion upon it, as owing to the form of the action he cannot decide it. He has thought it proper to dismiss the action and not to assoilzie.”

The pursuer reclaimed, and proposed to amend his record to the effect of abandoning his attempt to set up the written agreement, relying instead upon evidence as to a verbal agreement and rei interventus, which had reference to the taking over of the farm buildings.

The defender resisted this motion, on the ground that this was really a different ground of action, and that the pursuer was bound to have taken up

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this position sooner and amended his record at an earlier stage if he had it in his mind to do so at all.

At advising—