Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Forbes v. Caird [1877] ScotLR 14_672 (20 July 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0672.html
Cite as: [1877] ScotLR 14_672, [1877] SLR 14_672

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 672↓

Court of Session Inner House First Division.

[Sheriff of Banff.

Friday, July 20.

14 SLR 672

Forbes

v.

Caird.

Subject_1Proof
Subject_2Parole
Subject_3Writ or Oath.
Facts:

In an action by one innkeeper against another for payment of the cost of stabling the horses of an omnibus the defender stated that it had been arranged between them that there was to be no charge, the fact of the omnibus starting from and arriving at the pursuer's hotel being sufficient consideration. Held that the defender ought not to be restricted to the writ or oath of the pursuer for proof of his averments, and that he was entitled to a proof at large.

Observations regarding the restriction of proof in contracts of an unusual nature.

Headnote:

This was an action by James Forbes, innkeeper and stabler, Portsoy, against James Caird, innkeeper, Cullen. From 1st May 1867 till 28th October 1876 the defender had run a two-horsed omnibus each day between Cullen and Portsoy, and twice a-day the horses were stabled in the pursuer's stable attached to his hotel in Portsoy. The pursuer now sued the defender for the stabling of the horses, at the rate of fourpence for the two on each occasion, amounting for the whole period to £98.

The defender answered that there had been an arrangement between the pursuer and himself, at the pursuer's request, that the omnibus should arrive at and depart from the pursuer's hotel, as there was a rival omnibus in connection with a rival hotel. That was in order to benefit the pursuer's hotel, and the pursuer on his part agreed to give the stabling free of charge.

The Sheriff-Substitute ( Gordon) allowed both parties a proof of their averments, and on appeal the Sheriff ( Bell) adhered to that interlocutor, with the addition that he restricted the proof of the agreement alleged by the defender to writ or oath. He added the following note:—

“ Note.—… With reference to the description of evidence which is competent in addition to the authorities cited, observe Ersk. iv. 11, 20, and Johnstons v. Goodlet, July 16, 1868.

The contract in Johnstons' case and that in Edmonston v. Bruce, June 7, 1861, 23 D. 995, are very different from the present. But the opinions delivered are in point.

And the Sheriff does not see that any sound distinction can be drawn between the present case and Taylor v. Forbes, 24 D. 19. The contract there was in its main branch as nearly a nominate contract, whether of locatio operis or agency, as the leading undertaking in the present case can be held to be. But Lord Rutherfurd and the Court were all of opinion that the counter engagement of remuneration must also be taken into view. And having here the same element of an averment that it was part of the agreement that no money was to be paid, it seems impossible to distinguish between the two cases. It can make no essential difference that the law agent was said to look for remuneration of expenses to be recovered from the opposite party, and the innkeeper is said to trust for his remuneration to the influx of guests into his hotel.”

The defender reclaimed against the restriction on the proof.

The following cases, in addition to those quoted by the Sheriff in his note, were cited: —Thomson v. Fraser, October 30, 1868, 7 Macph. 39; Scotland v. Henry, July 19, 1865, 3 Macph. 1125.

At advising—

Judgment:

Lord President—I do not see any legal difficulty in this case, and I am very unwilling to go back upon the somewhat abstruse distinctions which have been laid down between nominate and innominate contracts. It is sometimes difficult to reconcile the dicta of judges upon that subject. I think it is better to go back to the law upon the matter as laid down by Erskine.

In the present case the contract which is alleged is a simple and ordinary one of every-day occurrence. There is nothing unusual or complicated about it. The case contemplated by Erskine, of which proof is to be restricted to writ or oath, is a case with mutual stipulations which are not of the usual kind, and which do not flow from the general nature of the contract between

Page: 673↓

the parties. It would not be expedient that these should be capable of being proved by parole.

Lord Deas—I am of opinion that there is no rule which prevents an innominate contract from being proved otherwise than by the writ or oath of the adverse party. It would be better stated if it were said that there is no contract of an anomalous or unusual nature that can be dealt with otherwise. There are many contracts which have no name that are capable of being proved by parole just as much as those that have a name.

The pursuer cannot prove his case here without proving the facts and circumstances connected with it. It will naturally follow that the other party may do the same. The fact that the arrangement has gone on so long since the year 1867 without any change being made is very material of itself.

There are some contracts which have not been allowed to be proved by parole. In reference to the case of Taylor v. Forbes, 24 D. 19, it was a very unusual thing for a law agent not to ask for remuneration as averred by the defender there, and the proof was accordingly restricted. There is nothing here equivalent to the arrangements in that case between the law agent and his client.

Lord Mure concurred.

Lord Shand—This is a question in which there have been fluctuations in the expression of opinion by different judges. I do not know where the question is more distinctly stated than by Lord Neaves in the case of Thomson v. Fraser, October 30, 1868, 7 Macph. 39. In the present case a parole proof would be of great benefit, and I think the leaning of the Court should be in favour of allowing proof at large rather than of restricting it in such cases.

The Court ordered a proof at large.

Counsel:

Counsel for Pursuer (Respondent)— Brand. Agent— Thomas Carmichael, S.S.C.

Counsel for Defender (Appellant)— Asher—Mackintosh. Agent— Alex. Morison, S.S.C.
1877