Scottish Court of Session Decisions

This was an action by Messrs Tait & Crichton, W.S., Edinburgh, against Miss Mary Sawers Mitchell, residing in Edinburgh, for implement of a contract of sale by delivery to the pursuers of sixty-eight shares of the Caledonian Fire and Life Insurance Company.

The following correspondence had passed:—Upon 15th July 1888 the pursuers wrote to the defender that they wanted fifty shares of this company for a client, and asked what price she expected. Upon 21st July the defender wrote—“I have a balance of sixty-eight shares of the Caledonian Insurance Company to dispose of, and I understand that the price is regulated by the market value. I had made up my mind to sell them as a whole at 29 1 4, so I hope your client may find it convenient to take them all at this figure.” Upon 23rd July the pursuers wrote—“We have received your letter of the 21st offering to sell us sixty-eight shares of the Caledonian Insurance Company at 29 1 4 per share. We accept your offer. As our client only wishes fifty shares, you will require to execute two transfers.” Upon 25th July Miss Sawers wrote—“I have received your letter of the 23rd inst. I fear that you have not apprehended the meaning of my former letter, which was simply that if your client would take the sixty-eight shares in a lot, the price was to be 29 1 4. With this your letter does not comply, and I am not inclined to agree to your proposal.”

The pursuers pleaded that a valid contract of sale had been constituted by the missives, and the defender had refused to fulfil her part of the agreement.

The defender pleaded—“(2) No title to sue. (5) There having been no valid contract constituted between the pursuers and the defender, the defender should be assoilzied.”

Upon 21st December 1888 the Lord Ordinary ( Trayner) pronounced this interlocutor:—“Ordains the defender to implement and fulfil the contract of sale set forth in the conclusions of the summons, and that by forthwith executing and delivering to the pursuers a formal and valid transfer in their favour of sixty-eight shares of the Caledonian Fire and Life Insurance Company, the pursuers always, on delivery being made as aforesaid, making payment to the defender of the sum of £1989 sterling.

“ Opinion.—I think there was a concluded contract between the parties, which both are bound to fulfil, and which either may enforce.

Page: 574↓

The defender's letter of 21st July was a distinct enough offer to sell sixty-eight shares of the Caledonian Insurance Company at £29, 5s. per share. The pursuer's letter of 23rd July was a distinct acceptance of that offer.

To the pursuers' acceptance there was added, ‘you will require to execute two transfers.’

The defender says that this was a condition added by the pursuers, to which she did not consent; that the acceptance did not therefore exactly meet the offer; and that no contract was thus concluded. I think this quite a mistaken view of the pursuers' letter. The reference to two transfers was not a condition of the contract. It was a mere detail—a proposal—as to the manner in which the contract was to be carried out or executed, not in any way affecting the terms of the contract itself.”

The defender reclaimed, and argued—There was no title to sue. If the pursuers were acting for a client they ought to have disclosed him, so that the defender, in the event of loss, might have the option of proceeding against either the client or the agent. Here the pursuers did not disclose the principal, and it appeared that they were buying the stock partly for themselves, as was shown by their desire to have two transfers granted. The action should have been at the instance of the principal— Armstrong v. Stokes and Others, July 6, 1872, L.R., 7 Q.B.D. 598; Masponoy'Hermano v. Mildred Goyeneche & Company, July 7, 1882, L.R., 9 QBD 530; Bowes, &c. v. Shand and Others, June 8, 1877, L.R., 2 App. Cas. 455. There was no contract. The bargain was for the sale of sixty-eight shares. The pursuers added a condition which the defender did not accept.

Counsel for the respondent was not called upon.

Without delivering opinions the Court adhered to the judgment of the Lord Ordinary.