Scottish Court of Session Decisions

The Lord Ordinary ( Kinnear) upon 14th December 1888 pronounced this interlocutor:—“Finds that the letters specified in the condescendence do not constitute a completed contract for the purchase and sale of the subjects described in the conclusions of the summons: Therefore assoilzies the defenders from the conclusions of the summons, and decerns: Finds the defenders entitled to expenses, &c.

“ Opinion.—This action is brought to enforce performance of a contract for the purchase and sale of a portion of a house or tenement of houses in Glasgow, and the question is, whether letters passing between the parties constitute a concluded contract to that effect?

The pursuer is not a party to the correspondence, but the assignee of William Logan, house factor in Glasgow, who writes to the defenders' manager a letter dated 6th December 1886 containing the offer which is said to have been accepted. The pursuer alleges that at that date the writer of the letter had not examined the title-deeds of the property in question, but, without reference to the titles, his letter contains a sufficiently clear and specific description of the subjects which he proposes to buy. ‘I hereby offer to purchase the following parts of the tenement at the south-west corner of the entrance from Argyle Street to St Enoch Square, known as His Lordship's Larder, namely, the top storey, with all the garret storey, except ( a) garret room, 10 feet square, in middle or nepos of storey; and ( b) middle garret room with skylight; also four cellars north of Hunter's, except the eastmost back sunk cellar, with free ish and entry by the common close on the north to Argyle Street, and with a common right along with the other proprietors to the court behind, with entry from Adam's Court Lane. The price to be £3000 sterling, and to be paid at Whitsunday next, 1887, when I am to have entry, free of leases, with the exception of Costigane Brothers, as to which I am to have possession six months after the date of your acceptance hereof. You are to allow £2000 of the price to lie on bond at 4 1 2 per cent. for five years from date of entry. Your acceptance will oblige.’ On the 9th of December Mr Husband, the defenders' manager, answers in these terms:—‘As authorised by the directors, and on behalf of this company, I hereby accept your offer, as copied on the other side, dated 6th instant, of £3000 for our interest in the property known as “His Lordship's Larder,” St Enoch Square, and in accordance with your stipulation as to the close 179 Argyle Street, leased to Messrs Costigane Brothers, I have given notice to the lessees that possession is required in terms of articles 1st and 3rd of the relative minute of agreement and lease.’

Now if the defenders' right of property in the tenement known as ‘His Lordship's Larder’ had corresponded exactly with the description in Mr Logan's offer, there would probably have been no question as to the meaning and effect of these missives. But it turns out, according to the pursuer's averment, that they have no title, and by their own admission that they have no clear and undisputed title to certain portions of the subjects, viz.—one of the cellars, the court behind the subjects, and the rights to ish and entry specially described. The defenders cannot convey to the pursuer rights which they do not themselves possess. But on the other hand, it is clear enough, first, that the pursuer cannot be required to accept a conveyance which will be ineffectual to carry any part of the subjects specifically described in the offer; and secondly, that if the defenders have in fact contracted to sell and convey the whole of these subjects, they will not be excused from the consequences of wilful non-performance by reason of any defect in their own right or title. But I am of opinion that they have made no such contract. The defenders' manager does not accept the offer in the exact terms in which it is made, but accepts it as an offer ‘for our interest’ in the property described, and that appears to me to introduce into the acceptance a qualification which was not in the offer. It is a qualification which it was very natural to make in the circumstances, because the state of possession was such as to render it not improbable that questions might arise as to the exact import and bearing of the title. It was very natural, therefore, that the defenders should introduce a term into their acceptance which would serve to exclude from the bargain, if the purchaser agreed to it, any part of the property which did not belong to them, or in which they had no interest. I think the words they have used are sufficient for that purpose, and it follows that their letter is not an absolute and unequivocal acceptance which would make the contract complete, but a counter proposal which the maker of the offer was not bound to accept, and which he has not in fact accepted. There is therefore no contract, because it is very clear in law that no contract can be constituted by missive letters, unless the letters contain an absolute and unqualified acceptance on the one part, and of the exact terms proposed on the other part.

It is said that, inasmuch as it refers to the offer as ‘copied on the other side,’ the defenders' letter must be held to import an absolute agreement to sell the subjects specifically described, irrespective of any question as to their own right or title. I cannot assent to that construction, because it makes the words ‘for our interest’ unmeaning. The reference to the offer makes it clear enough that the parties were substantially at one as to the subject-matter of the proposed contract; but it does not, in my judgment, import a guarantee that every part of the description is exactly accurate, and the qualifying words which immediately follow are sufficient to shew that no such guarantee was intended. But assuming that the construction of the defenders' letter is not so clear as they suppose, it is at least ambiguous, and the pursuer's understanding of its terms is different from that of the defenders. But if that be so, there is no contract, because there is no consensus in idem.

Page: 615↓