Scottish Sheriff Court Decisions

Act: Mr Barclay, advocate, instructed by Henderson Boyd Jackson WS, Edinburgh

Alt: Mr A M Clark, advocate, instructed by Burnside Kemp Fraser, Aberdeen

Stonehaven: December 2003

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 17^th July 2003; finds the pursuer and appellant liable to the defender and respondent in the expenses of the appeal and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

1. In this case the parties are husband and wife. The action is one of count, reckoning and payment. The pursuer craves the court to ordain the defender to produce a full account of his intromissions with the sums due by him to her under and in terms of clause 5.3 of a minute of agreement between them and to pay to the pursuer the sum of £12,858.26, or such other sum as may appear to be the true balance due to her; and, in the event of the defender failing to enter appearance or to produce an account, to ordain him to pay to the pursuer the sum of £12,858.26.
2. According to article 2 of the condescendence, the parties have lived separately since 1^st May 1997. They made formal arrangements in respect of their separation in terms of a minute of agreement between them dated 21^st and 25^th November 1997. At the time the agreement was signed, the pursuer was residing at an address in Banchory and the defender at an address in Aberdeen.
3. Clause 5 of the agreement provided that the pursuer should enter into a binding contract for the purchase of a new dwellinghouse which was then in the course of construction at Strachan, by Banchory. Clause 5.1 provided that the defender should pay the sum of £70,000 direct to the sellers' agents within seven days of missives being concluded. Clause 5.2 provided that the pursuer would provide the balance of the purchase price of the property. For present purposes, clause 5.3 is the important one, and it provided:

1. The (defender) shall contribute the sum of Thirty Five Thousand Pounds (£35,000) Sterling towards kitchen units, bathroom fittings and fixtures, general decoration, floor coverings and curtains and other furnishings, all to be chosen by the (pursuer). The cost of the kitchen units and bathroom fittings and fixtures will be paid direct by the (defender) to the developers of the subjects. The balance will be paid by the (defender) to the (pursuer) as soon as the costs of the kitchen units and bathroom fittings and fixtures are intimated to the (defender).

1. In article 5 of the condescendence the pursuer avers that during the construction of the dwellinghouse she selected, with the assistance of the developers thereof, various items comprising fixtures and fittings for installation in the dwellinghouse as provided for in terms of clause 5.3, which items were duly installed by the developers. She avers that the whole cost of these items was paid for direct to the developers by the defender. She then avers:

It was a matter of further verbal agreement between the pursuer and the defender that payments under the contribution due by the defender in terms of (clause 5.3) were not merely to be restricted to the cost of the kitchen units and bathroom fittings and fixtures but were to include further payments to be paid directly by the defender to the developers from the said balance due out of the said sum of £35,000 for other household fixtures, fittings and furnishings installed in the dwellinghouse by the developers and chosen by the pursuer after the cost of the kitchen units and bathroom fittings and fixtures had been met.

2. In article 6 the pursuer avers that the defender has stated to her that no balance is due to her in terms of clause 5.3. She then refers to a letter written by the defender to her dated 9^th March 2002 in which, in short, he stated that he had paid over the whole amount of the sum of £35,000 due by him in terms of clause 5.3 directly to the developers. But the pursuer evidently does not accept this, for in article 7 she states that she reasonably believes that the whole sums expended by the defender in terms of clause 5.3 fall short of the sum of £35,000 to be contributed by the defender under the terms of this provision. She then explains that she has employed some surveyors to value the cost of the various items paid for by the defender and that the schedule prepared by them brings out a valuation of items paid for by the defender in the sum of £22,141.74 with the result, according to the pursuer, that there is a shortfall of £12,858.26 still to be contributed by the defender in terms of clause 5.3. At the end of article 7 some additional averments have been introduced by the pursuer by amendment in the following terms:

The defender was obliged in terms of (clause 5.3) of the separation agreement, varied as aforesaid to intromit with the said sum of £35,000 and, after paying the developers, to pay the balance thereof to the pursuer. Having intromitted with the said sum and being obliged to transfer the balance thereof to the pursuer, the defender is bound to account to the pursuer in respect of those intromissions. It was an implied term of (clause 5.3) of the separation agreement that he would do so.

 

 

3. For present purposes it is unnecessary to rehearse the defender's answers in full. In a nutshell, his position is that he has paid out more than £35,000 in pursuance of clause 5.3 so that the obligation in terms of this provision has been exhausted. And in answer 7 he denies in any event that there is any obligation on his part to account to the pursuer. This last averment is supported by his first plea-in-law which reads: "1. The pursuer's action being incompetent, should be dismissed".
4. On 5^th June 2003 parties were heard by the sheriff in debate on this plea, and by interlocutor dated 17^th July 2003 he sustained the plea and dismissed the cause. It is this interlocutor which is the subject of the present appeal. The sheriff explained his decision in a careful note which he appended to the interlocutor. It is unnecessary that I should set this out in full here. In short, the sheriff's conclusion was that the pursuer's averments did not appear to instruct a relationship between the parties which created a legal duty on the part of the defender to account to the pursuer with the result that the action as laid was incompetent.
5. Opening the appeal, counsel for the pursuer moved me to recall the interlocutor of the sheriff dated 17^th July 2003 and to allow parties a proof before answer of their respective averments. He submitted that the pursuer had made sufficient averments in her pleadings to the effect that a relationship existed between the parties which gave rise to an obligation to account on the part of the defender. These averments were to be found in articles 4, 5 and 7 of the condescendence where reference was made to clause 5.3 and the subsequent verbal agreement between the parties. From the moment the agreement was signed, said counsel, the sum of £35,000, or at least the balance thereof not paid by the defender to the developers, belonged in terms of clause 5.3 to the pursuer. Counsel submitted that the relationship between the parties was established by the agreement and the defender's obligation to account derived from that relationship and the fact that the balance of the £35,000 due to be contributed by the defender, after he had settled with the developers, was to be paid to the pursuer. She therefore had an interest in funds belonging to her with which the defender had been intromitting. The verbal agreement between the parties merely extended the range of items for which the defender was to pay the developers. There was no suggestion that the obligation to pay the balance remaining had been waived by the pursuer.
6. Counsel for the pursuer further submitted that it was not a necessary condition of the competency of an action of count, reckoning and payment that funds should have been transferred by the pursuer to the defender. It was sufficient that the latter had been intromitting with funds which should have been transferred to the pursuer. The sheriff, said counsel, had incorrectly imputed to the pursuer knowledge of the costs of fitting out the dwellinghouse in question when in fact she had merely selected the items and had not known how much the defender would be asked to pay for them. Counsel acknowledged that, where the actual sum due by the defender was known to the pursuer, the appropriate remedy would have been an ordinary action of payment. But this was not the case here. Counsel referred to paragraph 3 of the amended grounds of appeal (no. 17 of process) where it is said that, if the present action were held to be incompetent, the pursuer would be without remedy. She would be unable to sue for a specific sum unless and until she knew the extent to which the defender had made payments in terms of the minute of agreement and thus any sum in an action by the pursuer for payment would be simply plucked from the air and would be instantly challengeable on the basis that it was entirely speculative. Moreover, said counsel, the pursuer would be unable to raise an action for payment and then seek a commission and diligence to recover the necessary details of payments made by the defender since to do so would be to pursue a fishing diligence.
7. Counsel for the pursuer submitted that the competency of the present action did not depend upon the pursuer averring a formal legal relationship between herself and the defender. In point of fact she had more than adequately specified how the relationship which gave rise to the obligation to account on the part of the defender had come about. This relationship might be ascribed to mandate which was akin to agency. In a loose sense too it might be described as agency or one of trust imposed upon the defender. But the precise nature of the relationship did not require to be specified, merely the fact that the defender had been intromitting with funds belonging to the pursuer which should have been transferred to her. One indicator of liability to account, said counsel, might be the existence of a fiduciary duty between the parties as, for example, in the case of a partnership or trust. Counsel drew attention to a passage in the judgement of Lord Eassie in Ness Training Limited v Triage Central Limited at page 679E where his Lordship stated: "Looking at the cases and examples in which a fiduciary duty is commonly recognised it appears to me that a principal feature of the relationship in question is that the person upon whom the fiduciary duty reposes has also the task of managing, or transacting with, property or material interests belonging to another". In light of this passage counsel submitted, as I understood him, that the defender in the present case had come under a fiduciary duty to the pursuer which itself was an indicator of his duty to account to her for the sum of £35,000.
8. Counsel submitted that the categories of relationship in which an action of count reckoning and payment might be held to be competent were not closed (Coxall v Stewart), and he contended that the relationship averred on record between the pursuer and the defender was sufficient to give rise to a liability on his part to account to her.
9. Counsel for the pursuer proceeded to refer to a very large number of authorities, the majority of which, with respect, seemed to me to offer no assistance at all towards a solution of the issue of competency which has been raised in the present case. For the record I have appended to this note a list of these authorities. For present purposes, I think that I need only refer to a few of them.
10. Under reference to Investors Compensation Scheme Limited v West Bromwhich Building Society, and in particular the judgement of Lord Hoffmann at pages 912/3, counsel for the pursuer submitted that the use of the word "contribute" in clause 5.3 implied the pursuer's ownership of and interest in the sum of £35,000, or the balance thereof, from the moment the agreement between the parties was signed. The effect of clause 5.3, said counsel, was to establish a fund for the pursuer, and in the present case the defender had been intromitting with this fund which should have been transferred to her. It did not matter how one categorised the legal nature of the relationship between the parties, be it agency, trust or mandate. The important point was that the defender had been in possession of a fund in which the pursuer had an interest and that he had been intromitting with it on her behalf. That was the effect of the agreement between them, and that was how the obligation on the part of the defender to account arose (see Walker on Civil Remedies pages 304/5).
11. Counsel for the pursuer referred also to Hutcheson & Co's Administrator v Taylor's Executrix, and in particular to a passage in the judgement of Lord Morison at page 492 where his Lordship stated: "It appears to me that this action necessarily fails in limine. A relevant action of accounting only emerges when it is alleged that the defender has, either by himself or by his agents, intromitted with estate to which the pursuer has right or in which he is interested. An order pronounced on a defender who has had no intromissions to produce an account of them would only be a futile proceeding". Counsel submitted that at the very least in the present case the pursuer was interested in the fund of £35,000 established under clause 5.3 or the balance thereof and this, so he argued, was enough to create an obligation on the part of the defender to account to the pursuer. Effectively clause 5.3 gave to the pursuer a right equivalent to ownership in the fund of £35,000 or the balance thereof, or certainly an interest therein which gave her the right to demand an accounting from the defender.
12. Counsel for the pursuer referred to a passage in Maxwell's Practice of the Court of Session at page 357 where it is said: "An action of accounting by an employer against his employee is generally not appropriate; and such an action, where there is a statutory remedy, is incompetent. Where the actual sum due by any party liable to account is known to the pursuer, the appropriate remedy is an ordinary action for payment ....." Counsel suggested in light of this passage that in the present case, since the sum due by the defender to the pursuer was not known to her, an ordinary action for payment would appear not to be the appropriate remedy. Since the pursuer did not know to what extent the defender had been intromitting with the sum of £35,000, or the balance thereof, to which she was entitled, he was bound to account for her for his intromissions.
13. In summary, counsel for the pursuer submitted that the defender was under an obligation to account to her since clause 5.3 of the agreement established a relationship between them which was of the nature of agency, mandate or trust. It was not necessary that this nature should be formally expressed in the agreement. The fiduciary nature of the relationship and the fact that the defender had been lawfully intromitting with funds which, or the balance of which, should have been transferred to the pursuer imposed upon him an obligation to account to her.
14. In response, counsel for the defender submitted that I should refuse the appeal and adhere to the interlocutor of the sheriff. The appeal, so he said, raised a crisp question, namely whether an obligation on the part of the defender to account to the pursuer arose out of the relationship between them as disclosed by the averments of the pursuer. The defender's position was that clause 5.3 conferred a personal, contractual right upon the pursuer and a correlative obligation on the part of the defender which did not extend to an obligation to account. In all the cases to which reference had been made by counsel for the pursuer it could be seen that the real reason for the obligation to account was property related. This was implicit in the main strand of the pursuer's argument, namely that on the signing of the agreement the sum of £35,000, or the balance thereof, belonged to the pursuer. This way of putting it recognised the underlying property based nature of the remedy sought by her. Counsel referred to Collins v EIS Financial Services Limited, Coxall v Stewart and Huewind Limited v Clydesdale Bank plc and submitted that these authorities all vouched the proposition that an action of accounting had nothing to do with the pursuer being unable to articulate what sum was due to him or her. On the contrary, they all demonstrated that the remedy of an accounting was available only where one party was in possession of property which truly belonged to another. In the present case it was readily apparent upon a reading of the pursuer's pleadings that there had been no transfer to the pursuer of property in the sum of £35,000 or the balance thereof. Clause 5.3, as indicated, did no more than create a personal contractual obligation on the part of the defender and was entirely inconsistent with the creation of a fund of £35,000 which belonged to the pursuer from the moment the agreement was signed.
15. Referring to the averment which had been added by amendment at the end of article 7 to the effect that it was an implied term of clause 5.3 that the defender would be bound to account to the pursuer in respect of his intromissions with the sum of £35,000, counsel submitted that there was no basis either in the submissions of counsel for the pursuer or in her pleadings for the implication of a contractual obligation on the part of the defender to provide an accounting. Indeed, said counsel, the argument that such a term was to be implied more or less recognised that the normal legal basis for pursuing the remedy of an accounting did not exist in the present case. The averment that there was such an implied term was, said counsel, irrelevant and so should in any event be excluded from probation.
16. Referring to the submission for the pursuer to the effect that, if it were not competent to pursue an accounting, she would be without remedy, counsel for the defender submitted that it was nothing to the point that the pursuer might be unable to ascertain how much was due to her out of the sum of £35,000 or to raise an ordinary action for payment against the defender founding upon the agreement between them. The fact of the matter was that neither of these considerations entitled her to pursue the remedy of an action of count, reckoning and payment. In any event, said counsel, there would be nothing to stop the pursuer suing the defender upon the basis of clause 5.3 for payment of the balance of the sum of £35,000 brought out as due to her in light of the report prepared by the surveyors instructed by her. Moreover, a commission and diligence in such an action would not be a fishing diligence. On the contrary, this would afford a classic example of the situation in which a commission and diligence would be appropriate.
17. Turning to the submissions for the pursuer to the effect that clause 5.3 had established some form of mandate, agency or trust or other fiduciary duty on the part of the defender which was apt to impose upon him an obligation to account to the pursuer, counsel for the defender submitted that nowhere in her pleadings were there to be found any averments which would instruct such a relationship. In any event, said counsel, these submissions all recognised the fundamental point that an obligation to render an accounting arose where one person was in possession of the property of another. This was precisely the situation in cases of mandate, agency or trust. But in the present case the sum of £35,000, or the balance thereof, had never belonged to the pursuer. She had merely a jus crediti to demand payment of this sum in terms of clause 5.3.
18. Referring to the observations of Lord Morison in Hutcheson & Co's Administrator v Taylor's Executrix, counsel for the defender pointed out that these had been made as far back as 1931 and pre-dated the more recent authorities to which reference had been made. Counsel surmised that Lord Morison had perhaps been referring to a situation in which a pursuer's property interest might be indirect, for example where a partner was suing his fellow partners for an accounting in respect of the assets of the partnership. Counsel submitted that, in referring to estate of the pursuer "in which he is interested", Lord Morison could not have been thinking of the situation in which a pursuer had only a personal contractual right. If it were otherwise, the creditor in a personal obligation would always be entitled to demand an accounting. In other words, said counsel, the field would be blown open, and this had clearly not happened in practice. At the end of the day the pursuer's right to demand an accounting from the defender depended upon his having been in possession of assets which belonged to her. This was not the case, and accordingly the sheriff had correctly dismissed the action as incompetent.
19. In my opinion the submissions for the defender are to be preferred. The authorities to which I was referred (see in particular Coxall v Stewart, Huewind Limited v Clydesdale Bank plc, Collins v EIS Financial Services Limited and Ritchie v EFT Industrial Limited) I think demonstrate that as a general rule, whatever may be the precise legal relationship (if any) between the parties to an action of accounting, the obligation of the defender to render an account of his intromissions, and the corresponding right of the pursuer to demand such an account, depend upon the defender having been in possession of, and intromitted with, assets (including, it may be, sums of money) which do not truly belong to him as his own absolute property (albeit that he may for the time being have a formal legal title to them, as in the case of an executor or trustee) but which, on the contrary, truly belong to the pursuer in the sense that he is their beneficial owner and has, broadly, the right to recover them, or their value or fruits, from the defender (subject always to the latter's rights and obligations for the time being in relation to them).
20. The question thus arises in the present case whether it can be said that the sums of money which were due to be paid by the defender to the developers or the pursuer under and in terms of clause 5.3 and with which the pursuer now seeks an account of his intromissions (see crave 1) belonged in one way or another to the pursuer before they were paid over by the defender. Try as I may, I cannot see how this question can be answered otherwise than in the negative. Apart from any question of an implied term, all that clause 5.3 did was to impose upon the defender a personal obligation to contribute (in other words, to pay) the sum of £35,000 towards certain specified fixtures and fittings in the pursuer's new dwellinghouse, all to be chosen by her. In my view it is fanciful to suggest that, upon signature of the agreement, this provision had the effect of a transfer by the defender to the pursuer of ownership of the sum of £35,000, or the balance thereof remaining after the defender had paid the developers direct for the kitchen units and other fixtures and fittings. On the contrary, until this sum was paid out by the defender it remained his own absolute property to do with as he pleased. In saying this I am assuming that he even had this sum in his own possession when the agreement was signed. For all that may be discovered from the pursuer's pleadings, it is perfectly possible that he did not. For example, when he signed the agreement he may have relied upon being able to borrow the money from his bank. And even if he did have the money, it is to be observed that counsel for the pursuer at no stage in his submissions sought to address the question how upon signature of the agreement the transfer of ownership might have been effected, whether by actual or constructive delivery or by some other means. In a nutshell, and apart from any question of implication, clause 5.3 did nothing more in my opinion than to confer upon the pursuer a personal right to demand from the defender payment of the sum of £35,000, or at least the balance thereof.
21. In my opinion too there is no substance at all in the submission for the pursuer (let alone any basis for it on record) to the effect that clause 5.3 somehow created a relationship between the parties based on mandate, agency or trust or some other form of fiduciary duty owed by the defender to the pursuer which would be apt to support the creation of a right in the pursuer under the general law to demand an accounting from the defender and a corresponding obligation on his part to render one. It is true of course that in certain cases nice questions have arisen whether a contract has gone beyond the creation of straightforward personal obligations under the contract to the creation of a fiduciary relationship between the parties, such as that between a beneficiary of a trust fund and the trustee of the fund. But in light of the submissions of counsel for the pursuer as I have outlined them above I do not consider that there is any room for a finding in this case that such a relationship was established by the terms of clause 5.3.
22. As for the observations of Lord Morison in Hutcheson & Co's Administrator v Taylor's Executrix, I would respectfully refer to what Lord Maxwell had to say about these observations in Coxall v Stewart. At page 277 his Lordship stated:

I was referred to a dictum of Lord Morison in Hutcheson & Co's Administrator v Taylor's Executrix ...... as follows "A relevant action of accounting only emerges where it is alleged that the defender has, either by himself or by his agents, intromitted with estate to which the pursuer has right or in which he is interested". The claim in this case was in respect of certain alleged liabilities of the estate of a deceased partner to creditors of a dissolved firm and the action for count reckoning and payment was held incompetent on the ground that the particular defender had never intromitted with the estate in question. Lord Morison's dictum must be read in that context and so read I doubt if it is of much assistance either way for present purposes.

To this I would only add that Lord Morison's observations pre-suppose that there should be an estate with which the defender, either by himself or by his agents, has intromitted. In the present case I am at a loss to understand how clause 5.3 can be said of itself to have created such a distinct estate in the hands of the defender (on the assumption, that is, that the defender even had the sum of £35,000 in his own possession when he signed the agreement).

23. As to the question whether the pursuer could have raised an action for payment against the defender or sought a commission and diligence in the context of such an action, I think that I need do no more than say that I agree with the comments of counsel for the defender. Besides, the absence of such an alternative remedy for the pursuer is not a sufficient ground upon which to set up the competency of an action of accounting, nor is the pursuer's present ignorance of how much is due to her in terms of clause 5.3 - see the judgement of Lord Stott in Unigate Foods Limited v The Scottish Milk Marketing Board at page 79 and of Sheriff Macphail (as he then was) in Collins v EIS Financial Services Limited at page 631C.
24. There remains the question whether, albeit that he may not be obliged under the general law to render an account to the pursuer, the defender is nonetheless bound to do so in virtue of a term to this effect which is to be implied in clause 5.3. It is I think well settled that a term may be implied in a contract where in the circumstances of the particular contract it is necessary to do so in order to give the contract business efficacy. In the present case in terms of clause 5.3 the defender bound himself to contribute the sum of £35,000 towards kitchen units and other fixtures and fittings in the pursuer's new dwellinghouse, all to be chosen by her. As subsequently varied by the verbal agreement referred to by the pursuer in article 5 of the condescendence, clause 5.3 provided that the cost of the kitchen units and bathroom fittings and fixtures, and also of other household fixtures, fittings and furnishings installed in the dwellinghouse by the developers and chosen by the pursuer, was to be paid direct by the defender to the developers. Finally, clause 5.3 provided that the balance was to be paid by the defender to the pursuer as soon as the costs of the kitchen units and bathroom fittings and fixtures were intimated to the defender. It may then be asked by whom these costs were to be intimated to him. The answer I think must be either the pursuer, the developers or the suppliers of the fixtures and fittings in question. And if it was to be the pursuer who was to perform this function, it may be asked why, in order to give the agreement business efficacy, it should necessarily be implied that the defender should be bound to render an account to her of the sums paid out by him under and in terms of clause 5.3. And even if it were the developers or the suppliers who were to intimate these costs to the defender, it does not necessarily follow that the pursuer herself would not know what these costs were. It seems to me that it would only have been in the event of it being clear from the terms of clause 5.3 that she would be unable to ascertain these costs otherwise than from the defender that it would have been necessary, in order to give business efficacy to clause 5.3, to imply a term in the agreement to the effect that he should render an account to her. It follows in my opinion that the argument that there was an implied term to this effect in clause 5.3 falls to be rejected.
25. Counsel for the defender moved for the expenses of the appeal in the event of success for the defender. Counsel for the pursuer submitted that the expenses of the appeal should be expenses in the cause whatever the outcome of the appeal. The pursuer having been unsuccessful in the appeal, the result is the same as that proposed by counsel for the defender, and I have accordingly found the pursuer liable to him in the expenses of the appeal as taxed.

Cunningham-Jardine v Cunningham-Jardine's Trustees 1979 SLT 298, Unigate Foods Limited v The Scottish Milk Marketing Board 1975 SC (HL) 75, Investors Compensation Scheme v West Bromwich Building Society 1998 1 WLR 896, Coxall v Stewart 1976 SLT 275, Huewind Limited v Clydesdale Bank plc 1996 SLT 369, Ritchie v EFT Industrial Limited 1997 SCLR 955, Green v Moran 2002 SLT 1404, Adam v McDonald 1990 SC 61, Collins v EIS Financial Services Limited 1995 SCLR 628, Cowie v Walsh 1999 GWD 15-687, Daks Simpson Group plc v Kuiper 1994 SLT 689, Ferrari v Zucconi 2001 GWD 16-587, Hedley v Drilltech Services (North Sea) Limited 1999 SCLR 777, Hutcheson & Co's Administrator v Taylor's Executrix 1931 SC 484, Loretto School Limited v Macandrew & Jenkins 1992 SLT 615, Lyons Laing v Land 2002 SLT 1246 (also Court of Session, 15^th November 2000, in part unreported), Maclean v The Forestry Commission 1970 SLT 265, MacRobert v Smith (Court of Session, 9^th October 1998, unreported), Ness Training Limited v Triage Central Limited 2002 SLT 675, McMenemy v James Dougal & Sons Limited 1960 SLT (N) 85, Trans Barwil Agencies (UK) Limited v John S Braid & Co Limited 1988 SC 222, Govan Old Victualling Society Limited v Wagstaff 1907 14 SLT 716, Walker's Civil Remedies pages 304/5, Balfour - Handbook of Court of Session Practice page 129, Green's Encyclopaedia of Scottish Legal Styles sub nom Action of Accounting page 51, Green's Encyclopaedia of the Laws of Scotland, sub nom Action of Accounting page 43, Mackay's Manual of Practice page 184, Mackay's Practice of the Court of Session page 90, McBryde on Contract (2^nd Edn.) paras 8-06/8 and 8-34/5, Maxwell's Practice of the Court of Session page 357, T B Smith - A Short Commentary on the Law of Scotland page 774, Walker on Contract (3rd Edn.) paras 6.1 and 6.8 and Maclaren's Court of Session Practice page 654.