Anderson v Lambie (Practice Note)
| Jurisdiction | England & Wales |
| Judge | Lord Morton of Henryton,Lord Reid,Lord Keith of Avonholm |
| Judgment Date | 25 January 1954 |
| Judgment citation (vLex) | [1954] UKHL J0125-3 |
| Court | House of Lords |
| Docket Number | No. 3 |
| Date | 25 January 1954 |
[1954] UKHL J0125-3
Lord Morton of Henryton
Lord MacDermott
Lord Reid
Lord Keith of Avonholm
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Anderson against Lambie and another, that the Committee had heard Counsel, as well on Tuesday the 17th, as on Wednesday the 18th, Thursday the 19th, Monday the 23d and Tuesday the 24th, days of November last, upon the Petition and Appeal of James Alastair Anderson, Coal Master, 121, St. Vincent Street, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division of the 16th of December, 1952, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Samuel Milligan Lambie and Mrs. Mary Ferguson Lambie, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 16th day of December 1952, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary (Lord Mackintosh) of the 14th day of April 1952, thereby recalled, be, and the same is hereby, Restored, except in so far as it continues the Cause: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this judgment: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant three-quarters of the expenses of the Action in the Outer House of the Court of Session, except in so far as expenses therein have been already decerned for by the Lord Ordinary, and also three-quarters of the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the sum of five guineas in respect of his expenses in the Inner House of the Court of Session: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This appeal arises out of an action by the Appellant against the Respondents in the Court of Session, claiming reduction of a Disposition of certain land by the Appellant in favour of the Respondents. The Lord Ordinary (Lord Mackintosh) decided in favour of the Appellant and reduced the Disposition, but the First Division of the Court of Session reversed his decision and dismissed the action. Hence this appeal.
The events leading up to the action are as follows.
Prior to the 15th December, 1948, the Appellant owned two adjoining properties in the parish of Shotts and county of Lanark. One was a farm called Blairmuckhill in the occupation of Messrs. Hugh Miller and Sons as tenants. It was 197 acres in extent and the rent was £120 a year. The other was a colliery some 34 acres in extent, in the occupation of the National Coal Board, who paid a rent of £51 12s. to the Appellant.
By probative Missives dated 15th, 16th and 17th December, 1948, and passing between Messrs. Moncrieff, Warren, Paterson & Co., as solicitors for the Appellant, and Messrs. Waddell, M'Intosh and Peddie, as solicitors for the first Respondent, the Appellant agreed to sell and the first Respondent agreed to buy at the price of £1,000 "the farm of Blairmuckhill … at present occupied by Hugh Miller and Sons", the "assessed rental of the farm" being stated as £120. The construction of these documents is not open to doubt. The acreage of the property sold is not stated, but its area is defined by the reference to the occupation of the Millers. The rent stated is the rent paid for the farm, and there is no reference to the colliery. In view of the contentions of counsel for the Respondents, to be mentioned later, it may be convenient to say at once that the Lord Ordinary, who heard the evidence of the Appellant and the Respondents and of other witnesses, held that the parties had a common intention to effect a sale of the farm only and not of the farm plus the 34 acres occupied by the National Coal Board. He did not believe the evidence given by the first Respondent to the contrary effect. To quote the words of the Lord Ordinary— "I find it impossible to believe that Mr. Lambie having seen for himself in September 1948 that the area adjoining the farm on the south, whether originally part of the farm or not, was in fact being occupied by some party or parties for colliery purposes would not at least have mentioned the fact of such occupation to Mr. Peddie, if he had thought that this area would be included in what he was buying and that he would have allowed Mr. Peddie to accept on his behalf an offer stated in the terms used in the Missive Letter of 15th December 1948 without even telling him that the whole of what he (Mr. Lambie) was regarding as Blairmuckhill farm was not then in the occupation of the Millers but was being used by some other party or parties for colliery purposes. In point of fact Mr. Lambie made no mention at all of the colliery occupied area to Mr. Peddie before authorising him to accept the offer made in the Missive Letter of 15th December 1948, and Mr. Peddie remained unaware of the existence of any such area on or adjoining the farm until months after the Missives had been executed and the Disposition following upon them had been granted. I further cannot believe that Mr. Lambie, rustic and not lawyer or business man as he claimed in his evidence to be, would have bought a farm a part of which he had seen to be in colliery occupation without having enquiries made regarding the terms and conditions of that occupation and how he would stand with regard to it if and when he became proprietor of the subjects."
The parties being thus agreed on the sale of the farm and nothing but the farm, a Disposition was drafted by the solicitors of the first Respondent and approved by the solicitors of the Appellant. At the request of the first Respondent, his wife, the second Respondent, was joined with him as a disponee. Unfortunately, when the Disposition was drawn and approved, each firm was under the mistaken impression that the farm occupied by the Millers was co-extensive with the property described in a Disposition of 1902, which was one of the Appellant's title deeds. Accordingly they took the description of the property from the Deed of 1902 and inserted it in the Disposition. It is now clear that that description, which was very long and obscure, covered both the farm occupied by the Millers and the adjoining colliery. The Appellant and the Respondents signed the Disposition in January 1949, naturally relying upon their solicitors for the accuracy of the parcels and without becoming aware of the error. The Disposition was then recorded in the General Register of Sasines.
When the error was discovered, the Appellant's solicitors wrote to the first Respondent's solicitors pointing it out and suggesting that the first Respondent should "co-operate with us in having the matter put right—at, of course, our expense". The first Respondent, through his solicitors, refused this suggestion. Thus the Appellant was compelled either to bring the present action or to lose his colliery. He decided on the former course, with the result already stated. I should perhaps add that the Lord Ordinary thought that the first Respondent "had come to believe" that he had intended to buy the colliery as well as the farm, before he gave evidence at the trial in 1952. I think this is a charitable finding, and I do not get the same impression from reading the evidence of the first Respondent. However, the fact, if it be a fact, that the first Respondent had come to believe this before 1952 cannot, in my view, make any difference to the result of this appeal.
Counsel for the Respondents sought to attack the decision of the Lord Ordinary and uphold the decision of the First Division on two grounds. First, he submitted that even if the findings of fact by the Lord Ordinary were correct, the law of Scotland, differing in this respect from the law of England, gave no relief in a case in which these facts were proved. Secondly, he sought to go behind the Missives, and to show, upon the oral evidence, that it was the Missives, and not the Disposition, which failed to carry out the intention of the parties. It will be convenient, first, to consider the second of these contentions.
My Lords, I feel some doubt whether it is open to the Respondents to go behind the plain terms of the Missives, in the absence of any claim to reduce these documents. In Gloag on Contract, second edition, the learned author observes, at page 365— "Assuming, then, a written contract, admitted or proved to be authentic, couched in intelligible terms, and not alleged to be reducible, if one of the parties proposes to lead extrinsic evidence as to their real intention, how far is that evidence admissible? The general rule undoubtedly is that where parties have reduced the terms of their agreement to writing, the obligations...
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