Errol v Walker
| Jurisdiction | Scotland |
| Judgment Date | 11 March 1966 |
| Docket Number | No. 15. |
| Date | 11 March 1966 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Sheriff of Inverness, Moray, Nairn and Ross and Cromarty.
Heritable Property—Sale of leasehold—Constitution of contract—Probative offer to purchase—No express acceptance—Inference of acceptance from actings—Rei interventus.
In an action of declarator and removing, the defender averred that he had purchased the leasehold property concerned from the pursuer. In support of that defence he averred, inter alia, that he had delivered to the pursuer's solicitor a probative offer to purchase the leasehold, had been put in possession of the property, had paid instalments to account of the price in terms of the offer, and had to the pursuer's knowledge carried out extensive improvements on the property. He also averred that he had received no written acceptance.
Held that the defender's averments, if proved, might be sufficient to infer acceptance of the offer by the pursuer, and that it was competent to prove these averments by parole evidence, and proof before answer allowed, the defender to lead.
Dicta of Lord Macmillan in Mitchell v. The Stornoway Trustees, 1936 S. C. (H. L.) 56, at pp. 63 and 66,commented on.
Authorities reviewed.
Passage in Gloag on Contract, (2nd ed.) pp. 46 and 47,approved.
James Errol raised an action against John Mackay Walker in the Sheriff Court of Inverness, Moray, Nairn and Ross and Cromarty at Elgin, in which he craved the Court (1) to find and declare that he was the lessee of certain heritable subjects in Burghead, and (2) to ordain the defender to flit and remove himself therefrom.
The pursuer averred, inter alia, that he was the person entitled in law to the sole and exclusive possession and use of the subjects, and possessed the real right to a lease thereof. He further averred that the defender was in occupation of the subjects without right or title, and without the pursuer's authority or consent, and that the pursuer required him to remove therefrom.
The defender, whose defence was that he had bought the leasehold from the pursuer, averred that the pursuer's solicitor told him that the pursuer would accept a price of £260 on certain conditions, that the defender agreed to these, and that thereupon the solicitor drew up an offer including the conditions, which the defender adopted as holograph, signed and delivered to the solicitor,1 but that he had received no express acceptance. He further averred that the following day he received the keys from the pursuer's wife, that he had paid to the pursuer's solicitor instalments of the price amounting to £76, that he had taken out through the pursuer's solicitors a fire insurance policy over the property and a policy for £250 over his own life, and that he had carried out extensive improvements on the property, of which the pursuer was well aware, at a cost of £739.
On 18th June 1964 the Sheriff-substitute (Abbey) allowed a proof and appointed the defender to lead.
The pursuer appealed to the Sheriff and obtained leave to add the following plea in law:—"7. The defender's averments being founded on an alleged oral agreement to sell heritage, such
agreement can be proved only by writ or oath of party and proof of the fact of such agreement should be restricted accordingly."On 23rd December 1964 the Sheriff (Campbell, Q.C.) sustained the seventh plea in law for the pursuer and before answer allowed parties a proof of their averments, proof of the agreement to sell the leasehold property being limited to writ or oath.
The defender appealed to the Court of Session, and the case was heard before the Second Division (without Lord Wheatley) on 18th January and 8th February 1966.
At advising on 11th March 1966,—
LORD STRACHAN.—Both parties agree that there should be a proof and that the defender should lead in that proof. The Sheriff-substitute, after repelling certain pleas, allowed to parties an unrestricted proof of their respective averments. The Sheriff, on appeal and after an amendment of the pleadings, allowed a proof before answer, proof of the agreement to sell the leasehold property referred to on record being restricted to writ or oath. It is against that restriction that the defender now appeals.
The main issue in the case is whether the defender purchased the leasehold property from the pursuer. The defender maintains that he did so. He has made detailed averments of negotiations which took place between him and Mr Donald Royan, solicitor, who, he says, was acting for the pursuer in these negotiations. The defender avers that at a meeting between him and Mr Royan, at which the defender's wife was also present, Mr Royan told the defender that the pursuer would
accept the price of £260 for the property, provided that the defender took out a life policy for that amount and assigned it in security to the pursuer and also granted a bond in favour of the pursuer for the full price. The defender further avers that he agreed to those conditions, and that Mr Royan thereupon drew up an offer by the defender to purchase the property on those terms, and that the defender then signed the offer and delivered it to Mr Royan. The defender's offer to purchase is dated 3rd April 1959 and bears to have been adopted by the defender as holograph.The defender admits that he never received an acceptance in writing of his offer to purchase but he founds on actings which followed upon that offer. He avers that he took occupation of the property on 4th April 1959, the keys having been handed over to him by the pursuer's wife on the instructions of Mr Royan's firm, on the sudden illness of the pursuer. The defender has further averred, inter alia, that he has made payments to account of the price to Mr Royan's firm as agents for the pursuer, that he has taken out a life insurance policy in terms of his offer, that he carried out improvements on the property which are provisionally estimated at £739 in value, and that he is still in sole bona fide possession of the leasehold quapurchaser.
The pursuer contends that the defender is in occupation of the property without right or title and without the pursuer's authority or consent. He has called upon the defender to remove, and raised this action of removing on 11th October 1962.
Counsel for the defender maintained that the actings which have been averred by the defender amounted to rei interventus and were directly referable to the defender's offer to purchase, and his main argument was that the offer and the rei interventus together constituted a binding contract of sale. In other words he maintained that the offer plus the actings of the offeror known to and permitted by the offeree, in not unimportant matters, constituted a binding contract. That argument went the length of saying that even if the document was nothing more than an offer, and even if there was no completed contract of any kind before the rei interventus, not even an informal or a verbal contract, a binding contract was completed by the rei interventus.
In maintaining that argument, counsel for the defender had to surmount two main difficulties. The first of these is that rei interventus normally follows on a contract which has been completed, although informally, and its effect is to prevent a party from resiling during the locus pœnitentiœ which is consequent upon the informality of the contract. In this case the argument is that the rei interventus completed the contract where no previous contract existed. The second difficulty confronting the defender arises from the very well established rule that in cases of this type the constitution of the informal contract can be proved only by the writ or oath of the party who disputes the contract. It is necessary to consider the law relating to those two matters.
In regard to the first difficulty which I have mentioned, the Sheriff has stated in his note that both parties appeared to agree that, before the effects of rei interventus upon an informal contract relating to heritage are considered, the alleged informal contract must first be proved according to the requirements of law. The Sheriff has apparently adopted that view himself. In this Court, however, counsel for the defender strongly disputed the proposition that the alleged informal contract must first be proved before the effects of rei interventus are considered and a number of authorities were cited in support of the defender's argument. Those authorities do not appear to have been cited to the Sheriff, and the questions now raised in the case are thus substantially different from the questions which the Sheriff considered.
The Sheriff's view as to the scope of rei interventus, and as to the necessity of first proving that a contract had been entered into seems to agree with some observations by Lord Macmillan inMitchell v. The Stornoway TrusteesSC.28 At page 63 Lord Macmillan, referring to the pleas of homologation and rei interventus, said: "… they are invoked not to create an agreement, for that can only be done by writing, but to exclude the right to resile from an informal agreement already in existence." At page 66 with reference to the case of Colquhoun v. Wilson's TrusteesUNK,29 he said: "…I do not think that either homologation or rei interventus can properly be invoked to give efficacy to informal writings in which any of the essentials of a contract are lacking. There must, in my opinion, beconsensus in idem as to the essentials of a contract before either of these doctrines can come into play." Thosedicta were criticised by counsel for the defender as being too wide and as having insufficient warrant in previous authorities. They were unnecessary for the decision of the case ofMitchell, and at first sight it would appear to be difficult to reconcile them completely with at least some of the authorities cited for the defender in this case. Lord Macmillan'sdicta no doubt describe the normal application of the plea ofrei interventus, but it may be that he...
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