Forbes v Caird
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1877 |
| Date | 20 July 1877 |
| Docket Number | No. 179. |
| Court | Court of Session |
Lord President, Lord Deas, Lord Mure, Lord Shand.
Proof—Innominate Contract.—
The proof of an innominate contract is not restricted to writ or oath unless the stipulations are of an unusual and extraordinary character.
In defence to an action for payment of an account for stabling horses for an omnibus for several years the defender alleged that the pursuer had agreed to stable the horses free of charge in consideration of the omnibus departing from and arriving at the stabler's inn on its way to and from a railway station. Held that the contract alleged might be proved prout de jure.
This was an action in the Sheriff Court of Banff by James Forbes, innkeeper and stabler, Portsoy, against James Caird, innkeeper, Cullen, for payment of £98 due to the pursuer for stabling the defender's horses from May 1867 to October 1876. It was admitted, with regard to the whole period except the first year, that the defender ran an omnibus daily from Cullen to Portsoy and back, and that the horses were stabled at the pursuer's inn. But the defender averred that it was stipulated from the first that he was to get stable accommodation free of charge in consideration of the omnibus going to the pursuer's inn after calling at the railway station at Portsoy, and starting from his inn before calling at the railway station on the return journey.
The Sheriff-substitute allowed a proof to both parties and to each a conjunct probation.
The Sheriff adhered, ‘with the following addition, viz., that the proof of the agreement alleged by the defender is restricted to writ or oath.’1
The defender appealed to the Court of Session, and argued;—In the cases referred to by the Sheriff the agreements were all of a very unusual character. There was no rule that innominate contracts could not be proved prout de jure. It was only in cases of contract of an extraordinary character that proof was limited to writ or oath.2
The pursuer argued that an innominate contract could only be proved by writ or oath.
At advising,—
Lord President.—I see no legal difficulty in this case at all. I am very unwilling to go back on that not very well fixed and somewhat abstruse doctrine about the difficulty of enforcing innominate contracts. It is not easy to reconcile all the dicta. But, going back to the passage in Erskine I do not find anything at all applicable to this case.
The claim goes back for nine or ten years. The pursuer is the...
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