Mackay v Campbell
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Guest,Lord Upjohn,Lord Wilberforce,Lord Pearson |
| Judgment Date | 29 June 1967 |
| Judgment citation (vLex) | [1967] UKHL J0629-2 |
| Court | House of Lords |
| Date | 29 June 1967 |
| Docket Number | No. 5. |
HOUSE OF LORDS
Lord Reid
Lord Guest
Lord Upjohn
Lord Wilberforce
Lord Pearson
My Lords,
I have had an opportunity of reading the speech of my noble and learned friend, Lord Guest. I agree with him that this appeal should be dismissed.
My Lords,
On 11th December, 1963, the Appellant and Respondent entered into Missives of Sale whereby the Respondent agreed to purchase and the Appellant agreed to sell the islands of Taransay and Gaskir together with the livestock and moveable property for the price of £16,000 and the Appellant undertook to deliver to the Respondent in exchange for the purchase price a valid disposition of the subjects. Owing to the Appellant's failure to deliver a valid disposition of the subjects the Respondent, on 29th June, 1964, raised an action in the Court of Session (1) for declarator that the defender had failed to implement the Missives of Sale and to deliver a valid disposition of the subjects, and (2) for decree ordaining the Appellant to execute and deliver to the Respondent a valid disposition of the subjects. The conclusions of the summons have been at various times considerably amended, but to appreciate the first point taken by the Appellant, which is one of procedure, it is necessary to quote the Third conclusion as it originally stood which was, we were informed, substantially in these terms: “Alternatively for payment by the defender to the pursuer of the sum of £10,000” with a suitable conclusion for interest on the sum sued for.
After a debate on the Procedure Roll the Lord Ordinary (Cameron) granted decree in terms of the first two conclusions of the summons as they then stood. Upon a reclaiming motion being taken to the Second Division, and before the case was heard, the Appellant lodged a Minute in the following terms:
“MILLIGAN for the defender, without admission of liability, under reservation of his rights and pleas, stated that the defender consents to decree in terms of the alternative third Conclusion of the Summons.”
Subsequently the Respondent amended inter alia the monetary conclusion to the effect that it was alternative to the claim for decree of implement. But this branch of the case must be approached on the basis of the original alternative conclusion (Third) as unamended. The preliminary argument for the Appellant in this House, which was faintly adumbrated before the Division but not sustained, was that upon the Minute being lodged the Respondent was only entitled to ask for decree in terms of the monetary conclusions of the summons, that the issue between the parties had thereby been determined and that the Respondent was not entitled to persist in his conclusion for specific implement of the Missives. The action had therefore become incompetent. In my opinion, there is no substance in this argument. In effect the Appellant is asking the House to treat the Third alternative conclusion (as it then was) as a stark alternative to the Second conclusion and to hold that the Appellant was entitled to select the alternative and to consent to decree passing, thereby depriving the Respondent of his conclusion for implement. Counsel for the Appellant agreed that if the conclusion had read “Alternatively, in the event of the pursuer failing to receive a valid disposition of the subjects for payment of £10,000” the argument could not have succeeded. But reading the pleadings in conjunction with the conclusion this is precisely what the pursuer was concluding for. Condescendence 4 and the plea-in-law in the form in which we were given to understand it was at that early stage made it clear that the primary conclusion was for implement and that it was only in the event of decree not being granted for implement...
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