McLaren v Aikman
| Jurisdiction | Scotland |
| Judgment Date | 06 January 1939 |
| Docket Number | No. 24. |
| Date | 06 January 1939 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Ld. Jamieson.
ArbitrationPrice of urban heritable subjectsAwardAuthentication of awardProbative submissionNecessity for probative award.
A proprietrix of urban heritable subjects and her tenant, who had under the terms of the lease an option to purchase, entered into a formal and probative submission whereby they referred the determination of the purchase price to an arbiter. The arbiter, in a letter which was signed by him and communicated to both parties, but which was neither holograph nor tested, valued the subjects at 1350. The proprietrix accepted this valuation, but the tenant made representations to the arbiter against it; and, after a meeting between the parties and the arbiter, the arbiter issued a formal and probative award in which he fixed the purchase price at 950. In an action brought by the proprietrix for the sum of 1350 as the price of the subjects determined in the arbitration proceedings,
Held that an arbitration in regard to the valuation of urban heritable subjects, entered into by a formal and probative submission, did not fall within the class of mercantile and agricultural arbitrations which are exempt from formal procedure; that in the present case the formal submission must be followed by a formal and probative award; and accordingly that the arbiter's first informal valuation was not binding on the defender; and action dismissed.
Lang v. BrownUNK, (1852) 15 D. 38, followed.
Cameron v. Nicol, 1930 S. C. 1, and Davidson v. Logan, 1908 S. C. 350, distinguished.
Miss Mary M'Laren, 53 Castle Street, Edinburgh, brought an action against Thomas Smith Aikman, confectioner, Melrose, for payment of the sum of 1350, as the price fixed by an arbiter for certain heritable subjects in Melrose.
The following narrative of the circumstances out of which the action arose, as disclosed in the averments of the parties, is taken from the opinion of the Lord Justice-Clerk:"By minute of lease dated 1st and 5th February 1934 the pursuer let to the defender certain heritable subjects at Market Square, Melrose, along with the house adjoining the premises known as Eastville, from the term of Martinmas 1933 to the term of Whitsunday 1937, at the yearly rents therein specified. By clause 7 the defender, as tenant, was given a right up to 15th February 1937 to elect to purchase the whole premises with entry at Whitsunday 1937 at such price as might be agreed upon between the parties, or, failing such agreement, fixed by an arbiter to be agreed on or appointed in terms of the clause. By letter dated 16th January 1937 and addressed to the pursuer's agents the defender requested a renewal of the lease upon certain terms, failing acceptance of which he gave formal notice that he desired to purchase the premises in terms of clause 7. The defender's letter of 16th January was signed by the defender but was neither holograph nor tested. Parties having agreed that it was in the interests of both that the defender should acquire the subjects, it was agreed to refer the price to Mr John Hall, architect, Galashiels, as sole arbiter. The parties thereupon entered into a formal and probative minute of agreement of reference, dated 23rd and 29th April 1937.
"The minute of reference, after narrating that the defender by his said letter dated 16th January 1937 had intimated that he was to exercise his option under the lease to purchase the subjects and that the parties had not agreed upon a price, proceeds as follows:The parties hereby nominate and appoint John Hall, architect, to act as sole arbiter to ascertain and determine the price of the subjects let to be paid to the first party [the pursuer] by the second party [the defender] and to settle all questions regarding the said price or arising out of the exercise of the said option by the second party with power to the said arbiter to take all manner of proof for determining any of the matters hereby referred or arising hereunder and declaring that this reference shall subsist and be effective notwithstanding the death of either of the parties hereto before a final award is made and whatever sums the said arbiter shall fix as the said price of the subjects let or for expenses and fees connected with this reference shall be paid by the parties hereto as and when the said arbiter may determine, the whole fees and expenses including the cost of the preparation of this minute and incurred in the course of the reference by the arbiter for himself and persons whom he may consult or agents whom he may appoint and outlays incurred in the procedure to follow hereon being borne by the parties hereto equally. It was further declared that, on payment of the price and the share of expenses due by the second party, the first party should execute and deliver to the second party a valid conveyance of the subjects. The parties further bound and obliged themselves to implement their respective parts of the agreement, and to observe all directions and implement the awards of the said arbiter, under a penalty of 50.
"Mr Hall accepted the reference and visited the subjects on 6th May 1937. Intimation of the inspection was made to the defender by letter dated 4th May. Parties are at issue upon their averments as to whether the arbiter on 6th May was in possession of all proper information to enable him to carry out the reference. On 12th May the arbiter issued an award in the form of a letter addressed to Messrs D. C. & C. Alexander, solicitors, who were then acting as agents for both parties, in these terms:Subjects in MelroseMiss M'LarenMr Aikman. As instructed I have to report that I have visited and examined the property at the above and beg to submit my report and valuation. After setting out the subjects and the assessed rental, the report continues:I have gone very carefully into the question of the value of the subjects and put the present market value at One thousand three hundred and fifty pounds...
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