Munro v Liquidator of Balnagown Estates Company
| Jurisdiction | Scotland |
| Judgment Date | 16 November 1948 |
| Docket Number | No. 7. |
| Date | 16 November 1948 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Blades.
Heritable Property—Timber—Contract for sale of growing timber—Stipulation for removal of timber by specified date—Failure to remove timeously—Ownership of timber cut but not removed.
A Government department, which had bought a quantity of growing timber, subsequently sold it to a timber merchant, the contracts of sale empowering the purchaser to enter upon the lands and fell and remove the timber, under a condition that the timber should be removed by certain specified dates. When the specified dates arrived the timber had been felled, but some of it had not been removed, and the proprietor of the lands obtained interim interdict against its removal. Thereafter the purchaser, on the view that the property in the timber had passed to him, brought an action against the proprietor for delivery or, failing delivery, for damages.
Held that the property in the timber had passed to the purchaser on severance from the ground, there being nothing in the contracts to indicate a contrary intention, and case continuedto enable the parties to adjust the terms and conditions of delivery.
Andrew James Minty Munro, timber merchant, brought an action against (1) the Balnagown Estates Company, Limited, and its liquidator, and (2) the Lord Advocate, as representing the Board of Trade and Minister of Supply, concluding for "delivery by the first-named defender to the pursuer of the timber severed by the pursuer on the estate of Balnagown and Scotsburn and presently lying thereon in which the pursuer has a right of property under two contracts of sale between Sir Samuel Strang Steel, Baronet, Deputy Director, Home Timber Production Department, for and on behalf of (a) the Minister of Supply and (b) the President of the Board of Trade, and the pursuer, dated 2nd and 8th October 1945 and 31st July 1946 respectively, and amounting to 20,000 and 60,000 cubic feet of timber or thereby respectively; and, failing delivery within such period as the Court shall appoint, for payment by the first-named defender to the pursuer of the sum of £6000 sterling. …" The action was defended only by the first-named defender, who, in the Sheriff Court, had obtained interim interdict against the removal by the pursuer of the timber in question.
The following summary of the parties' averments and pleas is taken from the opinion of the Lord Ordinary:—"The first of the two contracts above referred to provides, inter alia:—“(2) The seller shall give immediate entry to the purchaser, his workmen or others acting on his behalf with necessary accesses and general facilities for the removal of the timber. (3) The timber must be removed from the ground by the thirtieth day of September, nineteen hundred and forty-six. (4) The seller shall allow the purchaser or his foresaids or others acting on his behalf to store timber and to erect sawmills and such other plant as may be found necessary … and also all stabling, storage accommodation and bothies or huts for employees which may be necessary. … All sawmills and other plant, stabling, storage accommodation and bothies shall be removed within six months after the afore-mentioned date for the removal of timber and all damage made good.” The second of the two contracts is in almost identical terms, except for the date stipulated for the removal of timber, which is 31st December 1946.
"The trees sold to the pursuer in terms of the foregoing “Conditions of Sale” had previously been sold to the seller by the first-named defender in terms of two minutes of...
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