Oswald v Fairs

JurisdictionScotland
Judgment Date08 December 1910
Date08 December 1910
Docket NumberNo. 33.
CourtCourt of Session
Court of Session
1st Division

Lord skerrington, Lord President, Lord Kinnear, Lord Johnston, Lord Mackenzie.

No. 33.
Oswald
and
Fairs.

ProcessRecordAmendmentReduction pleaded ope exceptionisFair noticeCourt of Session (Scotland) Act, 1868 (31 and 32 Vict. cap. 100), sec. 29Act of Sederunt, 20th March 1907, sec. 6.

In an action for the price of certain furniture, which the defender had contracted to purchase at a price to be fixed by valuation, the defender's case on record was that other furniture had been fraudulently substituted for the furniture he had agreed to purchase, and that he had entered into the submission to the valuators under essential error induced by fraud. On that record a proof was taken, and at the close of the evidence the defender maintained for the first time that he was entitled to absolvitor on the further and separate ground that he had entered into the original contract to purchase the furniture under essential error induced by fraud. The Lord Ordinary allowed him to amend his record by adding a plea to that effect, and thereafter sustained that plea, and granted absolvitor.

Opinion that the Lord Ordinary should not have allowed the amendment nor sustained the defence founded on it, in respect that a defence involving reduction of a contract cannot be pleaded ope exceptionis unless the pursuer has had fair notice before the proof of the defence he has to meet.

ProofWitnessesCorroborationStatement made to one partySimilar statement made to another party.

Opinion (per the Lord President) that evidence that A made a certain statement to B cannot be corroborated by proof that A made a similar statement to C.

On 29th June 1909 David Oswald, hotelkeeper, Spittal of Glenshee, brought an action against Alfred Fairs, hotelkeeper, Royal Hotel, Blairgowrie, concluding for payment of 943, 14s. 1d., as the price of certain furniture in the Royal Hotel, Blairgowrie, taken over by the defender from the pursuer.

The pursuer averred that the defender, who succeeded him in the tenancy of the Royal Hotel, Blairgowrie, agreed, in March 1909, to purchase from him the furniture and certain other articles in the hotel, the purchase-price to be fixed by arbitration; that in April 1909 the matter had been duly submitted to arbiters mutually chosen; and that the arbiters had fixed the price at 943, 14s. 1d., the sum sued for.

In answer the defender averred, inter alia;Explained that on 15th February [1909] the defender visited the said hotel, of which it was proposed that he should take a lease from the proprietrix, Mrs Meacher, and examined the furniture which was then in the hotel. On that occasion the pursuer's wife, who shewed the furniture to the defender in the absence of her husband, explained that when her husband had entered the hotel in 1904 the furniture had been valued at about 550, and that the whole furniture in said hotel was the same as that taken over by the pursuer in 1904, with the exception of the furniture in the commercial room, and one or two other articles which were her own private property, and which she intended to remove. She further explained that a few articles had been renewed during the pursuer's tenancy of the hotel, but that these renewals, together with the addition of the commercial room furniture, would not affect the valuation made on pursuer's entry, as the whole furniture had depreciated since the said valuation was made. The defender was also shewn a statement of the assets and liabilities of the Royal Hotel, as at November 1908, in which the value of the furniture, &c. (including omnibus 7), was entered at 561. Similar information regarding the value of the furniture was also given by Mrs Oswald to Mr R. R. Black, solicitor, Blairgowrie, the agent of the proprietrix, Mrs Meacher, in order that he might communicate it to intending lessees, and Mr Black did communicate the said figures and information to the defender. The pursuer further confirmed this valuation by letter to Messrs Robertson & Black, dated 23rd February 1909. Defender was informed that the whole furniture he would be required to take over at mutual valuation was the same as that which pursuer had taken over on his entry in 1904 (with the exception of a few articles specified in the correspondence between the parties, but with the addition of the commercial room furniture before mentioned), and of the value as above stated. This is the furniture which the defender agreed to buy. Explained that between the said 15th February and the valuation of the said furniture the pursuer caused a large quantity of the furniture which had been seen by the defender to be removed from the said hotel. The defender believes and avers that the pursuer used the said furniture to furnish another hotel, which he had acquired at the Spittal of Glenshee, and to furnish a house in John Street, Blairgowrie, rented by his wife from Mrs Meacher, Marlee House, Blairgowrie. In place of the furniture so removed pursuer substituted and added other and more valuable furniture which was not included in the said valuation in 1904, and which the defender had never seen and never intended to buy. The pursuer gave the defender no warning that he had done this. The defender entered into the said submission in the belief that the valuators were to value the said furniture which he had seen and bought. Had the defender been aware of the substitution and addition of the furniture before mentioned he would not have entered into the said submission. The defender is and has always been willing to accept and pay for at a valuation the furniture which he bought, and to restore to the pursuer the said substituted and added furniture.

The defender pleaded;(1) The pursuer having fraudulently substituted for the furniture which he shewed to the defender other furniture which the defender never intended to buy, the defender should be assoilzied. (2) The defender having entered into the said submission under essential error, induced by the fraud of the pursuer, the defender should be assoilzied.

A proof was allowed and led, the defender leading in the proof. In the argument at the close of the proof counsel for the defender maintained that the statement made by the pursuer's wife in February 1909 (for which the pursuer was responsible), that the furniture in the hotel was the same furniture which had been taken over by the pursuer at his entry, was false, and that the defender was therefore entitled to absolvitor on the ground that he had entered into the contract to purchase the furniture under essential error induced by the false and fraudulent misrepresentations of the pursuer. The Lord Ordinary (Skerrington), without objection by the pursuer, allowed the defender to amend his second plea in law by adding the words printed in italics:(2) The defender having purchased said furniture and having entered into the said submission under essential error, induced by the fraud of the pursuer, the defender should be assoilzied.

On 11th January 1910 the Lord Ordinary pronounced an interlocutor repelling the first plea in law for the defender, and sustaining the second plea in law as amended; and on 18th January 1910 he pronounced a further interlocutor assoilzieing the defender.*

The pursuer reclaimed, and the case was heard before the First Division on 1st and 2nd December 1910.

The reclaimer having objected to the competency of the amendment allowed by the Lord Ordinary, the respondent argued that...

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    ...of Sederunt and was confirmed by what Lord President Dunedin said, under reference to the Act of Sederunt, in the case of Oswald v Fairs 1911 S.C.257 where his Lordship at page 264 was to the following effect: "The provision in the recent Act of Sederunt is a very valuable one in the way of......
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