Smith v Oliver
| Jurisdiction | Scotland |
| Judgment Date | 10 November 1910 |
| Date | 10 November 1910 |
| Docket Number | No. 13. |
| Court | Court of Session |
Lord Cullen, Lord President, Lord Kinnear, Lord Salvesen, Lord Johnston.
ContractProofUnilateral AgreementRei InterventusPromise to leave money by willMethod of proof.
The trustees for a church brought an action against the executor of a deceased lady, who had been a member of the congregation, for payment of the cost of additions to the structure and decoration of their church. They averred that the deceased lady had urged them to make these additions while the church was in the course of erection, and had undertaken to provide by her will (as she was restricted in the disposal of her capital during her lifetime) for the cost of them; and that, in reliance on her obligation, they had made the additions, but that she had not carried out her obligation in her will.
Held that the pursuers' averments set forth merely a verbal promise to pay, which could not be converted into a mutual contract by rei interventus; and that consequently the obligation could be proved only by writ.
Millar v. TremamondoUNK, (1771) M. 12,395, and Edmondston v. EdmondstonUNK, (1861) 23 D. 995, followed.
On 11th December 1909 the Most Reverend James A. Smith, D.D., Roman Catholic Archbishop of St Andrews and Edinburgh, and others, as trustees of the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh, brought an action against Edward Oliver, executor-dative of Mrs Julia Catherine Squance or Oliver, and as intromitter with her estate, or as otherwise representing her, and as an individual. The conclusions of the action were that it should be found and declared that the sum of 7000, or such other sum as might be fixed in the proceedings, with interest thereon, was a true and lawful debt resting owing to the pursuers by the deceased Mrs Oliver, and that the pursuers were creditors for the same, and were entitled to payment thereof out of her estate; and that the defender should be ordained to make payment of the same, with interest.
The pursuers averred that in 1891 they had under consideration the erection of a church on a piece of ground at Slateford. As the district was a poor one, the congregation consisting of the working class, the pursuers looked upon 4500 as the utmost amount which they could raise for the purpose of the building, and on their instructions, through Father Forsyth, the priest in charge of the mission, who throughout acted for and represented the pursuers, plans were prepared in 1891 for the erection of a church at about that cost. These plans were submitted to Mrs Oliver in 1892, at her request, by Father Forsyth, and she expressed disapproval of the simple nature of the proposed building, and stated that she would not have a church of the character of the designs, and that she wanted the church to be much more elaborate. Mrs Oliver indicated generally to Father Forsyth that she would meet whatever extra cost might be involved if she had her way. In the whole communings between her and Father Forsyth, Mrs Oliver knew that he was acting for and represented the pursuers.
The further averments of the pursuers, which set forth the communings between Mrs Oliver and Father Forsyth at great length, are summarised in the following passage from the opinion of the Lord Ordinary (Cullen):The general nature of the case presented by the pursuers is that Mrs Oliver took a great interest in the erection of the church, that from time to time she intimated desires as to the manner in which it should be constructed and equipped in various particulars, and that she obliged herself to the pursuers to provide various sums amounting to 7000 towards the cost of it. No written obligation by Mrs Oliver for any part of the 7000 is condescended on. Mrs Oliver's alleged undertakings to provide the 7000 are said to have been communicated by her orally to Father Forsyth at various interviews which she had with him between the years 1890 and 1896.
The pursuers' statements on record as to the undertakings or promises made by Mrs Oliver, while they represent her as having assured the pursuers of her pecuniary support, to put the matter generally, exhibit considerable variation in expression. This is, perhaps, not unnatural, looking to the circumstances of the case. Mrs Oliver was a well-off member of the church to whose wishes Father Forsyth would be inclined to defer on receiving her assurances of pecuniary help, without taking the risk of estranging her interest and goodwill by insisting on getting from her more solemn or precise expressions of obligation than those which she colloquially resorted to. Mrs Oliver's affairs were in this position, that her income was largely derived from trust funds of which the capital was not at her command during her lifetime, so that it was unsuitable that she should either make present payment of large sums of money or undertake to pay them during her lifetime. The variation in the expression of the undertakings or promises ascribed to her on record, however, introduces a considerable difficulty into the pursuers' case.
In Condescendence 8, the pursuers state that in December 1893 Mrs Oliver promised to give to Father Forsyth the annual sum of 150 upon a certain condition, and to make provision by will or otherwise that at her death the capital sum represented by this annual payment would be paid to the church. The promise as to the annual payment of 150 was incorporated in writing, and was duly fulfilled. The other part of the alleged promise was, apparently, matter of oral statement.
Condescendence 9 sets forth that thereafter Mrs Oliver, at an interview with Father Forsyth, promised and undertook that if certain plans were adopted and carried out she would be responsible for3750 of the cost. This alleged promise and undertaking apparently superseded the promise of a capital sum referred to in Condescendence 8.
Condescendence 11 refers to certain alterations on the plans of the church desired by Mrs Oliver, and says that at an interview with Father Forsyth in 1894, she explained to him that the sum which she had undertaken to leave to the church at her death was greater than that for which he had given her credit, and should be, not 3750, but 4500, which was the sum she intended to leave to the church at her death, and she promised and undertook to contribute and pay this sum towards the cost and expense of the buildings if her views as to the plans were adopted.
Condescendence 12 sets forth that Mrs Oliver undertook to increase the sum to be set aside at her death by 1000, making the total amount 5500, to be paid by her if her wishes were given effect to.
Condescendence 15 sets forth that in the autumn of 1895, when the matter of the flooring of the church came up for consideration, Mrs Oliver desired that Minton tiles should be used, and that at a meeting with Father Forsyth, in or about October 1895, she undertook to add 500 to the amount which she had undertaken to provide for the church, thus bringing...
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