Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Inverness-shire, in the following circumstances:—M‘Master, a coach-driver and flesher at Fort William, rented a croft on the Lochiel estate, and being about to give it up at Whitsunday 1863, with a view to going abroad, he entered into an agreement with the incoming tenant, Linton, tenant of a considerable farm in the neighbourhood, by which the latter was to take the stock and crop at a valuation, each party naming an arbiter for the purpose, and the arbiters an oversman, in case of dispute. A written minute of agreement to that effect, in the usual terms, was subscribed by the parties, and the valuation of both stock and crop took place on 28th July 1863. Linton had objected to the valuation being made so early in the season, but afterwards he signed the agreement, and consented to going in. Next day the valuators drew up and signed a document, headed “Valuation of Duncan M‘Master's Crop, &c., 29th July 1863,” the first two items in which were—“560 stooks, at 1s. 9d., £49; 80 barrels potatoes, at 3s. 6d., £14.” The total of the valuation was £121, 18s., and there followed these words:—“The above comprisement is according to our best skill and judgment. Signed,” &c. M‘Master took no further charge of the crop, which was raised by Linton. The latter, however, declined to pay M‘Master the sum at which it had been valued, on the ground that it had yielded only 284 stooks, instead of 560, and 44 barrels of potatoes, instead of 80, making a difference of £32 on the total valuation. He maintained that the intention of the valuators was, that their estimate should be afterwards so corrected by what should be ascertained to be the actual crop, and that they had per incuriam omitted the words, “less or more. “M'Master then raised this action in the Sheriff-court of Inverness, being unable to secure the services of an agent at Fort William. Sheriff-substitute Thomson allowed the defender a proof of his averments as to the intention of the valuators, and the practice of the district in regard to such valuations, and the insertion of the words “less or more” in the valuation, with a conjunct proof to the pursuer. The proof having been led, the Sheriff-substitute found that the defender had not substantiated any of his averments, and decerned for the pursuer. On appeal against this interlocutor, Sheriff Ivory recalled it, and dismissed the action, on the ground that the minute of agreement, which constituted the basis of the pursuer's claim, had not been produced. The pursuer then brought an advocation, and the defender a counter advocation, to bring up all the interlocutors. The case was heard in March, when the Court granted the pursuer a diligence for recovery of the minute, which was recovered in the possession of the defender. Of this date, the Court, after hearing the respondent's counsel, without calling for reply, gave judgment unanimously for the pursuer, with expenses in both courts; being of opinion that the effect of the reference and valuation was an absolute sale and transference of the crop at the date of the valuation, and that the terms of the documents embodying the transaction were sufficiently clear to exclude any question as to their meaning. Lords Cowan and Benholme were of opinion that the allowance of proof by the Sheriff-substitute was incompetent as well as unnecessary.