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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Alexander M'Allister v. Stevenson, M'Keelar & Co [1867] ScotLR 5_404 (20 March 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0404.html Cite as: [1867] ScotLR 5_404, [1867] SLR 5_404 |
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Page: 404↓
Where a party purchased by written agreement for ten years 300 tons of ice per annum, and exercised his right of preemption as to all the surplus ice of that year, viz., 200 tons, held, on a sound construction of the agreement, that he was bound to take delivery of the whole surplus of one year within that year, and proof of an alleged verbal agreement subsequent to the written contract refused.
This was an advocation from the Sheriff Court of Lanarkshire. The parties had in September 1865 entered into a written agreement by which the respondents became bound to deliver, and the advocator to take, 300 tons of ice annually (if that quantity could be obtained from Hogganfield Loch, near Glasgow), for a period of ten years, from and after and inclusive of the winter of 1865. The ice was to be delivered at the advocator's premises whenever he required it, and in quantities ef not less than a ton at a time. The agreement also contained a right of pre-emption to the advocator to take the whole ice should it exceed 300 tons. The advocator exercised that right, and purchased the whole ice gathered in 1866. But at the end of October 1867 there remained in the respondent's icehouse about 200 tons of surplus ice undelivered, of the whole of which the advocator was asked to take delivery, but refused to do so, otherwise than when he asked it, and in such quantities as he chose, being not less at any time than a ton. Accordingly,
Page: 405↓
the respondents presented a summary petition to the Sheriff craving that the advocator be ordained to take delivery, and, in the event of his failing or refusing, craving a warrant of sale of the ice. The advocator opposed, and pleaded (1) that by the agreement he was not bound to take the ice otherwise than as he chose, and in such quantities of not less than a ton at a time, and at such times as he chose, whether a year had elapsed or not from the winter of 1865; (2) that he was entitled to parole proof of a subsequent verbal agreement, which modified and explained the written contract. The Sheriff-Substitute ( Galbraith) and the Sheriff ( Bell) held that the winter began on 1ts November 1865; that the advocator was bound is have the ice-house cleared of all ice placed there between 1st November 1865 and 1st November 1866; and, failing his taking delivery of the whole ice stored at the date of the petition, that the respondents were entitled to a warrant of sale. The Sheriff also held that there was no room for parole proof of a subsequent verbal arrangement, but this, for what the Court deemed an unsound reason, viz., that because the terms and dates intended were clearly fixed by the written agreement, such proof would have been incompetent.
Gifford for the advocator.
Shand and D. Brand for the respondents.
The Court substantially adhered, holding that the respondents were entitled to have the ice-house cleared in one year to make way for the next season's ice. It never could have been intended that the whole ice of one year might, if the advocator chose, be left there for ten years; that the 1st November was a reasonable time from which to date the commencement of the year, but without holding that winter must be taken to begin at 1st November, more especially as the time was now come and byegone—the 1st January—when, by the advocator's own showing, the ice-house should have been cleared. The Court also held that parole proof was inadmissible, as no subsequent verbal arrangement had been properly averred. The reasons of advocation were therefore repelled, and the cause remitted simpliciter to the Sheriff, with expenses in this Court.
Solicitors: Agents for the Advocator— Wotherspoon & Mack, S.S.C.
Agents for the Respondents— Campbell & Smith, S.S.C.
