Scottish Court of Session Decisions

Lord Deas— I have no doubt that the Lord Ordinary is right. These two missives are holograph of the respective parties. The one missive is addressed to a third party, said to be the agent of Bate, but that makes no difference. They are both holograph documents, as probative as if they had been regularly tested. The whole question is whether, on the face of them, there is a concluded bargain? Now a bargain maybe final and concluded, although on a condition,—and I cannot doubt that there was here a concluded bargain on the condition in the letter, whatever that may be. It is not unusual either for the purchaser or seller to make the first offer, and it is no difference which makes it. Here it is the proprietor, who says— “I agree to accept an offer of £12,600 from Mr John Bate.” If you stop there, Is that not an offer to accept £12,600 as the price of the property? That was subject, no doubt, to a condition, where the writer goes on to say that in “the event of a better offer than his being made before he has gone to any expense in improving the property, he will divide equally with me the sum offered or accepted in excess of £12,600.” That contemplates that, before it shall be determined whether there is a surplus sum to either, Bate shall be in possession, and making improvements. Can that be anything but under the missives of sale? It is he alone who was spoken to. He is supposed to be in possession as the purchaser, no matter to whom the offer was made. If there was a bone fide offer within a certain time, the meaning was that the advantage was to be divided between them. The holograph letter of Bate could not be better expressed if his object was to tie down Corstorphine to this as a final purchase. In place of explaining the condition, Bate took the far safer plan of saying, “I accept your offer of the property, subject to the condition named in your letter.” There is no doubt that that is the legal construction, and I am glad that it is not inequitable. I think we should adhere, but that we should also go farther, by deciding that the pursuer gets the property on condition of paying the £225.

Lord Ardmillan— I am of the same opinion. It cannot be denied that there may be a good sale, with a condition inherent in the contract. The true question here is, what is the condition within this contract? Now, I don't think a second sale was necessary,—an offer without a sale was contemplated. It was enough that there was an offer, and if there was a bona fide higher offer, then Bate was bound to pay half of the difference between that offer and the price he gave.

Lord Kinloch— I think there is no serious difficulty in this case. It appears just to stand here. Corstorphine had a property which he wanted to sell, and which Bate wanted to buy. Corstorphine thought that Bate was willing to give £12,600, but surmised that he might get a better offer, but, as he says, he had no opportunity of ascertaining the amount. So he writes a letter which, I think, is simply an offer of the property to Bate at £12,600, coupling his offer with the condition already stated. The meaning of this transaction is to me perfectly clear. Directly, and in the first instance, it contemplates Bate coming into possession of the property as proprietor, and stipulates that if Bate gets a better offer for it than the price he had himself paid, he shall give onehalf of the surplus to the original seller. The words “offered or accepted” are used in the letter, because it was not on acceptance of any higher offer, but simply on such being made, that Bate was to pay half of the difference. But whilst this was the case directly in view, the principle of the transaction applies equally where a higher offer was made to Corstorphine before Bate had finally concluded his arrangement. Such an offer was in fact made. Bate is quite willing to pay one-half of the surplus to Corstorphine, so as to give him £225 more than he expected to get. I think that this is all which at the utmost was implied in the condition. And, as Bate accepted the condition, and is willing to fulfil it, I think the sale must stand and be enforced.

The Lord President was absent.

This interlocutor was pronounced,—“Adhere to the interlocutor in so far as it finds that there was a concluded contract of sale between the parties; Quoad ultra recal that interlocutor: Find that both parties admit at the bar that if, as has now been decided, there was such a concluded contract, the price to be paid by the pursuer is £12,600 with the addition of £225 in respect of the offer subsequently made by Mr Jardine: and Find that, upon payment of these sums with interest from and after Martinmas 1868, the defender will be bound, simul et semel to grant a disposition habili modo in favour of the pursuer; and to this extent and effect decern in terms of the conclusions of the summons: Find the pursuer entitled to expenses, and remit the account thereof when lodged to the auditor to tax the same and to report.”