Scottish Court of Session Decisions

The question in this case related to the following missives of sale:—“Robert Gracie, Esq., 3 So. Charlotte Street, 7th October 1878.—Sir, I beg to offer for the tenement 42 North Bruntsfield Place, consisting of shop No. 43, occupied by myself, and the three houses above the said shop, occupied respectively by Taylor, Pattison, and Shaw, together with blinds, grates, gasfittings, and all other fixtures belonging to said tenement, the sum of three thousand pounds stg. (£3000), money payable on Whitsunday term, May 15th, 1879. Waiting your early reply, George Shaw.” Robert Gracie to Mr Shaw.—“5th November 1878.—Dear Sir, I am now authorised to accept your offer of 7th ulto., to purchase the tenement No. 42 North Bruntsfield Place, consisting of the shop No. 43, presently occupied by you, and three dwelling-houses above, together with the whole fixtures and fittings so far as they belong to the proprietors, at the price of three thousand pounds stg., with entry at Whitsunday 1879, when the price will be payable.— Robert Gracie.”

It appeared that at the date of the above offer Shaw, the offerer, was disabled from writing by an injury to his hand, and that the offer was both written and signed by his brother in Shaw's name and by his authority. No rei interventus was alleged to have followed on these missives.

The pursuers of the action were the Scottish Lands and Buildings Company (Limited), for whom the acceptor Gracie acted as factor, and the defender was the offerer Shaw. The action concluded for implement of the contract of sale set forth in the above missives. The defender pleaded, inter alia—“The documents libelled not being probative, do not constitute a concluded agreement, and the action cannot be maintained.”

The Lord Ordinary ( Adam) sustained this plea-in-law. He added this note to his interlocutor:—

“ Note.—By a missive offer, dated 7th October 1878, which was accepted by the pursuers on 5th November 1878, the defender agreed to purchase from the pursuers certain subjects in North Bruntsfield Place at the price of £3000. A dispute arose between the parties as to whether a sum of £27, 10s., or a sum of £19, 10s., should be inserted in the disposition of the subjects as the feu-duty payable therefor. The pursuers have raised the action to enforce their view of the agreement, and it has been met by the plea which the Lord Ordinary has sustained, and which is, that the documents founded on not being probative do not constitute a concluded agreement.

The letter of 7th October 1878, bearing to be addressed by the defender to Mr Gracie, the pursuers' factor or agent, and which contains the defender's offer for the subjects, was written by the defender's brother, and signed by him with his brother's name. It is therefore not holograph of the defender. No rei interventus is alleged to have followed on the missives. It appears to the Lord Ordinary to be essential to the constitution of the contract that both missives should be holograph— Goldston v. Young, Dec. 8, 1868, 7 Macph. 188. The letter was undoubtedly so written and signed by the defender's instructions, and it was maintained that his brother was his agent in the matter, and that the letter being holograph of him, was sufficient, and was binding on the defender— Whyte v. Lee, 22d Feb. 1879, 6 R. 699. The defender's brother, however, was not acting as the defender's agent in the matter. He merely acted as his amanuensis. Neither does it appear to the Lord Ordinary that the fact that the letter sent by the defender to the pursuer bore ex facie to be written and signed by the defender himself will bar the defender from now maintaining the legal pleas arising from the true character of the document. If, as the Lord Ordinary thinks, it is essential in all bargains as to heritage that the

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documents constituting the contracts should be probative, there appears to the Lord Ordinary to be no room for the plea of personal exception.”

The pursuers reclaimed, and argued—This case differed from Goldston v. Young, for here the whole deed was in one handwriting, and was thus holograph of the writer, who, if he acted as the defender's agent, would bind him— Whyte v. Lee. At anyrate, the defender was barred personali exceptione. There ought to be a proof of agency.

Authorities— Goldston v. Young, Dec. 8, 1868, 7 Macph. 188; Home v. Morrison, July 3, 1877, 4 R. 977; Whyte v. Lee, Feb. 22, 1879, 6 R. 699.

Argued for the respondents—The question was one of solemnity, and therefore the respondents could not be barred personali exceptione. It would have been an entirely different case had the brother signed in his own name. Then a proof of agency might have been allowed.

Authority— Sinclair v. Waddell, Dec. 8, 1868, 41 S.J. 121.

The case was argued before the Lord Probationer (Lee), who pronounced this judgment:— An absolute contract for the sale of heritage is said to have been concluded here by two documents called missive letters. The first of these purports to be an offer by George Shaw, whose name is appended to it, and is addressed to Robert Gracie. The other is an acceptance by Gracie. The defender pleads that this offer is not binding on him, because it is not his holograph writ, and the Lord Ordinary has sustained this plea.

It is admitted that the document is entirely in the handwriting of the defender's brother, and that it is signed by him for the defender. It is further admitted that it was sent by the defender to the pursuers' agent, and the pursuers contend that the defender having delivered the missive has adopted it, and that he is not entitled to plead that it is not holograph.

I am humbly of opinion that the Lord Ordinary is right. I think the contention that this document is to be regarded as holograph because it is all written in one hand is untenable. It is not holograph of the granter. And with regard to the argument that the defender is barred personali exceptione, I also think that the Lord Ordinary is right. The law requires that in order to constitute an effectual contract for the purchase of land writing is necessary, and that the writing must either be authenticated under the Act 1681 or be holograph. If not, there is locus pœnitentiœ so long as matters are entire. I think that this applies to the present case.

It has been suggested that the law of adoption might apply. I do not doubt that the defender might have adopted this missive. But it has always been held that the adoption must be in writing, and there is no such writing here. If the pursuers had desired to take advantage of the locus pœnitentiœ, they would have been entitled to resile when they discovered that the writing was not holograph. The defender could not have pleaded that he had adopted it. I therefore think that the interlocutor of the Lord Ordinary is right, and should be affirmed.

At advising—