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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart and Craig v. Phillips [1882] ScotLR 19_376 (2 February 1882) URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0376.html Cite as: [1882] SLR 19_376, [1882] ScotLR 19_376 |
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Page: 376↓
[Sheriff of Lanarkshire.
(Before
Contracts connected with land and innominate contracts of an unusual character can only be proved by writ.
The lessees of a shooting for a term of six years raised action against a person for a share of the rent and expenses of the said shooting, on the allegation that he had agreed to become joint-tenant along with them. Held that such an agreement being in truth a lease for a term of years could only be proved by writ.
Archibald Stewart and Robert Paterson Craig, residing in Glasgow, presented a petition in the Sheriff Court of Lanarkshire against John Phillips for the purpose of having him ordained to pay them the sum of £75, 13s. 8d., with interest from 30th April 1880 till paid. The grounds of action as stated by the pursuers were these:—In March 1877 they entered into a partnership or joint-adventure with Alexander Strachan, a commission agent in Glasgow, to take for a period of six years the shootings on the lands of Wester Airdrie and others, commonly called the Cumbernauld estate, Dumbarton. The said shootings were accordingly leased for that period from Mr Burns, the proprietor, the lease being in writing and dated 2d May 1877. Shortly after the lease was entered into they assumed Robert Livingstone as a partner with them in the shootings. Soon after 12th August 1877 Strachan injured his foot so badly that it was arranged that he should look out for someone else to take his place in the partnership. Ultimately John Phillips, the defender, agreed to take Strachan's place, and was accepted as a partner in the month of September 1877 for the unexpired period then to run of the lease, upon condition that he should pay a fourth part of the rent and other annual cost of the shootings. The defender only paid his proportion of the expenses for the seasons 1877–78 and 1878–79, but declined to pay his fourth part of the expenses of the year 1879–80, which the pursuers were compelled to advance and pay for him. These expenses constituted the sum sued for.
The pursuers pleaded—“(1) The defender having entered into the said partnership or joint-adventure along with the pursuers and the said Robert Livingstone, is bound to pay one-fourth part of the cost of the said shootings. (2) The pursuers having advanced and paid on behalf of the defender the sum sued for as his share of the cost of said shootings for the year from 30th April 1879 to 30th April 1880, are entitled to decree against him therefor, with expenses as craved.”
The defender averred that he had agreed to take Strachan's place in consideration of paying the latter £40, and in consideration of paying one-fourth part of any additional expense to be thereafter incurred during the season. He duly paid these sums for 1877–78, and also paid similar sums at the end of the next season of 1878–79. In the early part of 1879 he definitely told the pursuers that he could not again join in the shootings. He further, however, offered, out of friendship to Stewart, to pay one-fourth of the expenses, but this offer he withdrew when he found that the pursuers were trying to hold him bound as a joint-tenant for the rest of the lease.
He pleaded—“(1) The action is irrelevant and ought to be dismissed. (2) The pursuers' averments are irrelevant. (3) The pursuers' averments can only be proved by the defender's writ or oath. (4) Even assuming that a verbal agreement such as that alleged by the pursuers were proved by competent evidence, the defender was entitled to resile from it and bring it to an end. (5) The pursuers' averments being unfounded in fact and in law, the defender is entitled to be absolved, with expenses.”
The Sheriff-Substitute ( Erskine Murray) allowed both parties a proof before answer of their averments. Thereafter he found …” (3) That defender John Phillips agreed to come into the transaction in Strachan's shoes, taking his share of the stock, dogs, &c, his right to shoot, and his responsibility, on payment to Strachan of £40, which was paid; (4) that thereafter, during the rest of the seasons 1877–78 and 1878–79, defender continued to shoot with the other three over Cumbernauld, paying his share of the rent and expenses, and receiving his share of the game; and when the landlord proposed a surrender of the lease, defender was the person who proposed that a high bonus should be asked; (5) that at the end of the season 1878–9, he, as well as Livingstone, intimated their intention of not shooting on Cumbernauld next year, and, as in Strachan's case, steps were taken, by advertising and otherwise, to get strangers to fill up the vacancies; (6) that these attempts proving unsuccessful, Stewart, who managed the concern, having applied to defender at the commencement of the shooting season of 1879–80 for his share of the rent and expenses, he wrote back on 20th August saying he was quite willing to pay one-fourth share of the rent for the season, and suggesting that they should find someone to make up the difference, and adding that if Stewart let him know how much it was, he would send a cheque for it; (7) that the cheque, however, never was sent; and after further correspondence, negotiations, and attempts at arbitration, the present action was raised in February 1881 for £75, 13s. 8d., as defender's fourth share of the cost of the shootings
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for the season 1879–80: Found (8) that the defence taken was in law that the agreement libelled is not proveable except by writ or oath; and that if such a verbal agreement were proved, the defender was entitled to resile from it and bring it to an end; and, in fact, that he really made no agreement for more than a year, and that he was entitled to give up his connection with the concern at the end of every year: Found, on the whole case, and in law—(1) that a joint adventure or transaction of the nature libelled can be proved not merely by writ or oath, but otherwise; (2) that defender was proved to have entered into a joint adventure or transaction with pursuers for the purposes of the nature libelled, and that the sum sued for was due by defender to pursuers as his share in the liabilities under the transaction: Therefore decerned as craved.” He added this note—“No one who considers attentively the real and written evidence can doubt for a moment that the defender really entered into the transaction averred, and agreed to become subject to the liabilities for which he is now sued. His conduct throughout was that of one who understood his position; but it is quite possible that in 1877, before commerce had become so bad, he may not have taken much thought as to the possibility of his wishing to retire from the transaction, in the belief that a substitute could easily be found—a consideration which may have had something also to do with the comparatively loose way in which the bargain was made; but that the bargain, as averred, was made cannot be doubted.
But it is argued that such a transaction cannot be proved except by writ or oath, being practically a lease or sub-lease. This is a mistaken view. The liability arising under the lease is only one of the incidents of the adventure or transaction. As a matter of fact, his share of the rent is only about £42, 10s., out of £75, 13s. 8d. due by him altogether. The facts as proved show that to view the matter simply as a sub-lease by pursuers to defender would be entirely to misconstrue the transaction.
“As to defender's alleged power to put an end to the partnership or joint adventure, he could not do without securing the other parties against the share of the liabilities which he had undertaken.”
The defender appealed, and argued—(1) In point of law this was an innominate contract, not having known prestations, and could only be proved by writ. It was not a contract of partnership, for there was no gain involved in it— Pooley v. Driver, Nov. 28, 1876, L.R., 5 Ch. Div. 472; Lindley on Partnership, vol. i., p. 2; Ersk. Inst., iii., 2, 20; Edmonston v. Bruce or Edmonston, June 7, 1861. It was just an assignation of a heritable right which required more than parole proof of its existence— Walker v. Flint, Feb. 20, 1863, 1 Macph. 417; Fowlie v. M'Lean, Jan. 18, 1868, 6 Macph. 254. But (2) even assuming parole proof to be competent in point of fact on the evidence, no such agreement as libelled had been proved.
The pursuers replied—(1) In point of law a verbal agreement followed by possession and rei interventus could be proved by parole evidence— Gibson v. Adams, &c, Nov. 20, 1875, 3 R. 144. (2) In point of fact the proof led disclosed exactly the agreement sued on.
The Lords made avizandum with the case.
At advising—
It is not doubtful and not disputed that a lessee of a shooting or a proprietor (there being, I think, no distinction) may lawfully intend to uphold a shooting, providing and maintaining the necessary establishment of dogs and keepers, and furnish the benefit (exclusive or partial) to the person with whom he contracts for six years, or a longer or shorter period, on such terms as are mutually agreeable, and that such contract duly made will be enforceable hinc inde. The contract which the pursuers allege is of this character; for their averment is that they and the defender contracted for six years, their obligation, on the one hand, being to continue as lessees of the shooting and maintain dogs and keepers during that period, permitting the defender to have the benefit to the extent of a fourth; the defender's obligation, on the other, being to pay to them yearly one fourth of the expenses. The defender, admitting that such a contract is lawful, denies that he made it, and contends that writing is necessary to the constitution or at least proof of it. I am of opinion that a right of shooting and sporting on ground for a term of years cannot be constituted without writing, and that it is immaterial to this question whether the pursuer, from whom the right is alleged to proceed, is the proprietor of the ground or the lessee of the shootings. I am further of opinion that a contract
Page: 378↓
I am therefore of opinion that the interlocutor of the Sheriff ought to be reversed, and the defender assoilzied with expenses.
Though the Sheriff-Substitute originally had doubts as to the competency of parole proof, yet when he came to consider the judgment which ought upon the proof to be pronounced, be came to be of opinion that parole proof was admissible, and being of opinion that this proof supported their grounds of action, he decided in favour of the pursuers. We are now called upon to consider two questions—the first being the competency of parole proof, and the second, if such proof be competent, what is the import of the evidence which has been adduced.
With reference to the first of these questions, had the result depended on the terms of a contract of copartnery or of joint adventure, I would not have differed from the opinion of the Sheriff-Substitute as to the competency of parole proof, but he, I think, has misapprehended the question for determination. That question is not whether there was an arrangement between the pursuers and defender as to shooting over the estate of Cumbernauld, but whether such a right to shoot for a term of years could be established by a parole testimony. Supposing even that a partnership existed, such a right as that alleged to have been communicated, and that for a longer period than a year, could not be constituted otherwise than by writing, because that right is of a heritable character, and a lease of heritage for more than a year must by the law of Scotland be so established. Here there is no writing. Mr Burns, the landlord, could not have communicated to the defender a right for a term of years without writing. The pursuers, his tenants, cannot do that which he could not have done, and consequently the engagement between the pursuers and the defender standing upon nothing but a verbal agreement, was not effectual for the six years which, as the pursuers allege, are covered by the contract.
Entertaining this opinion, and not being called on to enter upon the second question submitted to us, I think that the interlocutor of the Sheriff-Substitute ought to be altered and the defender assoilzied.
The pursuers became tenants of the shootings for six years or seasons commencing in August 1877. The lease was taken in their names, but the lease was taken for their behoof and that of Alexander Strachan, and shortly after Robert Livingstone was associated with them. Therefore, while the lease was in the name of the pursuers, it was held by them for themselves and the two other persons whom I have mentioned.
In August 1877 Alexander Strachan injured himself, and resigned his interest in the lease. The pursuers say that the defender took his place, or, in other words, agreed to become a co-tenant for the whole period for which the lease had to run. As the defender denies this allegation, the first question is, whether the agreement libelled can be proved otherwise than by the writ or oath of the defender?
It is worthy of notice that, according to the case of the pursuers, they hold the lease in trust for themselves and the defender and Livingstone. It is certain that if they denied that the defender had an interest in it he could only prove the trust by their writ or oath— M'Vean v. M'Vean, June 4, 1864, 2 Macph. 1150; Seth v. Hain and Others, July 14, 1855, 17 D. 1117. No doubt this limitation is imposed by the Act of 1696; but it is somewhat anomalous to hold that while the defender would be thus restricted, the pursuers can establish the defender's liability by a parole proof.
I am of opinion that they also are limited in their mode of proof, and that they can only prove the agreement libelled by the writ or oath of the defender. Their case is that the defender became their co-tenant for a period of years. If this had been a question between the landlord and the defender, it could not be doubted that the
Page: 379↓
It was contended that the pursuers expended money on the faith of the defender's agreement, and that they are entitled to recover the money so expended. If their allegation were true, I think that their argument would be well founded. But I agree with the Sheriff in thinking that at the end of season 1878–79 the defender intimated that he would have no further connection with the shootings. Therefore, in this alternative view, the pursuers' case fails on the fact.
I have only to add that if I had thought it competent to proceed on the parole evidence, I do not think the pursuers would have succeeded in proving their averments.
The
The Lords therefore recalled the interlocutor of the Sheriff-Substitute and assoilzied the defender.
Counsel for Appellant—Solicitor — General ( Asher, Q.C.)— V. Campbell. Agents— Maitland & Lyon, W.S.
Counsel for Respondents— G. Smith— M'Kechnie. Agent— Thomas Carmichael, S.S.C.
