Scottish Court of Session Decisions

Miss Agnes Malcolm, a stationer in Leven, entered into a verbal arrangement with Mrs Campbell, the proprietrix of an adjoining house, for its purchase, and in pursuance of this arrangement Mrs Campbell signed the following document—“ Leven, 16th June 1891.—have agreed to sell my house at corner of High Street, Leven, for one hundred and fifty pounds to Miss A. C. Malcolm.” This document was duly attested and was at once delivered to Miss Malcolm. On the same day Mrs Campbell's agents wrote to Miss Malcolm's agents—“Mrs Campbell instructs us to withdraw any offer to sell her property Miss Malcolm may have got from her to-day.” Miss Malcolm thereupon raised an action for declarator that Mrs Campbell had sold her the property by a valid and effectual sale; and alternatively she sued for £250 in name of damages.

The defender pleaded—“(1) The action is irrelevant. (2) There being no concluded contract of sale between the parties, the defender should be assoilzied. (3) The defender having timeously resiled from the offer contained in the missive libelled on, is under no obligation to sell her house to the pursuer.”

The Lord Ordinary ( Kincairney) on 12th November 1891 sustained the first and second pleas-in-law for the defender and assoilzied her from the conclusions of the action.

“ Opinion.—I am of opinion that the defender should be assoilzied.

The pursuer's averment is that on 16th June 1891 the defender stated to the pursuer that she (the defender) desired to sell her property, and that both parties agreed on £150 as the price, and that the defender agreed to give immediate entry. The pursuer further avers that the parties having concluded the contract of sale the defender signed the following agreement—‘ Leven, 16 th June 1891.—I have agreed to sell my house at corner of High Street, Leven, for £150, to Miss A. C. Malcolm.’ This document was duly attested. It was not signed by the pursuer, and no corresponding agreement or missive was executed by her. I do not read this document as a disposition of the house or as a unilateral promise to dispone it, but as—what the pursuer herself calls it—a contract or agreement, and therefore mutual and bilateral.

The defender, on the day on which this document was signed and delivered, withdrew her offer. It is not pretended that by that time there had been any rei intervenes, and the question therefore is, whether the bargain was by that time beyond recall, or whether the defender had a locus pcenitentice? The defender maintained that she had, and referred to Goldston v. Young, December 8, 1868, 7 Macph. 1888.

The pursuer maintained that that case did not apply, because there the contract in form and expression was mutual, and was embodied in two deeds—an offer and acceptance—and she maintained that this case fell under the proposition stated in Bell's Principles, sec. 889, that a promise in writing to dispone land if delivered is good without acceptance, and his counsel referred in support of that proposition to the following authorities— Ferguson v. Paterson, November 23, 1748, M. 8440; Muirhead v. Chalmers, August 10, 1759, M. 3414; Fulton v. Johnstone, February 26, 1761, M. 8446; and Barron v. Rose, July 23, 1794, M. 8463. Of these cases Ferguson v. Paterson seems to be most in the pursuer's favour, and it does indeed resemble this case somewhat closely, but it appears to be of doubtful authority. It was stated from the bench in Barron v. Rose to be special, to have been misunderstood, and to decide no general point. In Muirhead v. Chalmers there was ample rei interventus to warrant the judgment on that ground. In Fulton v. Johnstone the defender was assoilzied, although the ground of absolvitor may have been that the deed was not delivered. Barron v. Rose, in which the defender was assoilzied, is rather against the pursuer than for her. It is true that in that case there were two missives, the one probative and the latter improbative. But the judgment would, I think, have been the same had the latter missive not been executed, and if that had been so, the case would have been much the same as this. Shedden v. Sproul Crawford, July 6, 1768, M. 8456, seems in favour of the defender. In Sproat v. Wilson and Wallace, January 24, 1800, Hume, 920, a missive of lease signed by both parties and holograph of one was held not binding, and in Sinclair v. Weddell, December 8, 1868, 41 Scot. Jur. 121, a judgment was pronounced to a similar effect.

Page: 236↓

On the whole, I think that while it may be true that a unilateral promise to convey land is binding on the granter if it imply no obligation on the grantee, yet the cases to which that rule is applicable must rarely occur, and that in this case what is averred by the pursuer is not a promise but a mutual contract which must bind both parties or neither, and that it is clear that it does not bind the pursuer.”

The pursuer reclaimed, and argued—This was a unilateral obligation binding on delivery, and enforceable on an offer to pay the price— Ferguson v. Paterson, November 23, 1748, M. 8440; Muirhead v. Chalmers, August 10, 1759, M. 8444. In Barron v. Rose, January 23, 1794, M. 8463, the form of the deed was bilateral.

The respondent argued—There was here locus poenitentice— Goldston v. Young, December 8, 1868, 7 Macph. 188. A mutual agreement was here intended, and as only one side was completed, it was not binding— Sinclair v. M'Beath, December 19, 1868, 41 Scot. Jur. 165; Brown on Sale, 55; Tait on Evidence, 219, and the other cases cited in the Lord Ordinary's opinion.

At advising—