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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hamilton & Baird v. Lewis [1893] ScotLR 31_97 (15 November 1893) URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0097.html Cite as: [1893] ScotLR 31_97, [1893] SLR 31_97 |
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Page: 97↓
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After decree had been pronounced disposing of an action in terms of a joint-minute, the defender reclaimed, and lodged a statement of res noviter veniens ad notitiam, averring that before the decree was pronounced the parties concluded a verbal agreement varying the terms of the joint-minute.
Held that as the joint-minute was a written contract, parole proof of an
Page: 98↓
agreement modifying its terms was incompetent.
Messrs Hamilton & Baird, writers, Glasgow, sued Edward Dillon Lewis for payment of various sums, amounting in all to £2868.
After proof had been allowed, counsel for the parties signed a joint-minute, wherein they “concurred in stating to the Court that the parties had settled this action by the defender consenting to pay to the pursuers the sum of £700 in full of the conclusions of the summons, including expenses, on or before the 30th day of June 1893, and failing payment of the said sum of £700 sterling by the defender on or before that date, then the defender consents to decree being granted against him in favour of the pursuers for the sum of £950 sterling, with expenses, in full of the conclusions of the summons; and they concurred in craving the Lord Ordinary to interpone authority to this joint-minute, and quoad ultra to assoilzie the defender from the conclusions of the action, and to discharge the diet of proof fixed for the 18th day of May 1893.”
On 17th May 1893 the Lord Ordinary ( Kincairney) allowed the joint-minute to be received, and discharged the diet of proof.
On 6th July 1893 the Lord Ordinary pronounced this interlocutor:—“The Lord Ordinary, in respect of the joint-minute for the parties, and also in respect of the defender's failure to pay to the pursuers the sum of £700, including the expenses of the action on or before the 30th day of June last, Decerns against him for payment to the pursuers of the sum of £950 sterling in full of the conclusions of the libel: Finds the pursuers entitled to expenses,” &c.
The defender reclaimed, and lodged a minute in the Inner House craving to be allowed to amend the defences by adding a statement of res noviter veniens ad notitiam, with relative pleas-in-law.
In this statement he averred that before the 30th of June, being the date fixed for payment of the £700 in the joint-minute, one of the partners of the pursuers' firm had a meeting with the defender in a hotel in London. At this meeting the said partner, having full authority from the pursuers to settle the action, agreed, in lieu of the payment of £700 which the defender was bound to make under the joint-minute, to accept certain guarantee policies which an insurance company were under obligation to grant to the defender, and the action was settled on this footing. In breach of this agreement, and notwithstanding the protests of the defender, the pursuers moved the Lord Ordinary to pronounce the interlocutor reclaimed against.
The defender argued that he was entitled to prove the alleged agreement by parole— Love v. Marshall, June 12, 1872, 10 Macph. 795; Thomson v. Fraser, October 30, 1868, 7 Macph. 39.
Counsel for the pursuers were not called upon.
At advising—
I think the decree of the Lord Ordinary should stand.
The Court adhered.
Counsel for the Pursuers— A. J. Young— A. S. D. Thomson. Agent— Robert John Calver, S.S.C.
Counsel for the Defender— M'Lennan. Agent— D. W. Paterson, S.S.C.