Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. II.

Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum præstandum.

Carmichael
v.
Dempster

Date: 28 November 1676
Case No. No 24.

The reciprocal obligations in a mutual contracts having different terms of performance, the performance of the one was not found suspended until performance of the other.

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Carmichael, younger of Balmedie, having married the heritrix of Balbogie, she and her husband by contract with Dempster of Pitliyer, dispone the estate of Balbogie to Pitliver, and both the husband and his father are obliged to cause her ratify the contract at her majority. Pitliver grants a bond to young Balmedie of L. 1000 Sterling, as a part of the price, which he assigns to his father, and he thereupon charges Pitliver, who gave in a bill of suspension, and the cause being ordained to be discussed upon the bill, Pitliver insisted on these reasons; 1mo, That this assignation charged on, was either granted or delivered on death-bed, and therefore could not secure the suspender to pay. It was answered, Death-bed is only a privilege competent to heirs, and it is not competent to the debtor who must pay, and will be liberated by payment made bona fide, though the assignation should be reduced. It was replied, That it being commonly known to the debtor, and the country, that the assignation was on death-bed, and if that were referred to his oath, he could not refuse it, and having now proponed it, he could not pretend payment bona fide; and for verifying of his reason, he did at first offer to prove it by the charger's oath. But now by a bill upon the 24th instant, he offered to prove it by witnesses, that the assignation was in the defunct's hands when he died. The charger answered, That he was tutor to the heir, for whom he did concur, and from whom the suspender only could be in hazard. The suspender answered, That the heir was not entered, but if the charger would enter, and concur for him, he would pass from that reason.

The Lords sustained the reason on death-bed in favours of the debtor, and found that the assignation being in the son's hands on death-bed, amongst persons so conjunct as father and son, it was not sufficient to infer the not delivery thereof; and therefore found it only probable scripto vel juramento, and would not sustain the tutor's concourse, unless he entered the apparent heir.

The suspender further alleged, That this bond being granted for a part of the price of the land, the disposition whereof is the mutual cause of the contract, the assignee cannot urge payment of the price, till the mutual cause be performed, viz. the ratification of the heritrix, who may reduce the disposition upon minority; and if the child die unentered, Balmedie being but a liferenter, the disposition will be evacuated without any recourse upon warrandice. It was answered, That though the cedent were charged, yet he could not be suspended till the heritrix ratify, as being a part of the mutual cause; for though in mutual contracts, both parts should be performed alike, yet where the obligements on the other part are without delay, and upon the other part bear expressly, a term or delay, it must necessarily import a passing from that exception, as here the bond is presently payable; but the obligement to cause the heritrix ratify after her majority, is not performable till her majority.

The Lords found the answer relevant, that the mutual obligement having an express term not come, could not stop the execution of the bond, which is presently payable.

Fol. Dic. v. 1. p. 595. Stair, v. 2. p. 469.