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Scottish Court of Session Decisions >>
Johnston v Armstrong. [1748] Mor 9172 (16 July 1748)
URL: http://www.bailii.org/scot/cases/ScotCS/1748/Mor2209172-033.html Cite as:
[1748] Mor 9172
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.
Johnston v. Armstrong
Date: 16 July 1748 Case No. No 33.
A marriage contract was extended, binding the bridegroom, with a cautioner, to repay the tocher to the wife, in case of her survivance, and signed by the parties, but not by the cautioner. The husband charged the obligee in the tocher, who suspended, on the ground, that it was a mutual contract, in which there was to have been a cautioner which not having happened, the contract was null. It was found he was obliged to pay, on the husband's finding caution.
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By contract of marriage betwixt Archibald Johnston in Carnwath and Margaret Armstrong, sister to Christopher Armstrong in Waterhead, the said Christopher, and Christopher Armstong of Howdale, became bound to pay to the intended husband L. 10 Sterling, with interest during not payment, in name of tocher, which he became bound to repay to the wife, in case of her surviving him; and it being agreed that he should procure George Johnston of White-know to bind as cautioner for him in this prestation, the contract was extended in these terms, and signed by all the parties, except George Johnston, who was not present, and never signed.
The marriage took effect, and Archibald Johnston charged Howdale for payment of the tocher, who made answer, That the deed was a mutual contract, and not being subscribed by all the parties intended to be bound on the other side, he was not obliged.
The Lord Ordinary, 2d July 1748, ‘found the letters orderly proceeded, the charger before extract finding sufficient caution to pay the L. 10 Sterling provided to his wife, in case she survived him.’
Pleaded in a reclaiming bill, It has always been found that a mutual contract is not binding unless signed by the whole parties intended to be bound thereby, Colvil, June 1583, Thain against Cant, No 14. p. 8405.; 25th March 1634, Lady Edenham against Stirling, No 18. p. 8408.; 6th January 1727, Sir Alexander Hope against Cleghorn, No 21. p. 8409.
It is argued for the charger, That matters are not entire, but this does not apply to a case where a contract is null for want of consent, but obtains where an agreement, to which writing would be necessary, is verbally made, and something done in consequence thereof, which takes away the right otherwise competent of resiling.
Observed, That not only the marriage had here intervened, but the suspender had no interest in the counter prestation which was to be made to the wife, and which his plea tended to frustrate her of.
