Scottish Court of Session Decisions

This was an action of damages at the instance of David Sinclair, a public-house keeper and flesher at Armadale, in Linlithgowshire, against James Weddell, farmer at Woodend, for non-implement of an alleged lease, which was in these terms:—“Woodend Farm, 28th January 1867.—It is agreed by David Sinclair and James Weddell for the public-house in Bathgate for seven years' lease, the public-house to be £18 yearly, the flesh shop

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to be £6 yearly, and killing house and stable £4 yearly. (Initialed) J. W. (Signed) James Weddell.” To this writing the defender affixed a penny receipt stamp, across which he signed his name. No possession followed. The defender pleaded that the writing was not signed by the pursuer, bore no date of entry, and was otherwise insufficient to constitute a concluded contract of lease for the space therein mentioned.

In January the case was reported to the First Division by the Lord Ordinary ( Mure) with the following issue proposed by the pursuer:—

“Whether, on or about the 28th January 1867, the defender let to the pursuer, for the period of seven years from Whitsunday 1867, a public-house, flesher's shop, and slaughter-house in Bathgate, the property of the defender, at a rent of £28 or thereby? And whether the defender failed to put the pursuer in possession of the said subjects at Whitsunday—to the loss, injury and damage of the pursuer?”

Damages laid at £500.

His Lordship said in his note:—“On the more important question, whether the pursuer (having regard to the nature of his averments) is entitled to an issue to prove a seven years' lease, the defender maintains that as the only document founded upon by the pursuer is neither holograph nor tested, and it is not alleged to have been followed by possession, the case is not one for an issue, and that the issue should be refused, and the action dismissed, as was done in Currie v. M'Lean, 17th May 1864, 2 Macph. 1076. The pursuer, on the other hand, contends that the case of Currie has no application, as it was there admitted that no writing had passed between the parties; and that the proper course in the present case will be to allow an issue to go to trial, leaving the validity of the document to be dealt with as the judge who tries the case might direct. Should the Court be of opinion that this distinction is not well founded, the propriety of granting the issue will, it is thought, depend upon whether the document in question, having been admittedly written by the defender and only signed by the pursuer, though even that was not done until after the action was raised, can be held to be probative as a holograph writing and binding on both the parties concerned. And the Lord Ordinary, having regard to the decisions in the cases of Sproul v. Wallace, 24th Jan. 1809, Hume, p. 920, and Millar v. Farquharson, 29th May 1835, 13 S. 838, sees great difficulty in holding that it is.”

The Court held that after the decision of Sproul v. Wallace there could be no doubt that the issue on the informal missive must be disallowed. As, however, there was a previous verbal bargain alleged to have taken place in October 1866, the Court allowed the pursuer to put in an amended issue upon it.

The relative statement in the pursuer's condescendence was as follows:—“On or about October 1866 the defender agreed with the pursuer to let to the pursuer for seven years, or at least for one year from Whitsunday 1867 (at which term the defender was to give the pursuer entry to his said property) at a yearly rent for the public-house, which was also to be occupied as a dwelling-house, of £18, for the flesher's shop of £6, and for the slaughter-house of £4.” This agreement was made by the defender with the pursuer's wife, as acting for and on behalf of the pursuer, and duly authorised to do so, and in presence of three persona whose names were given.

The issue now proposed by the pursuer was:—

“Whether, in or about the month of October 1866, the defender let to the pursuer, for the period of one year from Whitsunday 1867, a public-house, flesher's shop, and slaughter-house in Bathgate, the property of the defender, at a rent of £28 or thereby? And whether the defender failed to put the pursuer in possession of the said subjects at Whitsunday 1867—to the loss, injury, and damage of the pursuer?”

Damages laid at £500.