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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> La Van v. Gavin Aird & Co., Ltd [1919] ScotLR 212 (22 January 1919) URL: http://www.bailii.org/scot/cases/ScotCS/1919/56SLR0212.html Cite as: [1919] SLR 212, [1919] ScotLR 212 |
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Page: 212↓
[Sheriff Court at Greenock.
A debtor against whom an open decree in the Small-Debt Court had been obtained presented a petition for the recal of arrestments used by the creditors on the decree, and averred a verbal agreement between the parties by which defenders agreed to accept payment of the balance of the amount due by instalments of 5s. weekly, and that payment of certain instalments had followed thereon. The alleged verbal agreement was denied, but it was admitted that certain sums had been paid on the debt. Held that the payments in question not being inconsistent with the written obligation constituted by the decree did not amount to rei interventus so as to render admissible parole evidence of the alleged verbal agreement, and that the latter could accordingly only be proved by the writ or oath of the defenders.
William Lavan, railway servant, Greenock, pursuer, presented a petition in the Sheriff Court at Greenock for recal of arrestments used by Gavin Aird & Company, Limited, Glasgow, defenders, in virtue of an open decree for £7, 10s. 5d. obtained by them in the Small-Debt Court at Greenock in the hands of the Glasgow and South-Western Railway Company, Greenock, the pursuer's employers.
The parties averred—“(Cond. 3) With a view to arranging matters pursuer's wife on or about 16th November went to Glasgow and called upon defenders and interviewed their representative (whose name is unknown to pursuer). The result of this meeting was an agreement between parties by which defenders agreed to accept payment of the balance of the amount due under the decree by instalments of 5s. weekly, the first instalment to be paid on 24th November. The first instalment of 5s. was duly paid on 24th November, the second on 1st December, and the next on 8th December, and pursuer relied on defenders not doing further diligence under the decree so long as the agreed-on instalments were regularly paid. The arrested money has been paid to defenders. ( Ans. 3) Admitted that pursuer's wife called upon the defenders as stated and interviewed their manager, and that the sum attached by the first arrestment, amounting to 15s. 5d., was received on 11th December.… Averred that at the meeting referred to defenders offered to accept 8s. per week—the amount then unpaid under the decree being £7, 17s.—and that pursuer's wife refused to pay more than 3s. per week, with the result that no agreement whatever was come to. At the same time she was warned that if 8s. per week were not paid diligence would be done on the decree. The actings of pursuer and his wife subsequent to the first arrestment were prompted by their desire to stave off or at least delay further diligence. No mention was made of the alleged agreement by or on behalf of the pursuer until his agents by letter dated 15th December 1917 demanded withdrawal of the after-mentioned second arrestment.”
The defenders pleaded, inter alia—“3. The alleged agreement being a modification or partial renunciation of a written obligation, viz., the decree, can only be proved by the writ or oath of the defenders.”
The pursuer pleaded, inter alia—“4. Esto that the decree is a written obligation in the sense pleaded by defenders, the verbal agreement averred by pursuer having been followed by rei interventus, proof prout de jure of pursuer's averments should be allowed.”
On 31st January 1918 the Sheriff-Substitute ( Welsh) sustained the fourth plea-in-law for the pursuer, repelled the third plea-in-law for the defenders, and allowed a proof.
Proof was subsequently led and on 13th March 1918 the Sheriff-Substitute recalled the arrestments.
The defenders appealed, and argued—Parole evidence was incompetent to modify the decree. The Court had never allowed evidence as to the grounds on which a decree had been granted— Countess of Argyll v. Sheriff of Murray, 1583, M. 12,300. A written obligation could only be altered by writ or oath— Hunter v. Dun, 1809, Hume 584; Kerr v. Skedden, 1737, Elchies s v. Locus pœnitentiæ; Hamilton and Baird v. Lewis, 1893, 21 R. 120, 31 S.L.R. 97; Reid v. Gow & Sons, 1903, (O.H.) 10 S.L.T. 606; Sutherland v. Montrose Shipbuilding Company, 1860, 22 D. 665; Kirkpatrick v. Allanshaw Coal Company, 1880, 8 R. 327, 18 S.L.R. 209; Carron Company v. Henderson's Trustees, 1896, 23 R. 1042, 33 S.L.R. 736; Bargaddie Coal Company v. Wark, 1859, 3 Macq. 467; Walker v. Flint, 1863, 1 Macph. 417. Parole proof was only competent to modify a written agreement where there were averments of actings inconsistent with the terms of the obligation, and that was not the case in the present action. The averments of part payment were not inconsistent with the enforcement of the decree and did not amount to rei interventus.
Argued for the respondent—The pursuers had sufficiently averred an agreement inconsistent with the terms of the decree, and the fact that payment by instalments had been made was inconsistent with enforcement of the decree for the full amount. The authorities quoted by the appellants were not in point because they dealt with abandonment of the debt. Reference was made to Turnbull v. Oliver, 1891, 19 R. 154, 29 S.L.R. 138.
On 7th November 1917 the appellants obtained against the respondent in the
Page: 213↓
The defenders, among other pleas, stated this plea—“The alleged agreement being a modification or partial renunciation of a written obligation, viz., the decree, can only be proved by the writ or oath of the defenders.” The Sheriff-Substitute having closed the record, had a debate upon the preliminary pleas, with the result that on 31st January he pronounced an interlocutor in which he sustained the 4th plea-in-law for the pursuer—which was a plea in replication of that of the defenders which I have just read—repelled that 3rd plea, and allowed a proof. The point which has been raised in the debate before us, so far as it has gone, has been whether that judgment of the Sheriff-Substitute—repelling the 3rd plea for the defenders, sustaining the 4th plea for the pursuer, and allowing a proof—is sound.
In my opinion that judgment cannot stand. As I understand it, the position with regard to the discharge or modifying of obligations constituted by writingdepends upon authorities which have been quite well settled for a long period, certainly since the decision in the case of Kirkpatrick v. Allanshaw Coal Company, 8 R. 327, 18 S.L.R. 209, and amounts to this—where there is a written agreement constituting obligations between the parties these obligations can neither be discharged nor modified unless there be an agreement so to discharge or modify them followed by actings on that agreement inconsistent with, or contradictory to, the original obligation. Cases on the point have been decided by the Court from time to time.
Of course this is a decree, and therefore different from the obligations arising under it, or rather different from contractual obligations; but that, it seems to me, is in favour of the holder of the decree (the defenders in this action) rather than the pursuer, because, confessedly, one of the most solemn modes of the constitution of an obligation is by a decree of the Court obtained in foro. The authorities to which we were referred, beginning with the Countess of Argyll, M. 12, MOO, show to my mind that an obligation constituted by decree cannot be more easily discharged by subsequent actings of the parties than a contractual obligation would. And in order to get rid of even a contractual obligation I think you must have two things—In the first place, an averment of an agreement inconsistent with the written obligation; and secondly, actings upon that verbal agreement which are inconsistent with the original obligation.
We have been referred to the case of the Bargaddie Coal Company v. Wark, 18 D. 772, where what had been done was clearly inconsistent with the lease which was founded on, because by the lease the coalminers were bound to leave certain barriers of coal, and the complaint made against them was that they had broken through these barriers in the course of their working and opened up the field without leaving the barriers as they were bound to do. Clearly that was not only inconsistent with but in contravention of the terms of the lease. Following upon that decision we have the case of Sutherland v. Montrose Shipbuilding Company, &c., 22 D. 665, decided in 1860, where Lord Justice-Clerk Inglis clearly explained his view as to the import of the judgment of the House of Lords in the Bargaddie case, 3 Macq. 467. Thereafter—in 1880—the case of Kirkpatrick v. Allanshaw Coal Company was decided, and it showed that one of the most important elements in the considerations which allow written agreements to be got rid of was that the actings relied upon must be inconsistent with the original agreement. Mr Wark quite frankly conceded that that was a necessary part of his case—that he must aver not only the agreement, but that he must aver also actings inconsistent with the terms of the decree.
The only actings here alleged are three payments of the 5s. instalments which were made and accepted by the defenders—the holders of the decree. I cannot regard the fact of payments by instalment, in itself and alone, as in any sense inconsistent with the decree by which the creditor could, if he chose, insist upon immediate payment. They are partial payment and quite consistent with the decree for the immediate payment of the whole sum. The Sheriff-Substitute in dealing with this part of the case says, that “the defenders consented instead of being in a position to enforce an open decree to accept payment of the balance due under the decree by instalments, and this is an alteration of a written obligation which the pursuer is entitled, in my view, to prove by parole evidence.” Then he goes on to refer to the Lord Justice-Clerk Inglis's observations in the case of Bargaddie Coal Company, where his Lordship said that he took the rule of law “to be, that where there are averments of acquiescence in operations inconsistent with the terms of the written contract they may be admitted to proof.”
I cannot, as I have said, regard acceptance of instalments to account of the total sum due in the decree as in any sense inconsistent with the decree. Accordingly in my judgment the Sheriff-Substitute erred in allowing a proof at all, and we should therefore recal his judgment and find that the
Page: 214↓
The Court recalled the interlocutor of the Sheriff-Substitute and assoilzied the defenders.
Counsel for the Pursuer and Respondent— Wark. Agents— Laing & Motherwell, W.S.
Counsel for the Defenders and Appellants— Maclaren— Burnet. Agent— James G. Bryson, Solicitor.
