Scottish Court of Session Decisions

This was an action of damages at the instance of a tenant on the estate of Altyre against the executors of the late Sir Alexander Penrose Gordon-Cumming of Altyre and Gordonstown. The pursuer was tenant of the farm of Auchness for a period of nineteen years prior to Whitsunday 1800, and on the 15th August 1859 he obtained a renewal of his lease for a further period of nineteen years from Whitsunday 1860. No formal lease was entered into, but a minute of lease was duly signed by the pursuer and Sir A. P. Gordon-Cumming. Upon the same day—the 15th August 1859—on which this minute of lease was entered into, the pursuer averred that a verbal agreement, to which no reference was made in the written minute, was made between himself and the landlord, that the former should reclaim a piece of waste land on the farm about ninety acres in extent, and that the landlord should immediately construct a road to the ground so to be reclaimed, which road was absolutely necessary to render the ground available for cultivation. This agreement, it was averred, was entirely independent of, and was not intended by the parties to be superseded by, the minute of lease. On the faith of this agreement, the tenant proceeded with reclaiming operations, so far as they could be carried on without a road, and the landlord caused a road to be staked out. No road was, however, constructed; and this action was brought by the tenant to recover damages for the loss he had sustained in consequence of the agreement not being implemented, and pleaded that the verbal agreement had been validated rei interventu, and could be proved prout de jure. The defenders pleaded that the alleged verbal agreement could only be proved by writ of Sir A. P. Gordon-Cumming—a reference to his oath being excluded by his death in 1866.

The Lord Ordinary (Manor) pronounced the following interlocutor and note:—

“ Edinburgh, 12 th May 1869.—The Lord Ordinary having heard parties' procurators, and considered the closed record, productions, and whole process—Finds that the alleged verbal agreement, whereby a new stipulation is said to have been imported into the written contract of lease by which the pursuer holds the farm of Auchness, and in respect of the non-fulfilment of which stipulation the present action is brought, cannot competently be proved by parole evidence, or otherwise than by writ or oath: Finds that probation by oath is excluded, in consequence of the admitted fact of the death of Sir Alexander Penrose Gordon-Cumming, with whom the alleged agreement is said to have been made; but finds that it is still open to the pursuer to prove the same by writ, if he any has: And, with these findings, appoints the cause to be enrolled for further procedure.

“Note.—The written minute of lease, dated 15th August 1859, under which the pursuer possesses the farm of Auchness, is drawn in very brief terms, but its brevity is supplemented by a general reference to the regulations of the estate, embracing a long detail of particular conditions. The minute contains certain vague and indefinite expressions as to the improvement of waste land, with money to be advanced by the proprietor, and expended under the conditions of the Lands Improvement Company. But to these the pursuer attached no weight or importance. He founds his case solely on the alleged verbal agreement, with regard to the terms of which he says that he had an interview with Sir Alexander Cumming on the 11th of August, immediately preceding the execution of the minute of lease on the 15th, and that on that latter day both the minute was signed and the verbal agreement completed between the parties. The minute bears no reference to any such agreement, nor does it distinctly appear even as matter of averment whether the subscription of the minute or the completion of the agreement was first in point of time, both being said to have taken place on the same day. This, however, does not appear in any way material in the shape in which the pursuer's case is put. He avers (condescendence 6) ‘that the said verbal agreement was specially in view of the parties at the time the minute of lease was entered into and signed, but was entirely independent of, and not intended by either party to be superseded by, said minute of lease.’ In these circumstances, the plain result is, that the pursuer is founding on a lease containing special conditions and stipulations which are not in the written minute, while the defenders, the representatives of the deceased landlord, contend that he is not entitled to anything but what is given him by the terms of the minute; and that if he seeks anything more by virtue of an alleged separate verbal agreement, he must prove such agreement by proper legal evidence. In this contention the Lord Ordinary is of opinion that the defenders are right, and that the verbal bargain can only be proved in one or other of two ways—that is, by writing or by oath. The latter of these modes of proof is now shut out by the death of Sir Alexander Cumming; but if the pursuer has any writ to support his case, it is still perfectly competent for him, and an opportunity has accordingly been given him to resort to it. In the meantime, and till the agreement be proved, his averments of rei interventus can be of no avail to him whatever.

“The Lord Ordinary conceives that this case is clearly ruled by the decisions in Paterson v. Earl of Fife, 27th January 1865, 3 Macph. 423, and Walker v. Flint, 20th February 1863, 1 Macph. 417, and other authorities there referred to.”

The pursuer reclaimed.

Shand and Reid for him.

Clark and H. J. Moncreiff in answer.

The Court adhered.

The rule of law was quite clear that such an agreement as was alleged by the pursuer could only be proved by writ or oath. Proof prout de jure had been excluded by a consistent series of authorities. Till the agreement was set up in a competent way, the alleged rei interventus could not avail. But the rei interventus set forth consisted of acts which were presumably taken on the faith of the lease, they being ordinary farming operations, and was not of that particular nature as to suggest the idea that it had followed

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upon the alleged verbal agreement, but for which it would not have taken place.