Scottish Court of Session Decisions

The pursuer is a comb manufacturer, and the defender a turner at Silvermills, Stockbridge. In January 1870 negotiations commenced between the parties for a lease to the pursuer of part of the defender's premises. Eventually, on 31st March and 1st April, a lease was signed by the parties, in which the defender let to the pursuer a specified number of workshops for five years from the term of Whitsunday 1870, which was to be the term of entry. The defender also let to the pursuer part of the driving power of his steam engine. On this subject the lease provided as follows:—“And farther, the said Martin Clark hereby lets to the said John Stewart junior a portion, to the extent of eleven horse-power of the steam-power of the engine to be erected by the said Martin Clark upon the said subjects; and, until the said new engine is erected, he binds himself to furnish the said John Stewart junior with power, to the extent of five horse, from the present engine for the use of the works to be carried on by the said John Stewart junior, and obliges himself to supply the said steam power to the said John Stewart junior, and his foresaids, during the currency of this tack, each week-day, for the usual working time of ten hours, except Saturdays, when the same shall be supplied for six ordinary working hours, and except at such times as it may be necessary to repair the said engine, and the said Martin Clark shall supply and put up the main shaft and driving pulley in connection with the said engine, and shall keep the said engine, and shaft, and pulley in good working order during the currency of this lease at his own expense.” The lease also provided for the payment to be made for this steam power, and for a graduated rent in proportion to the amount supplied. The lease made no provision in regard to steam for heating the pursuer's machinery. But the pursuer alleged an agreement had been entered into on the subject in the month of February 1870. The contract, he averred, “as to driving power was afterwards embodied in a written lease, but as the amount of steam which might be required for heating was somewhat indefinite, the contract in regard to it was allowed to rest on the parole contract, it being however distinctly agreed that the defender would supply steam for heating purposes to whatever extent it might be necessary for the pursuer's business of comb-making, the nature of which the defender professed to be acquainted with.… The contract was, in point of fact, either by express words or overt acts, fully within the defender's knowledge, completely defined in all particulars except as to the price to be paid for the said steam for heating, but the pursuer has all along been ready and willing either to take said steam for heating as an equivalent of part of the steam power to which lie was entitled under the

Page: 403↓

written lease after-mentioned, or to pay the fair value thereof, as the same might be determined, either by agreement or by arbitration, or by some competent Court.” The pursuer also alleged that on the faith of this contract, entered into in February, he had been allowed to insert a pipe in the defender's boiler for the purpose of getting heating steam, but that on 19th May the defender had cut off the steam, and also deprived him of the driving power contracted for in the lease. The defender, on the other hand, denied that any such agreement had been made in February, and stated that towards the end of April he had allowed the pursuer at his request to employ the exhaust steam of the engine, and thereafter to insert a pipe in the boiler. But these concessions, he said, had been made gratuitously, and under the express condition that he should have power to cut off the heating steam if he found he was unable to give it. Finding the pursuer was abusing his indulgence to such an extent that occasionally his own machinery had been stopped for want of driving power, he had cut off the heating steam; but he expressly denied having deprived the pursuer of driving power. The pursuer had been allowed to take possession of the premises in March, and said he had put machinery into the premises, and entered into contracts, which had become worthless in consequence of the breach by the defender of the alleged verbal agreement; and he accordingly raised the present action, in which he sought £500 damages. The defender pleaded, inter alia—“(1) The averments of the pursuer are not relevant and sufficient to support the conclusions of the action; and (2), The alleged contract to supply steam for heating purposes, in so far as it relates to the time and matters embraced in the lease, can be proved only by the oath of the defender, or his writ subsequent to the date of the said lease.”

The Lord Ordinary ( Jerviswoode) on 21st February pronounced the following interlocutor:—

“ Edinburgh, 21 st February 1871.—The Lord Ordinary having heard counsel on the respective pleas, and made avizandum with the debate and process, and considered the same: Finds that the contract for the supply of steam for heating purposes, which is set forth in the second article of the condescendence for the pursuer, and to which contract the second plea in law for the defender relates, can be proved only by the oath of the defender, or by his writ, of a date subsequent to that of the written lease which is referred to in the record, and which forms No. 8 of process, and, with reference to the preceding finding, appoints the cause to be enrolled with a view to further procedure, reserving meanwhile the matter of expenses.

Note.—The question raised under the pleas for the defender to which the present interlocutor relates is not free from difficulty; but if the Lord Ordinary reads aright the opinion of the Lord Justice-Clerk (now Lord Justice-General) as reported in the case of Walker v. Flint, February 20, 1863 (Macph. 1417) it suffices to warrant, if it does not absolutely rule, the conclusion to which the Lord Ordinary has here given effect.”

On 28th February the pursuer obtained leave to reclaim. The defender objected to the competency of the reclaiming note. By section 28 of the Court of Session Act of 1868, it is provided that any interlocutor pronounced by the Lord Ordinary under sub-divisions 2, 3, and 4 of the 27th section shall he final, unless reclaimed against within six days. By section 1 of the A. S., 10th March 1870, it is enacted “that the 27th section of the said Act shall be altered to the effect of substituting for the enactments thereof the following provisions;” and by sub-division 3 it is provided as follows—“(3) If the parties are at variance as to whether there shall be proof, or as to what proof ought to be allowed, or if they or any of them shall maintain that one or more of the pleas stated on the record should be disposed of before determining on the matter of proof, the Lord Ordinary shall appoint the cause to be enrolled in a roll to be called the Procedure Roll; and the cause shall he forthwith enrolled in the said roll by the Lord Ordinary's clerk; and, after hearing the parties in the said roll, the Lord Ordinary shall pronounce such interlocutor as shall be just; and may either appoint proof to be taken, or dispose of such pleas on the record as he thinks ought to be disposed of at that stage. Provided always that it shall be competent to the Lord Ordinary, if he shall think right, to appoint the cause to be heard in the debate roll, in place of the procedure roll.” By section 2 it is enacted that the provisions of the 28th section of the Court of Session Act of 1668 “shall apply to all the interlocutors of the Lord Ordinary herein before referred to, so far as these import an appointment of proof, or a refusal or postponement of the same.”

Campbell Smith and J. M. Gibson, for the reclaimer, argued—The reclaiming note is competent, since the interlocutor does not appoint or refuse proof. No day is fixed for proof. The Act of Sederunt was not intended to apply to such an interlocutor as this, but only to one of procedure proper. The pursuer is entitled to proof prout de jure, as the agreement is separate from, and independent of, the lease. He could easily have got steam elsewhere for his heating purposes. The price could have been fixed by reference to the market price. The contract is, at any rate, validated by rei interventus. The defender's authorities only refer to heritage. Authorities— Walker v. Milne, 10th June 1823; Bell v. Bell, 9th July 1841.

Lees, in answer, argued—The note is incompetent. The interlocutor is virtually one appointing proof of a limited nature, and it is not necessary the diet should be fixed. If the restricting of the proof to writ or oath be not an appointment of proof, and only the allowing of parole proof be an appointment of proof, then this is an interlocutor refusing proof. Sub-division 3 of the first section of the Act of Sederunt narrates three matters—the variance of parties as to whether there shall be any proof, or what proof, or that preliminary pleas should be first disposed of; and in dealing therewith the Lord Ordinary is either to appoint proof, or dispose of the pleas. Appointment of proof must therefore be commensurate with whether there is to be any, or what proof; I and a variance as to whether the proof should be limited to writ or oath is a variance as to what proof shall be allowed. The second section comprises all interlocutors importing an appointment, refusing or postponing of proof; and to find a meaning for the words appointment or refusal, this interlocutor must fall under one or other. On the merits, the action is bad. Either the alleged agreement is a stipulation of the lease or a separate contract. If separate, it is incomplete, and deficient in essentialibus, as no price or duration is fixed; and the action is therefore irrelevant. The alleged agreement can only be made matter of relevant

Page: 404↓

allegation by reference to the lease, and incorporation with it. If so, it is a stipulation of the lease, and can only be proved by writ or oath. Authorities— Maxwell, M. 12,351; Alexander v. Gillon, 22d January 1847; Walker v. Caledonian Railway Company, 11th June 1858; Walker v. Flint, 20th February 1863; Philip v. Cumming's Executors, 3d June 1869.

At advising—