Scottish Court of Session Decisions

On 22d November 1884 John Smith, tenant of the farm of Bogmill, on the estate of Balquhain, in the county of Aberdeen, who was then about eighty years of age, entered into an arrangement with James Riddell, designed in the deed as “at present residing at Woodside, Wester Fintray, the husband of my niece.” The agreement, which was entitled an assignation, proceeded on the narrative that Smith was in consequence of old age unable efficiently to attend to his farm and business, and desired to be relieved of it, and that Riddell should succeed him as tenant, and have the stocking transferred to him, and that Riddell had agreed thereto. It was further agreed that Riddell should give Smith suitable aliment in his own family for the rest of his life, whether at Bogmill or whether the parties went elsewhere. On the other hand, Smith assigned to Riddell the lease, with the stocking, crops, and other effects thereon, giving him power to take the stocking, &c., as his absolute property.

Riddell signed the assignation in token of his assent to its terms.

Riddell and his family came to Bogmill, and he managed the farm for about six months, but died in July or August 1885. His widow was appointed executrix. On 31st August 1885 Smith sent a letter of removal to the landlords, the trustees of the late Colonel Charles Leslie, proprietor of Balquhain, and a notice of removal in terms thereof was served upon him as tenant on 26th October 1885. He was merely a yearly tenant, and his lease had expired at Whitsunday 1883.

Mrs Riddell, as executrix of her late husband, claimed the whole stocking on the farm, and as Smith was to leave and her husband was dead, advertised for sale on a certain day the stocking of the farm of Bogmill.

On the 24th April Smith brought an action before the Sheriff against Mrs Riddell, as executrix of her late husband, to interdict her from advertising the sale of the said stocking, or from selling the stocking, &c., on the farm of Bogmill, which he averred to be his property. He, on his part, advertised a sale of the stocking. Mrs Riddell brought a counter action to prevent Smith from selling the crop, stocking, &c., on the farm, or advertising the sale. From the admissions in the record it appeared that Mrs Riddell had offered Smith an aliment of £15 a-year, but without security, and offered alternatively an aliment at Wood-side, whither she had gone, but he had declined the offer. It appeared from the statements of both parties in these actions that there were rumours prejudicial to Mrs Riddell's character, and Smith stated that he declined to take up his residence with her.

In the action Smith v. Riddell the pursuer pleaded—“The defender having threatened to interfere with the property and rights of the pursuer as libelled, the pursuer is entitled to be protected against such interference.” He also pleaded—“The defender being unable to perform James Riddell's part of the agreement libelled, which is of a strictly personal nature, the pursuer is not bound, and the defender having no interest beyond that of an ordinary creditor in the stocking and other effects at Bogmill, she is not entitled to interdict. (2) Esto the agreement subsists, the defender's author not having fulfilled, and being now unable to fulfil his part thereof, the defender is barred from insisting on the performance of the counterpart by the pursuer. (4) There being a strong delectus personæ between the parties to the agreement, and the defender's author having failed in the performance of his part, the defender cannot fulfil the obligations incumbent on the defender's author, and parties should now be restored.”

The defender pleaded—“The defender having only advertised a sale of the effects belonging to her as executrix of her deceased husband, the pursuer is not entitled to interdict. The assignation being for onerous causes, and having been completed by possession, cannot now be resiled from.”

The pleadings in the action Riddell v. Smith appear from the narrative already given.

Interim interdict was granted in both actions.

On 12th May 1886 the actions were conjoined, and on 7th June 1886 the Sheriff-Substitute ( Dove Wilson) recalled the interim interdict obtained at the instance of Riddell against Smith, and declared perpetual the interdict at his instance against her.

“ Note.—The agreement which the defender founds upon contemplated that her deceased husband should be substituted as tenant for the pursuer in his farm, and should thereafter manage it, or any other farm to which they might remove, and should likewise maintain the pursuer at bed and board for the rest of his life. In return for this the deceased was to get the pursuer's whole stocking on the farm as his own property. In virtue of this agreement, the deceased, with the defender, went to reside in the pursuer's house, and to manage the farm, but before he had done so for six months, and before he had been accepted as tenant, he died. As the agreement could not be carried out, the pursuer gave up the farm, and the present dispute as to the stocking has arisen.

“Whatever difficulties might have arisen had the deceased not died till after he had been received as tenant by the landlord, and after the assignation and delivery of the stocking to him had been thus completed, it seems to me that his death while delivery was incomplete put an end to the agreement. At that time if the pursuer had refused to go on and complete the deceased's entry, or if the landlord had refused to accept him, or if anything whatever had then occurred to prevent the pursuer from giving complete implement, the deceased might have refused to go on. In the same way it seems to me that the defender's inability to give implement of the agreement puts an end to it. The obligation on the defender's side was not that she or somebody whom she might select was to board the pursuer and manage his farm for him. It was an obligation that the deceased was to do so, and to substitute for the deceased a person with whom the pursuer might have no comfort, and in whom he might have no confidence, would not be just.

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An unforeseen circumstance has put an end to the possibility of carrying out this agreement, before delivery under it was complete, and as the defender can no longer offer the consideration, she seems to me no longer entitled to demand the completion. It seems to me that it cannot well be questioned that, so long as the pursuer was tenant of his farm, and resided on it, he could not be held to have given complete delivery of it or of its stocking to any other party.

“If the defender has any claims against the pursuer for board supplied to him, or for remuneration to her husband for the services he rendered, or upon any other ground, these are fully reserved to her by the judgment.”

The defender appealed to the Sheriff. On 23d June the Sheriff ( Guthrie Smith) dismissed the appeal and affirmed the Sheriff-Substitute's interlocutor.

“Note.—I think that this case has been rightly decided by the Sheriff-Substitute. The respondent, an old man of over 80 years of age, wished James Riddell to come and manage his farm for him and succeed him in the tenancy—an arrangement to which the landlord apparently had no objection, being willing to ‘grant a new lease in which Riddell would be recognised as tenant or joint-tenant.’ But before this could be carried out Riddell died, and now neither the respondent nor the landlord will have anything to do with the widow. It is quite clear, in these circumstances, that she has no title to enforce the contract to the effect of demanding delivery of the stocking and other effects which were to have been given to Riddell when the new lease had been arranged, in consideration of the respondent being allowed to live in family with him when he was managing the farm. The whole arrangement has proved abortive. The property had never passed out of the respondent's possession. The contract was as purely a personal contract as could be—for it was Riddell, and not his wife, that he had in view when he entered into it, and it would not be fulfilled by his being offered a home somewhere else.

The defender appealed to the Court of Session, and argued—The agreement between Smith and Riddell acted as an assignation of the stocking on the farm of Bogmill, and the widow as executrix of her late husband was therefore entitled to it. As the proprietors of Bogmill would not keep on the widow as tenant, she was entitled to sell the stocking to enable her to stock another farm. She was willing to implement the agreement and aliment the old man, her uncle.

Argued for the respondent—According to the agreement Riddell was to take the management of the farm and succeed Smith as tenant, while alimenting him during his life, but when Riddell died the agreement fell. This was merely a family arrangement and not a business contract. Now that the agreement could never be carried out, affairs ought to be put back into the position they were in before.

At advising—