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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jamieson v. Welsh [1900] ScotLR 38_96 (30 November 1900) URL: http://www.bailii.org/scot/cases/ScotCS/1900/38SLR0096.html Cite as: [1900] ScotLR 38_96, [1900] SLR 38_96 |
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Page: 96↓
By missives of sale it was agreed that the proprietor of certain heritable subjects should sell them “with the fixtures and fittings therein.” By a disposition following thereon granted by the seller in favour of the purchaser, and accepted by him, the seller disponed merely the heritable subjects in question, no mention being made of either fixtures or fittings. The disposition did not bear to be granted or accepted in implement of the contract as embodied in the missives, nor did it contain any reference to them. The sum in consideration of which the disposition bore to be granted was the same as the price stipulated in the missives.
In an action at the instance of the purchaser against the seller, for the value or cost of replacing or repairing certain articles described as “fixtures and fittings” which were alleged to have been removed or damaged by the defender, the defender maintained that the disposition granted to the pursuer was the sole measure of his right, and that he was not entitled to claim any articles which were not in law fixtures as between seller and purchaser.
Held that, as the missives gave the purchaser right not only to the heritable subjects and their accessories, which were capable of being conveyed by a disposition, but also to “fittings”, which were corporeal moveables, and as the disposition did not purport to be granted in implement of any contract, the missives, quoad the “fittings”, were not superseded by the disposition, and the purchaser's acceptance of the disposition did not prejudice his right to the “fittings” under the missives.
By letter dated 29th March 1899, addressed by Mr Campbell, S.S.C., on behalf of Mr James Jamieson, contractor, Musselburgh, to Messrs Welsh & Forbes, S.S.C., agents for Mr John Welsh, Mr Campbell offered the sum of £1475 “for the subjects known as Greenhall, Musselburgh, as advertised … with the fixtures and fittings therein so far as belonging to the proprietor.”
On the same date Messrs Welsh & Forbes appended to this offer an acceptance in these terms, “We hereby accept the foregoing offer.”
By disposition dated 16th May 1899 Mr Welsh as “heritable proprietor of the subjects and others hereinafter disponed,” in consideration of the sum of £475 instantly paid to him by Mr Jamieson, and in consideration of the pursuer freeing and
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relieving him of the sum of £1000 in a bond and disposition in security therein mentioned, disponed to and in favour of Mr Jamieson and his heirs and assignees, heritably and irredeemably, “All and whole that house of two storeys or floors and garrets called Greenhall, and two smaller houses on the west end thereof, with 23 falls and 4 ells of ground or thereby belonging thereto, … together with the teinds, both parsonage and vicarage, and whole parts, pendicles, privileges, and pertinents of the subjects above disponed.” The disposition contained no reference to the contract embodied in the missives set out above, and there was no mention of the “fixtures and fittings.” Mr Jamieson raised an action against Mr Welsh, and also against another defender who did not lodge defences, concluding for payment of £75 made up of (1) £50, the value of certain articles which the pursuer averred had been removed from the premises by the defender; and (2) £25, the cost of repairing and replacing certain other articles damaged or removed by the defenders.
The pursuer averred that on taking possession of the property bought by him he found that certain “fixtures and fittings” had been removed wrongfully and in contravention of the missives by the defender or with his consent. The articles so alleged to have been removed were specified as follows—“(Cond. 3) … (1) in drawing-room, grate built in, large gasalier with crystal drops and finger-plates; (2) in dining-room, grate built in, two fingerplates, pedestal with gas-bracket in lobby;(3) in east bedroom, grate, two finger-plates, gas-bracket unscrewed; (4) west bedroom, grate, two gas-brackets unscrewed; (5) back bedroom, grate, gas—bracket unscrewed; (6) attic, gas-bracket and grate removed. In Greenhall Cottage—(1) gasbracket in scullery, and in the small bedroom off scullery, one gas-bracket; (2) in kitchen, range, with high-pressure boiler, and double-jointed gas-bracket; (3) in lobby, square-shaped gas lamp from ceiling; (4) in parlour, grate, gasalier, and finger-plates; (5) in front sitting-room, grate, gas-fittings, and finger-plates; (6) in east and west bedrooms, grate, and gas-fittings; (7) in dressing-room, gas-bracket; and (8) gas-bracket. In the principal greenhouse, window opening rods and handles.” He averred that these were “fixtures and fittings belonging to the proprietor, sold in the sense of the missives.”
He further averred (Cond. 5) that damage to the amount of the second branch of his claim had been done to the subjects by the defender; and that it had cost him £75 to replace the articles removed or damaged.
The defender Welsh pleaded, inter alia—“(4) The disposition granted to the pursuer being the sole measure of his right, he is not entitled to any of the articles claimed, and this defender is entitled to absolvitor. (5) In any event, the said articles not being of the nature of fixtures, the defender should be assoilzied.”
Opinion.—“In the missives of sale the pursuer's offer is to purchase Greenhall House and Greenhall Cottage ‘with the fixtures and fittings therein so far as belonging to the proprietor.’
I do not think that the mention of ‘fixtures’ adds anything to the offer, because the ordinary meaning of the word, when used in reference to such a transaction, is such articles as, in the absence of special stipulation, pass to the purchaser of the house, although capable of being removed.
The word ‘fittings’, however, is in a different position, and presumably means such things as ordinary grates or gasbrackets, which in the absence of a special agreement the seller would be entitled to remove.
If, therefore, the question raised in this case depended upon the construction of the missives, I should be disposed to hold that the articles enumerated in the condescendence (article 3) were included in the sale.
The pursuer, however, has accepted a disposition in which there is no mention of fixtures and fittings. That disposition will carry all those things which the law regards as part of the building in a question between seller and purchaser but will not carry anything more, and I think that it is settled that articles which are so slenderly affixed to the building as grates and gasbrackets, and which can be removed without injury to themselves or to the building, are not part of the building, and do not
Page: 98↓
The question therefore is, whether it is competent for the pursuer to go behind the disposition and to found upon the missives of sale? I am of opinion that that question must be answered in the negative. There were not here two contracts, one in regard to the heritable subjects and the other in regard to the fittings. There was only one contract, and the disposition was intended to give effect, and was accepted as giving effect, to that contract. It is the disposition alone, therefore, which regulates the rights of parties, and it is not said that the disposition is in any way ambiguous. The pursuer, accordingly, is entitled to everything which is embraced within the dispositive clause, and to nothing more.
Now, most of the articles enumerated in the condescendence appear to me not to be fixtures. Grates which are built in in the ordinary way, and which can be removed without injury to themselves or to the walls, are not fixtures, and it is not said that there is anything peculiar in the way in which the grates in the house in question are built in. Again, gas-brackets and finger-plates which are merely affixed by screw-nails are not fixtures. There are, however, two of the articles enumerated in regard to which I am doubtful. There is a kitchen range with high-pressure boiler, and I think that very probably that may be a fixture. Then in the principal greenhouse opening rods and handles are said to have been taken away. I assume that it is admitted that the greenhouse is a fixture, and if the opening rods and handles were attached to a moveable part of the framework of the greenhouse whereby it could be opened or shut, I am inclined to think that they would form part of the structure, although they might be removable merely by unscrewing a nut.
I therefore think, that as regards the kitchen range and the greenhouse fittings I must ascertain the precise facts.
The pursuer further avers that the defenders have removed the lock of a door in Greenhall House and unscrewed a gasbracket. I presume that that is a gasbracket which the defenders have not removed, but if they were entitled to remove it, as I think they were, there can be no claim for their having unscrewed it. As regards the lock of the door, I apprehend that a seller is no more entitled to remove the lock of a door than he is to remove the door itself. The pursuer further avers that in Greenhall Cottage the defenders have broken a door and cut the water and gas-pipes. Prima facie if that is the case the pursuer has a claim against the defenders.
I am therefore of opinion that there must be inquiry in regard to the character of the kitchen range and the opening rods and handles in the greenhouse, and also in regard to the averments in condescendence 5 of damage done to the subjects.”
The pursuer reclaimed, and argued—It was permissible to look at the missives with regard to the moveables. The pursuer had bought two distinct things, the house and the fittings. The latter comprised such articles as in the absence of any stipulation with regard to them would not go to the purchaser of a house. “Fixtures” as distinguished from “fittings” were those things which in the absence of special stipulation would pass to the purchaser. The disposition carried all which could legally be carried by it, i.e., the house and fixtures, and natually there was no mention of the fittings, which as moveables could not be carried by such a disposition. Accordingly the contract with regard to them must be found in the missives, and on turning to them it appeared that the fittings as well as the fixtures were included in the sale. The disposition was not intended to embody and give effect to the whole contract contained in the missives, but merely that part which it could legally carry out, the transfer of the heritage. The transfer of the fittings could not be completed by a disposition.
Argued for the respondent—The formal disposition superseded all prior communings and agreements, and it was not competent for the pursuer to go behind it and found upon the missives of sale— Orr v. Mitchell, March 20, 1893, 20 R. (H.L.) 27; Lee v. Alexander, August 3, 1883, 10 R. (H.L.) 91. Accordingly the pursuer was entitled to nothing but what was embraced in the dispositive clause. There were not two contracts, one with regard to the heritable subjects, and the other with regard to the fittings. Certain fittings and fixtures were by presumption of law covered by the disposition, and to these alone was the pursuer entitled. The fact that the consideration for which the disposition was granted was the exact sum offered and accepted in the missives, showed that the pursuer was only entitled to what was conveyed in the disposition.
At advising—
I fully accept the doctrine laid down in the House of Lords in the case of Lee v. Alexander, 10 R. (H.L.) 91, that “The execution of a formal conveyance, even when it expressly bears to be in implement of a previous contract, supersedes that contract in toto, and the conveyance thenceforth becomes the sole measure of the rights and liabilities of the contracting parties;” and in the dictum of Lord Watson in the case of Orr v. Mitchell, 20 R. (H.L.) 27, that “when a disposition in implement of sale has been delivered to and accepted by the purchaser, it becomes the sole measure of the contracting parties'
Page: 99↓
It was, however, maintained by the defender that, even assuming that this would have been so if separate prices had been stipulated to be paid for the heritage and the moveables respectively, the result should be different, where, as in the present case, a cumulo price was stipulated to be paid for the heritage (including the fixtures) and the fittings. But I am unable to see how this can make any difference if the views above expressed are correct. The obligation would still remain to deliver the corporeal moveables, unless the claim to them had been discharged by accepting delivery of the conveyance of the separate heritable estate, which, for the reasons already given, I think it could not be.
I am therefore of opinion that the Lord Ordinary's interlocutor should be recalled, and that a proof should be allowed to the parties of their respective averments.
I am unable to assent to the Lord Ordinary's view of the question at issue. He says the question is, whether it is competent for the pursuer to go behind the disposition and to found on the missives of sale. He answers this question in the negative, but it seems to be very doubtful whether he has carried out that answer to its logical conclusion, because after having decided that he cannot go behind the disposition he proceeds to decide the case upon a construction of the missives of sale. He says there is one contract not two, and on that ground he holds that the disposition was merely intended to carry into effect the previous contract. I do not advert to this
Page: 100↓
arises at all; and secondly, because for the reasons stated by your Lordship the disposition does not supersede the contract in this matter. The disposition is a written instrument for its own purposes, and has nothing to do with the sale of corporeal moveables, as to which the rights of parties must depend on the terms of the original missives, which constitute the contract, and which are the only writings having any bearing on this part of the subject-matter.
The Court pronounced this interlocutor:—“Recal the said interlocutor: Allow to both parties a proof of their respective averments, and decern,” &c.
Counsel for the Pursuer and Reclaimer— Craigie— D. Anderson. Agents— Alexander Campbell & Son, S.S.C.
Counsel for the Defender and Respondent— W. Campbell, Q.C.— Welsh. Agents— Welsh & Forbes, W.S.
