M'Cormick v. Dalrymple [1904] ScotLR 41_578 (27 May 1904)

M'Cormick v. Dalrymple [1904] ScotLR 41_578 (27 May 1904)

The contract expressly made payment of the purchase price conditional on the licence being granted and confirmed in favour of the purchaser. The failure to obtain confirmation of the licence was due to circumstances beyond the control of either party, not to any fault or omission by the purchaser. Therefore, the purchaser was entitled to repayment of the deposit.

Citation
[1904] ScotLR 41_578
Parties
Claimant and Real Raiser, Respondent: Thomas M'Cormick; Claimant and Reclaimer: William Paterson Dalrymple; Pursuers and Nominal Raisers: Commercial Bank of Scotland
Jurisdiction
Scotland
Judgment Date
27 May 1904
Procedural Posture
Action of Multiplepoinding / Appeal (reclaiming Motion) From Lord Ordinary's Judgment
Outcome
Appeal dismissed; judgment for M'Cormick affirmed.
Legal Topics
Conditional Contracts, Sale of Business, Public House Licensing, Deposit of Purchase Price, Frustration of Contract
Contract Law Commercial Law Conditional Contracts Sale of Business Public House Licensing Deposit of Purchase Price Frustration of Contract

Case Brief

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Parties

Thomas M'Cormick

Claimant and Real Raiser, Respondent

William Paterson Dalrymple

Claimant and Reclaimer

Commercial Bank of Scotland

Pursuers and Nominal Raisers

Procedural Posture

Action of Multiplepoinding / Appeal (reclaiming Motion) From Lord Ordinary's Judgment

Legal Issues

  1. 1 Whether the purchaser (M'Cormick) was entitled to repayment of the deposit when the licence was not confirmed due to circumstances beyond the parties' control.
  2. 2 Whether the purchaser was under a contractual obligation to secure the premises at any cost to fulfil the contract.

Ratio Decidendi

The contract expressly made payment of the purchase price conditional on the licence being granted and confirmed in favour of the purchaser. The failure to obtain confirmation of the licence was due to circumstances beyond the control of either party, not to any fault or omission by the purchaser. Therefore, the purchaser was entitled to repayment of the deposit.

Court Disposition

Appeal dismissed; judgment for M'Cormick affirmed.

Orders

  • M'Cormick ranked and preferred to the fund in medio; entitled to repayment of the deposit.
  • Dalrymple's claim repelled.