Oswald v. Fairs [1910] ScotLR 279 (08 December 1910)

Oswald v. Fairs [1910] ScotLR 279 (08 December 1910)

The amendment of the defender's plea after proof to introduce a new ground of defence based on fraudulent misrepresentation was improperly allowed, as it prejudiced the pursuer by depriving him of fair notice. Even if the amendment were allowed, the evidence did not establish grounds for reduction of the contract, and the evidence of similar representations to a third party was inadmissible to prove the alleged misrepresentation to the defender.

Citation
[1910] ScotLR 279
Parties
Pursuer/reclaimer: David Oswald; Defender/respondent: Alfred Fairs
Jurisdiction
Scotland
Judgment Date
08 December 1910
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division
Outcome
appeal allowed; decree granted in favour of pursuer
Legal Topics
Fraudulent Misrepresentation, Essential Error, Amendment of Pleadings, Rescission of Contract, Admissibility of Evidence
Contract Law Civil Procedure Fraudulent Misrepresentation Essential Error Amendment of Pleadings Rescission of Contract Admissibility of Evidence

Case Brief

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Parties

David Oswald

Pursuer/reclaimer

Alfred Fairs

Defender/respondent

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division

Legal Issues

  1. 1 Whether the defender was entitled to rescind the contract for purchase of hotel furniture on the ground of essential error induced by fraudulent misrepresentation by the pursuer or his agent; Whether the Lord Ordinary erred in allowing amendment of the defender's plea after proof to introduce a new ground of defence; Whether evidence of similar representations made to a third party was admissible to corroborate the defender's case.

Ratio Decidendi

The amendment of the defender's plea after proof to introduce a new ground of defence based on fraudulent misrepresentation was improperly allowed, as it prejudiced the pursuer by depriving him of fair notice. Even if the amendment were allowed, the evidence did not establish grounds for reduction of the contract, and the evidence of similar representations to a third party was inadmissible to prove the alleged misrepresentation to the defender.

Court Disposition

appeal allowed; decree granted in favour of pursuer

Orders

  • Lord Ordinary's interlocutor recalled
  • Decree granted in terms of the conclusions of the summons (i.e., for payment of the purchase price of the furniture)