Smith v Oliver [1910] ScotCS CSIH_5 (10 November 1910)

Smith v Oliver [1910] ScotCS CSIH_5 (10 November 1910)

A gratuitous promise to pay a sum by will is not provable by parole evidence but only by writ; the pursuers' averments do not amount to a contract but merely a promise, and thus the Lord Ordinary's decision is correct.

Citation
[1910] ScotCS CSIH_5
Parties
Pursuer: Smith; Defender: Oliver
Jurisdiction
Scotland
Judgment Date
10 November 1910
Procedural Posture
Civil / Appeal (reclaiming Note)
Outcome
appeal dismissed; interlocutor of Lord Ordinary adhered to
Legal Topics
Gratuitous Promise, Proof by Writ, Parole Evidence, Testamentary Promise
Contract Law Evidence Law Gratuitous Promise Proof by Writ Parole Evidence Testamentary Promise

Case Brief

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Parties

Smith

Pursuer

Oliver

Defender

Procedural Posture

Civil / Appeal (reclaiming Note)

Legal Issues

  1. 1 Whether a gratuitous promise to pay a sum by will can be proved by parole evidence or only by writ
  2. 2 Whether the facts averred amount to a contract or merely a promise

Ratio Decidendi

A gratuitous promise to pay a sum by will is not provable by parole evidence but only by writ; the pursuers' averments do not amount to a contract but merely a promise, and thus the Lord Ordinary's decision is correct.

Court Disposition

appeal dismissed; interlocutor of Lord Ordinary adhered to

Orders

  • Interlocutor of Lord Ordinary adhered to; pursuers' reclaiming note refused