Devlin v. M'Kelvie [1914] ScotLR 182 (26 November 1914)

Devlin v. M'Kelvie [1914] ScotLR 182 (26 November 1914)

The obligation of relief of a guarantee is a separate contract from the purchase of debenture stock and cannot be proved by parole evidence; it must be constituted by the writ of the party. The evidence did not establish that the defender undertook the obligation, nor did the minutes or conduct amount to a sufficient writ or rei interventus. There was no consensus in idem between the parties as to the alleged obligation.

Citation
[1914] ScotLR 182
Parties
Pursuer: Thomas Leishman Devlin; Pursuer: William Considine; Defender: James M'Kelvie
Jurisdiction
Scotland
Judgment Date
26 November 1914
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Decree
Outcome
action dismissed; defender assoilzied (absolved)
Legal Topics
Guarantee and Relief Obligations, Parole Evidence Rule, Requirement of Writing for Certain Contracts, Rei Interventus, Separability of Contractual Obligations
Contract Law Evidence Law Guarantee and Relief Obligations Parole Evidence Rule Requirement of Writing for Certain Contracts Rei Interventus Separability of Contractual Obligations

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 11 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Thomas Leishman Devlin

Pursuer

William Considine

Pursuer

James M'Kelvie

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Decree

Legal Issues

  1. 1 Whether an obligation of relief of a guarantee can be proved by parole evidence or must be constituted by writing under the defender's hand.
  2. 2 Whether the alleged obligation to relieve the pursuers of liability for a bank overdraft was separable from the contract to purchase debenture stock and thus required separate proof.
  3. 3 Whether the defender's conduct or the company minutes amounted to a sufficient writ or rei interventus to validate the alleged obligation.

Ratio Decidendi

The obligation of relief of a guarantee is a separate contract from the purchase of debenture stock and cannot be proved by parole evidence; it must be constituted by the writ of the party. The evidence did not establish that the defender undertook the obligation, nor did the minutes or conduct amount to a sufficient writ or rei interventus. There was no consensus in idem between the parties as to the alleged obligation.

Court Disposition

action dismissed; defender assoilzied (absolved)

Orders

  • The interlocutor of the Lord Ordinary is recalled.
  • The defender is assoilzied from the conclusions of the action.