Houldsworth v. Gordon Cumming [1909] ScotLR 867 (24 June 1909)

Houldsworth v. Gordon Cumming [1909] ScotLR 867 (24 June 1909)

The contract for sale of the estate of Dallas, described by estate name, entitles the purchaser to a conveyance of the lands as possessed under the title-deeds, not as limited by an unsigned plan. The defender failed to prove that the plan was incorporated into the contract or that the purchaser agreed to accept a lesser area. Extrinsic evidence may be used to identify the subject-matter but not to vary the contract absent clear agreement.

Citation
[1909] ScotLR 867
Parties
Pursuer (reclaimer): James Hamilton Houldsworth of Coltness; Defender (respondent): Sir William Gordon Gordon Cumming of Altyre and Gordonstown, Baronet
Jurisdiction
Scotland
Judgment Date
24 June 1909
Procedural Posture
Civil (implement of Contract of Sale) / Appeal (reclaiming Note) From Lord Ordinary's Decision
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; judgment for pursuer.
Legal Topics
Sale of Heritage, Interpretation of Written Contracts, Extrinsic Evidence, Identification of Subject Matter in Sale, Competency of Parole Evidence
Property Law Contract Law Sale of Heritage Interpretation of Written Contracts Extrinsic Evidence Identification of Subject Matter in Sale Competency of Parole Evidence

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Parties

James Hamilton Houldsworth of Coltness

Pursuer (reclaimer)

Sir William Gordon Gordon Cumming of Altyre and Gordonstown, Baronet

Defender (respondent)

Procedural Posture

Civil (implement of Contract of Sale) / Appeal (reclaiming Note) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether extrinsic (parole) evidence is admissible to identify or vary the subject-matter of a written contract for the sale of heritage.
  2. 2 Whether the estate of Dallas sold was as described in the title-deeds or as delineated on an unsigned plan.

Ratio Decidendi

The contract for sale of the estate of Dallas, described by estate name, entitles the purchaser to a conveyance of the lands as possessed under the title-deeds, not as limited by an unsigned plan. The defender failed to prove that the plan was incorporated into the contract or that the purchaser agreed to accept a lesser area. Extrinsic evidence may be used to identify the subject-matter but not to vary the contract absent clear agreement.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; judgment for pursuer.

Orders

  • Court recalled the Lord Ordinary's interlocutor.
  • Found that under the agreement of sale and purchase the pursuer is entitled to a valid and sufficient conveyance of the estate of Dallas as possessed under the title-deeds, bounded on the west by the wire fence shown by a blue line on the ordnance map No. 28 of process.