M'Fadzean's Executor v. M'Alpine & Sons [1907] ScotLR 936 (18 July 1907)

M'Fadzean's Executor v. M'Alpine & Sons [1907] ScotLR 936 (18 July 1907)

The averment that a binding contract was concluded for payment of £40 in exchange for abandonment of all claims is relevant and must be remitted for probation, but proof must be by writ, not parole, as the alleged contract is innominate and not provable otherwise under Scots law.

Citation
[1907] ScotLR 936
Parties
Pursuer (appellant): Thomas M'Fadzean, qua executor-dative of Malcolm M'Fadzean (deceased); Defenders (respondents): Robert M'Alpine & Sons
Jurisdiction
Scotland
Judgment Date
18 July 1907
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session, Inner House, First Division
Outcome
Appeal allowed in part; interlocutor of Sheriff-Substitute recalled; case remitted for proof by writ.
Legal Topics
Workmen's Compensation, Innominate Contract, Proof by Writ or Oath, Settlement of Claims, Competency of Action
Contract Law Employment Law Evidence Law Workmen's Compensation Innominate Contract Proof by Writ or Oath Settlement of Claims Competency of Action

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Parties

Thomas M'Fadzean, qua executor-dative of Malcolm M'Fadzean (deceased)

Pursuer (appellant)

Robert M'Alpine & Sons

Defenders (respondents)

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Court of Session, Inner House, First Division

Legal Issues

  1. 1 Whether a binding contract was concluded for payment of £40 in settlement of all claims under the Workmen's Compensation Act and at common law.
  2. 2 Whether such a contract, if concluded, is provable by parole evidence or only by writ or oath under Scots law.
  3. 3 Whether the action was competent or relevant given the death of the workman before formal completion of the agreement.

Ratio Decidendi

The averment that a binding contract was concluded for payment of £40 in exchange for abandonment of all claims is relevant and must be remitted for probation, but proof must be by writ, not parole, as the alleged contract is innominate and not provable otherwise under Scots law.

Court Disposition

Appeal allowed in part; interlocutor of Sheriff-Substitute recalled; case remitted for proof by writ.

Orders

  • Recall the interlocutor of the Sheriff-Substitute.
  • Remit to the Sheriff-Substitute to allow proof by writ of the pursuer's averments in condescendence 3.