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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v Oliver [1910] ScotCS CSIH_5 (10 November 1910)
Cite as: 1911 SC 103, [1910] ScotCS CSIH_5, 1910 2 SLT 304

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10 November 1910


Lord President.—The pursuers here are the members of the Finance Committee of the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh, and, as such, trustees for behoof of a certain church which has been erected in Dalry, a suburb of Edinburgh. The defender is the executor-dative of the deceased Mrs Oliver, who lived in Edinburgh, and who was a member of the congregation of the church. The object of the action is to have it declared that the defender is bound to pay a sum of, roughly speaking, £6000 to the pursuers. Briefly put, for the purpose of explanation, and not in the exact words used by the pursuers, the story is this, that the deceased Mrs Oliver was a very interested and zealous member of the congregation; that she was very interested in the building of a new church; that it was a poor neighbourhood, and the church was planned upon economical lines. But Mrs Oliver, who was a lady of means, not only interested herself in the building of the church, but helped with contributions, and, it is said in particular, that in many things connected with the structure and internal decoration and heating of the church, she urged those who were responsible for the building, and especially the priest in charge of the church, to launch out into more expensive construction upon the assurance that she would make up the difference in cost entailed by such construction. She gave money from time to time, but, although she was anxious and willing to give a capital sum, she was not able to do so, because her money was settled in such a way in England that she could not get hold of a capital sum for the purpose; and accordingly she said she would make that all right in her testamentary arrangements, as she could deal with her money by will although she could not give a sum during her lifetime. This is the story of the pursuers in ordinary language.

The Lord Ordinary has held that the outcome of the pursuers' averments is, that Mrs Oliver made a promise to leave a certain sum of money in her will; and that such a promise can be proved only by writ. A reclaiming note has been taken to your Lordships, and the argument before us was that such a promise could be proved by parole. The argument of the reclaimers was strenuously directed to attempting to make out that there was a contract here; and it was said that although there is a rule that innominate contracts of an unusual character can only be proved by writ, yet this was not a contract of such an unusual character as to exclude parole proof. Now I think the first objection to that argument is this, that, look at the averments with all the indulgence that you like, the outcome will always be that there is in truth no contract at all averred here, but merely a promise to pay. And if that is so, I suppose that it is very well settled law that a gratuitous promise to pay can be proved only by writ. It is vain to try and make out that this was a mutual contract or that it was a contract of agency. The simple answer to all that is this, that, so far as agency is concerned, no one supposes that a tradesman could have had an action against the lady; that, so far as mandate is concerned, there was no mandate to do anything for the mandant; and that so far as mutual contract is concerned, the lady was getting no benefit except in the sense in which anybody may be said to get something when anything is done in which he is interested. Now it is quite well settled by a series of cases that a party cannot turn what is, in its nature, a mere promise into a contract, so as to be allowed to prove it by parole, by simply averring that on the faith of the promise certain things were done by him; that is to say, he cannot turn a promise into a contract by rei interventus, so to speak. That was conclusively settled by an old case which I think has been held to be law ever since. It is Millar v. Tremamondo in 1771. Millar brought an action against Angelo Tremamondo for the performance of certain promises alleged to have been made by him in the view of Millar's marrying his daughter, and craved to be allowed a proof of them prout de jure. The defender maintained that the promises alleged being merely verbal and gratuitous were not provable by witnesses. But Millar averred that on the faith of these promises he had married the defender's daughter, as he had, and there is a long argument given in Morison, but set forth in greater detail in Lord Hailes' Decisions at p. 409, from which it is evident that what was argued was that there was rei interventus, as the pursuer had married the defender's daughter. Now, as everyone knows, marriage is an onerous consideration, but nevertheless all that did not avail. The case was twice before the Court, and both times was decided in the same way. The decision, although a narrow one, was in the end that by the law of Scotland the promises could be proved only by writ, and, with a gleam of humour, which does not always appear in the reports, it is stated in Lord Hailes' report that the end of it was that “Millar did not reclaim. He told his counsel that he would not give the Court any further trouble; and, at the same time, declared that he would not put his father-in-law upon oath lest he should perjure himself.”

That case was followed by the case of Edmondston, which, so far as a promise is concerned, is very like the present case. There the promise was to leave money by will, and the consideration upon the other side was that the other person, who was a medical man, should settle in practice in the district. The decision there was to the same effect as in Millar's case. These cases settle the law, and settle it quite conclusively. I have no doubt, of course, that it is perfectly possible for one to bind himself in his lifetime to leave something in his will. I think that was also settled by a series of cases of which the most recent is Paterson, and this is recognised in the case of Mackenzie. But although it is quite possible for one so to bind himself, I do not think it has ever been suggested that proof of his doing so could be by anything except writ, and—although this is not perhaps entirely conclusive—it would certainly be a most extraordinary result if at one and the same moment the law was that a nuncupative will for more than one hundred pounds Scots was not good, but that nevertheless it was possible to prove by parole a promise to make a will. The rule may in individual cases cause hardship, but it is a salutary rule on the whole, because if it was allowable to prove by parole that a person had promised to leave a sum by will, there might be no end to the imposture which might be practised on the Court. In this particular case one feels sure there is no imposture, and one's sympathies are very naturally with the people who spent money on the faith of this promise; and so far as the deceased lady is concerned, I think it is quite evident she meant to carry it out in her codicil. Unfortunately she did not sign her codicil, and when a person does not sign a codicil, the law will not go into the motives but will presume that she changed her mind.

Accordingly, I think that the interlocutor of the Lord Ordinary is right, and should be adhered to.

Lord Kinnear.—I am entirely of the same opinion.

Lord Salvesen.—I concur. I think the case is ruled by the two decisions to which your Lordship has referred.

Lord Johnston was absent.

[1911] SC 103

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