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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morison v. A. & D. F. Lockhart [1912] ScotLR 865 (11 June 1912) URL: https://www.bailii.org/scot/cases/ScotCS/1912/49SLR0865.html Cite as: [1912] ScotLR 865, [1912] SLR 865 |
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Page: 865↓
[Sheriff Court
at Aberdeen.
cap.
71), secs. 17, 18, 62 (1) and (4).
The heir of entail in possession of an entailed estate entered into a
contract
of sale,
which
provided, inter alia, that the timber included in the sale should
consist
of a “
clean
![]()
cut”
of part of a
certain
![]()
wood,
that the purchaser should be at the sole expense of
cutting
off root and removing the timber, that the timber should be at the purchaser's risk
from
![]()
fire
or other
damage
after acceptance of the offer, that the price should be payable, half
within
six
days
after acceptance of the offer and before
commencing
operations, and the balance
when
half the
wood
![]()
was
![]()
cut,
but not later than a
certain
![]()
date.
The seller
died
before the
whole
of the timber
was
![]()
cut.
![]()
Held (1) that under the law of entail until actual severance the timber remained part of the entailed estate; the purchaser's right to
cut
timber
consequently
![]()
ceased
on the
death
of the seller, and the succeeding heir of entail
was
entitled to interdict him
from
![]()
cutting
there after: and (2) that the provisions of the Sale of Goods Act 1893 as to the passing of property at a sale
did
not apply.
Opinion ( per Lord Johnston) that growing timber
fell
![]()
within
the
definition
of “goods” in section 62 of the Sale of Goods Act 1893.
The Sale of Goods Act 1893 (56 and 57 Vict.
cap.
71) enacts—Section 17—“(1)
Where
there is a
contract
![]()
for
the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the
contract
intend it to be transferred. (2)
For
the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the
contract,
the
conduct
of the parties, and the
circumstances
of the
case.”
![]()
Section 18—“Unless a
different
intention appears, the
following
are rules
for
ascertaining the intention of the parties as to the time at
which
the property in the goods is to pass to the buyer:—
Rule 1.—“
Where
there is an unconditional
contract
![]()
for
the sale of specific goods in a
deliverable
state, the property in the goods passes to the buyer
when
the
contract
is made, and it is immaterial
whether
the time of payment or the time of
delivery,
or both, be postponed.
Rule 2.—
Where
there is a
contract
![]()
for
the sale of specific goods and the seller is bound to
do
something to the goods
for
the purpose of putting them into a
deliverable
state, the property
does
not pass until such thing be
done
and the buyer has notice thereof.
Rule 3.—
Where
there is a
contract
![]()
for
the sale of specific goods in a
deliverable
state, but the seller is bound to
weigh,
measure, test, or
do
some other act or thing
with
reference to the goods
for
the purpose of ascertaining the price, the property
does
not pass until such act or thing be
done
and the buyer has notice thereof.…
Section 62 (1)—“… ‘Goods’ include all
chattels
personal other than things in action and money, and in Scotland all
corporeal
moveables except money. The term includes emblements, industrial growing
crops,
and things attached to or
forming
part of the land
which
are agreed to be severed before sale or under the
contract
of sale. … (4) Goods are in a ‘
deliverable
state’
within
the meaning of this Act
when
they are in such a state that the buyer
would
under the
contract
be bound to take
delivery
of them.”
Alexander Edward
Forbes
Morison, heir of entail in possession of the entailed estate of Bognie, in Aberdeenshire, pursuer, raised an action in the Sheriff
Court
at Aberdeen against A. &
D.
![]()
F.
Lockhart,
wood
merchants, Huntly, defenders.
The pursuer sought interdict against the
defenders
by themselves or others
cutting,
sawing up, or otherwise interfering
with
the trees that
were
standing on the estate of Bognie on 24th July 1911, the
date
of the
death
of Lieutenant-
Colonel
![]()
Frederick
![]()
de
Lemare Morison, the previous heir of entail,
who
![]()
was
the pursuer's
father.
![]()
On 27th March 1911 the
defenders
offered £575
for
![]()
certain
![]()
wood
in accordance
with,
inter alia, the
following
![]()
conditions
of sale, and the offer
was
accepted the same
day
on behalf of
Colonel
Morison, the exposer:—“
Conditions
of sale by private bargain of standing timber on Bognie estate, 1911, the property of
Colonel
![]()
F.
![]()
de
L. Morison of Bognie, hereinafter
called
the exposer.’
First.—The
timber embraced in the sale
consists
of a
clean
![]()
cut
of part of Bogcoup
wood,
in two lots,
which
![]()
contain,
as marked:—Lot 1. Situated on the rising ground—Larch, 931;
fir,
2800; spruce, 723—total, 4454. Lot 2. Situated on the low ground—Larch, 154;
fir,
533; spruce, 1145—total, 1832.
Second.—The above numbers, although believed to be
correct,
are not guaranteed. A number of half-grown silver
firs,
&
c.,
growing in the open spaces
within
No. 1 lot, as pointed out, is to be reserved, and must be left undamaged by the purchaser of the lot.
Third.—The purchaser
will
be at the sole expense of
cutting
off root and removing the timber. A stance
for
a saw-mill
will
be allowed
for
each lot if required, but except at such stances no saw-mill shall be placed. The
whole
of the timber must be
cut
up and any saw-mill or engine removed
from
the
wood
by the 31st
day
of
December
1911, and all
cut
up and sawn timber must be removed
from
the estate by the
Page: 866↓
31st day
of January 1912, and in the event of the purchaser
failing
to remove
from
the estate the
whole
or any part of the timber by the above stipulated
dates,
he shall pay to the exposer the sum of £1 sterling of pactional
damages
![]()
for
every
day
thereafter
during
![]()
which
the
wood
or any part thereof, or any saw-mill, shed, or engine shall remain on the ground. The timber shall be entirely at the purchaser's risk
from
![]()
fire
or other
damage
![]()
from
the
date
of the acceptance of his offer.
Fourth.—Should
the purchaser prefer to leave all the sneddings of the trees to the exposer, and remove only the boles of the trees, the exposer shall burn and
clean
the ground of the sneddings at his own expense, but should the purohaser
decide
to retain possession of the sneddings, branches, and brushwood, or any part thereof, then he must
clear
the
whole
of the ground and leave it
free
of all sneddings, branches, and brushwood, and ready
for
planting by the 31st
day
of January 1912; and in the event of his leaving the ground littered
with
refuse and unfit
for
planting, the purchaser shall be liable
for
the
cost
of
clearing
the ground, or any part thereof, as shall be vouched by the accounts of those employed in
doing
so,
without
the necessity of any other voucher.…
Seventh.—The price shall be payable half
within
six
days
after acceptance of offer and before
commencing
operations, and the balance
when
half of the
wood
has been
cut
off root—but not later than the 30th
day
of June 1911; and the purchaser shall, if required, grant
caution
![]()
for
said balance to the satisfaction of the exposer.…”
The pursuer pleaded, inter alia—“(2) The pursuer not having been a party to or adopted the said
contract
of sale, and said
contract
being personal to the said
Colonel
Morison, the pursuer, as succeeding heir of entail in possession, is not bound by it, and the
defender's
licence to
cut
trees on the entailed estate
ceased
on the
death
of the said
Colonel
Morison. (3) The previous heir of entail's right to
cut
trees upon the said estate of Bognie having
ceased
at his
death,
all trees standing on the estate at that
date
became then the property of the pursuer as succeeding heir of entail, and he is entitled to interdict the
defenders
![]()
from
interfering
with
the same.”
The
defenders
pleaded, inter alia—“(1) The action as laid is irrelevant. (2) The
defenders
having purchased the timber in question
from
the party entitled to sell the same, and the property therein having passed to
defenders
at the
date
of the said
contract
of sale, the pursuer is not entitled to the interdict
craved,
and the interim interdict ought to be recalled. (3) The
contract
of sale, having been entered into by the late
Frederick
![]()
de
Lemare Morison in the ordinary
course
of estate management, is binding on the pursuer as a succeeding heir of entail.”
On 6th September 1911 the Sheriff-Substitute ( Louttit Laing) granted interim interdict, and on 14th November 1911 he pronounced this interlocutor—“ Finds
in
fact
(1) that by
contract
of sale
dated
27th March 1911 the late
Colonel
![]()
Frederick
![]()
de
Lemare Morison, then heir of entail in possession of the entailed estate of Bognie, in the parish of
Forgue
and
county
of Aberdeen, sold to the
defenders
a quantity of standing timber
comprised
in two lots
containing
6286 trees at the price of £575; (2) that in terms of the
contract
the
defenders
![]()
forthwith
proceeded to
cut
said timber; (3) that on 24th July 1911 the said
Colonel
![]()
F.
![]()
de
Lemare Morison
died,
and
was
succeeded in said entailed estates by the pursuer; (4) that the
defenders
![]()
continued
after said 24th July to
cut
![]()
down
said timber; (5) that on 2nd September 1911 they received a letter
from
the pursuer's agents intimating to them that they must stop
cutting
said timber, as their right to
do
so had
ceased
as at the
date
of the
death
of the said
Colonel
![]()
F.
![]()
de
Lemare Morison; (6) that as the
defenders
refused to accede to this request, the pursuer on 6th September obtained interim interdict against them prohibiting them
from
![]()
cutting,
sawing up, or otherwise interfering
with
the trees that
were
standing on the said estate of Bognie on 24th July 1911:
Finds
in law (1) that the said
contract
entered into between the said
Colonel
![]()
F.
![]()
de
Lemare Morison and the
defenders,
being personal to him, the pursuer, as succeeding heir of entail, is not bound thereby; and (2) that the right of the said
Colonel
![]()
F.
![]()
de
Lemare Morison to
cut
timber on said estate of Bognie having
ceased
on his
death
on 24th July 1911, the
whole
timber standing on said estate as at that
date
became the property of the pursuer as the succeeding heir of entail: Therefore repels the
first
plea-in-law
for
the
defenders:
Sustains the pleas-in-law
for
the pursuer:
Declares
the interdict already granted perpetual:
Finds
the pursuer entitled to expenses on the lower scale: Allows an account thereof to be given in, and remits,” &
c.
![]()
Note.—“Although the
defenders
aver that they have no knowledge of the pursuer's rights, this point
was
not raised at the
discussion,
and indeed there is no plea-in-law
challenging
his title, as the present heir of entail of Bognie, to bring the present proceedings.
Further,
as regards the
facts
essential
for
a
decision
at this stage, the
facts
as stated in the
foregoing
interlocutor may be taken as admitted, as it
was
upon them that both parties at the
debate
![]()
founded
their respective
contentions.
Upon these
facts
the legal question arises
whether
the
contract
![]()
for
the sale of timber on the estate of Bognie made by the late
Colonel
Morison is or is not binding on the pursuer as the succeeding heir of entail of Bognie. On
consideration
of the authorities
cited
to me, I think that the legal position of the pursuer as expressed in his second and third pleas-in-law is unchallengable. The right of an heir of an entail to refuse to recognise his predecessor's
contracts
of a personal nature, and in particular
contracts
of the nature of that made here, is I think
Page: 867↓
well
settled by authority. I need not refer in
detail
to the earlier
cases
relied on by the pursuer's agent, as I think the law on this subject
was
![]()
fully
stated in the opinion of Lord Moncreiff in the
case
of Paul v.
Cuthbertson,
1840, 2
D.
1286, at p. 1307, in
which
opinion Lord President Hope and Lords Gillies, Mackenzie,
Fullerton,
![]()
Cockburn,
and Murray
concurred.
In that
case
it
was
held that growing trees
were
part of the
fee
of a land estate, and so standing
could
only be effectually transferred in property along
with
the land itself, and
consequently
that they
could
not be effectually
conveyed
by a personal
contract
of sale
followed
by alleged symbolical
delivery.
It is true that the question raised
was
not one relative to the rights of an heir of entail, but in the
course
of their opinion the
consulted
Judges referred to thus expressed themselves
with
regard to the rights of an heir of entail in
connection
![]()
with
the personal
contracts
of his ancestor—[ The Sheriff-Substitute here quoted Lord Moncreiff's opinion in Paul v.
Cuthbertson,
pp. 1307–8, from
“ an heir—substitute of entail is in some sense a singular successor” to “uniformly repelled.”] I refer also to the
cases
of Earl of Galloway v.
Duke
of Bedford, 1902, 4
F.
851 ( per Lord Kinnear), 39 S.L.R. 692, and Gillespie v. Riddell, 1908 S.
C.
628, 45 S.L.R. 514,
where
Lord Kinnear said that ‘the general rule is established by a great mass of authority, that the personal
contracts
and obligations of heirs of entail are not binding on their successors in the entailed estate, and this rests on the obvious principle that a succeeding heir
who
takes his interest in the estate
from
the entailer alone
does
not represent a preceding heir
from
![]()
whom
he takes nothing
whatever.’
![]()
The law as so laid
down
seems to me not only to support the pursuer's attitude, but also to
clearly
negative the
contention
of the
defenders
that the
contract
![]()
was
one
which
![]()
could
be regarded as one made in the ordinary
course
of estate management. It
was,
however, urged
for
the
defender
that on the assumption that the law
was
as stated supra, it must be held to have been altered by sections 17 and 18 of the Sale of Goods Act 1893,
which
prescribe the rules
for
ascertaining
when
the parties to a
contract
of sale of goods intended the property therein to pass, the argument being that the property in the timber sold by the late
Colonel
Morison to them, under the
contract
referred to, passed to them the moment the
contract
had been signed, i.e., prior to severance of the timber sold. I think this argument is untenable. Trees prior to being
cut
are not moveable property. Trees are partes soli, i.e., parts of the land on
which
they grow. ‘So long as they remain such by growing in the soil, or by being so attached to it that a
considerable
![]()
degree
of
force
![]()
would
be required
for
severance, they are heritable, but as soon as they are
cut
![]()
down
they become moveable—Rankine on Land Ownership, 1909 ed., p. 119. Now it is perfectly
clear
that
wherever
the subject of a sale is heritable it
does
not
fall
under the Sale of Goods Act, and accordingly as the growing timber
which
![]()
formed
the subject of
contract
between the
defender
and the late
Colonel
Morison
was
at the
date
of sale heritable, it
follows
that the
contract
itself and the intentions of parties thereunder
do
not
fall
to be
construed
in light of the
foregoing
Act. In other
words,
the law as laid
down
in the authorities referred to is unaltered by that Act,
for
the simple reason that it in no
way
affects
contracts
of sale relative to heritable subjects.
With
regard to the
date
![]()
from
![]()
which
the pursuer is entitled to interdict, I think it
clear
![]()
from
the
foregoing
authorities, and in particular
from
the
case
of Veitch referred to in a note in 1 Bell's
Com.,
p. 51,
where
it
was
held that the right of the purchasers of timber
was
at an end the very instant of the heir of entail's
death,
and that they
were
obliged to account
for
the
wood
![]()
cut
between the moment of his
death
at London and the time
when
it
was
known in
Dumfriesshire,
![]()
where
the estate lay, that he (the pursuer) is entitled to ask the
defenders
to account
for
the
wood
![]()
cut
as
from
24th July 1911, the
date
upon
which
![]()
Colonel
Morison
died.
![]()
I must therefore make the interdict perpetual, leaving it to the
defenders
to
work
out their remedy against the late
Colonel
Morison's executors. This
case,
I venture to think, should indicate to
contractors
and others
who
are in the habit of purchasing large tracts of growing timber on northern estates the expediency of ascertaining
whether
the vendor
does
or
does
not possess the estate, the
wood
of
which
he is selling, under the
fetters
of entail. As is made plain in the Juridical Styles (6th ed,), vol. ii, p. 1529, the
contract
of sale in the event of the vendor being a proprietor holding under an entail,
can
be so
framed
as to regulate the rights of both the vendor's executors and the purchasers in the event of such a position arising as has occurred in the present
case.’
![]()
The
defenders
appealed—The
case
![]()
was
argued on the assumption,
which
the pursuer
denied,
that the timber
was
ripe
for
![]()
cutting.
![]()
Argued
for
the
defenders—Growing
timber
fell
![]()
within
the
definition
of “goods” in section 62 of the Sale of Goods Act 1893 (56 and 57 Vict.
cap.
71). The stipulations as to payment of the price showed that it
was
the intention of parties that the property should pass at the
date
of making the
contract
of sale, and the trees
were
then in a “
deliverable
state” as
defined
by section 62 (4),
for
the buyer
was
bound to take
delivery
of them. Accordingly under sections 17 and 18 of the Act the property passed
when
the
contract
![]()
was
made.
Whereas
![]()
formerly
in Scotland trees
ceased
to be partes soli only on actual severance, now they
ceased
to be partes soli
when
the agreement to sell
was
made. There
was
no
direct
authority
for
this, but it
was
supported by Marshall v. Green, 1875, 1
C.P.D.
35; Smith v. Surman,
Page: 868↓
1829, 9 B. and Cr.
56; Morgan v. Russell & Sons, [1909] 1 KB 357;
Chalmers
on Sale of Goods Act (7th ed.) 143. There
was
not much
force
in the argument that it
was
not probable that a
change
in law
would
be effected in a
definition
![]()
clause,
![]()
for
the inclusion of “industrial growing
crops,”
as moveables
was
![]()
clearly
a
change
in the law made by the same
definition,
![]()
for
![]()
formerly
they
were
not moveable until separation— Chalmers’ Trustee v.
Dick's
Trustee, 1909 S.
C.
761, Lord Low at 769, 46 S.L.R. 521. The
fact
that the estate
was
entailed
did
not prevent the property passing,
for
an heir of entail had as
full
power as a
fee-simple
proprietor to
contract
![]()
for
the sale of ripe timber, though under the old law this
was
subject to the resolutive
condition
that it should be separated before his
death—
Paul v.
Cuthbertson,
July 3, 1840, 2
D.
1286, at pp. 1306 and 1307. The only exception to this power
which
had
crept
into the law
was
regarding timber
for
the shelter and ornamentation of the mansion-house— M'Kenzie v. M'Kenzie, March 6, 1824, 2 S. 775 (643); Boyd v. Boyd, March 2, 1870, 8 Macph. 637; Bontine v.
Carrick,
June 16, 1827, 5 S. 811 (750). Reference
was
also made to Gillespie v. Riddell, 1909 S.
C.
(H.L.) 3, 46 S.L.R. 29.
Argued
for
the pursuer—The Sale of Goods Act 1893
did
not apply to growing timber. “Things attached to,”&
c.,
referred to
fixtures.
Growing trees
were
partes soli, and only as such had the heir of entail any right to them at all—Ersk. ii, 2, 4; M'Kenzie v. M'Kenzie (
cit.
sup.). It
was
only
when
actually severed that they became
corporeal
moveables. The Sale of Goods Act 1893 merely gave a new mode of
delivery,
assuming there had been an effectual sale. In any
case
an heir of entail
could
not
free
![]()
from
the
fetters
of the entail any tree until aotually out, and he
could
not
confer
upon a purchaser a higher right than he himself had— Paul v.
Cuthbertson
(
cit.
sup.). Thus similarly though a
faculty
of
cutting
might transmit to
creditors,
yet that
ceased
on the
death
of the heir of entail,
for
the right
was
personal—Bell's
Com.
(7th ed.), vol. i, p. 51; Elibank v. Renton, January 15, 1833, 11 S. 238, Lord Gillies at 243. The remedy of the purchaser
was
under section 12 against the representatives of the seller. Reference
was
also made to Sandford on Entails, p. 276, and Bell's
Com.,
vol. i, p. 71.
At advising—
far
as this
case
depends
upon the law of entail in Scotland, unaffected by the provisions of the Sale of Goods Act 1893, it is
covered
by the
decision
of the
Whole
Court
in
Paul v.
Cuthbertson
(
1840, 2
D.
1286), and on this branch of the question I
concur,
therefore, in the judgment of the Sheriff-Substitute, to
which
I should have had nothing to add; but I think that the argument addressed to us,
founded
on the Sale of Goods Act 1893, requires more serious
consideration
than the Sheriff-Substitute has given to it.
The interpretation clause,
section 26, of that Act
declares
that the term “goods”
where
occurring in the Act “includes emblements, industrial growing
crops,
and things attached to or
forming
part of the land
which
are agreed to be severed before sale or under the
contract
of sale.” Growing timber is admittedly attached to and in law
forms
part of the land, and is therefore “goods” in the sense of the statute, and a
contract
of sale of growing timber to be
cut
is therefore a
contract
of sale of goods, to
which
the provisions of the Act apply. But I
do
not think that this
fact
carries
the
defenders
so
far
as they assume,
for
in the
first
place every
contract
of sale of goods is not made in the same
circumstances,
nor is it subject to the same incidents, nor under the statute has it the same effect; and in the second place the Act is solely
concerned
with
regulating the rights of the parties to the
contract
of sale, and is not intended to affect the rights of third parties. It may regulate the transfer of property under the
contract,
but it
does
not affect the seller's rights in the subject of sale and enable him to
deal
with
it in a manner and to an effect
which
he
could
not
do
independently of its provisions. It
does
not
confer
on the seller rights in the goods
which
he had not independently of the Act, nor
deprive
third parties of rights in them
which
they have at
common
law. The
contract
of sale may be binding between the parties as a
contract,
and give rise to liabilities
hinc inde, yet it may be incapable of effect as a sale,
for
want
of inherent power or title in the seller. Indeed, section 61 (2) expressly says—“The rules of
common
law, … save in so
far
as they are inconsistent
with
the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of
fraud
… or
other
invalidating
cause,
shall
continue
to apply to
contracts
for
the sale of goods.” A
contract
for
the sale of timber may be a
contract
for
the sale of goods in the sense of the Act, and in many
cases
perfectly good and effectual according to its terms, but if it
comes
up against an invalidating
cause,
such as the law of entail, there is nothing in the Act, still less in a mere interpretation
clause,
to override that law or to affect the rights of third parties under that law.
When,
however, the provisions of the Act are examined, it is, I think, hardly necessary to have recourse to the above saving
clause
to expiscate the rights of all
concerned
under this
contract.
But I think, before
considering
them, some attention must be given to the terms of the particular
contract
itself. Growing timber
can
not be sold so as to transfer the property as it stands,
for
as long as it is growing it is
pars soli, and
can
only be transferred
with
the land on
which
it is growing. If it is to be sold, and it is not already-severed, it must be agreed to be severed before sale or under the
contract
of sale.
While
growing it may be “goods” in the sense of the Act, about
which
a
contract
of sale may be made, but it
does
not
follow
that a sale is effected,
for
there is a
Page: 869↓
But the present case
is not one of a proper
contract
of sale of timber. It is a
compound
of a
contract
of sale of growing timber and a licence to
cut
or sever, and so put it into a “
deliverable
state.” But this makes no
difference;
the purchaser is merely
doing
vicariously
what
a proper
contract
of sale requires of the seller, and his licence
falls
as soon as the right of the licensor
comes
to an end. It
cannot
extend beyond the latter's own tenure of the land.
There are also details
in the
contract
which
must be noticed.
The sale is expressed to be of a “clean
cut”
of part of Bogcoup
Wood.
A “
clean
cut”
means a
clean
sweep of the
whole
wood,
leaving no inferior trees standing.
The purchaser is to be at the whole
expense “of
cutting
off the root” and removing the timber,
consequently
the “goods” in a “
deliverable
state “are not “ascertained” till
cut,
for
the quantity in each log more or less
depends
on the views or methods of the
woodman.
Stances for
sawmills are to be allowed, and such mills and their refuse must all be removed
from
the ground by 31st January 1912, under a penalty of £1 per
day
payable to the seller
for
delay,
whereas
the seller
ceased
to be proprietor by his
death
on 24th July 1911, six months before the expiry of this licence, and
was
succeeded by one
who
does
not represent him, and
who
is under no obligation to give
facilities
for
cutting
and
dressing
timber on his land, irrespective of the question of the property in the timber.
Lastly, the price was
to be paid
forehand,
and the risk of the timber
was
to be
with
the purchaser
from
the
date
of the
contract.
This may have been a good contract
of sale between the parties, but it is
clear
that both the parties to it ignored the
fact
that the seller
was
an heir of entail, and might
die
before the timber
was
felled,
or
were
unaware of its bearing upon their transaction.
Turning now to the Act, I think it will
be
found
that its provisions quite recognise the possibility of a
contract
of sale of growing timber, but regard such as an agreement to sell, and not as a sale, at least so long as the timber remains standing or is
pars soli. In
fact
there may be a
contract
of sale of growing timber as “goods” in the sense of the Act, but
what
is the effect of the
contract
is a
different
thing.
Section 1 carefully
discriminates
between a sale and an agreement to sell. It tells us (sub-section (1)) that a
contract
of sale is a
contract
whereby
the seller transfers or agrees to transfer the property in goods
for
a price. The
distinction
is between “transfers” and “agrees to transfer.” It tells us
further
(sub-section (3)) that
where
under the
contract
the property is transferred the
contract
is a sale, but
where
the transfer is to be
future,
or subject to
condition
first
to be
fulfilled,
the
contract
is an agreement to sell. The
distinction
is now between a transfer and a suspended or
contingent
transfer, but an agreement to sell becomes (sub-section (4)) a sale as soon as time elapses or the
condition
is
fulfilled.
Transfer of property being thus the important point of distinction
between a sale and an agreement to sell, the Act proceeds (section 16,
et seq.) to assist in the ascertainment of the legal
fact
of transfer as an effect of the
contract
of sale.
Where
(section 16) the
contract
is
for
the sale of unascertained goods no property is transferred unless and until the goods are ascertained. As has already been pointed out a sale of growing timber may be a sale of goods in the sense of the Act, but until the timber is severed it
cannot
be said to be ascertained. Till then the property
does
not pass, and the
contract
of sale is only an agreement to sell,
which
has not yet
developed
into a sale.
But even if, in a contract
of sale of growing trees,
where
“a
clean
cut”
of a
whole
wood
is sold, the subject,
contrary
to my opinion,
could
be held to be specific or ascertained, even then I
do
not think that under the statute the property
would
be transferred and the
contract
become a sale until the timber
was
severed
from
the ground and therefore
deliverable;
for
the statute (section 17) says that
where
the
contract
is
for
the sale of specific or ascertained goods the property is transferred at the time
when
the parties to the
contract
intend it to be transferred, and that in ascertaining the intention of the parties regard shall be had to the terms of the
contract,
the
conduct
of the parties, and the
circumstances
of the
case.
In the present
case
the terms of the
contract
and the
conduct
of the parties undoubtedly lead to the inference that they thought they
were
transferring the property and effecting a sale
from
the
date
of the
contract,
or, at any rate, on payment of the
first
half of the price. But I
cannot
conclude
that it
was
their intention to
do
what
at law, in the
circumstanees
of the
case,
it
was
out of their power to effect. I must assume that they intended the property in the goods to pass and the
contract
to effect a sale
whenever
in the
carrying
out of their
contract
it should pass at law.
They have made an incautious bargain,
Page: 870↓
The
who
was
absent at advising, as
follows:—I
am of opinion that the Sheriff-Substitute has
come
to a right
conclusion
in this
case.
It
does
not admit of
dispute
that prior to the passing of the Sale of Goods Act 1893 the
contention
of the appellants
would
have been untenable. The older
cases
settled that the heir of entail in possession of an estate
could
not transmit to his executors or to a third party a right to
cut
timber after his
death.
The estate passes on
death
with
the trees then growing upon it to the next heir of entail. The heir of entail so succeeding had a right to refuse to recognise his predecessor's
contracts
of a personal nature. The right of a purchaser
was
at an end the instant the heir of entail in possession
died.
These points had all been established before the
case
of
Paul v.
Cuthbertson,
1840, 2
D.
1286. The passages
from
the opinions in that
case
quoted in the note of the Sheriff-Substitute bring out
clearly
the limitations upon the right of an heir of entail in possession.
It is said, however, that the provisions of the Sale of Goods Act altered the existing law. It was
argued that the reason
why
before that Act an heir of entail in possession
could
not make such a
contract
as the one now under
consideration
was
because he
could
not give
delivery
of the trees sold; that the
definition
of “goods” in section 62 of the Act is
wide
enough to
cover
trees; and that under the earlier sections of the statute the property in the trees passed
when
the
contract
was
made. Even on the assumption that section 62 is
wide
enough to
cover
trees, that
would
not in my opinion be sufficient to establish the proposition
for
which
the appellants
contend.
The
contract
in question purports to
confer
upon the purchaser a right to
cut
certain
wood
growing upon the estate of Bognie. The seller had no power to
confer
a right to
cut
which
could
be exercised after his
death.
The provisions of the Act
do
not and
cannot
enable an heir of entail in possession to invest a purchaser
with
a better title than he had himself. It is not a question of
delivery;
the question is one of
capacity
to
contract.
The Act, in my opinion, only applies to a
case
where
an effective
contract
has been made. If no effective
contract
has been made, then the appellants
cannot
pray in aid the sections of the Act to validate it. The title of possession ends
with
the
death
of the heir of entail, and the Sale of Goods Act
cannot
extend it
further.
The appellant's
case
accordingly, in my opinion,
fails
at a point antecedent to the
consideration
of the question
whether
the provisions of the Sale of Goods Act in regard to
delivery
and passing of property
can
be applied to the
contract
in question here. If, however, it
were
necessary, I should be prepared to hold that the appellant's
case
failed
here also. No
doubt
the
contract
provides (article third) that the timber shall be entirely at the purchaser's risk
from
fire
or other
damage
from
the
date
of the acceptance of his offer, and (article seventh) that the price shall be payable half
within
six
days
after acceptance of the offer and before
commencing
operations, and the balance
when
half of the
wood
has been
cut
off root, but not later than the 30th
day
of June 1911. The subject of sale, however,
consisted,
as stated in article
first,
of a “
clean
cut”
of
certain
wood;
and (article third) it
was
provided that the purchaser shall be at the sole expense of
cutting
off root as
well
as of removing the timber. These latter provisions show that the subject of the
contract
of sale
was
not timber in a
de
liverable state, but merely the right to
cut
timber. The sections of the Sale of Goods Act on
which
the
defender
relies
do
not in my opinion apply to such a
contract,
and I agree
with
the opinion of Lord Johnston as regards this. Even on the assumption therefore that the trees included in the
contruct
were
ripe
for
cutting,
which
is
denied
by the heir of entail in possession, I am of opinion that the judgment of the Sheriff-Substitute should be affirmed.
come
to the same
conclusion,
and substantially
for
the same reasons. I think it necessary to attend to the precise
form
of the action. It is an action brought by an heir of entail in possession of the estate of Bognie to have the
defenders
interdicted
from
cutting,
sawing up, or otherwise interfering
with
the trees standing on his estate of Bognie on the 24th of June 1911, and therefore
forming
part of the soil of his estate. The answer is, that the
defenders
are entitled to enter upon the pursuer's lands and
cut
his trees by virtue of a
contract
of sale between them and the late heir of entail in possession,
which
they set out in some
detail.
The question therefore is whether
this
contract
of sale gives a good title after the
death
of the heir of entail,
who
was
party to it, to enter upon the lands and
cut
down
and
carry
off trees
forming
part of the property and in the possession of the succeeding heir of entail.
The contract
is one of some
complexity.
Page: 871↓
The only question is whether
that law is altered by the Sale of Goods Act 1893. I assume, but
without
expressing any
definite
opinion upon it myself, that the
definition
of “goods” in the 62nd section of the Act is
wide
enough to
cover
growing trees. Assuming that that be so, I
do
not think it
carries
the
defenders
very
far,
because it still remains to be
considered
what
is the effect of the enacting
clauses
of the Act,
construing
the
words
in
which
they are expressed according to the
directions
of the
definition
clause.
Now I apprehend that the argument
for
the validity of the
contract
as against the heir of entail is really this, that by the new law introduced by this Act the growing timber has been
conveyed
to the purchasers and become their property. It is said that
was
no part of the property to
which
the new heir of entail succeeded, because in law, although not in
fact,
it had been already separated and made over to them before the succession opened. They had no need, therefore, according to the argument, to inquire
whether
their vendor's personal obligations are transmissible against heirs of entail, because they no longer stand upon
contract,
but upon the real right given them by the statute. I
do
not
doubt
that in the
cases
to
which
the
clause
making a
contract
equivalent to a transference of property properly applies, the purchaser
does
obtain a real right in this sense; he acquires a right not only against the seller and his representatives but against all the
world.
I see great
difficulty
in the application of that
doctrine
to
contracts
for
the sale of growing timber; but I
do
not think it necessary to
consider
how
far
it
would
apply to any other
contract
than that
which
is actually before us. The question is,
whether
the trees still growing on the pursuer's land, in so
far
as they are
covered
by the
contract
in question, are specific goods in a
deliverable
state so as to have been
carried
in property to the
defenders
by
force
of the statute. I am of opinion,
for
the reasons stated by Lord Johnston and Lord Mackenzie; that this is not a
contract
for
the immediate sale and transference of the property of specific goods in a state in
which
at the
date
of the
contract
or now they
can
be said to be
deliverable,
but, as I have said, a
contract
which
will
enable the purchaser, so long as it is available to him, to enter upon the lands, turn the trees into a new
form
by
cutting
them
down
and severing the trunks and limbs
from
the stumps, and then to
carry
off the severed timber. In the meantime the trees are not in the possession of the purchasers, but in the owner of the land, and the purchasers
cannot
enter upon the land and remove them on
Page: 872↓
difficulty
in this
case
than your Lordships have had, but in the end I agree
with
the result at
which
your Lordships have arrived. But I
found
my judgment entirely upon the particular
contract
here, and holding the view I
do
about it I
am able to
concur
entirely in the last sentence of Lord Mackenzie's judgment and in the exposition
which
your Lordship has just given.
The Court
pronounced this interlocutor—
“
Dismissthe
appeal, affirm the interlocutors of the Sheriff-Substitute,
dated
6th September 1911 and 14th November 1911 respectively, repeat the
findings
in
fact
and in law in the last-mentioned interlocutor, and of new
declare
the interdict already granted perpetual, and
decern.…”
![]()
Counsel
for
the Pursuer and Respondent—
Blackburn, .K.
C.—
D.
P.
Fleming.
Agent—
Alexander Ross, S.S.
C.
Counsel
for
the
Defenders
and Appellants—
Constable,
K.
C.—
Skelton. Agents—
Duncan
& Hartley,
W.S.