Montgomery — Answers, 1 Aug 1771

Untitled August 1. 1771. A N S W E R S F O R J A M E S M O N T G O M E R Y and Company, Tacksmen of the Coal-work of Newton of A y r; jr T O T H E P E T I T I O N of A u g s t 1. 7 s D o c r s t Merchant in Edinburgh. TH E respondents, some years ago, became tacksmen of a very extensive field of coal lying immediately adja- cent to the town of Air, but on the other side of the river, and from this field they expected not only to be able to supply the inhabitants of Air and the neighbouring country around with coal, but also to take out a large quan- tity for exportation; with which view they had settled their correspondences, and taken proper measures to ship off large quantities of coal from the harbour of Air to Ireland and o- ther places. Some of the first trials made by the respondents on their field, were not so successful as they could w ish; they had erected an engine which they found could command the wa- t e r, ter, so as to enable them to supply the home-market for some years, but not to lay out a large quantity for exportation, without incurring a very large expence, and removing their engine to another part of their field. In this situation matters stood when the petitioner having thought of working a field of coal of his, immediately adjoin- ing to that of which the respondents were tacksmen, cast his eyes upon them as proper merchants for his coal, in order to export it. Accordingly his brother Mr William Alexander, he himself being then in London, spoke with Mr M'Adam of Craigangellan, whom he met with in Edinburgh, upon the dubject, and desired him to convene with the respondents about a bargain for taking his coal at a certain rate. The respondents, upon the matter being mentioned to them, saw several motives to induce them to enter into a treaty on this subject. They had already taken their mea- sures for exportation of coal to a pretty considerable extent; and as their own coal work was not likely to afford them any quantity of coal for this purpose for some time to come, they were extremely well pleased to find, that there was a proba- bility of their being supplied with coal elsewhere, upon such terms as might not only make a fair beginning in the trade, and establish them in that way of business, but also afford them a reasonable profit. It was undoubtedly too an object: of no small importance to them, to have the sole command of the market in that part of the country, and to acquire the command of a coal fo immediately contiguous to them, which was the only one that could in any remarkable degree inter- fere with them, especially in the home sale. For these rea- sons, when the matter was mentioned by Craigangellan to the respondents, they immediately opened a treaty with Mr Alexander. A s the bargain concerning this coal was not a thing consi st- ing in a single transaction or so, but was proposed to subsi st for a number of years, the respondents from the beginning ' entertained entertained the idea, that it was to be perfected by a formal contract in writing, and that, till such contract was extended, the bargain could not be considered ascompleat. On this idea, they aided throughout the treaty; and that the treaty wis o- pened by Mr Alexander on the fame idea, is apparent from the first letter on this subject wrote by him to Mr M‘Adam, and printed in the second page of the petition. He there says, “ My brother would enter into contract Martinmass next, and as the contracter would be put to no advance, and the present export price is six shillings per ton, or five shillings per ton, on the hill, supposing export sale could be pushed at 5 s. 8 d. the difference would be a handsome allowance to the contracter.” These words plainly carry along with them the idea, that a contract in writing was to be extended, by which the mutual prestations, by both parties, were to be fixed and ascertained. The first communings concerning this bargain were verbal, being carried on thro’ the channel of Mr M ‘ Adam, with whom * 1, Mr Alexander had first conversed on this subject at Edin- burgh, and who afterwards again talked over the matter with the respondents at Air. Had the parties lived together in the lame place, or had frequent opportunities of meeting, the treaty would have continued to be carried on by verbal com- munings, untill all the articles were fully understood, and a- greed on, and then a contract in writing might have been ex- tended and executed; at which time, and no sooner, it could be considered as binding on both parties. B ut, as parties resided at a distance from each other, and had not an opportunity of meeting to settle matters in person, they were laid under the necessity of corresponding in writing. Accordingly the matter which had begun by verbal commu- ning with Mr M ‘Adam, was continued by an epistolary cor- respondence between Mr William Alexander, and Dr John Campbell, one of the respondents, the first letter on that subject having come from Mr Alexander, I n In these letters Mr Campbell had no idea of being in the very act of concluding a bargain by writing them; he consi dered him- self in no other situation than i f he had been conversing verbally with Mr Alexander, still keeping in his eye a written contract, as what was alone to establish a fixed and definitive bargain. Ac- cordingly your Lordships will observe, that the letters are wrote with that carlessness with which a man acting on this idea might be supposed to write. None of them all are sup- posed to contain a precise definition of all the terms of the contrail; the conversation with Craigangellan is still kept in view in all the letters, as being the foundation of every thing; and it is only in so far as parties did not seem to un- derstand each other thro’ that medium, that the correspon- dence by writing is resorted to at all. To extend a contract from these missives alone, was never in the view of the re- spondrnts; the matters communed on with Craigangellan, it was expected would fall to be fully ingrossed in that con- tract, as well as those which had been thrown out in the mis- sives, and which, if the parties had not lived at a distance, would have been verbally communed on as well as the rest. That the finishing of the bargain in a contract formally extended on stamped-paper, was in the view of all parties from the beginning, is evident, from the missive letters. T he re- spondents have already had occasion to quote a passage from Mr Alexander’s letters to Mr M ‘Adam, from which it appears, that he intended to enter into a contract in writing, even be- fore he began his correspondence with the respondents: The respondent shall now show, that the same idea was carried on in the correspondence between him and them. In his first letter of the 12th March 1770, Mr Alexander writes thus: ' I think a missive letter as binding as any other; but, as the agreenent is for along time, it may be conve- nient to have a deed on stamped-paper. It you will send me ' a- a scroll, I shill return it with my observations, or extend and sign it if right.’ Whatever meaning Mr Alexander affixed to these words when he wrote them, the idea they convey to a reader is certainly to this purpose: ‘ Though, no doubt, mis- sives may be fo conceived as to constitute a binding agree- ment; yet, as this agreement is to be for a long term of years, a great many minutiæ will fall to be ascertained and fixed in concluding it; and therefore, it is not so proper for the form of a misive letter; it is much better to put it in the state of a formal contract, and to extend it on stamp- ed paper; do you, therefore, put your ideas of the several articles that are to be agreed on into the form of a contract; if I have different ideas of those matters from what you en- tertain, we shall correspond farther about them but, if your scroll is agreeable to my ideas, I shall get the contrail ex- tended, and execute it on my part.’ In answer to this letter, Dr Campbell wrote his of the 17th March 1770, in which there is the following words, which are omitted in the petition, p. 4. where the rest of the letter is transcribed: ‘ When I have your answer to this, I shall cause scroll the contract and send it you.’ From these two letters, which are the first that passes between the parties, it is dear, that it was actum et tractatum, that, notwithstanding their corresponding in writing, the bargain was not to be per- fected by misives, nor was it to be considered as concluded till a formal contract, on stamped paper, should be extended and execute by the parties. Mr Alexander, it is true, in his answer to this letter writes: ' I apprehend our mutual missives sufficiently explicit and binding, and the only use of a formal contract is in case of the letters being lost, or to inforce summary execution.’ In this, how- ever, Mr Alexander was evidently mistaken. The letters were not sufficiently explicit; for they had not been wrote with a view of comprehending every article necessary to be settled, the communing betwixt both parties and Craigangellan being under understood to be the ground-work of the whole, and those parts o f that communing which had never been objected to never had become the subject of correspondence; at least, on the part of the respondents, it was not thought necessary to correspond concerning these, as they expected there was no occasion to mention them any farther till they came to be inserted in the scroll of the contract. Whatever ideas, therefore, Mr Alexan- der had concerning the bargain and the missives being suffici- ently explicit, these could have no effect with respect to the respondents, who all along looked forward to adjusting the terms of a contract, by which alone every article was to be ex- plicitly ascertained. And even in this letter Mr Alexander himself does not re- linquish the idea of a formal contract being extended, and par- ticularly of a scroll being being sent him, which was to become the ground-work of the contrac t and on which he was to make his observations, that is to say, to point out his sense of the mutual predations to be undertaken by each party, in case it should differ from the sense of them entertained by the re- spondents. This he does in words immediately following those in the letter of the 19th March 1770, last quoted, and which the respondents must complain of not being inserted in the pe- tition, as they place that letter in quite another light than it appears there; indeed, as the letter there stands, one would be apt to believe, that Mr John Beaumont was to be sent to Air, in order to get the contract extended from the missives, with full powers for that purpose; but, in the letter, after these words, ' to inforce summary execution,' follows this sentence. When you fend me the scroll, I shall examine and return it with my observations.’ So the paragraph concludes with these words, and then begins a new paragraph with these words: ‘ In regard to the waggon-way, every motive of mutual interest, exclusive of the public benefit, will certainly induce you to promote a waggon-way, which may carry both coals; ' and and we send next week a gentleman well conversant in these matters, with full power to transact in this.’ The reason of these passages being left out by the petitioner in transcribing the letter is obvious enough. The first of them destroys the effect of all the artificial argument of Mr Alex- ander’s supposing the missives to be sufficiently explicit, as it will show, that he still adhered to their idea of the matter be- ing perfected by a contract, the scroll of which to be revised and considered by both parties before it was extended; the other shows, that one material article in the contract about a waggon- way, was so far from being settled, that the communing concern- ing the terms of that, remained yet to be opened by Mr Beau- mont, who was impowered by Mr Alexander to treat of that matter; and these paragraphs at the fame time destroy the idea of acquiescence, on the part of the respondents, in the propo- sition of Mr Alexander, that the mutual missives were sufficiently explicit and binding, which the petitioner indeavours to insi n u- ate from the interruption of correspondence from that time till the month of July following. The fact is, that some time after writing this last letter, Mr William Alexander fell dangerously ill of a fever, which con- tinued very long, and rendered him absolutely incapable of transacting or attending to any business for a great part of the ensuing summer; fo that it was in vain to scroll, or transmit him the scroll of a contract, till he should recover. But, when Mr Alexander was able to attend to business, Doctor Campbell renewed his correspondence exactly on the footing on which it had formerly been carried on: He gets a scroll of a contract drawn out according to the ideas he had formed of the bargain from his communing with Mr M ‘A- dam, and the subsequent correspondence, and he transmits that to Mr Alexander in a letterdated 26th July 1 7 7 0; and, in that letter, he informs Mi Alexander, that he had drawn out the fcroll of the contract upon the plan of the commu- ning ning which he had had with Mr M ‘Adam, and which, in that letter, he takes notice he considered as the foundation of the bargain. Mr Alexander returns an answer to this letter on the 28th July. In that answer, he does not pretend to say, that the communing with Mr M ‘Adam was not to be considered as the foundation of the bargain, but he makes some observa- tions upon the scroll sent him; and he concludes, ' I doubt not but you will find these observations intirely in the spi- rit of our agreement; and, with these alterations, I think it may be soon made out and si g ned.’ So that, even at the date of this letter, he still acquiesced in the idea that the a- greement was to be perfected by a contract in writing, the terms of which parties were to fettle between themselves, and then extend and sign. When this letter of Mr Alexander’s came to the hands of Mr Campbell, it appeared more than ever to be absolutely necelfary that a contract in writing should be carefully di- gested, and accurately conceived, before the respondents went any further with respect to their bargain with Mr Alexander. The correspondence had hitherto been carried on by Mr Campbell; but the answer to this was Wrote by Mr Mont- gomery, one of the respondents, in name of the company. In reply to which, Mr Alexander, instead of coolly endea- vouring to adjust the terms of the bargain, in extending the contract, writes with some degree of heat, as if a bargain had been already made, and the respondents had been endeavour- ing to explain it away. He there says, " Your letter contains so many marks of an inclination to deviate both from the letter and spirit of the agreement, I am convinced the gen- tlemen concerned have not considered the original misiv e s that passed between Dr Campbell and me, and your letters since; They are all gentlemen of 100 respectable characters to trifle in busin ess; and if they wished any alteration in the ' original original agreement; they have so much good sense as to see that the only chance of obtaining it is by applying for it, and aligning competent reaaons for auch alterations, which would more readily meet with a hearing than any attempts to explain away the original bargain by new and different conditions.’ Accordingly, he here comments upon the words of his own letters, as i f these had been the mutual sense of both parties before the terms of a contract were canvassed; for he says, ' The words of the agreement relative to the penalty are, That, should the coal-work cease by want of coal, or any other unavoidable obstruction, the agreement shall cease. I apprehend the addition I made in the con- tract is only a fair commentary upon these words. It you will not admit the explanation, the words must stand as a- bove; and, on the event happening, a court or arbiters must determine the import of them.’ And the letter concludes with a proposal of leaving every article of the agreement to two men of business. This appeared to the respondents a very singular way of constituting a bargain of so much importance as the one then in agitation, first to ascertain a few of the articles of the bar- gain only, and then to leave all the rest to be settled by ar- bitration, or to set out with the certainty of disputes arising concerning the interpretation of the bargain, in the view of these disputes being fettled by arbitration. The respondents could by no means agree to it; and therefore Doctor Camp- bell, who answered this letter, expressly tells M r Alexander That, as he would wish to adhere inviolably to the terms of any bargain he should enter into; so it was necessary that these terms were fully understood before the bargain was fi- nally concluded. His words are: ‘ I hope we hav e hitherto and always will adhere strictly to our bargains; and I have not, I assure you, the smallest intention of giving unneces- sary trouble in this one; and, for that reason, would wish to have every point fully understood before it is finished.' The The petitioner, in the petition, p. 17. hath endeavoured to wrest the beginning of this sentence into an acknowledge- ment, that a bargain was already concluded, to which Doctor Campbell meant st r ict ly to adhere. But, when the whole sen- tence is taken together, it carries ju st the opposite sense, viz. That the respondents could not think of going blindfold into a bargain, in the interpretation of which they were certain disputes would arise; but that they were by all means to avoid disputes in any bargain they made; and therefore would not tie themselves down, without having matters fully explained. This is declaring, as plainly as words could be, that they did not consider themselves as under the tie of a finished bar- gain, and were resolved to proceed with great caution in ad- justing the terms of one. The letter concluded with a proposal of a conference at Glasgow, or even at Edinburgh. The last of which was ap- proved of by Mr William Alexander in his answer, and it took, place accordingly in the presence of a mutual friend; but no- thing was settled at it, Mr Campbell and Mr Alexander dis- agreeing widely in their sense of the terms, in so much that parties having wrought themselves into some heat, the con- ference broke up. After this, the correspondence was carried on between the petitioner himself and Mr Campbell; and, in the last letter dated 1st October, the petitioner did not seem inclined to adhere tenaciousl y to the ideas of his brother; as he says, he believes there would be fewer differences between them than the respondents apprehended; still, however, no scroll of a contract was fixed on, and so matters lay over till the term of Martinmas, when the contract ought to have begun to be carried into execution. By this time it was apparent, that Mr Alexander was not in a condition to fulfil the contract by the delivery of coal; he had as yet taken out little or no coal, and of course had none lying on the coalhill. The respondents saw therefore that it was in vain to think of being supplied by him with the. the quantity they needed for exportation, and resolved to fall seriously to work on the Newton coal, in the view of supply- ing themselves at once out of their own coal-work with coal for that purpose; and, as they did not incline to have any questions with the petitioner about penalties, which were to be the consequences of that delivery, and which, by the by, formed one of the articles of the proposed contract never fully adjusted, they resolved to declare off at once; and according- ly, on Martinmas day, took an instrument of protest to this purpose, assigning for their reasons the impracticability of de- livering any coal from Mr Alexander’s coalhill, and that the bargain had neve r yet been compleated, nor was there any prospect of its being compleated, on account of the difference of sentiments the parties had concerning the articles. The petitioner’s managers of his coal on this occasion prac- tised a very lingular piece of chicane, which the respondents, from the opinion they always have entertained of the petiti- oner, could not imagine was authorised by him, and which therefore they are much surprised to find homologated and argued on in this petition. It has already been observed, that they had as yet taken out little or no coal sit for expor- tation from that coal-work, and of course had none lying on the coalhill; and it is a fact, that, for at least ten days after, they took out no coal of that kind, and had barely as much culm or small coal as kept their fire-engine at work; it was therefore in possible for them to make any delivery 0f coal to the respondents, or even a tender of delivery of coal taken from Mr Alexander’s work; but they borrowed a cart-load of coals on this occasion, taken from another coal-pit; these they drove down to the harbour; and these, wall great so- lemnity, under form of instrument, tendered this borrowed cart-load of coals to the respondents as an implement of a supposed contract. T h eir instrument of protest taken on this occasion is in process, being produced by the petitioner, and runs in the following words: ‘ At Ayr, this twelfth day of " November November one thousand seven hundred and serenty years, in prefence of me notary-public and witnesses subscribing, compeared personally Mr John Beaumont residenter in Kin- naird, who, by order of Mr William Alexander merchant in Edinburgh, doer for Ids brother Robert Alexander, E sq; o f Blackhouse, passed with us to the personal prefence of John Campbell, E sq; of Welwoods, surgeon in Ayr, and Mr James Montgomery merchant in Ayr, and made offer to them and company of the coals contracted for to be delivered to them by said Robert Alexander, which coals the laid John Camp- bell had, in his own name, and in name of the Newton company, contracted to receive, (part of which coals were now at the Quay of Ayr, and ready to be delivered); and the said John Beaumont declared, That the whole coals should be delivered to them yearly and progresively in terms of the agreement between them and the said Robert Alex- ander. To which the saids John Campbell and James Montgomery, for themselves and company sorefaid, repeat- ed the protest taken by the said James Montgomery this day, against the said John Beaumont as manager for the said Robert Alexander, b y way of answer; whereupon the said John Beaumont not only protested, that the said John Campbell and company might be obliged to implement the foresaid agreement made by the said John Campbell, for himself and company foresaid, with the said Robert Alex- ander, but also for all damages and expences sustained, or which may be sustained through the said John Campbell and company their not implementing the same, and for remeid in law; and thereon took instruments, &c. ' This solemn trifling s erved only to confirm the respondents in their resolution to think no more of any contract with Mr Alexander, for coals to serve them for exportation. They set to work with vigour on the Newton field, of which they are tacksmen; they moved their engine to another parr of the field, and have, at the expence of above L, 3000 sterling, at last last laid open a field of coal of their own, sufficient to answer all their purposes, both for exportation and home sale, the former of which was limited to about 25, or 30,000 tons peran- num, from the state of the harbour, which could not admit of shipping for more, the home sale, from the the nature of the thing, is limited. Thus the respondents, having got coal enough of their own, to supply all their purposes, stood in no need of purchasing any from Mr Alexander, and therefore had no occasion to think any more of a contract with him. Mr Alexander, however, who appears to to have thought the bargain a matter highly beneficial to him, has thought proper to bring the present action against the respondents. In the summons he recites the two missive letters from Dr Campbell, of date the 12th and 17th March 1770, and he con- cludes, that it should be declared, “ That the foresaid agree- ment contained in the two missive letters above recited, is binding upon all the said parties, and that the said John Campbell and his partners, above named, ought and should be decerned and ordained, to implement and fulfill the said agreement in every article thereof, in so far as they are bound thereby; and tor preventing all disputes betwixt the parties in time coming, a formal contract ought and should be drawn out and adjusted at the si g ht t of our said Lords, and, when so adjusted, the same ought and should he extended upon stamped paper, and the said John Campbell and his said part- ners ought and should be decerned and ordained by our said Lords, to sign and execute the said contract wi th the complain- ers; and lastly, the said John Campbell and the other persons above named his partners, ought and should be decerned, jointly and severally, to make payment to the complainer of such him or sums in name of damages and expences as our said Lords shall please to modify. When this action came before the Lord Elliock Ordinary, the respondents pleaded in defence, That the missives libelled on never never were intended to constitute a finished bargain, but that parties always had it in view to perfect the bargain by exten- ding a formal contract in writing; that therefore, either party might refile till such contract was extended and signed; that, in fact, there were no termini habiles for concluding a bargain by missives, as it did not appear that either of those parties who wrote the missives had any authority to conclude such a bargain, or to do any thing more than to commune concerning one. Mr William Alexander was acting in the name of his brother, the petitioner, at that tine our of the kingdom, and does nor in his missives take burden explicitly upon him for his brother. Doctor Campbell again was only one of four copart- ners, carrying on in the same manner a communing about a bargain, but having no authority from them to conclude one, which they all along understood was not to be done otherways than by a formal contract in writing subscribed by them all; and that accordingly the stile of the letters all along is such as shewed, that it was not in the view of either party, that they should be conclusive of the bargain. That the missives never were intended to constitute a finish- ed bargain, is plain from the whole res gesta, already narrated. It has been observed, that the whole affair took us rise front verbal communings, conveyed by the one party to the other, through the channel of Craigangellan; that to these communings the first letters betwixt Doctor C ampbell and Mr Alexander expressly refer, mid could be considered in no other point of view, than as a continuation for the same communing, prepa- ratory indeed to the settlement of a final bargain then in the view of both parties, but by no means as perfecting that b ar- gain, which neither party considered as perfect, till such time as a formal contract should be extended and signed by them. In this light matters were vi ewed, till such time as the scroll of a contract was drawn out, and transmitted by the respon- dents to Mr William A lexander to revise; then it appeared that parties were not at one about some of the articles, and both of of them inclined to adhere to their own ideas concerning them; when Mr William Alexander saw this, he seems then, for the first time, to have taken up the notion that he had a title to insist that the missives completed a bargain, which, if he could not get transferred into a contract conform to his own ideas, could nevertheless be obtruded on t he respondents as binding; and in fo tar as parties differed about the meaning of the obligations therein contained, or the extent of them, they were to be explained and ascertained by arbiters or a court of justice; accordingly his correspondence after this period all along indicates that idea. In this opinion, however, the respondents do, with all sub- mission, apprehend Mr William Alexander was utterly mi- staken; for that both parties having all along in view, that the bargain should be compleated by a formal contract in writing, whatever was done by them previous to the extending and ex- ecuting such formal contract, though in other cases it might have been obligatory; yet, in this case, fell only to be consi- dered as a preparatory step. In arguing upon this point, the respondents have no occa- sion to dispute the general proposition, that a bargain of this kind might in law be as effectually constituted by missive let- ters, as by a formal contract on stamped paper, if parties had agreed on that mode of finishing the bargain; but the propo- sition they maintain is, that the particular mode of a contract on stamped paper being agreed on, as that in which this bar- gain should be executed, either party are barred from founding on any other kind of obligation. T he respondents apprehend, that hardly any point in law is better ascertained, or more generally understood in practice than this, that, even where the nature of a bargain does not re- quire this or the other mode of execution as essential to its constitution; yet, if any particular mode of execution more solemn than another is agreed on, as me one which is to be followed, followed, that mode, by such agreement, becomes the only one in which the bargain can be compleated; and till that mode is perfected, there is locus pœnitentiæ to either party, an abso- lute condition to that purpose being implied by law in the st i- pulation, that the bargain shall be executed in a particular form. Thus, in those species of contracts, which, according to the general principles of law, are perfected by simple verbal consent, as in emption vendition, and the like, tho’ in common cases they take place, and become actionable the moment the con- sent is signified, and may be proved by parole evidence; yet, if it is stipulated, that a writing concerning them shall be ex- tended and executed, the effect of such stipulation is, that the final consent of parties is suspended till such time as that writing is executed; and there is locus pœnitentiæ to either par- ty, until that party has actually subscribed the writing. So that even after it is extended, and a party has taken pen in hand, in order to s ubscribe, he may throw it down again, and resile from the bargain. There are two decisions to this purpose, collected in the Dictionary, voce locus pœnitentiæ, vol. 1. p. 564, in the follow- ing words: ‘ In a contract of emption vendition, it was a- greed, that the buyer, for satisfaction of the price, should give assignation to certain bonds, it was found, that there was locus pœnitentiæ until the assignation was granted; S tair 24th June 1664, Moffat against Black. Tho ’ writ should not be necessary to perfect the agreement; yet, if p arties expressly agree to perfect it in writing, there is locus pœni- tentiæ until the writ be subscribed; Stair 12th January 1676, Campbell against Douglas.’ It is remarkable, that, in the first of these decisions, the question was about a matter of the most simple mercantile na- ture. It was a bargain about a parcel of plaiding, which was to be paid for, not in money, but by the assignation of certain bonds. The buyer, as there had been nothing specially stipula- ted ted about the terms of the assignation, was willing to grant an assignation in the common and usual form, with the w ar- randice generally inserted in such deeds; but the seller insert- ed a very strict clause of absolute warrantee, whereby the buyer should warrant not only debitum subesse, but debitorm s o l v e n d o ese, contrary to the ordinary practice in such deeds. In this hate the question came before the court, who found as above. In the present case, the contract to be extended is men- tioned in every one of the letters between the parties which the pursuer founds on, and appears to be much more careful- ly attended to, as an article in their stipulations, than any one thing in the whole bargain. And your Lordships will ob- serve, that in none of the letters wrote by Mr Campbell is there one single obligatory word: He talks of inclining; of being willing; of agreeing; and of not objecting; but he never once says, that he binds and obliges himself, or his co-part- ners; that was reserved to the formal contract which was to be extended, when matters were fully underhood between the parties. The missives were only meant to bring them nearer to a mutual understanding, in order to the framing of the contract in the end, which was to be the sole obligatory deed, and without which, there could be no obligation at all. The petitioner is pleased to argue much upon some parti- cular words in the letters, such as confirming agreeing, and en- gaging, from which words he endeavours to construe the mis- sives into a finished obligation, contrary to the declared pur- pose of the parties to finish the bargain by contract. B ut it will be observed, that neither the word engage, nor confi n, are used at all by the respondents; it is Mr William A lexan- der who makes use of this mode of expression; and it never can be pretended that his expressing himself either in one way or another, could tie down the respondents in a finished obligation; nay, unless they became bound to him by proper and legal words, these expressions were not even sufficient to bind bind himself, as, in all mutual obligations of this kind, both parties must be bound, or neither: As for the word agree, it is plainly such a one as would be made use of in a verbal communing and expresses neither more nor less than a simple assent without obligation; and indeed, even the words confirm and engaget must be taken secundum subjectam materiam, as still referring to a communing only for the preparatory steps of an obligation, but by no means to induce an actual obligation. The respondems therefore do, upon the whole, apprehend, that, while the written contract was not extended, they were intitled to refile quandocunque; and indeed, when the terms of that contract came to be settled, it appeared that parties differed so very widely in their apprehensions of the several articles that it could not be extended at all, so that it was necessary not so much to resile, as to give up all thoughts of a bargain at all, from the parties intirely disagreeing as to the terms of it. T he petitioner indeed is pleased to represent the articles of the contract thar remained unadjusted as of very little mo- ment, and by no means essential to its constitution. The re- spondents, however, must beg leave to differ from them, and to contend, that the most capital and essential articles never were fully understood by the parties, at least never were adjust- ed between them. », • F or, can there he a more capital or essential question than this, Whether the petitioner should he limited to raise no more coals than what the respondents agreed to receive from them? or, in other words, Whether they were to become bound to take so large a quantity of coals from them, as 25 or 3,0 0 0 ton per annum at a stated rate, and at the same time leave turn to be their competitor in the market for any further quantity he had a mind? This was obviously contrary to the very idea in which they set out in this bargain; they meant to take from him as many coals as would answer the whole possible exportation from the port 0f Ayr; consequent-ly ly they meant to leave no room for a competitor in expor- tation; and, while they thus took all that was posib le to export from another coal work, what could it be supposed were they to do with their own coal work? They had barred the export market with respect to it; consequently it remain- ed for the home-sale; and it never can be supposed that they could be such fools as to encourage the working of the peti- tioners coal by giving him a certainty of a market to a large extent, for the purpose of enabling him to knock up the sale of their own coal altogether, by underfelling them in the market at home. Accordingly, in the verbal communing with Mr M ' Adam of C raigangellan, the respondents did make this a positive arti- cle, and a preliminary one, that no more coal should be sold by Mr Alexander, than what they had agreed to take; and they understood from Craigangellan, that Mr Alexander’s idea of this matter was the same. This therefore being understood to be the ground-work on which the whole bargain was to proceed it never once was mentioned in the course of the epistolary cor- respondence, though the maximum of the quantity the re- spondents became bound to take, not being ascertained in the course of their communing, became a subject of correspond- ence. Were Mr M ‘Adam of Craigangellan to be examined concerning the communings between him and the parties, he would inform your Lordships of this, and several other parti- culars that do not appear on the face of the missives. Indeed, from Mr William Alexander’s letter to Craigan- gellan, dated 27th February, it appears, that his idea of the bargain in the original conception of it, was, that the perform with whom he was to contract, was to have all the coals that his coal-work could turn out. He there says, ' If men of character could be found, who would take the coals as they are turned out,’ &c. T his plainly indicates that they were to have all the coals; and he afterwards adds, ' That the quantity was to be increas ed in the option of the buyer, not ' t o to exceed 6o,ooo tons.’ Words, in the humble apprehen- sion of the respondents, cannot make it plainer, that the buy- er was to be bound to take 25, or 30,000 ton annum; and in that way, was to have all the coals that should be turned out, regularly as they were turned out; nor should it be in the power of the petitioner to increase the quantity turned out beyond that, but that the buyer should have it in his power to increase the quantity if he thought proper, tho’ this power was to be limited by the quantity of 60,000 tons. Indeed, Mr Alexander understood this to be so much the case, that, since differences arose between him and the respondents, the respondents have been informed, he expressed some degree of surprise upon receiving the first letter from Mr. C ampbell, that he had not specially inserted this article in it; but, i f he meant to avail himself of such an omission, he ought, in his answer to that letter, to have explained himself so as to de- clare, that he meant his brother should sell coal over and above the quantity contracted by the respondents; in which, case, the communing would have broke up altogether at once; by is not doing so, it was to be supposed he went on in the original idea. Accordingly Mr Campbell proceeded to correspond with him on that original idea. In his letter of the 17th March 1770, he says, ‘ I told Craigengellan, if our harbour came to be improved, so as to contain more shipping, I should have no difficulty in extending the export of your coals.’ Here is a clear reference to the option which was to belong to the buyer, according to what had passed between Craigengellan and Mr Alexander, and according to what was mentioned in Mr Alexander’s letter to Craigengellan; so that it is plain, that the respondents at least all along acted on the idea of their being to acquire an absolute command of the market at Ayr both for exportation and home sale, in consequence of a bargain with Mr Alexander, instead of barring their own coal-work from the export sale, and railing up a rival to it in In the home sale, in which point of view, it is impossible they could have ever thought of a bargain with Mr Alexander. Thus this most capital article was one of those that remain- ed undetermined when the matter came to be settled by scrol- ling a contract; besides this, the next most material article was also one of those in which parties differed when the con- tract came to be extended, viz. the nature of the penalty by which the delivery on the part of Mr Alexander was to be in- forced, tho’, if the words of the letters are dear about any thing, they seem to be clear about that. Mr Alexander, in his letter of the 12th March, says, Should the coal-work cease by want of coals, or other una- voidable obstructions, the agreement shall cease; but other- wise, you shall have all the coals taken out, to the extent you agree for; and for any quantity short taken out, we shall pay you a penalty equal to what we suppose your pro- si t may be; suppose six-pence per ton.’ Mr Campbell, in his answer to this letter, says: ' As to the si x pence per ton for what you may fall short while it is wrought, it is more than we can get by it; and therefore it cannot be objected to.’ And all that Mr Alexander says in answer to this, is these words; ' The penalty six-pence per ton. ’ From this correspondence, the apparent sense of what was agreed on by the parties appears to be, that, in case the Work should be given up altogether by Mr Alexander, the contract should become void; but, while the work should con- tinue. Mr Alexander should be bound to deliver the quantity o f coal stipulated, under a penalty. And indeed this was a- greeable to the nature of such a transaction, it being more reasonable that the risks of the coal-work should rest on the owner of the coal-work, than upon the purchaser of the coals, who had risks of their own to deal with, viz. the risks of freight and exportation; and who, in consequeuce of this bargain, was to provide shipping for as much coal as the har- bour I bour of air could possibly answer the exportation of: To have had both the risks of the shipping, and the risks of the coal-work not turning out a sufficient quantity for that ship- ping upon the shoulders of the respondents, would have been much too hazardous a bargain tor them to have entered into. Put, when the scroll of the contract comes to be revised, Mr Alexander is so far from considering the words of the missive as affording an invariable rule for the terms o f that contract, that he departs from them altogether; he here act s clearly upon the footing of all the various stipulations being still open till the contract should be executed, and of being capable of being moulded into a new form in extending that contract: Accor- dingly the clause he proposes to be inserted in the contract on this head, is in the following words: ‘ If, by any unforeseen accidents, such as dikes, foul air, or overcharge of water, rising from no fault of Robert Alexander or his agents, he shall be disabled from supplying the full quantity, he shall be bound to intimate the same to the acting partner for the Newtown company, who shall name a person skilled in coal- works, and Robert Alexander shall name another who shall examine the same, and shall name an oversman in case of va- riance; and if, on their report, the stop arises from no fault of Robert Alexander, the said Robert Alexander shall be sub- j ected in no damages for that delivery, while such hindrance continues, he bound always to deliver to the extent of the contract all th at is taken out, and to continue delivering ac- cording to the terms of the contract, so soon as the stop is removed. An it is nearby declared, that, on the coals be- ing wrought out, or becoming unworkable in the judgement of skilled persons, named as aforesaid, the contract shall cease and determine. ' T h e se words do not only bear a very diffe- rent iciile lrom the rxprtllions uled in the nullives, but are con- trary to the nature of such a bargain, and intended to unhinge it altogether, as they relieve Mr Alexander from the necessity of of delivering; a fixed and determined quantity of coal annually, and only in effect obliged him to deliver as much coal as he conveniently could, without being liable for damages for short delivery, unless that was owing to some fault of his; and this, joined with what he insi sted for in the other article already mentioned, viz. his being at liberty to take out as much more than the quantity deliverable to the respondents as he pleased, and disposi n g of it to others at such prices as he could get, would have made a strange kind of contract indeed; as e- very possible advantage would have been stipulated in favours of Mr Alexander, and every possible disadvantage resulting from it must have fallen to the lot of the respondents. Mr Alexander, however, persi sted, throughout the whole of his correspondence, in having this article modelled in his own way, and would by no means hear of its being conceived in a form more agreeable to the words of the missives, and meaning and understanding of the parties. A third article of the contract too that parties differed up- on, when they came to express the sense of it fully, was the way in which a ton of coals was to be understood. The re- spondents, in speaking of this matter, as they were making a bargain for exportation from the port of Ayr, did all along understand that they were speaking of things as regulated by the custom of that port, where the ton is not weighed, but measured. It was according to the customary ton of the port, that they were to make all their bargains about freight, and to regulate their correspondences and sales, became i t was about the price of that ton alone that they could possibly make inquiry; and they never apprehended, that any diffi- culty could arise upon this head, as nothing is more common every where than to measure coals; ao that, in most sales by ex- portation, of carrying coastways, the measure, not the weight, is attended to; but Mr Alexander, it seems, understood things in a different sense, and would have his coals sold by weight. This difference between the parties never was uncovered till « * the the contract came to be reduced into form when it appeared; and, as both parties insi st e s on explaining the bargain accor- ding to their own opinion of it, it, from this appeared, that there never had been a fixed bargain at all: For, from this circumstance it appeared, that neither the precise quantity to be received by the respondents, and to be delivered by Mr Alexander, nor the price of that quantity had been explained or agreed to. Mr Alexander insi sted, that his understanding of the bargain was agreeable to the common meaning o f lan- guage, a ton-measure not being language, as he says, in his lettter the 28t h July; but he should have reconciled, that ton is a word that applies to measure, as well as to weight: That there is such a thing as a ton of wine, and why may there not be a ton-measure in coals, as well as of any thing else? Indeed, when a bargain was to be made about a coal-work, yet unopened, measure, not weight, was chiefly to be attended to; coals differ exceedingly in their specific gravities, and, in so much, that some kinds of coal are almost twice as heavy as others; yet, when they come to the market, it is the quantity and not the weight that the buyer will regard; he will consider, that it will take as many of the one kind as of the other to make a fire; and therefore the respondents very properly had in view the measure of the coals, nor the weight, in making their bargain about the delivery of coal that they had never seen. This was proceeding upon certain principles with respect to sale, which they could calculate on, and fi x their price accordingly; whereas, according to Mr Alexander’s idea, they were making a bargain of chance altogether, which might either be profitable or not, according as the coal should turn out light or heavy. These three articles, the respondents apprehend, exhausted every thing that could be called capital with respect to this bargain. Under them was comprehended the effect of this bargain on the market, and consequently the interests acqui- red to the respondents by such a bargain. The certainty of having having a quantity; of coals delivered to them, or damages in place of them, so as to induce them to take their measures for the regular exportation; and finally, the very quantity and price of the coals to be taken and paid by the respon- cients. Where parties had never understood one another in all these particulars, Is it posib le to say they had made a bar- gain? A bargain implies mutual consent; and consent never can be when parties are meaning different things. The petitioner hath resorted to another ground of plea; and, sensible that, where a bargain is agreed on to be ulti- mately perfected by writing, the law intitles parties to resile till such time as the writing is executed; he endeavours to discriminate this case from the generality of cases of this na- ture, and insi sts, that res non erat integra, by which parties are barred from resiling. The ground on which he puts this argument is, That Mr Alexander, trusting to this bargain, employed Mr Beaumont to open his coal, and proceeded in the work at a considera- ble expence, which he would not have laid out, had it not been in the view of the sale he was to have by this contract. The respondents, however, humbly apprehend, that your Lordships will pay very little regard to this argument, when it was expressly in the view of parties that the agreement should not be perfected but by a contract in writing. Mr Alexander had himself to blame if he set to work upon his coal, and put himself to any considerable expence about it, till such time as that bargain was perfected. He took all the risk of doing so intirely upon himself, and cannot, from such an act of his own, rear up an obligation against the respon- dents to which they never consented. T he idea of there being no locus pœnitentiæ ubi res non est integra, arises from a presumed acquiescence of the parties in some act undertaken by one of them under the eye of the o- ther. With respect to a finished bargain, any thing done du- ring ring the subsi stence of a communing, while parties are not yet agreed on every particular of the bargain, will not bear the locus pœnitentiæ; as, for example, in one of the cases quo- ted in the petition, if it had not been agreed what the price of the lands should be, but there only had been a general communing about a sale, tho' the seller had proceeded to pur- chase in the right of superiority, to convey along with the lands; yet he could not thereby have intruded the bargain up- on the buyer, because he took upon himself th e risk of finish- ing the bargain, the true idea of res notigrabeing, par- ties actually having begun to carry a bargain into execution, and thereby shown that it was truly a finished bargain in their apprehension, tho’ perhaps this or the other particular solem- nity might be wanting. Bur, when the direct contrary appears, as where writing is declared to be the only mode of compleating the bargain, no other act than this of executing the writing can be understood to be obligatory upon either patty; and consequently any thing done by either of them will not barr locus pœnitentiæ: to the other, or prevent him from refiling before the writ is signed. A remarkable case of this kind occurred some years ago. Mr Maxwell of Dalswinton had entered into a bargain with William N ielson about a lease of some lands in which there wire a great variety of stipulations: Among others, it was stipulated, that Mr Maxwell should acquire a certain piece of ground from another tenant, which was to make a part of the farm. T he tack was scrolled, the scroll approved of by N ielson, and orders given for extending it. Mr Maxwell proceeded, in consequence of this, to purchase in that other piece of ground from his tenant, for a valuable consideration; bur, when the tack was extended, and came to be signed, Nielson refiled, and refused to sign the tack. Mr Maxwell brought an action before the steward of Kirkcudbright for ha- ving him compelled to execute the tack, in which a proof was allowed, allowed, and all the above particulars fully proved; but the steward assoilzied. The matter was brought by a bill of ad- vocation before this court, and was ultimately determined by the court upon two reclaiming petitions; the bill being refu- sed on this footing, That, altho' res non erat integra, yet mat- ters could not rest upon the footing of a verbal bargain, as it appeared expressly to have been agreed, that the bargain should be reduced into writing, and either party might resile before subscribing the writing; nor could the other barr him from resiling by any act of his in the mean time; and your Lord- ships even refused to sustain the verbal bargain as valid for one year, on account of the agreement to reduce it into wri- ^ting. That case was much a stronger one than the present. E- very thing was done by Dalswinton in the presence of the man with whom he had bargained about a tack; but the respondents had no access to know any thing about Mr Alex- ander’s operations relative to Blackhouse coal, and which he conducted intirely by himself; and it is remarkable, that, when he speaks of sending out Mr Beaumont, he recommends se- crecy to Mr Campbell with respect to any communing going on between them; so that it is highly probable he was em- ployed upon some very different footing from that of any a- greement with the respondents, and had instructions to con- sider the working the coal with a view to other sales. Had not something of this kind been the case, mere was no ne- cesi t y of recommending silence about the agreement with re- spect to him. In the case between Dalswinton and Neilson, every thing was fully settled and fixed on, in so much that a scroll of a tack was drawn out and approved of by both parties; yet your Lordships allowed of locus pœniteæ notwithstanding that res n o n e rat integra, because parties had agreed to perfect the con- tract by writing: But, in the present case, from the first mo- ment that a scro ll of a contract was drawn up, parties have been been all along disputing about every essential article in it. Mr Alexander therefore has not the most distant pretence to say, that he was doing any thing in the view of a compleated con- tract; on the contrary, every thing that he did was with his eyes open as to the bargain not being finished, and at his own risque of finishing that bargain or not. In short, the plea of locus pœnitentiæ being barred, ubi res non est integra, rests precisely upon this foundation, that, tho' the law has established particular modes of compleating certain obligations, yet there are cases where, by the consent of par- ties, such modes may be varied; and if execution in whole, or in part, really follows upon a bargain after its being corn- pleated, parties will not be allowed to object to the mode of compleating it not being such as the public law pointed out, bccause they will be held to have departed from the privilege given them by the public law in this particular. The case, however, is widely different, when parties set out with the idea, that the obligation shall not be perfected, but in the strictest possible form; until that form is compleated, locuspœniteæ cannot be barred, let either of the parties do what they will in contemplation of the bargain. I f it happens to break off before it is compleated, they have themselves to blame for their rashness. If either party is to make use of an argument on a res non integra, the respondents do humbly contend, That that argu- ment falls much more properly to be made use of by them, than by the petitioner. Could it be said, that res erat integra to them, when on the term of Martinmas having come, when implement of the contract ought to have commenced, the petitioner had not a single cart load of coals at his coal-work fit for the purpose of exportation, and his agents were obliged to borrow a cart-load of coals, in order to make an elusory tender of them, under form of instrument to the respondents. T here was clearly here a failure of implement on the part of the petitioner, that would have intitled the respondents to be quit quit even of a finished bargain? Could it be said, that res erat in- tegra quoad the respondents, when, from the various objections offered to the scroll of a contract made up by them on the part of the petitioner, time was spun out so, that it became impossible to get a contract extended before the term at which it ought to have commenced; in consequence of which, the respondents, seeing that they could not trust to the delivery of coals from Mr Alexander for exportation, without submitting to the conditions he insisted for from them, which, in their apprehension, were exceedingly unequal and quite different from those they had even proposed to come under, in order to carry on their export-trade, found themselves under the ne- cessity of putting their own coal-work in a better condition of removing their engine to a different part of the field, and, in short, of subjecting themselves to an expence of above L. 3000 Sterling, no part of which, or at least but a very small part, would have been incurred, if Mr Alexander had compleated a bargain with them debito tempore, and been in a condition to deliver to them a sufficient quantity of coals for exportation from Martinmas last, downwards? But, as this is not the case, they apprehend he is barred from insisting in this action, for the purpose of forcing them into a contract, quia res non es t integra. But, to return to the right to resile before extending a writ- ten contract. This principle, so fully recognised and well known in the law, depends upon very obvious maxims of common reason; while a man is concluding a verbal bargain, and means that, without writing, it should be perfected by verbal consent, he will be careful to express himself with fulness and preci- sion; he will endeavour to make his own meaning perfectly understood; and he will do his utmost likewise to understand the person he is treating with; in short, he will endeavour that there shall be no misunderstanding between them, and nothing left unexplained, or that can be mistaken. But the case is very different different where it is understood, that what passes in conversa- tion is not to be decisive of the bargain, but that it is to be perfected by an agreement in writing, parties then become more careless and loose in their verbal expresions, trusting to the terms being accurately defined in the writing; and it is to the expressions of the writing only that they pay much regard. For this reason the law will not allow these loose ex- pressions to be laid hold of as containing a precise and deter- mined meaning obligatory upon them, as it does not prefume that they were fo attentive in exprefling themselves, when they did not think themselves in the act of finishing the contract. A distinct ion like this was well known in the Roman law: With respect to their verbal obligations, unless the s olennia verba of stipulation were used, no obligation that was action- able was produced; bur, whenever the solennia verba were made use of, an actionable obligation immediately cook place; as then, if parties used indefinite or inaccurate expressions, they had themselves to blame for the consequences; they were put upon their guard, that an obligation in law was intended to be reared on the words they should make use of. T he same reason that applies to the not allowing verba e- missa to be actionable, where it is specially agreed that a con- tract should be reduced into writing, applies likewise to missive letters not being allowed to be actionable in such a case; because the same inattention that takes place in verbal communings, when a written contract is intended to perfect the matter, will also take place with respect to missive letters; parties would not be 10 very nice and accurate in the expressions they use, as they would be, if they understood that these missives were to perfect the obligation. Hence me law allows of mistakes and misap- prehensions in such cases; it suppoles them apt to happen, and therefore allows locus pœnitentiæ, till the period when the writ- ten contract comes to be extended; then it requires strict at- tention to expressions, and will allow of no excuse or mi- stakes; stakes; because it is then in view of both parties, that a legal obligation is to arise from the words that are made use of. Indeed, were parties who have in their view to perfect a bar- gain by a writen contract, to be taken short by any thing that passed before such contract was extended and executed, the great- est confusion must necessarily arise. It is usual in obligations that are to consi st of a multiplicity of articles, to settle one ar- ticle before another, and so proceed gradually through the whole, which nevertheless constitute but one contract, and none of which, independent of the rest, would be accepted of as a compleat contract by itse l f; yet, as soon as any one article could be fixed on, according to the argument of the petitioner, that one article would constitute a jus quœsitum to both parties; and whether they agree in the rest or not, implement of that might be insisted for. This could not but produce the h igh- est injustice, and create such confusion, that no man would ever think of entering into a complex contract at all; a con- sequence that could not fail to be attended with the ruin of commerce altogether. The respondents shall say little here concerning|the want of power in parties to finish and compleat a bargain. What the powers of William Alexander were, they do not know, as he never explained to them what authority he had from his bro. ther; neither did he explicitly take burden upon him for his brother. But, whatever powers he might have, certain it was, Mr Campbell had no powers from his copartners, further than to correspond with M r William Alexander, as being well ac- quainted with him, and to report what passed to the other co- partners. The petitioner is pleased to impute the argument used on this head to the respondents counsel, and seems to question whether the respondents themselves ever started such a doubt; but, if he will look into the beginning of the letter of the 3d August 1770, wh ich is the only one wrote in the name of the company, and subscribed by the company’s firm, he will find that the company as obligants, and Mr Campbell as the the correspondent with Mr Alexander, were considered as very different. T his being the case, no effectual obligation could be reared up by the missives of Mr Campbell against the company, such misives not being subscribed by the company-firm, and Mr Campbell never being intended as a personal obligant, or ta- king burden on him for the company. Whatever powers Mr William Alexander had from the petitioner, by virtue of which he could bind him, Mr Campbell had no powers from the respondents by which he could bind them, other than that incidental to all copartnery-concerns, of using the firm of the company, which he never did in the course of the correspon- dence. Upon the whole then, the respondents do humbly apprehend, that no contract ever was compleated.: That, on the contrary, the terms of a contract never were fully agreed on, and, though they had, yet, as it was stipulated, that the contract should be reduced into writing, extended on stamped paper, and signed by the parties, there was locus pœnitentiae, till such time as it was signed, and either party was intitled to resile: That, be- sides this, when implement of the contract ought to have com- menced, the petitioner on his part was altogether unable to implement it; and, on that account, even although it had been already finished, yet the respondents were intitled to insi st, that it should be departed from on account of non-implement of the other party. And, therefore, that, all the circumstances of the case considered, the interlocutor of the Lord Ordinary is well founded, and falls to be adhered to. In respect whereof, &c. A N D R E W C R O S B I E.