Alexander — Petition, 10 Jul 1771

Untitled U N T O T H E R I G H T H O N O U R A B L E, The Lords of Council and Session, T H E P E T I T I O N O F R O B E R T A L E X A N D E R Merchant in Edin- burgh, U N T O H E RI G A G B I L T HAT the petitioner being possessed of ground in the neigh- bourhood of the town of Ayr, upon which there is a coal of considerable value, got a survey of this coal made by s everal persons of skill, and advertised it to be set in tack. But the offers that were made appearing in no degree adequate to the real value, the petitioner listened to proposals by a person of skill, who offered to work it for his the petitioner’s account. The terms however were so high, that the petitioner found he would not be indemnified, unless the sale should be very considerable: on this account he did not chuse to enter into any bargain, or begin to work the coal upon his own risk, until he should be made certain of a sale so extensive at least as would indemnify him for what he must pay for working the coal. Mr William Alexander therefore being impowered by the peti- tioner, his brother, to manage this affair, did on this account enter into a conversation with Mr Macadam of Craigengillan upon this subject: and as Mr Macadam was well acquainted with the gentlemen gentlemen in the county of Ayr, in the neighbourhood of this coal, Mr Alexander desired the favour of him to try to get people who would engage to take annually from him a large quantity of coal, to be delivered at the harbour of A y r; that by this means the petitioner might enter into contract with the per- son who was to work his coal, and might be secured against the risk of being a loser by his agreements. Mr Alexander’s views in talking to Mr Macadam upon this sub- ject will best appear from the following letter, of date 27th Fe- bruary 1770, written by Mr William Alexander to Mr Macadam upon the subject. “ As you were so good as to offer to make in- quiry about the sale of coals, and to see if any of the Ayr gentlemen would engage to buy my brother’s coal, deliverable at the ship's side in Ayr, or on the coal-hill, I beg leave to ac- quaint you, that having taken all possible information concern- ing the coal, we have reason to think it valuable; and as the offers hitherto made are no way adequate, my brother thinks of working it himself, at least until such time as the value is better understood. We have in view a man of skill and abi- lities, who would work it for my brother’s account; but unless the sale could be extended to at least 25 or 30 thousand tuns, we could not offer him such an appointment as would be ne- cessary to engage him. We find the coals could be delivered on board ship at 5 s. per tun good weight, or 4 s. 6 d. on the hill; and as we live at such a distance, and charges must attend receiving the money, and making it a staple trade, if men of character could be found who would take the coals as they are turned out, which shall be in good merchantable condition, the quantity annually as above to be increased in the option of the buyer, not to exceed 60 mill. tuns, my brother would enter into contract Martinmas next; and as the contractor would be put to no advance, and the present export price is 6 s. per tun, or 5 s. per tun on the hill, supposing export sale could be pushed at 5 s. and 8 d. the difference would be a hand- some allowance to the contractor. — I beg to hear from you soon on this subject, as we muff decide on something imme- diately." Mr Macadam, in return to this letter from Mr Alexander, in- formed him, that he had talked of the subject with the gentle- men, tacksmen, and partners of the coal of Newton of Ayr, and that that they were willing to listen to his proposals. But as Mr Mac- adam himself had no power from Mr Alexander to conclude a bargain upon this head, he very properly desired Mr Alexander to correspond upon this subject with Dr Campbell, one of the part- ners; who, for himself, and for the other partners, was im- powered to treat upon this matter. Agreeable to this suggestion, Mr Alexander wrote to Dr Camp- bell the following letter. “ My friend Mr Macadam acquaints me, that he had talked over a proposal, which I desired him to make to you and partners of the Newton coal-work, for the delivery of a quantity of coals at the harbour, from my brother’s estate yearly. Mr Macadam informs me, that your company agree to take 25,000 tuns yearly, and to pay for the same, on delivery, at the rate of five shillings per tun; the agreement to com- mence Martinmas next. Mr Macadam says nothing of the en- durance of the agreement: But my meaning was, to agree for twenty-one years; it being understood, that should the coal- work cease by want of coals, or other unavoidable obstructions, the agreement shall cease: but otherwise, you shall have all the coals taken out, to the extent you agree fo r; and for any quan- tity short taken out, we shall pay you a penalty equal to what we suppose your profit may be, suppose sixpence per tun; and this I now confirm. I dare say, as our interests are by this a- greement the same, you will have no difficulty in allowing a waggon-way to pass through your ground, on paying damages. Mr Beaumont, who is to work the coal for my brother, will doubtless call on you; and as he is a very skilful judicious man, I doubt not but he may be of use even to your works; and that, in all events, you will go on harmoniously. He brings most of our colliers from England. I think a missive letter as binding as any other; but as the agreement is for a long time, it may be con- venient to have a deed on stamped paper. I f you will send me a scroll, I shall return it with my observations, or extend and sign it, if right.” Mr Campbell, in return to the above, wrote the following an- swer. “ Having been some days from home, I did not get your letter till ju st now, else I should have answered it in course. I did agree with Mr Macadam as he wrote you, to give you five shillings per tun for your coal delivered on the quay, and to tak e 25,000 tun the first year, and 30,000 tun every year after; but but not more, as I was apprehensive that quantity, with what may be expected from the other coal-pits, would be as much as could posib ly, in the present state of our har- bour, be shipped in twelve months, and more than can be ship- ped at the present wharf. But as we have an exclusive privi- lege of erecting wharfs on the other side during the course of our lease, we can in some measure obviate, that difficulty; and I told Craigengillan, if our harbour came to be improved, so as to contain more shipping, I should have no difficulty in ex- tending the export of your coals, as there is no present appear- ance of the market’s failing for that commodity. We did not agree as to time. I did not know how much of our Newton tack was to run, and he was not very sure how long you might like to engage. But I must now inform you, that we do not incline to take it longer than till the end of our Newton tack, of which there is to run s ixteen years after Martinmas next." “ As to the bargain’s being void upon the coal becoming un- workable, it is reasonable, and agreed to. As to the sixpence per tun for what you may fall short while it is wrought, it is more than we can get by it, and therefore cannot be objected to. As to the waggon-way, I cannot speak to that point. I am afraid we have it not in our power, without the consent of the proprie- tors, to grant i t; neither do 1 know (as I have not seen any of them) how far it may be agreeable to the other gentlemen con- cerned, if we should get the consent of the community of New- ton: but this I will venture to say, that there is nothing Mr Alexander ought to ask, or we to give, that will be refused, as I am sure we all most heartily wish to see a thing of such gene- ral concern fairly afoot. To this letter Mr Alexander wrote as follows. “ I have your favour of 17th, confirming, on behalf of the Newton company, the verbal agreement made with Mr Macadam about my bro- ther’s coal. By said letter, I see you propose to take 30,000 tuns annually after the first year; which accordingly I engage for him to deliver to the company; the agreement to last sixteen years from Martinmas next; the penally sixpence per tun. I apprehend our mutual missives sufficiently explicit and binding, and the only us e of a formal contract is in cas e of any of the letters being lost, or to in force summary execution. We send next week a gentleman, well conversant in these matters, with full powers to transact in this,- ' ' “ and and to prepare for opening the coal. His name is Mr John Beaumont. He will be very ready to give you his best advice and abidance, which may be worth attending to. You need say nothing to him of our agreement.” Your Lordships will perceive, that by these missives the New- ton company engaged to give five shillings per tun for the peti- tioner’s coal delivered at the quay of Ayr, and to take 25,000 tun for the first year, and 30,000 tun every year after, but not more: that the agreement is to continue for aixteen years after Martinmas then next: that it is stipulated the petitioner shall pay sixpence per tun for what may fall short of the quantity agreed upon, while the coal was wrought; Dr Campbell allows this to be a full recompense; and that it is further stipulated, that the bargain should be void, upon the coal’s becoming unworkable. Upon the faith of this agreement, entered into by these missives, in the manner your Lordships have seen, the petitioner proceeded to take measures for working his coal; and accordingly concluded a bargain with a gentleman of the name of Beaumont, who under- took to work this coal; and Mr Alexander engaged himself with him to a considerable amount. From the 19th of March 1770 to the 26th of July 1770, no difference occurred between the petitioner and Dr Campbell, or any of the members of the Newton company, with regard to this agreement. But upon the 26th of July the correspondence was renewed, and related to the meaning of some of the different ar- ticles of agreement, as they are expressed in the missives; and in what light they fell to be considered in the cafe of certain eventso happening. These letters are hereto subjoined, and will fall to be noticed in the sequel.- The term of Martinmas having arrived, which was the first day fixed for the commencement of the bargain, and the delivery of the coals contracted for, the petitioner, that there might be no failure on his part, caused a quantity of coals be carried to the quay of Ayr, and made offer of them to the Newton company. These coals they refused to receive; and the petitioner was on this account obliged to take a protest against them; and upon the fame day a protest was taken by the Company: which is in the following words, and will be attended to by your Lord- ships. “ At Ayr, the 12th day of November 1770 years. Which day, in prefence of me notary-public and witnesses sub- scribing, scribing, compeared personally James Montgomery merchant In Ayr, for himself and company, tacksmen of the Newton coal- work, and pa!fed with us to the personal prefence of John Beau- mont, manager and doer for Robert Alexander, Esq: merchant in Edinburgh, proprietor of the coal-work at Boighall, in the parish of St Quivox, and shire of Ayr, and represented to him, as doer and manager foresaid, That there had been a verbal com- muning between John Campbell, one of their company, and John Macadam of Craigengillan, Esq; agent for Mr Alexander, anent their taking from said Mr Alexander his coal-pits 25,000 tuns of coals for the first year, and 30,000 tuns yearly thereaf- ter, for sixteen years from and after Martinmas next 1770, at the rate of five shillings Sterling per tun; and which commu- ning was confirmed by a letter from Mr William Alexander, said Mr Robert Alexander’s brother, and for him, of date the 12th of March last; and that the said Mr Alexander had not, according to the true intent and meaning of the above commu- ning, and his own letter, nor even according to his own idea thereof, delivered any of the above 25,000 tun of coals proposed to be taken, as repeatedly threatened, on the 11 th 12th day of the said month of November; and which non-delivery was, by the said Mr Alexander’s letter, on which, and the communing with Mr Macadam, the whole must stand and fall, allowed, in prefence of Alexander Ferguson, Esq; advocate, on the day of last, to be a nullity of the bargain, if the company chused it, whenever such stop should happen: The company being therefore satisfied, that Mr Alexander means on- ly to trifle with them, as he has no coals at present on his coal- hills, nor none at present coming out, nor is there any probabi- lity of any to come out for some time; and at any rate, un- willing to engage in a bargain, however advantageous, where there is so so little probability of matters being carried on ami- cably; therefore said James Montgomery, for himself and com- pany foresaid, did, and doth hereby protest, That since said Mr Alexander will neither complete the bargain, according to the true meaning and intent thereof, nor hath fulfilled any part thereof according to his own mistaken idea of. it, that the whole shall be void and null, and the company intitled to expences. And thereupon, and upon all and sundry the premisses, the said " James James Montgomery, for himself and company foresaid, asked and took inftruments,” &c. It being found, that matters could not be otherwise adjusted be- twixt the parties, the petitioner was obliged to bring a process a- gainst the Newton company, in order that they may be obliged to implement their agreement; and that a formal contract should be drawn out, and extended upon stamped paper; and further, that the defender should be found liable in damages, for the loss the petitioner has already suff ered by the failure on their part. This cause having come before the Lord Elliock as Ordinary, the defenders not only laid before his Lordship the different articles in the missives, with regard to which any difference had arisen, but were pleased likewise for the first time, to alledge, that there was no bargain at al l; and that the missives which had passed be- tween the different parties did not constitute a binding obligation upon them. Upon this it was observed upon the part of the petitioner, That it was necessary it should be first settled, whether the bargain is at all binding, before the parties should go into the meaning of the different articles: That the question which had arisen with regard to the meaning of these missives, and the different constructions put upon them, would all equally occur, even though there were a formal contract before your Lordships, extended upon stamped paper; and to prevent any fort of difficulty upon this matter, the pursuer did declare, that he was willing, should your Lordships find the agreement sufficiently binding, to adopt the very words of Mr Campbell’s letter, of date 17th March 1770, to Mr Alexan- der, as the terms of the agreement; and that, if, after this, the defenders should start any difficulty with regard to the meaning of the words used in their own letter, the petitioner was willing, either that the different points which should appear doubtful, should be referred to arbiters, or that your Lordships judgement should be taken upon them. As the Lord Ordinary was satisfied, that the point which fell first of all to be determined, was, Whether there is a bind- ing contract between the parties, or not, before they should be heard upon the meaning of the different clauses of the con- tract; his Lordship, therefore, without entering into the consi- deration of these different articles, was pleased to ordain parties to to give in memorials in the cause. Memorials were accordingly given in; and avisandum being made therewith, the Lord Ordi- nary was pleased to pronounce this interlocutor. “ Having consi- dered this memorial for Robert Alexander, pursuer, with the counter memorial for John Campbell, and others, defenders, and the letters of correspondence exhibited by both parties; finds, in the treaty for entering into a contract between the par- ties, several of the most material and essential articles were not adjust ed and agreed upon; and that no finished bargain was con- cluded, so as to be binding upon the parties; but that either of them may refile from their proposals: therefore dismisses this ac- tion, and assoilzies the defenders from the conclusions of the li- bel; and decerns.” The petitioner would have submitted this interlocutor to the review of the Lord Ordinary; but his Lordship’s absence renders this present application necessary to your Lordships, in the view of procuring an alteration of this interlocutor. And the simple question which occurs for the consideration of the court is, Whether the above-recited letters of the 12th, 17th, and 19th March, containing reciprocal engagements betwixt the peti- tioner and the Newton company, are sufficient to create mutual obligations upon them; more especially considering, that, in con- sequence thereof, the petitioner took the necessary steps on his part, and had fo far proceeded in the execution of what was in- cumbent upon him, as that matters no longer remained en- tire. And if your Lordships are of opinion, that a mutual obli- gation was created, it next remains to inquire, Whether any thing afterwards occurred to throw loose what was so covenanted and a- greed upon? That obligations of any kind, and to any extent, may be crea- ted by missive letters, is a proposition which does not admit of doubt. Your Lordships know, that even with regard to land-e- states, the transmission of which are more fettered with forms than any other thing whatever, mutual missives constitute an ef- fectual obligation; and that upon these missives the purchaser can bring a personal action against the seller, to oblige him to imple- ment his agreement, and to grant the proper deeds of transmis- sion. In the same manner, with regard to tacks, your Lordships know, that missives create a valid and effectual obligation. For what reason, therefore, the missives in the present case should not be be equally binding as in the other cases now mentioned, the peti- tioner is at a loss to conceive. The present is merely a mercan- tile transaction between the petitioner and the defenders; but surely it is not required, that mercantile transactions should be more fettered with forms than obligations with respect to lands. Amongst merchants, transactions to the greatest extent are carried on by letters. This is necessary for the very exigence of com- merce; and for this reason the law has looked with a very favourable eye upon transactions of this nature. And, in short, without en- larging more upon this proposition, the petitioner must hold it as an uncontrovertible point, that missive letters were a competent and habile mode of executing the agreement which the parties had in view in this cafe. The question, therefore, must: come to this, Whether the arti- cles of agreement are so ascertained betwixt the parties, as that they appear to be ad idem, and that the terms of their engage- ments were mutually understood? As to which, your Lordships can only judge by a careful and attentive perusal of the missives themselves. The price is ascertained, being 5 s. per tun, for the petitioner’s coal; the quantity to be taken is likewise agreed upon, being 25,000 tun for the first year, and 30,000 tun for every year after; sixpence per tun is settled as the penalty payable for what may fall short of the quantity agreed upon; the term of entry is fixed at Martinmas then next, and is to endure for the period of sixteen years; and the parties even descend so minutely as to sti- pulate, that the bargain shall be void upon the coal’s becoming un- workable: so that, in reality, every article which could have en- tered the most formal contract is condescended upon. Propo- sitions are mutually made, and concessions likewise reciprocally made, till at last the parties come to be so thoroughly of one mind, that in the two last letters which intervened betwixt them, there is not a single point or article as to which there is a difference be- twixt them. Besi des, your Lordships will observe, that not only are the ar- ticles of agreement settled between the parties, but the words of the missives are of such a nature as indicate a fixed purpose and resolution as to what they were writing, very different from mere communing, or bare proposition. They talk of confirming what was before verbally agreed upon. They talk of this and the o- ther particular being agreed to,; and, in place of merely promising or or offering, Mr William Alexander says, he engages for his bro- ther to deliver to the company the stipulated quantity, &c. So that, with submission, the petitioner must be forgiven to think, that as well the subject-matter of these missives, as the terms in which they were wrote, evidence a positive and pointed agreement betwixt the parties. But further, in evidence of the understanding of the parties, the petitioner must call the attention of your Lordships to the style and tenor of the protest: taken by the Newton company, so late as the 1 2th of November. The whole of that protest goes upon the supposition of a real bargain constituted between them and the petitioner. By the articles of agreement, the term of de- livery of the coals was to commence Martinmas 1770. The term- day that year happened to be on Sunday, and on this account the coals could not be delivered that day. On the Monday fol- lowing, however, a quantity of coals was carried to the quay of Ayr, and offered to be delivered; which the defenders ha- ving refused to receive, the petitioner, as your Lordships have been informed, took a protest against them. But before this quan- tity of coals which were offered to be delivered to the defenders were arrived at the quay of Ayr, the defenders, who seem to have been exceedingly alert upon this occasion, thought proper to take the protest above recited against the petitioner, for having failed to implement the bargain; and concluded, that this failure should import a nullity. The petitioner needs hardly trouble your Lordships with obser- ving, that as the coals were offered to be delivered on the Monday, the very first day that they could be delivered, there was no failure upon his part. But what is material to be observed is, that in the protest itself, the defenders expressly admit, that there was a ver- bal communing between Mr Campbell and Mr Macadam, anent their taking from Mr Alexander’s coal-pits 25,000 tuns of coals for the first year, and 50,000 tuns yearly thereafter, for sixteen years from and after Martinmas 1770, at the rate of 5 s. Sterling per tun; and that this communing was confirmed by a letter from Mr Alexander: and so far from insi sting upon the conceit which they have now taken into their heads, that there was no concluded bargain between the petitioner and them, the protest proceeds up- on the supposition, that there was such a bargain; and all that the defenders inlift on is, that the said bargain, not having been im- plemented plemented on the part of the petitioner, has become void and null; and that they shall be intitled to their expences become due, on account of the petitioner’s failure on his part. This protest, therefore, evidently shows what idea the defenders themselves had of the agreement between Dr Campbell and Mr Alexander. Had they been in the belief, that there was no bind- ing obligation concluded between the parties, as they would now fain persuade your Lordships is the case, would they have pro- tested for the bargain's having become void for want of its being implemented? or would they have craved to have been found in- titled to expences, had they not, as well as the petitioner, consi- dered the missives as fully binding upon them? Will your Lord- ships, therefore, after this, listen to these defenders, when, in di- rect contradiction to the terms of the agreement, to every letter which has been written upon the subject, and to the protest taken by themselves 12th November 1770, they now come before your Lordships, and plead, That there never was any concluded bargain between the petitioner and them. In support of this plea, it is, in the f irst place, argued, That there could be no intention to conclude a bargain in the missives above recited: for that those letters passed solely betwixt Dr Camp- bell and Mr William Alexander; the first of whom being only one of a copartnery, had no power to bind the rest; nor as little had Mr William Alexander any power to bind his brother, the petitioner, to which this coal in property belongs. But this ar- gument, which, it is believed, the defenders owe entirely to the ingenuity of their counsel, cannot weigh with your Lordships. For although the letters are wrote by Dr Campbell, and not by all the copartners, yet the defenders have not, nor cannot take it up- on them, to deny, that he had the authority of the whole to transact for them. And such being the case, his act and deed must undoubtedly bind him. And in like manner, it is a most certain fact, that Mr William Alexander had the fullest authority to act for the petitioner: and it is believed, if the defenders had not been disposed to offer captious objections against this contract, and if the objection of want of powers now stated by them had come from the petitioner, they would not have looked upon it in a very gracious point of view. 2do, It has been said, That there could be no concluded bargain; for the missives contain only bare communings, without any ob- ligatory ligatory words. But it is unnecessary to enlarge in answering this argument; for the reverse proposition has been already establish- ed. It is not usual in missives of this kind to have recourse to the lame formality and redundancy of expression which are generally to be found in the execution of formal deeds and conveyances. It is sufficient, if the meaning and intendment of parties is expli- citly understood; and that such was the present case, your Lord- ships will be satisfied from the perusal of the letters themselves. Whence it appears, that the parties had finally closed with each others proportions; or, as the letters themselves often expressed it, the different particulars were agreed to. 3ti0, It is argued by the defenders, That in the missives them- selves, the parties have expressly agreed, that their transaction was afterwards to be reduced into a formal contract; and there- fore, until that intendment was carried into execution, there was locus pœnitentiæ for either of the parties that might chuse to resile. But this argument, the petitioner is advised, proceeds altogether upon a misapprehension of the rule of law founded upon by the defenders. It is extremely true, that when a bargain is verbally entered into, (but the parties make it a condition of the bargain that it shall be reduced into writing), there is locus pœnitentiæ till once the writing is executed. But there is no such case now be- fore your Lordships; for here the verbal bargain was reduced in- to writing by the missives. It is true, that, for the fake of execu- tion, and other conveniencies, a formal contract, in terms of the mil lives, was afterwards to be extended. But it is no where said, that the conclusion of the agreement, so as to render it obliga- tory upon the parties, was to be suspended till once that contract was extended. So far was this from being the case, that in the very last letter wrote by Mr Alexander, agreeing to the proportions of the New- ton company, he, in the most express words, says, “ I apprehend our mutual missives sufficiently explicit and binding; and the only use of a formal contract is, in cafe of any of the letters be- ing lost, or to inforce luminary execution.” This explicit pro- position on the part of Mr Alexander is no where contradicted by the other party; and therefore it is impossible they can now be allowed to pretend, that they understood matters to remain loose until heformacwas extended. And in further evidence of the petitioner’s understanding of the matter, your Lordships have have been informed, that he immediately entered into engage- ments with Mr Beaumont, in order to enable him to make good his engagements with the defenders; and so late as the 12th of November, when the defenders took their counter protest, they do not pretend that there was no bargain, but plead upon the peti- tioner having failed to implement it. 4to, The defenders contended, That the conclusion of the peti- tioner’s own summons was evidence of there being no concluded bargain; for it craves of your Lordships to adjust the terms of the contract, which clearly supposes, that those terms had not yet been adjusted by the parties. But this argument is extremely fallacious. Your Lordships have heard, that after the execution of the agreement in the missives, several disputes arose betwixt the parties as to the intendment and ju st construction of some of the articles of agreement. At the same time therefore that the peti- tioner concluded for the fulfilment of the bargain, and the exten- sion of the contract, it was absolutely necessary to conclude for having the contract extended according to the juft construction of the missives; and that for this purpose the Lord Ordinary should determine what this juft constru ction is. But it no where from thence follows, that no agreement at all had been concluded, be- cause the parties differed as to the ju st sense and construction of it in some particulars. Lastly, Much argument has been used by the defenders upon the correspondence which intervened betwixt the 26th of July and 1st of October, hereto subjoined: and upon these few letters, the defenders do contend, that the bargain appears never to have been concluded; for that the whole of that correspondence relates to the final adjustment of a variety of articles, as to which the par- ties are no wise agreed. But when the matter is attended to, the petitioner apprehends it will not appear in this light to your Lordships: And in this view, you will be pleased particularly to attend to the subject of that correspondence, and you will find, that the different points therein agitated are, 1mo, The import of the expression, atunof coals; the petitioner contending, that the word tun must be un- derstood in its common general meaning of 20 hundred weight; whereas the defenders contend for a local tun of four tubs, Ayr standard-measure. 2dly, The defenders insi st, that the coal shall be delivered as they shall chuse to receive them; whereas the pe- titioner titioner contends, they must be received regularly and progressive- ly, the convenience of the contractors being studied as far as pos- sible. 3dly, The parties having agreed, that, on non-delivery, a penalty of sixpence per tun was to be paid to the contractors, the defenders contend, this must be paid on every event, except the single one of the coal being exhausted; the petitioner, on the o- ther hand, maintaining, that the penalty is only exigible, in the e- vent of the coals being not delivered through any want of skill or neglect in him or his agents. 4thly, The Newton, company proposed, that the petitioner shall engage to take out no coal but what they are to receive, and that he shall be barred from selling, during the continuance of the contract, to any other; whereas the petitioner insi sts, that the misives put him under no such re- striction. It is altogether immaterial, in the present shape of the cause to inquire, whether the one or the other of the parties is right, as to one or all of the above controverted points; but what the peti- tioner desires the attention of your Lordships to is this, that all of these are new points, afterwards started, posterior to the 26th of July, when both parties appear desirous to put the most favourable construction upon the misiv e s, for their own interest. But there is not one of the articles, so far as the missives go, which the par- ties insinuate were not settled and ascertained by the missives; on the contrary, in the whole correspondence posterior to the 26th of July, they plead upon the bargain as fixed by the misiv e s, and on- ly contend, that their construction of the misiv e is the just one; but, as already observed, in the whole after correspondence. the misiv e s are pled upon as constituting a bargain betwixt the par- ties, although they differ as to the import of some articles of the bargain. To illustrate this, let it be supposed, that a formal contract had actually been extended, in terms of Dr Campbell’s own letter of date 17th March 1770, it would not surely have been contended that that contract was not to receive execution, because, from the generality of expression made use of in the agreement, some of the minutiæ, or posib le contingencies which might afterwards oc- cur, had not been ascertained; whether, for example, a tun of coal meant the common measure, or if it meant the local standard of Air; or whether, for example, by delivery was meant delivery as the contractors chided to receive, or when the petitioner was ready ready to give. These and such like consequential disputes might have arisen on this contract, although extended in the most so- lemn and formal manner; but it is totally fallacious from thence to argue, that there was no concluded bargain, because the par- ties afterwards differed as to the import of some articles of the bargain. Such differences daily occur; and when they do occur, the matter must be explicated either by the agreement of parties, or the interpretation of the law; but it never can bear an argu- ment to say, that because parties differ as to the import of a bar- gain in some particulars, therefore your Lordships are to find, that there was no bargain at all. From these observations, the petitioner apprehends himself in- titled to conclude, That the after disputes which arose betwixt the parties can no more be objected against the obligatory force of the missives above recited, than they could have been objected against the existence of a bargain concluded by the most formal and regu- lar contract. These after disputes mult be terminated in the best manner they can; and, if the petitioner is rightly advised, the determination of them, either the one way or the other, will be attended with little difficulty or hesitation: But in whatever man- ner these disputes arose, or in whatever manner they shall be de- termined, they can afford no ground for finding, that nothing at all was determined by the former missives. The petitioner flatters himself he might reft his cause upon the arguments already urged, and the answers which have been made to the defenders objection. But there is one other consideration which the petitioner begs leave to submit to your Lordships atten- tion; because even although there was any thing in the argument urged for the defenders, that, notwithstanding the missives, there had still been locus pœnitentiæ for them to resile, they are now ex- cluded from founding upon any such plea. Your Lordships have been informed, that the petitioner, upon the faith of the agreement between him and the defenders, pro- ceeded to work his coal, and took ail the different steps necessary for the fulfilment of the contract; and in particular, that he en- tered into an agreement with a person who was to work the coal at his expence. From the 19th of March, however, when the a- greement was concluded, to the 26th of July 1770, there was not a word passed between the petitioner and the defenders on the sub- ject of the agreement; but during this period the petitioner, up- on on the faith of the contracts being binding, had laid out consi- derable sums on the coal. On the 26th of July, the correspond- ence between the petitioner and the defender was again renewed. But neither in any one of the letters, as your Lordships have been already informed, which have passed between the petitioner and the defenders upon the subject of their agreement, nor even in the protest taken by them 12th November, was there so much as a hint given, that the defenders did not consider themselves as bound to stand to their bargain; or did they alledge, that they had a power to refile. After this, even allowing that the missives between the parties did not of themselves constitute a binding obli- gation, it is submitted to your Lordships, that the defenders can- not now be allowed to plead this point, feeing lo much has been done upon the faith of the agreement’s being a binding ob- ligation, and since, to use the language of the law, res non est inte- gra. In every case, even where it is clear that the original agree- ment was not binding upon the parties, for want of some of the necessary solemnities of law, the court has found, that there is no room for resiling, where any thing has been done in consequence of the agreement, and when matters were not entire. A variety of cases or this kind are collected in the Dictionary, under the title Locus pœnitentiæ. Thus, in a verbal bargain about lands, there was not found locus pœnitentiæ, the seller having proceeded to pur- chafe in the right of superiority, in consequence of the bargain; Stair, 23d July 1674, the Earl of Kinghorn contra Hay. In the same manner, a purchaser or lands having given a greater price relying upon the superior’s verbal promise to enter him gratis, the superior was found not to have locus pœnitentiæ, quia res non erat in- tegra; Dirleton, 12th November; Stair, 1 st December 1674, Gor- don contra Lord Pitsligo. These cases are not, however, near so favourable as the present. In them there was merely a verbal bargain about lands; but in the present case, there is an agreement reduced to writing; and in this agreement it is expressly made an article, that the missives upon which it proceeds shall be as binding as a formal contract upon stamped paper. Neither, in the cases referred to from the Dictionary, does there seem to have been any subsequent confir- mation of the agreement, by writing or otherwise, by the one party, after the other had proceeded to act upon the faith there- of. of. This indeed is a very strong circumstance in the present case: for not only are matters no longer entire, but even after the peti- tioner had begun to work, and had laid out money upon the faith of the agreement, the defenders continued to assure him, that they would adhere strictly to their bargains. This being the case, it is submitted, what appearance it must now have, for the de- fenders to appear before your Lordships, and plead, That they will still have locus pœnitentiæ; and that they are not bound to adhere to their bargains. The petitioner shall not trouble your Lordships with any thing further upon the subject. He is hopeful your Lordships will not have the lead difficulty in finding the defenders are bound to ad- here to their bargain; and when this point is determined, the pe- titioner is ready, either to refer the disputed articles of agreement to gentlemen of character as arbiters, or take your Lordships judge- ment upon them. May it therefore please your Lordships, to alter the Lord Ordinary's interlocutor above recited; and to find, That, in terms of the mis- s ives of the 12th, 17th, and 19th of March 1770, an agreement was entered into betwixt the petitioner and the Newton company, and to ordain them to implement the said agreement; and to re- mit the cause to the Lord Ordinary, or any other of your Lordsh ips number, that at his sig h t the contract may be adjusted, and ex- tended, in conformity to the agreement contained in those missives; or to give s uch other relief in the premisses as to your Lordships shall s eem meet. According to ju stice, &c. H E N R Y D U N D A S., G B B G S e of s i S SGeo i nPGnFG referred to in the fore- going Petition. Dr John Campbell, to Mr William Alexander. Dated, Ayr, July 26. 1770. X GDS RM SL I n closed you have a copy of the contrail to be entered into be- twixt you and the tacksmen of the Newton coal-work, which I hope you will find right, as it is, so far as I know, perfectly a- greeable to the communing betwixt Mr Macadam and me, upon which our bargain was made. I told Mr Macadam then, and we will still abide by it, that if, in any after time, you were able to put out more, and the harbour was so much improved as that we could load more than the 30,000 tun, that we would be as willing to have them as you could be to give them. You'll please let us know whether you approve of the scroll, that it may be extended, and signed. I am, &c. [Signed] John Campbell. Mr William Alexander, to Dr John Campbell. Dated, Edinburgh,J- ly 28. 1770. X GDS RM SL I Have your favour of the 26th, with a scroll of the contract proposed between you and the other tacksmen of the Newton- coal and me, for behoof of my brother, owner of the Blackhouse- coal. The observations that occurred to me are, 1s t tun of measure in coals, is not language: a tun is 20 C weight, 112 lb. English to the hundred. It will be for our mutual convenience to have the carts and waggons, or other carts, weighed once, to a s- certain their contents; and that you have power, at all times, to check the weight, and deduct any short weight that may be found on all that palled since last weighing, and in that way, perhaps, to weigh weigh only one in ten, or one in twenty; but the nature of the thing implies that weight must be the standard; and you may be assured, you will not be pinched in weight. My second observa- tion is with regard to delivery, which should be regularly and progressively. We cannot undertake to heap up coals for nine months, and load them off in three months. On the other hand, it would be unreasonable that you should be obliged to receive coals daily, whether ships are in waiting or not. In every com- mercial contract, candour and good faith are essential; I mean, that you are fairly, and by all proper exertions, to have the coals shipped off regularly: but if contrary winds, a difficulty of find- ing shipping, or, on the contrary, a great number, of shipping were to arrive at once, in either case, my brother is to accommo- date you to the utmost of his power, by keeping the coals on hand some weeks, if necessary, and by hastening the exportation, if for your interest, but without being liable to any penalty, whilst he is able to deliver you the proportionable quantity contracted for. 3dly, The obligation to deliver, unless the coal become en- tirely unworkable, is too strong and indefinite. I think it may run thus: If, by any unforeseen accidents, such as dikes, foul air, or overcharge of water, rising from no fault of Robert Alex- ander, 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 Newton 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 subjected to no damages for short delivery, while such hindrance continues; he bound always to deliver, to the extent of the contract, all that is taken out, and to continue delivering according to the terms of the contract, so soon as the stop is removed. And it is hereby de- clared, That on the coals being wrought out, or becoming un- workable in the judgement of skilled persons named as afore- said, the contract shall cease and determine. 4thly, The clause li- miting the quantity to be taken out is entirely inadmisib le. My letters, upon perusal, will be found to imply, that my brother was to be at liberty on that head; nor is there the smallest insinua- tion on your part, that he was to be tied up. If you incline to contract contract for all the coals he can take out, either including his home-sale, or exclusive of it, I am ready to treat with you, or my brother will be ready to hearken to any reasonable terms for gi- ving you the monopoly; but by our present agreement, there is nothing to hinder us from taking out any quantity: at same time he will, at least for some time, keep to the home-sale, and will be a good deal regulated in his after-conduct by yours to him. I doubt not but you will find those observations entirely in the spirit of our agreement; and, with these alterations, I think it may be soon made out, and signed. I am, with regard, &c. [Signed] William Alexander.. Mess. James Montgomery and Company, to Mr William Alexander. Dated, Ayr, Aug. 3. 1770. S I R, W E are favoured with yours, with your observations on the scroll of the contract betwixt you and us, sent you by Mr Campbell. It was surely understood by us, and we are told by Mr Campbell expressly he said in his letter, that we were to re- ceive the usual tun of the port, which has never been delivered by weight: we must therefore have our coal by measure. As to the times of receiving the coal, the very nature of the affair speaks it strongly, that it should be left to the receiver. You can bing your coal at the hill; we cannot at the shore. With regard to the penalty of sixpence a-tun, it is impossible we can relax in the smallest degree. We must provide shipping to carry off the whole quantity agreed for, and must suffer in pro- portion to the quantity we are short: so that we must have the sixpence per tun, from whatever cause the shortcoming may be, as long as Mr Alexander continues to work his coal. It may have been neglected in our Mr Campbell’s letter, to re- st r ict you from putting out more than the 30,000 tun; but we never supposed it could be meant by you to put out more, as Mr Campbell fully satisfied Mr Macadam, (on whose letter to you the negotiation was founded), that it was impossible, in the pre- sent situation of things here, to take more; and at the same time allured him, that if that situation was so far altered, as that we could take more, we would be as willing to take more as you could be be to give them; which certainly must imply our intention of ha- ving all you put out. This, therefore, we cannot recede from. You’ll observe a blank in the scroll for the time of payment: this falls to be considered before it is extended. We are, &c. [Signed] James Montgomery and Co. Mr William Alexander, to Mes. James Montgomery and Company, Ayr. D a t e d, Edinburgh, Aug. 6. 1770. r G n B H G T G n L I Have your favour of the 3d current; by which I am concern- ed to find we should differ so widely in expressing, in legal terms, the impart of my agreement with Dr Campbell, for behoof of the Newton company. — I flatter myself there are no persons in this country who are less captious, or more easy in business, and who will go greater lengths to accommodate of conciliate any differences that may incidentally arise, than my brother or I, when we meet with suitable dispositions on the other side.------And your letter contains fo many marks of an inclination to deviate both from the letter and spirit of the agreement, I am convinced the gentlemen concerned have not considered the original misiv e s that passed between Dr Campbell and me, or your letters, since they are all gentlemen of too respectable characte r to trifle in business; and if they wished any alteration in the original agreement, they have fo much good sense as to see, that the only chance of ob- taining it, is by applying for it, and assigning competent reasons for such alterations, which would more readily meet with a hear- ing, than any attempt to explain away the original bargain by new and different conditions. I. With regard to the weight or measurage of coals, there is not a word in the whole correspondence that insinuates any thing of measure, or of an Ayr tun, but simply so many tuns of coals. What a tun of coals is, there can be no difficulty in ascertaining. It has a legal as well as a practical meaning, and signifies 20 C. wt. of 1 12 lb. each; and I much doubt if you have any measure at Ayr known by the name of a tun, for measuring coals. My informa- tion is, that a certain number of carts are commonly called a tun; and, I believe, they are nearly so. And were our coals to be delivered in Ayr carts, I dare say, we would not differ on that head. head. But in all events, it is necessary to avoid questions as to measure, for your sake, more than for my brother’s; and that you nave power to check the quantity, which can only be done by weighing. It this, and my former letter, does not satisfy the Newton company, the matter must be left to the course of law, in case any difference should arise as to the import of the words, “ a tun of coals.” 2. The coal must be received gradually and progressively, under the limitations mentioned in my last. By Dr Campbell’s account, the 30,000 tuns are as many as can be shipped off in the course of a year. It is indeed a cargo of 100 tuns per day; and it is e- qually contrary to reason and to the agreement, that you should oblige my brother to deliver the whole in a day, and keep his horses and people idle the whole year. In a word, the contract commences the 11 th November next, and then will the delivery be begun. 3. The payment is already ascertained to be on delivery. 4. The words of the agreement relative to the penalty are, That should the coal-work cease, by want of coal, or any other unavoid- able obstruction, the agreement shall cease. I apprehend, the addition I made in the contract, is only a fair commentary upon these words. If you will not admit the ex- planation, the words must stand as above; and on the event happening, a court or arbiters must determine the import of them. Though you surely would not mean to exact a penalty, if you were satisfied that every human means were used to deliver the quantity agreed for. But it you declare this to be your meaning, then the import of them will fall to be discussed on the event happening: and it would in all events serve as a lesson for my brother’s conduct in the other articles of the contract. 5. With regard to the limitation you propose of my brother’s working no more than the 30,000 tuns contracted for, it is what I most certainly never did, nor will agree to. The contrary indeed is expressed in my first letter, of 12th March; where I say, “ You shall have all the coals taken out to the extent you agree fo r;” which plainly implies, that coals were meant to be taken out more than was agreed for with you; but that you were to be served in the first place. Nor does there occur any shadow of reason why my brother should be precluded from selling to others. He He will be very ready to come to a proper agreement with you as to regulating prices, and to avoid interference. On the whole matter, I have a moil hearty defire to carry on this business amicably, and of rendering it as beneficial to you as pos- sible: but it must be in a way that I can answer to my brother, and to my own mind; and if you are governed by the same dis- positions, we certainly cannot differ long. Both of us may be partial to ourselves. I will only give one proof of my inclination to do what is right; which is, to refer to any two men of busi- ness and character every article of the agreement. I am, with r e- • i gard, &c. [Signed] William Alexander. Dr John Campbell, to Mr William Alexander. Dated Ayr, August 1 7. 1770. X GDS RM SL I Received yours to James Montgomery and Company, and shall endeavour to answer it. 1. There is a measure, both here and at Irvine, to which we constantly apply, in case of suspicion of short measure. It is not, nor ever was, that we heard of, the practice to weigh coal at either of the ports. 2. We have seen in some seasons, two months together, when not a vessel could have got out of the harbour, and very little could have been done in loading; how then is it possible we should take your coal in a gradual progression? In every winter there will be weeks together when none can be shipped; and indeed the bulk of it must, and will of necessity be shipped in summer; so that the times of receiving it must, from the nature of the thing, depend upon the receiver. As to the penalty for short delivery, we can never admit, that that should remain undecided till the event happens. We must immediately provide shipping to carry off the full quantity, and must therefore be allured of receiving it, or being paid for what is short, according to your own proposal. The negotiation betwixt us proceeded on my conversation with Mr Macadam, which has been fully stated to you; how far your saddling us with 30,000 tuns, and selling what more you can put:. out out otherwise, is in the spirit of that conversation, I leave you to judge? I hope we have hitherto, and always will, adhere strictly to our bargains; and I have not, I allure you, the smallest intention of gi- ving unnecessary trouble in this one; and for that reason would wish to have every point fully understood before it is finished: and if, after all the pains we can take to avoid it, any difference should arise, in that cafe we shall be ever ready to settle it by arbitration, as the most easy fair method possible. But I prefume no arbiter would pretend to accept of a reference in some of the above ar- ticles, as they are already self-evident. However, as matters might probably be better explained by a conference tete-a-tete we could wish you would name your time and place, when we could have the pleasure of seeing you. Glasgow would be most conve- nient for us; but if it is even at Edinburgh, we will meet you, and endeavour to end it without further trouble. I am &c. [Signed] John Campbell. Mr William Alexander, to Dr John Campbell, Ayr. Dated, Edinburgh. Aug.20. 1 770. X GDS RM SL W e have your favour of the 17 th current. In answer to which, if there is a standard kept by the town of Ayr, known by the name of a tun of coals, there might be some argument in what you urge. But we apprehend the real case to be, that it has been customary to compute so many tubs of coals to a tun; and there may be a standard for checking the tub on the hill. But this cu- stom mud have arisen from finding, that so many tubs did make a tun: but still there remains to ascertain what a tun is, on any dispute about measure; for in f act, any measure may, by a skil- ful hand, be filled with a third less coals than it can contain, and the legal import of a tun of coals is 20 C. weight. But to cut mat- ters short, we desire you will please weigh the quantity common- ly called a tun of coals, and advise us what it weighs; as it is very possible we may have no dispute about the matter, i f we find the measure any way accurate. It is not our intention, by any means, to stand on trifles. With With regard to the penalty for short delivery, if you do not a- gree to the explanation in my former letter, it must stand precisely as worded in the original agreement; and whatever interpretation shall be put on these words by judge or arbiter, that we must, and will, abide by. But you certainly never could understand, that the penalty was to be paid, when, by any unavoidable acci- dent, the coals could not be taken out, since the words of the a- greement bear the reverse. I understand the agreement already made as absolutely final; and am confident, that were you equally desirous of its receiving execution as I am, there would be many fewer words about the mat- ter. The proposal of a meeting I think very proper, as it may serve to shorten this altercation. I would willingly meet you at Glasgow; but until my brother returns, there is no possibility of my lea- ving this. Were it convenient for you to come to town, you ne- ver can miss me; and it is probable my brother may be home by Friday next: so that day, Saturday, or Monday, will do well; and if you write me the day before, it will prevent me from being out of the way. I say nothing with regard to the other clauses of your letter un- til then; but am, ever with regard, &c. [Signed] William A- lexander, Mr Robert Alexander, to Dr John Campbell, Ayr. Dated, Edinburgh, Sept. 17. 1770. m S I R, MY brother being in the country for some days past, your let- ter to him of the 10th current came to my hands; and ra- ther than allow you to wait for an answer, I shall give you an an- swer myself. I cannot agree to any limitation of quantity in working my coal; nor can I conceive it possible, that so sensible a man as Mi- Macadam should give you encouragement to think so, since he could have no authority from my brother to do so, who. was al- ways acquainted with my sentiments on that head. But whatever passed betwixt you and Mr Macadam is of little moment, your treaty not being with him, but my brother; in whose letters, and yours, every thing is clearly and completely fixed between us, so as to render any other writing, in my humble opinion, super- fluous. But when you complain of my being at liberty to fell the reft of my coal at what price I please, you seem to have forgot what I told you in conversation, that I would most certainly make a difference in the price between your company, and such as took from me a less quantity. This might satisfy you that I have no intention to hurt you; and though I was under no legal obliga- tion to give you this assurance, I did so, because I thought it was juft; which was a sufficient motive with me in every transaction. But you cannot seriously suppose, that I shall submit to any body, whether I shall be limited from working my coal to what extent I can, should I be able to sell it for a better, or were it an equal price with what I get from you, supposing I were to get people to con- tract for an equal quantity of coals on the same terms with you. It is certainly what I can never agree to. You say in some part of your correspondence, that were your harbour enlarged, you would agree for a much larger quantity. I shall heartily concur in any reasonable scheme that is proposed for the enlargement of the harbour; and as it may be yet some time before I can take out a much greater quantity of coals than what I am to deliver to you, I hope you may still find it for your interest to treat for all the coals I can take out; and you will ever find me desirous to encourage any further proposals from you, preferably to any body else; and I shall certainly do every thing in my power to render this, and every other agreement, as easy and advantageous to you as I can. Nor can I allow myself to sus- pect, that being so disposed, and having the same idea of you, that there can arise any differences between us in the performance of this agreement. I am accordingly taking measures for the de- livery of the quantity agreed to be delivered to you from the term of Martinmas; which I hope you will be prepared accordingly to receive: and when we have got a little more experience, should any new stipulations appear necessary to render the execution of this agreement easy and agreeable, I shall be ready to alter them; and in the mean while, I think it may very well rest where it is. I think this is a sufficient answer to your letter; and, with my best respects to your partners, I remain, with the greatest regard, &c. [Signed] Robert Alexander. " • Mr Dr John C a m p b e l l, to Mr Robert Alexander., Ayr, September 28. 1770. X GDS RM SL I Received yours of the 17th in course, and have considered what you say. As I am well satisfied you mean every thing should be ended in the most fair and friendly manner, I can see no, good reason why my conversation with Mr Macadam should not have its weight in settling our differences; as there can be nothing more certain, than that I considered it as the ground-work of our future bargain, when I confirmed what passed betwixt him and me in my letter to your brother. But supposing all the points fixed by him and me (which I believe neither of us looked on as any more than the heads of an agreement to be afterwards entered into be- twixt you and the tacksmen of the Newton coal) totally out of the question, the most capital article of the whole remains still unde- termined; I mean the sixpence per tun for what is short delivered; your brother's explanation of which we never can admit. If therefore every other article were settled, unless you will agree, that this shall be understood (according to the plain and evident meaning of the words) as we have already put it, we cannot allow it shall be a bargain, and of course cannot begin to receive your coal at Martinmas. We have taken the previous steps with some of our leading folks in town with respect to the harbour; and so soon as we can bring things to any bearing, shall acquaint you: not doubting, with your assistance, but it will be brought to a happy issue; happy for you, for us, for the neighbourhood, for the pu- blic. I am, with the utmost respect, &c. [Signed] John Campbell. Mr Robert Alexander, to Dr John Campbell, Ayr. Dated, Edinburgh, Oct. 1. 1770. S I R, I Have now before me your favour of the 28th ult. I am con- vinced, that most of the difficulties that have been lately started betwixt us, proceed from an over-anxiety on your part; and that when we come to the execution of the agreement, there will be fewer fewer differences between us than you seem to apprehend. What concerns the penalty for non-delivery, which you style the most ca- pital article of the whole, I take to be of the number; since, if you have any reason for apprehending that I shall be able to take out too large a quantity of coal, you have the less ground to appre- hend a deficiency of quantity for some time. But be that as it will, I am very willing to stand to every thing that is contained in the original correspondence between you and my brother, which I think abundantly clearly expressed: and therefore I hope, that, without giving yourselves or me any further trouble, your com- pany will be prepared to receive the coal, I am bound to deliver you from the term of Martinmas next; which I have taken mea- sures to accomplish. My brother was fully authorised by me to conclude the agreement and I consider myself bound to whate- ver he has said in his letters, equally as if I had wrote them my- self. Should we differ about the sense of them, and cannot other- wife, we must doubtless have recourse to the necessary means of determining questions of this kind; but I should think it time e- nough to apply to the law when the cause of difference comes to exist. I am, with my best respects to your partners, very sincerely, &c. [Signed] Robert Alexander.