Alexander — Answers, 4 Jan 1772

Untitled January 4. 1772. A N S W E R S F O R R O B E R T A L E X A N D E R Merchant in E- dinburgh, T O The P E T I T I O N of James Montgomery and Com- pany, Tacksmen of the Coal-work of Newton upon A yr. V.. ^ T H E respondent 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 several persons of skill, and advertised it to be set in tack. But the offers that were made appearing in no degree ade- quate to the real value, the petitioner listened to proposals by a per- son of skill, who offered to work for the respondent’s account. The terms, however, were fo high, that the respondent found he would not be indemnified, unless the sale should be very consi- derable. On this account he did not chuse to enter into any bar- gain, 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 re- spondent his brother to manage this affair, did, on this account, enter into a conversation with Mr Macadam of Craigengillan up- on this subject; and as Mr Macadam was well acquainted with the 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, coal, to be delivered at the harbour of Ayr, that by this means the respondent might enter into contract with the person 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 this date, wrote by Mr William Alexander to Mr Macadam. “ As you are so good as to offer to make inquiry about the sale of coals, and to see if any of the Ayr gentlemen would engage to buy my brother’s coals, deliverable at the ship-side in Ayr, or on the coal-hill, I beg leave to acquaint you, that having taken all possible infor- mation concerning the coal, we have reason to think it valuable; and as the offers hitherto made are no way adequate, my bro- ther thinks of working it himself, at least until such time as the value is better understood. We have in view a man of sk ill and abilities, who would work it for my brother’s account; but un- les s the sale could be extended to at least 25 or 30,000 tuns, w e could not offer him such an appointment as would be necessary to engage him. We find the coals could be delivered on board ship at 5s. per tun, good weight, or 4s. 6d. on the hill; and as we live at such a distance, and charges muff 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 60,000 tuns, my brother would enter into contract Martinmas next; and as the contractor would be put to no advance, and the pre- sent import-price is 6s. per tun, or 5s. per tun on the hill, sup- posing export-sale could be pushed at 5s. 8d. the difference would be a handsome allowance to the contractor. I beg to hear from you soon on this subject, as we must decide on some- thing immediately.” Mr Macadam, in return to this letter from Mr Alexander, in- formed him, that he had talked of the subject with the gentlemen, tacksmen, and partners, of the coal of Newton of Ayr. and that they were willing to listen to his proposals; but as Mr Macadam himself had no power to conclude a bargain upon this head, he very properly desired Mr Alexander to correspond upon this subject with Dr Campbell, who, for himself and for the other partners, was impowered to treat upon that matter. Agreeable Agreeable to this suggestion Mr Alexander wrote to Dr Campbell 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 year- ly. Mr Macadam informs me, that your company agree to take 25,000 tuns yearly, and to pay for the fame on delivery at the rate of 5 s. per tun, the agreement to commence Martin- mas next. Mr Macadam says nothing of the endurance 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 otherw is e you shall have all the coals taken out to the ex- tent you agree for; and for any quantity short taken out, we shall pay you a penalty equal to what we suppose your profits may be, s uppose sixpence per tun; and this I now conf irm. I dare say, as our interests are by this agreement 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 Eng- land. I think a missive letter as binding as any other; but as the a- greement is for a long time, it may be convenient to have a deed on stamped paper. If you will fend me a scroll, I shall return it with my observations, or extend and sign it if right." Dr Campbell, in return to the above, wrote the following an- swer. “ Having been some days from home, I did not get your letter till juft now, else I should have answered it in course. “ I did agree with Mr Macadam as he wrote you, to give you 5s. per tun for your coal delivered on the quay; and to take 25,000 tun the first year, and 30,000 tun every year after; 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 posibly, in the present state of our harbour, be shipped in twelve months, and more than can be shipped at the present wharf: but as we have an exclusive privilege 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 if our harbour came to be improved, so as to contain more ship- ping, I should have no difficulty in extending the export of your coals, as there is no present appearance 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 sixteen 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 6d. per tun for what he 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 proprietors, to grant it; neither do I know, as I have not seen any of them, how far it may be agreeable to the other gentlemen concerned, if we should get the consent of the community of Newton; 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 fee a thing of such general concern fairly a- foot.” To this letter Mr Alexander returned the following answer: “ I have your favour of the 17th, confirming, on behalf of the New- ton company, the verbal agreement made with Mr Macadam a- bout my brother’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 s ixteen years from Martinmas next, the penalty 6d. per tun. I ap- prehend our mutual missives s uff iciently explicit and binding; and the only us e of a formal contract is in case of any of the letters being lost, or to inforce s ummary execution. When you fend me the scroll, I shall examine and return it with my observations. In regard to the waggon-way, every motive of mutual interest, exclusive of the public benefit, will certainly induce you to promote a wag- gon-way, which may carry both coals: and we send next week a gentleman, well conversant in these matters, with full powers to transact in this, and to prepare for opening the coal; his name is Mr John Beaumont. He will be very ready to give you his bed advice and asi stance, which may be worth attending to. You need s ay nothing to him of our agreement. I am,” &c. Your Your Lordships will perceive, that by these missives the Newton company engaged to give 5 s. per tun for the respondent’s coal de- livered 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 a- greement is to continue for sixteen years after Martinmas then next- that it is stipulated, that the respondent shall pay 6 d. per tun for what may fall short of the quantity agreed upon; Dr Campbell al- lows this to he a full recompense; and it is farther stipulated, that the bargain should be void upon the coal’s becoming unwork- able. No return was made to this letter: and indeed, as the missives were abundantly plain and explicit, it did not occur to Mr Alex- ander, that there could be any difference betwixt them; and as he considered the terms of the bargain to be finally adjusted and con- cluded, so, upon the faith of this agreement entered into by these missives, the respondent proceeded to take measures for working his coal; and accordingly concluded a bargain with Mr Beaumont, who undertook to work this coal, and with whom the respondent entered into engagements to a considerable amount. It has been already observed, that no answer was returned to the foresaid letter of the 19th of March: from which period, to the 26th July thereafter, there was a total silence; from which the re- spondent had just reason to apprehend, that no more remained than to reduce the contents of the missives into a formal contract upon stamped paper. However, upon the 26th of July, the cor- respondence was renewed, when Dr Campbell wrote Mr William Alexander the following letter. “ Inclosed you have a copy of the contract to be entered into betwixt you and the tacksmen, which I hope you will find right, as it is, fo 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 are able to put out more, and the harbour was fo 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 will please let us know, whether you approve of the scroll, that it may be extended and signed. I am,” &c. Mr Alexander returned an answer of this date, recited at full length in the petition. In which he makes sundry observations up- on on the scroll of the contract transmitted to him by Mr Campbell, pointing out wherein he apprehended it differed from the terms of their agreement, as specified in the foresaid letters. The correspondence was continued betwixt them down to the month of October; and which chiefly related to the import and meaning of some of the articles of agreement, as expressed in the missives, and in what light they fell to be considered in certain events which might happen. The term of Martinmas having arrived, which was the term fixed for the commencement of the bargain, the respondent, that there might be no failure upon his part, caused a quantity of coals be carried to the quay of Ayr, and made offer of them to the New- ton company; which coals they having refused to receive, the re- spondent was obliged to take a protest against them; and upon the fame day a counter protest was taken by the company against the respondent; and which is of the following tenor. “ At Ayr, the 12th day of November 1770 years. Which day, in prefence of me notary-public and witnesses subscribing, com- peared personally James Montgomery merchant in Ayr, for him- self and company, tacksman of the Newton coal-work, and pair- ed with us to the personal prefence of John Beaumont, manager and doer for Robert Alexander, E sq; merchant in Edinburgh, proprietor of the coal-work at Boighall, in the parish of St Qui- vox, and shire of Ayr; and represented to him, as doer and ma- nager foresaid, That there had been a verbal communing be- tween John Campbell, one of their company, and John Maca- dam of Craigengillan, E sq; agent for Mr Alexander, anent their taking from said Mr Alexander his coal-pits 23,000 tuns of coals for the first year, and 30,000 tuns yearly thereafter, for sixteen years from and after Martinmas next, 1770 years, at the rate of 5s. Sterling per tun; and w hich communing was confirmed by a letter from Mr William Alexander, s aid Mr Robert Alexander's brother, and for him, of date the 12th day of March last; and that said Mr Robert Alexander had not, according to the true intent and meaning of the above communing, and his brother’s letter, nor even according to his own idea thereof, delivered a proportional quantity of the above 25,000 tun of coal, proposed to be taken, as repeatedly threatened on the 1 1 th and 12th day of foresaid month of November; and which non-delivery was, by said Mr William Alexander, writer of the above letter, on which which letter, and the communing with Mr Macadam, the whole must stand or fall, allowed, in prefence of Alexander Fergusson, E sq; Advocate, on the 3d or 4th day of September last, to be a nullity of the bargain, if the company chused it, whenever such stop should happen. The company being therefore satis- fied, that Mr Alexander means only to trifle with them, as he has no coals at present on his coal-hill, nor any at present co- ming out of his coal-pits; nor is there any probability of any to come out for some time; and, at any rate, unwilling to en- gage in a bargain, however advantageous, where there is so little probability of matters being carried on amicably; therefore said James Montgomery, for himself and company foresaid, did, and hereby doth, protest, That since said Mr Alexander will neither complete the bargain, according to the true intent and meaning of the bargain, nor hath fulfilled any part thereof, ac- cording to his own mistaken idea of it, that the whole shall be void and null, and the company intitled to expences: And there- upon, and upon all and sundry the premisses, the said 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 respondent was obliged to bring an action a- gainst the Newton company; concluding, That they should be de- cerned to implement their agreement; and that they should be found liable in damages for the loss the respondent had already suf- fered by the failure on their part. This cause having come in course before the Lord Elliock Ordi- nary, the defenders not only laid before his Lordship the different articles in the missives with regard to which any difference had a- risen, but were pleased likewise, for the first time, to alledge, That there was no bargain at all; and that the missives which passed be- tween the parties did not constitute a binding obligation upon them. Upon this it was observed, upon the part of the respondent, That before the parties should go into the meaning of the different arti- cles, it was necessary that it should be first faded, whether the bar- gain is at all binding: That the question which had arisen with re- gard to the meaning of these missives, and the different constructions put upon them, would all equally occur, even though there had been a formal contract regularly extended upon stamped paper: and and to prevent any fort of difficulty upon this matter, the respon- dent did declare, That should your Lordships find the agreement sufficiently binding, he was willing to adopt the very words of Mr Campbell's letter to Mr Alexander of date 17th March 1770, as the terms of the agreement; and that if, after this, the defender should start any difficulty with regard to the meaning of the words used in their own letter, the respondent was willing, either that the different points which should appear doubtful should be re- ferred 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 or not there is a binding contract between the parties? before they should be heard upon the meaning of the different clauses of the contract, his Lordship, therefore, without entering into the consideration of these different articles, ordained parties to give in memorials; and upon advising thereof, he, of this date, pronounced the following interlocutor. Having considered this memorial for Robert Alexander, pursuer, with the counter memorial for John Campbell and others, de- fenders, and the letters of correspondence exhibited by both par- ties, finds, in the treaty for entering into a contract between the parties, several of the most material and essential articles were not adjusted and agreed upon; and that no finished bargain was concluded, so as to be binding upon the parties; but that either of them may resile from their proposals; therefore dismisses this action, and assoilzies the defenders from the conclusions of the libel, and decerns.” The now respondent preferred a petition to your Lordships a- gainst this interlocutor; and upon advising the same, with an- swers, your Lordships, of this date, pronounced the following in- terlocutor. “ The Lords having advised this petition, with the an- swers thereto, find, That by the misiv e s produced a bargain was agreed on, and concluded betwixt the parties, binding on both, from which niether can resi le; and remit to the Ordinary to proceed accordingly.” The defenders have reclaimed against this interlocutor. The petition is ordained to be seen and answered. And in obedience thereto, this is humbly offered on behalf of the respondent. The petitioners say, That the parties who wrote the letters in question, by which the bargain is said to be constituted, had it not not in their power to conclude a positive bargain; that Mr William Alexander was not proprietor of the coal; that Mr Campbell was only one of four copartners, who had it not in his power to bind them; that if these missives had been intended to be obligatory upon the parties subscribing them, each of them would have taken burden for those for whom they must be supposed to have been adding; that the style of the missives shew, that it was not in the view of either of the parties, that they were to be conclusive, for that neither the one letter nor the other contains any obligation or obligatory words; Mr Alexander neither becomes bound that he or his brother should deliver, nor does Mr Campbell oblige himself that he or his partners shall receive, any quantity of coal whatsoever; that sundry important articles fell still to be settled and adjusted, before a bargain could be finally concluded, these missives being silent as to the time and mode of delivery, whether the quantity was to be ascertained by measure or by weight, and also whether the respondent, in working his coal, was to be re- stricted during the sixteen years that the agreement was to endure, from taking out any greater quantity than he was to be bound to deliver to them, or whether he was to be at liberty to take out what more he pleased, and of course to become a rival to them; and, from these circumstances, the petitioner concludes, that the missives cannot be considered as obligatory, or to be looked upon in any other light than as an epistolary communing with regard to the terms of a bargain not yet completed, and from which the parties were at liberty to resile. This is the substance of the argument in the petition; but the respondent is humbly persuaded, that it must appear very incon- clusive and unsatisfact ory to your Lordships. That obligations of any kind, and to any extent, may be effec- tually created by missive letters, is a proposition which cannot ad- mit of a doubt. It is well known, that mutual missives do even con- stitute an effectual obligation with regard to land-estates, the trans- mission of which is more fettered with form than any other trans- action whatever. Many minutes of sale have been constituted in the form of mutual missives, and it was never doubted, that in virtue thereof, the purchaser could compel the seller to implement his agreement, and to grant the proper deeds of transmission; and that the purchaser, on the other hand, could be thereupon com- pelled to make payment of the price; and, in like manner, many tacks, racks, which are in their nature real rights, have been constituted in the form of mutual missives, and have been found binding and effectual accordingly: and if missive letters are binding and effec- tual in transactions relative to lands, and other real rights, it does not occur to the respondent, how it can admit of a doubt, that they must be binding and effectual in such a case as the present, which is merely a mercantile transaction; and surely no reason can be given why mercantile transactions should be more fettered with forms, than obligations with respect to lands. In this view, the present case becomes truly a question of very great and general concern. It would lay a very great embargo- upon mercantile transactions, if they could not be effectually con- cluded by mutual missives. Many transactions do, and must hap- pen, amongst persons living at a distance, and it is only by missives that transactions can, in such cases, be constituted with any degree of facility; so that the sustaining transactions in this shape, be- comes in a great measure necessary, for the very being and existence of commerce; and accordingly it happens every day, that bargains of very great value are entered into in that form. And as the respondent must beg leave to hold it as an incontro- vertible point, that missive letters were a competent and habile mode of executing the agreement which the parties had in view in this case; so, with submission, it does appear to be equally clear to the respondent, from perusing the missives themselves, that it was a finished and completed bargain. The price is thereby fixed to be 5s. per tun delivered on the quay. The petitioner says, The place of delivery is not fixed. In the f irst place, It would be no ob- jection although it was not; if the contract was silent upon that point, the law would fix the place of delivery. But, 2do, It is a mistake in point of fact: Mr Alexander in his letter to Craigengil- lan says, that “ 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.” Mr A- lexander, in his letter to Dr Campbell of 12th March 1770, writes, 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 5 s. per tun.” And Dr Campbell, in his return thereto, of 17th March 1770, says, “ I did agree with Mr Macadam as he wrote you, to give you 5 s. per tun for your coal delivered on the quay.” And Mr Alexander, in his letter of 19th March 1 770, acquiesces in these terms. So that it is as clear as the light of of day, that, by the express terms of the agreement, the coals were, deliverable upon the quay of Ayr. And as the price is clearly ascertained to be 5 s. per tun, fo the quantity to be delivered is likewise agreed upon, being 25,000 tun for the first year, and 30,000 tun for every year thereafter; 6d. 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 stipulate, that the bargain shall be void upon the coal’s becoming unworkable. So that, in reality, every article which could have entered the most formal contract, is condescended upon: propositions and concessions are mutually made, till at last the parties are so thoroughly of one mind, that in the two last letters which palled, there is not a single point or article as to which there is a difference betwixt them. Besides, 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 to indicate a fixed purpose and resolution as to what they were writing, very different from the style of uncompleted communings. They talk of confirming what was before verbally agreed upon; they mention this and the other particulars being agreed to; and Mr William Alexander says, he engages for his brother to deliver to the company the stipulated quantity. It is clearly of no moment, that sundry questions may arise be- twixt the parties from this transaction, which are not settled or ex- pressly provided for in the missives, or that the parties differed up- on the construction of some of the articles of the agreement. It is one question, Whether a bargain is complete and binding upon the parties? and it is a very separate question, Whether a contract is conceived in such terms as that parties or judges may differ as to the import or construction of some particulars, or that questions may arise betwixt the parties in certain events which are not spe- cially provided for? There are certain things that are essential to the very being and existence of a contract; and if any of these are wanting, there is no bargain: or if other articles, though not essential to the exist- ence of the contract, are made the subject of communing, if these are not passed from, or agreed to by the parties, there might be some pretence for pleading, that the bargain was not finished nor complete, complete. In the contract Emp. vend. three things are essential to the constitution of the contract, viz. cons ens us, merx, et pretium. If the contracting parties are not agreed as to the thing proposed to be fold, or the price to be paid, there clearly can be no bargain: but, on the other hand, if the parties are agreed as to these, the bargain is complete and binding, although they have not taken care to provide specially for the various contingencies that may af- terwards arise from that contract. When such happen, they must be decided agreeable to the determination of law in like cases, from the prefumed or implied will of the parties. In the present case, the essentials of the contract, and much more, are clearly ascertained by the foresaid missives; and, in short, there is a cons ens us in idem placitum as to every article that was the subject of communing betwixt the parties before the final completion of the bargain by the foresaid mutual missives. The disputes betwixt the parties, and which were the subject of discussion in the letters of correspondence from the 26th July to the month of October thereafter, arose some months after the bar- gain was concluded; when both parties appeared desirous to put the most favourable construction upon the missives for their own interest; and when the petitioners appear likewise extremely anxious to insert in the contract stipulations relative to certain contingencies which not only were not the subject of communing before the the final completion of the bargain, as ascertained by the misiv e s, but, in the respondent’s apprehension, some of them contrary to the true spirit of the transaction. The question now betwixt the parties would have been precisely the same in point of relevancy, although the articles of agreement as ascertained by the foresaid misiv e s had been reduced into the most formal contract, extended on stamped paper, and duly signed by the parties. If a contract is unintelligible, a court of ju stice can give no effect to it; but where it is capable of construction (and in the present case it is liable to no ambiguity), it will be no reason for setting aside the contract, that the parties do differ as to their understanding of the import of it in any particular: your Lordships would notwithstanding find the contract binding, and will give that construction to it which shall appear, from the con- trad itself, to be agreeable to the meaning and intendment of the contracting parties at the time it was entered into. In In like manner, when a contract has all the essentials necessary for the constitution of the contract, it, with submission, never was heard of, that the contract was to be considered as incomplete, and not obligatory, because questions might afterwards arise betwixt the parties, that were not provided for, nor did receive a precise determination in the contract itself. If the contract has all the es- sentials necessary for the constitution of it, it is binding and effec- tual in law; and when questions do occur not provided for in the contract, if parties cannot settle the matter betwixt themselves, they must refort to courts of justice to determine the same agree- able to what shall appear to be law in such cases. It is impossible that short-sighted mortals can in their transactions provide for e- very event that may happen, or for every question that may from thence afterwards arise betwixt them; and if there was any relevancy in the petitioners plea, it would be a sufficient ground for setting aside every contract that ever existed. The respondent will be bold to say, that no contract ever was framed, where twenty questions may not be pointed out which might arise betwixt the ties, as to which the contract was entirely silent. It is unnecessary in the present shape of the cause to inquire, whether the one or other of the parties is in the right as to one or all of the controverted points betwixt them; it is a chance if there shall ever be occasion for determining them. When a real question does arise betwixt the parties relative to any of these points, your Lordships will determine the fame agreeable to law and ju stice. The only question at present is, Whether the contract is binding upon the parties? and the respondent humbly hopes, that your Lordships will have no difficulty in being of opinion, that it is binding. At the same time, these controverted points, as to which the pe- titioners say the contract is silent, in the respondent’s humble ap- prehension, are of very easy discussion; and indeed the bulk of them appear to be determined by the contract itself. As to the question, Whether the quantity was to be ascertained by measure or by weight? the respondent apprehends, that it can scarce admit of a doubt. A tun of coals, in common language, and particularly in the language of merchants, is understood to "be a quantity of coals of a certain determined weight: and it is be- lieved, that it almost universally holds, so in practice; for although in same places the tun of coals may be given by measure, yet it is is believed it will not be disputed, that it was by the weight that that measure was ascertained. At the fame time this question seems to be determined by the missives. Mr Alexander in his letter to Craigengillan says, “ We find the coals could be delivered on board ship at 5 s. per tun, good w eight;" and there is not an insinuation in any of the af- ter missives before the completion of the bargain, that the delivery should not be by weight, but by measure. However, the diffe r ence if any, betwixt the weight and measure in this case, has been found upon trial to be so immaterial, that the respondent, when the cause was last before your Lordships, to put an end to any dis- pute upon this head, agreed to give the petitioners their choice, to take the coals either by weight or by measure. As to the article, How far the respondent is at liberty, during the sixteen years that the agreement was to endure, to take out any quantity of coal he pleased; or if he was to be restricted from taking out, and disposing of, any greater quantity than he was to be bound to deliver to them? the respondent apprehends that the question can be attended with no fort of difficulty. The respondent at common Jaw was in titled to the free and unlimited exercise of his property, and nothing but the most positive and express words could bar him from using it in any shape he inclined; and it is impossib le, by any fair rule of construction, that the obligation which he came under to deliver 30,000 tun yearly to the petitioners, did imply a restric- tion upon him to sell coals to any other person. Indeed the very contrary seems to be pretty clearly pointed out in the agreement itself, as established by the misives. Mr Alexander, in his letter of 12th of March 1770, writes Dr Campbell in the following words: My meaning was to agree for twenty-one years; it being understood, that should the coal work cease by want of coals, or other unavoid- able obstructions, the agreement shall cease; but otherwise, you shall have all the coals taken out to the extent you agree for." These words do naturally and plainly import, that Mr Alexander might take out more coals than what he was bound to deliver to the com- pany, and that he was to be under no restriction in that particular. The import of the words clearly is, that the respondent was not to be at liberty to deliver short of the stipulated quantity, and sell coals elsewhere. The company were intitled to precise implement of the contract, by delivery of the whole coals they should be able to raise to the amount agreed for; but after implementing his obligation to them, them, he was under no bar to raise and dispose of as many coals as he pleased. The words do by no means import, that he was to de- liver to the petitioners the whole quantity he should raise, but the delivery is expressly limited to the quantity agreed for. This is the plain construction of the foresaid clause in Mr Alexander’s letter; and yet Dr Campbell, in his answer thereto, does not pretend to lay him under any rest r iction in the foresaid particular; and there- fore the respondent cannot but consider that the petitioners in their after correspondence, were endeavouring to stipulate an advantage to themselves, which not only they had not stipulated by the mis- sives by which the bargain was concluded, but even contrary to what seems to be the plain import of these misives. The only other article in which the petitioners say the contract is silent, is as to the time and mode of delivery. As to which, the re- spondent cannot help thinking, that the contract cannot be better than it is. He is afraid, that if more words were to be multiplied, it would only have the tendency to create more doubts. The agree- ment commences at Martinmas, and the delivery for that year must be completed within the year, and so on for every year thereafter. It is not easy to lay down precise rules as to the mode of imple- menting a contract of this kind; a good deal must be left to the dis- cretion and good faith of the parties. It is the duty of the parties, to endeavour to accommodate one another; and if either of the par- ties should do otherwise, and endeavour to embarrass the other by not acting up to the good faith of the contract, and agreeable to the true spirit thereof, it is in your Lordships power to give full and ample redress to the party thereby injured. Mr William Alexander, in his letter to Dr Campbell of 28th July 1770, in the observations made by him upon that article, seems to entertain a very proper idea of this matter: “ My second observation is, with regard to delivery, which should be regularly and progressive ly. 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 waiting or not. In every commercial 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 finding shipping; or, on the contrary, a great number of shipping were to arrive at once; in either case, my brother is to accommodate you to the utmost of his power, by keeping the coals 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 qanu- tity contracted for.” And therefore, to conclude upon this head, notwithstanding of all the imperfections which the petitioners are pleased to suppose do attend this contract as established by the missives, the respondent cannot help thinking, that if the parties were to adopt the rule pointed out in the foresaid observations, that scarce any dispute could arise betwixt them. However, although there was more room for disputes, than truly there is, as all the essential requisites are clearly expressed in writings, binding and effectual by the law of Scotland, it would be no reason for throwing the contract loose; but it would belong to a court of law to determine these differences, when the fame should truly happen. At to what is said in the petition, That the parties contracting had no powers to contract, and that they do not take burden upon them for their supposed constituents, it is believed the argument will have no weight with your Lordships: and indeed, with submission, it has no foundation either in fact or in relevancy. Mr William Alexander had the fullest authority to aCt for the respondent, and accordingly he expressly takes burden upon him for the respondent; for in his letter of 19th March 1770, he writes by said letter, “ I see you propose to take 30,000 tuns annually after the first year, which accordingly I engage for him (i. e. the respondent) to deliver to the company.” And although the letters are wrote by Dr Camp- bell, and not by the whole partners; yet the petitioners cannot se- riousl y deny that he had the authority of the whole to transact for them. And indeed Mr Campbell’s powers are clearly acknowledged by the company, in a letter wrote by them to Mr William Alexan- der of August 3. 1770, in which they considered the transaction as their own transaction. In this letter they write, “ Sir, We are favoured with yours, with your observations on the scroll of the contract betwixt you and us, sent you by Mr Campbell. It w as s urely understood by usi and we are told by Mr Campbell expressly, he said in his letter, that we were to receive the usual tun in the port, which has never been delivered by weight: we must there- fore have our coal by measure.” Indeed, although the parties had not authority from their sup- posed constituents, it could have no other effect than to bring the whole whole load of this contract upon Dr Campbell himself. Where par- ties contract factoris nomine; although it is only intended to bind their constituents, and not themselves; yet if they shall take it upon them to contract without authority, they themselves must imple- ment the obligation which they undertook for their supposed con- stituents. And besides, there can be no doubt that Dr Campbell, who is one of the partners of the company, by contracting for the compa- ny, however that contract might not be good against the company, it would certainly be good against: the Doctor himself personally; and therefore, as the respondent is able and willing to fulfil the en- gagements which Mr William Alexander undertook for him, Dr Campbell mud at any rate be liable to implement the counter obli- gations. Of equal insignificancy is another observation made in the petition, viz. That the missives contain no obligatory words. In the first place, The facet is otherwise: it has been already observed, that Mr Alex- ander, in the letter of 19th March, engages to deliver 30,000 tuns to the company. But 2do, It is of no moment in what form of words the missives are conceived; no verba s olennia are necessary in the constitution of a bargain of this kind. If there are such words as are sufficiently expressive of the agreement of parties, there arises an obligation upon each of the parties to fulfil their agreement, and there from thence arises an action hinc inde at the instance of the one party against the other to compel implement of what was agreed to. The petitioners say, That as both parties had agreed that a for- mal contract was to be extended, it was in the power of either party to break off at any time, prior to such contract’s being signed by them; for that until such contract was extended and signed, the bargain mud be considered as incomplete. But the respondent is humbly advised, that this argument proceeds altogether upon a misapprehension of the rule of law founded upon by the petitioners. It is extremely true, that a verbal communing or agreement, in which all the different articles are finally settled and adjusted, will not be binding, either where a contract in writing is necessary from the nature of the transaction, or where it is expressly agreed that the contract shall be reduced into writing. In either of these c ases, till the contract is actually executed, there is locus pœnitentiæ to either party. But where a bargain is established by missive letters containing all the essentials of the contract, these misi v e letters will be be binding. In the first case, there is a power to resile till there be a document in writing: but where there is already a document in writing, the same will be binding upon the parties, even although it is agreed that a more formal writing should be extended. This is no new case: it happens every day in the transacting the sale of lands, leases, and other heritable rights, that the heads of the agreement are specified in a minute, or mutual missives, contain- ing in gremio an express obligation upon the parties, betwixt and a day certain, to reduce their agreement into a more formal contract on damped paper, or to grant a formal disposition with procuratory and precept, &c.; yet it was never imagined, that the parties were at liberty to throw all loose, and to refile from the agreement until the more formal contract was extended and signed. In the present case, the bargain was clearly reduced into wri- ting by missives: and although, for the sake of execution, and o- ther reasons of expediency, it was agreed that a more formal con- tract should be extended in terms of the missives; yet it is no where laid, that the contract was necessary to render the transaction obli- gatory, or that the conclusion of the agreement was to be suspend- ed until once that contract was extended and signed. So far was this from being the case, that in the very last letter wrote by Mr Alexander, agreeing to the propositions 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 case of any of the letters be- ing lost, or to inforce summary execution." This explicit pro- position on the part of Mr Alexander is no where contradicted by the other party: on the contrary, the petitioners remained silent for the space of four months thereafter, without writing a scrap to either the respondent or his brother: and the respondent, in the full conviction that the bargain was finished, immediately entered into engagements with Mr Beaumont, in order to enable him to make good his engagements with the petitioners. Dr Campbell is told by Mr Alexander in the foresaid letter of the 19th March, that he was to send Mr Beaumont in a few days to prepare for opening the coal. Mr Beaumont went accordingly: and though Dr Campbell knew that this proceeded upon a supposal on the part of Mr Alex- ander, that the bargain was finally concluded; yet Dr Campbell fays nothing to the contrary, either to Mr Beaumont or Mr Alex- ander, but a total silence ensues for the full space of four months. When When Mr Alexander, in the foresaid letter of 1 9th March, is writing to Dr Campbell in the plained terms, that he apprehended our mutual missives sufficiently explicit and binding and when the Doctor further saw Mr Alexander proceeding upon that suppo- sition, and setting Mr Beaumont to work, whom Mr Alexander says, in his letter to Craigengillan, he could not engage unless the sale could be extended to 25,000 or 30,000 tuns; it Dr Campbell apprehended that every thing was still loose, it was unquestionably his duty to have immediately returned an answer to Mr Alexander, pointing out to him his mistake, and setting forth to him, as he now does, that sundry material articles remained to be adjusted: but when he remains silent for the space of four months, it affords real evidence, (and at any rate in this question it must be so held and constructed), that he himself understood that it was a finished transaction: and indeed, when Mr Alexander, in the foresaid letter of the 19th March, agrees to Dr Campbell’s own terms, as express- ed in his letter of 17th March, where could there be room for doubting that the transaction was finished and closed? And that it was so understood by the petitioners themselves, as far down as Martinmas 1770, appears from the protest which they took against the respondent upon the 12th November, the tenor of which is above recited. It from thence appears, that they were so far from insi sting upon the conceit which They have now taken up, that there was no concluded bargain betwixt them and the re- spondent, that the protest does clearly proceed upon the supposition. that there was such a bargain. They therein set forth, That the communing was confirmed by a letter from Mr William Alexander, said Mr Robert Alexander’s brother clearly thereby holding forth the idea, that the respondent was bound; and then they in- si st, that the bargain not having been implemented on the part of the respondent, had become void and null, and that they should be in titled to their expences on account of the respondent’s failure upon his part. Had the petitioners believed that there was no binding transac- tion between the parties, with what propriety could they have pro- tested for the bargain’s having become void for want of its being implemented? Nor could they have craved to have been found in- titled to expences, unless they, as well as the respondent, had con- sidered the missives as fully binding upon them. And the petitioners cannot new be allowed to plead, in direct contradiction of the terms of of the agreement, and to the protest taken by themselves of 12th November 1770, that there was never a concluded bargain betwixt them and the respondent. And it is a poor answer that is attempted in the petition, viz. That the protest was the operation of the notary, when it is ob- served, that James Montgomery, one of the petitioners themselves, did personally take the protest, and behoved to know what was the understanding of the company in that matter. The petitioners, sensible of the weight of the circumstance of four months taciturnity upon the part of the petitioners subsequent to Mr Alexander’s letter of 19th March 1770, endeavour to assign sundry reasons for that silence. They say, That as the bargain was not to take place till Martinmas 1770, it was no wonder that the parties were not in a hurry in transmitting the contract: That the petitioners were desirous to try what could be got done as to Mr Alexander’s request regarding the waggon-way, before writing to him again upon the subject of the agreement: That as Mr George Houston, one of the partners, lived at a considerable distance from Ayr, and that as Mr Campbell and Mr Fullerton, two others of the partners, were frequently from home, it would necessarily take some time to get the scroll of the contract revised by all the part- ners, after it should be drawn up by their man of business; and that Mr William Alexander, in a short time after the receipt of his letter of the 19th of March, fell into a dangerous illness, which continued for several months, and which rendered him unfit for business, at least very improper in them to have troubled him with business. The making excuses that are not founded in fact, or affected, is infinitely worse than no excuse at all. It shows that there is some- thing intended to be covered, which cannot consistently with their plea be fairly spoke out, and that the plea must be very ill founded which stands in need of such aids to support it. It is not true that Mr William Alexander, soon after the 19th March 1770, fell into a dangerous illness. He was in perfect health all the year 1770. He had a very severe fever in July or August 1769; but since Oc- tober that year, he has not been disabled from attending business for a single hour. The story of the waggon-way is no reason for delaying the exe- cution of the contract: it was no part of the transaction that was concluded by the foresaid missives. The, The partners living at a distance, however it might be a reason for delaying to transmit the scroll of the contract for a few weeks, is not a good reason for delaying it above four months; and, at any rate, it is no reason at all for not writing to Mr Alexander, in order to correct the erroneous apprehensions that Mr Alexander had con- ceived of either the import or effect of these missives; on the con- trary, it became very necessary to have these mistakes rectified be- fore making out the scroll of the contract: and therefore the peti- tioners silence for above the space of four months, notwithstand- ing Mr Alexander had declared in the most express manner that he had underflood the transaction to be finished and binding, and was proceeding upon that hypothesis to implement his part of the contract, and their at last sending the scroll without demanding any farther explanation, afford the most convincing and irresi st- ible evidence of the petitioners sense of the matter, viz. that there was nothing farther to settle; and that they were of Mr Alexan- der’s opinion, that their mutual missives w ere s ufficiently explicit and binding. As to the long dory told in the petition, with respect to Mr Wil- liam Alexander’s views in cautioning Mr Campbell not to com- municate the agreement to Mr Beaumont, Mr Alexander hopes he is incapable of adding from such motives as the petitioners are very charitably pleased to suppose influenced him in this case. The caution he gave to Dr Campbell, neither did nor could well proceed from an intention to take any undue advantage of the pe- titioners. The inferences drawn therefrom in the petition, are drained and affected beyond measure. Mr Alexander in that mat- ter added from a consideration that was prudent and rational. Mr Alexander (from a general principle which he has always enter- tained, That the transactions of private persons should be kept private when no advantage can be derived from publishing them) meant that Mr Beaumont should know nothing of the contract he had entered into with the Newton Company. He had not then settled his terms with Mr Beaumont, whose contract was only set- tled and signed in May 1770; and therefore he did not think it either necessary or prudent to tell Mr Beaumont, that he was now a necessary man for his brother for implementing the engagements he had come under to the petitioners, as it was not an impossible cafe that Mr Beaumont might have been disposed to raise his terms. However, Mr Alexander was disappointed in his scheme of se- crecy, crecy; for Mr Montgomery, one of the petitioners, did one night, when a little elevated, blab the whole affair to Mr Beaumont in the month of April 1770, when Mr Beaumont went to survey the coal, Mr Montgomery at the same time expressing himself with a spirit of exultation, That they would have round penalties to reco- ver from Mr Alexander, as it was impossible for him to take out such a quantity as he had engaged for. But Mr Montgomery was not a little astonished, when Mr Beau- mont told him, that he would engage to take out double the quan- tity. From that day forward, every little obstruction that could be thought of was thrown in the way; one specimen of which shall here be given. Mr Beaumont found, immediately on inspect- ing the works, that the petitioners overseers had placed their engine so as to drain Mr Alexander's coal, and not to drain their own. Mr Beaumont offered them L. 50 per annum to let it stand; which Mr Montgomery gave him reason to expert would be complied with, and amused him with these expectations till the beginning of October; then stopped the engine at once, and boasted he had done Mr Beaumont's and Mr Alexander’s business, by putting it out of their power to take out coals for a year. However, in this Mr Montgomery was disappointed: for Mr Beaumont, with in- credible diligence, sunk a pit, and had his engine going by the 1st of November. The respondent, from the best information, has good reason to believe, that in place of the story told in the peti- tion, the above is a fair and genuine account of the case; and he is authorised to deny, that Mr William Alexander expressed his surprise, when he received Mr Campbell’s letter of the 17th of March, upon finding that he was not therein restricted to the quan- tity the petitioners were to receive. Were it necessary, the respondent might plead, That although the missives were not binding, but that, until the bargain was ex- tended in a formal contract, and signed, that the parties were at liberty to refile; that yet, under the circumstances of this case, the petitioners would be barred from refiling. Your Lordships have already heard, that the respondent, upon the faith of the agreement between him and the petitioners, enter- ed into a contract with Mr Beaumont, to whom he came under very considerable engagements, and who accordingly proceeded to work the coal, and to take the different steps necessary for the fulfil- ment of the contract. From the 1 9th of March, however, when the the agreement was concluded, to the 26th of July 1770, there was not a word passed between the petitioners and the respondent, or his brother, upon the subject of the agreement; and during this period, the respondent, upon the faith of the contract's being binding, took the above steps, and laid out considerable sums up- on the coal. After this, even allowing that missives between the parties did not of themselves constitute a binding obligation, it is submitted to your Lordships, that the defenders cannot now be al- lowed to use that plea, quia res non est integra. However, the respondent will not trouble your Lordships with saying any thing further upon that point, or with entering into a discusio n of the several observations in the petition relative there- to; because, with all submission, the respondent cannot but consi- der it as a clear case, that it does not stand in need of that plea. He humbly apprehends, that the agreement, as ascertained by the missives, was a finished and concluded bargain, established by wri- tings binding and effectual by the law of Scotland, after which no party can be at liberty to resile. The petitioners say, That the respondent cannot avail himself of Mr Beaumont’s being immediately lent out after M William A- lexander’s letter of the 19th of March, to prepare for opening the coal: for that it appears from Mr William Alexander’s own letters, that Mr Beaumont was engaged to work the pursuer’s coal, whe- ther the petitioners had entered into any agreement with him or not; for that, in his first letter to Mr Campbell, on the 12th of March, when it cannot possibly be said, that a bargain had been concluded, he tells Mr Campbell expressly, that Mr Beaumont was to work the coal for his brother; and, after mentioning his being a skilful man, he adds, “ I doubt not but he may be of use even to your works; and that, in all events, you will go on harmo- niously. He brings most of our colliers from England.” But the petitioners, in making this observation, appear only to have taken a partial view of the correspondence. When the whole correspondence is considered, it appears, that there is no solid foun- dation for the observation. It is no doubt true, that before the transaction the respondent had Mr Beaumont in view; but he only meant to engage him in the event of the contract with the New- ton company’s taking place, or a such like contract with another company. For unless the respondent was insured in a s ale to a great amount, he could not afford to give the high terms which Mr Mr Beaumont demanded. And that this was really the fact, ap- pears clearly from the very first letter above recited, viz. that from Mr Alexander to Craigengillan of the 27th February 1770; at which time there could be no suspicion of any disguise, as it could not then be suspected that any such question as this would have a- risen. In that letter, Mr Alexander writes as follows. “ We have in view a man of skill and abilities, who would work it for my brother’s account; but unless the sale could be extended to at least 25,000 or 30,000 tuns, we could not offer him such an appoint- ment as would be necessary to engage him.” This is real evidence, that at that period Mr Beaumont was not engaged; and that it was only in the event of some such contract as this taking place, that the respondent could afford to engage him. And according- ly your Lordships have already heard, that the contract betwixt the respondent and Mr Beaumont was only signed in May 1770,s ome months after the agreement with the petitioners was finally conclu- ded by the misiv e s above mentioned. The respondent will not trouble your Lordships with more words. He humbly hopes you will have no difficulty to refuse the petition and adhere to your former interlocutor. In respect whereof, &c. RO. MACQUEEN.