Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. III.

What Proof relevant to take away Writ.

Kendal & Co
v.
Campbell of Inverliver

Date: 18 June 1766
Case No. No 124.

How far a written contract can be supplied by witnesses?

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In a minute of sale of woods to a company, there was a reservation of a certain part. The seller insisted, that another part of the woods was also agreed to be reserved, and that it had not been valued along with the rest, though it was omitted in the reservation in the minute, and was not mentioned in a subscribed notandum afterwards added.

This allegation he offered to prove by the witnesses present at the communing, and by the persons who had valued the woods; or, at least, by reference to the oath of the company's agent at the time, and who had himself an interest in the question, as having right to a proportion of the share of one of the partners, though he was no longer employed as agent for the company.

“The Lords having considered the minute of agreement, with the subscribed not a bene, posterior to the minute, and supplying an omission therein, but making no addition to the reservation; and also considering how dangerous it will be to cut down a written agreement, by parole-evidence, found the defender liable for the price of the whole woods in question.”

Act. Ilay Campbell. Alt. Lockhart. Fol. Dic. v. 4. p. 158. Fac. Col. No 36. p. 259.