Contract — Sale of heritable land — Reduction of disposition — Disposition allegedly conveying more than agreed in missives — Common intention of parties — Onus of proof — Whether disposition superseded missives — Court of Session granting reduction of part of disposition — House of Lords dismissing appeal against that decision
On April 18 1991 Knowles offered to purchase from Aberdeen Rubber, workshops and storage yards situated on the south side of Greenbank Place, Aberdeen, for £600,000. This consisted of four parcels each held on a separate title. On July 23 1991 Knowles’s solicitors sent to Aberdeen Rubber’s solicitors a draft disposition along with the title deeds they had received and the draft deed of restriction which apparently included a fifth area of ground in Greenwell Road. The covering letter asked them to check and confirm “that it is your client’s intention to have all the areas of ground included in the sale”. On July 24 Aberdeen’s solicitors confirmed that “it is our clients’ intention to include all five areas of ground in the sale to your clients”. On September 20 1991 Aberdeen Rubber’s solicitors sent to Knowles’s solicitors a letter accepting their offer dated April 18 1991 on behalf of Knowles to purchase “the workshops and storage yards situated at Greenbank Place, East Tullos, Aberdeen, described in your offer” subject to certain qualifications which included a reduction of the price to £590,000. On September 24 1991 Aberdeen Rubber executed in favour of Knowles a disposition which bore to convey not only the four storage areas of ground at Greenbank Place but also the fifth areas of ground in Greenwell Road. Aberdeen Rubber raised an action against Knowles seeking the reduction of that part of the disposition of September 24 which bore to convey the area of ground at Greeenwell Road. They relied on the contents of the missives of April 18 and September 20 and pleaded that due to a material error the disposition failed to give effect to the agreement between the parties. Knowles relied on the informal letters of July 23 and 24 and claimed that it was the common intention of the parties to include the disputed land in the conveyance. The Court of Session granted the reduction sought. Knowles appealed to the House of Lords.
Held The appeal was dismissed.
1. The only question was whether the facts were sufficient to discharge the onus incumbent on Aberdeen Rubber to establish that the disposition of September 24, as a result of common error, did not give effect to the true intention of the parties.
2. A conveyance of heritable property might be reduced upon that ground but the onus resting upon the party who sought to do so was a heavy one: see Anderson v Lambie [1954] 1 WLR 303; [1954] 3 All ER 157n.
3. In this case it was clear that the disposition did not conform to the missives. It conveyed an extra piece of ground. That was not enough in itself to establish common error, though it constituted an important piece of evidence. The question was whether there was any other evidence of common error.
4. On the evidence the natural inference was that the disposition was intended to implement the missives as regards the subjects thereby agreed to be conveyed to the purchaser. The only plausible explanation of the conveyance of an additional area of ground was that that area had by mistake been included in the draft disposition drawn up in July, when there was no binding contract between the parties.
Edward S Bowen QC and Ian H L Miller (instructed by Paull & Williamsons, of Edinburgh) appeared for the appellant; William A Nimmo-Smith QC and Robert A McCreadie (instructed by Brodies WS, of Edinburgh) appeared for the respondent.
