M'Whirter v. Caird and Another

M'Whirter on 15th January following (1879) executed a disposition and assignation of his whole estate, heritable and moveable, with the exception of his household furniture and some other subjects agreed not to be conveyed, in favour of Caird and M'Clure. The narrative of this deed bore that it was granted “for certain good and onerous causes and considerations, but not for a price paid,” and in implement of the obligation undertaken by him in the memorandum of agreement.

Caird and M'Clure thereafter became cautioners for the payment of M'Whirter's composition to Page: 66 ↓

In January 1884 M'Whirter was charged on the bond held by Thomas Ballantine's trustees over a property in Greenock, to pay up the sum of £900 therein contained, withinterest and penalty.

The defenders averred that the pursuer, in breach of article 3 of the memorandum of agreement, had wilfully neglected his duties as their factor, and had in other ways failed to implement his part of the agreement, and that in consequence they, the defenders, had lost sums of money amounting in all to £8000. They set forth the renunciation above mentioned.

The defenders pleaded—“(1) The statements of the pursuer are irrelevant and insufficient in law to support the conclusions of the summons. (2) By the terms of the memorandum of agreement the defenders did not undertake to relieve the pursuer of his personal liabilities and the bonds affecting the heritable property. (3) Separatim . The pursuer not having fulfilled his obligation under said agreement, cannot sue thereon.”