Scottish Court of Session Decisions

Subject_1 DAMAGE AND INTEREST.

Anna Nairn, Daughter of the deceased David Nairn, Doctor of Medicine,
v.
Thomas and Antonia Barclays

Date: 18 November 1712
Case No. No 8.

The Lords found action not competent against an heir, for damage sustained by the predecessor's relict, through the want of a jointure-house all the years of her widowhood, occasioned by the not performance of her husband's obligation in her contract of marriage, to build and repair the house for her accommodation, unless the heir had been required to build and repair in her lifetime; because damnum et interesse can only be due after mora, and there was no mora, since there was no requisition; and though requisition had been made, damages would have been due only from the date thereof.

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By contract of marriage betwixt Sir David Barclay of Collairny, and Dame Anna Riddel his spouse, the Lady was provided to a liferent of the lands of Pitblado and others; and because the house of Pitblado was ruinous, and had not been inhabited for many years before, Sir David obliged him and his heirs to build and repair the same, with all easements and office-houses necessary thereto, for accommodating the said Dame Anna Riddel in a jointure-house, in case she survived him. Sir David died in the year 1655, leaving the house of Pitblado in no better case than it was the time of the contract of marriage; and the Lady, without requiring her husband's representatives to repair it, provided herself of a dwelling-house elsewhere; after whose decease, Anna Nairn, as deriving right from Dr Nairn her father, to whom the Lady had assigned her liferent, with the whole obligements in her contract of marriage, pursued Thomas and Antonia Barclays, as representing Sir David, for payment of 5000 merks yearly from the 1655, when Sir David died, till Martinmas 1686 inclusive, as the damage sustained by the said Dame Anna Riddel for want of her jointure-house all that time.

Alleged for the defenders; The obligement to repair consisting in facto prestable at no precise time, they could not be pursued for damage or interest, unless they or their authors had been in mora, which cannot be pretended; seeing they were never required in the Lady's lifetime to put the house in repair; and if by the civil law debitor in obligatione quæ in faciendo consistit, who could not be pursued precisely ad factum præstandum, but only for damage and interest arising from his mora, might still redeem himself from that, præstando factum, or by performance at any time ante litem contestatam, L. 84. ff. de V. O.; much more the defenders, who could not be in mora till requisition, ought to be assoilzied from damages by our law, which obligeth a man præstare factum by the compulsitors of horning and caption; and where the fact comes principally, both in obligatione et prosecutione, and the damage and interest is only an accessory penalty, arising from the debtor's mora.

Replied for the pursuer; In all obligements ad factum præstandum, loco facti succedit interesse, and dies interpellat pro homine; now in the case of this obligement to build and repair the Lady's jointure-house, the term of performance being the husband's death before her, the damage takes place against his heirs, who failed to perform, and is to be liquidated with respect to the Lady's quality, and the convenience a jointure-house upon the lands would have afforded for the use of her tenants, and uplifting the rents. The L. 84. ff. de V. O. doth concern the building a house to one in property, and doth not liberate from damages sustained before performance, after he who stipulated to build was in mora, but only from after damages; as is clear from Cujacius's observe on that law, viz. si propter moram actor jam ante litem contestatam damni aliquod senserit, non potest liberari offerendo; so that the text cited out of the law doth not meet the case, in so far as Sir David's obligement was not to build and repair a house to his Lady in property, but only for a habitation to her and her family during her survivance. The pursuer doth not insist ad factum præstandum, but for damage the Lady sustained through not performance the years she lived after her husband; which can never be satisfied by an offer to build or repair the house now after her death, when she cannot enjoy it.

Duplied for the defender, 1mo, Albeit in obligements to be performed at a fixed day, dies interpellat pro homine; yet where no day is adjected, interpellation or requisition is necessary to produce the common effects of mora or delay. The maxim quod sine die debetur, præsenti die debetur, has indeed this effect, that the creditor may immediately demand performance; but requisition must be used in order to put him in mora, so as to be liable to damage and interest for not performing. And albeit the day of Sir David's death, implied in the nature of the obligement, was a time when the creditor might demand performance; the husband's representatives are not to be reckoned in mora from that day, till they were duly interpelled; 2do, Sir David Barclay's obligation to repair a house to his Lady to dwell in after his decease, was conditional, at least conceived in diem incertum, qui pro conditione habetur; and in conditional obligements, purifying the condition doth not put the creditor in mora, without interpellation, Boekleman, Com. in tit. ff. de Usur.

The Lords found, That the obligement could produce no action at the assignee's instance, unless requisition was made in the Lady's lifetime; and that the damage, through the want of a house, could only be acclaimed from the date of the requisition.

Fol. Dic. v. 1. p. 207. Forbes. p. 631.