Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. X.

Have Socii action in solidum?

Monteith
v.
Anderson

Date: 9 January 1672
Case No. No. 46.

Two persons consigned goods to a factor. They had right to pursue for delivery thereof; and the defence for the factor, that the goods belonged to more persons than the pursuers, was repelled, unless he would instruct that there were more partners, and that he had delivered them their shares.

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George Monteith, for himself, and as tutor to the children of his brother John Monteith, pursues Robert Anderson, factor in Camphier, for certain merchant goods sent over by them to be sold; and, for instructing thereof, produces an account under his hand; who alleged, That he could not be decerned for the whole goods, because, by the count produced, founded upon, there is nothing to instruct that the account was made by George and John Monteiths, or that they were creditors therein, but the inscription of the account, bearing “Account of goods belonging to George and John Monteiths, and Company;” so that it is clear the goods have belonged to partners, or to a society in company; and therefore the pursuer must condescend upon them, and can ask no more than his own and his brother's share; especially seeing the society is dissolved by the death of John his brother, and so the defender will be liable to every man for his share. It was answered, That the defender did once exhibit the accounts subscribed before this inscription, and though he has now adjected to the inscription the words, “and Company,” that cannot burden the pursuer to condescend upon the company, who denies any society; unless the defender instruct otherwise that there was a society; for this adjection is like a quality adjected to an oath, seeing the defender's delivery of the account to the pursuer infers presumptivé that it was for his goods. 2do, Though a society were proved, yet the pursuer and his brother having delivered the goods to the factor, they have good right to take them up again; neither can the factor, upon pretence of the interest of other partners, detain the goods; otherwise all commerce between partners and factors would be marred; but the partners who deliver are obliged to their partners, and the factor is secured. It was replied, That seeing the pursuer makes use of the account and inscription, without which he cannot prove his libel, he cannot divide the same, but must either allow it all, or reject it all. 2do, The defender alleged, that a third party was partner, from whom he had a general discharge, which would liberate him as to his third part.

The Lords found, That the pursuer and his brother having delivered the goods to the factor, he ought, and might safely re-deliver them to him, albeit there were other partners; and would not suffer him to retain their shares, unless he instructed that they were partners, and that he had paid to them their share, and obtained from them such a discharge as would liberate both the pursuer and defender at their hands.

Fol. Dic. v. 2. p. 380. Stair, v. 2. p. 39.