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Scottish Court of Session Decisions >>
Thomas Logy v Adolphus Durham. [1697] Mor 14566 (30 December 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor3314566-015.html Cite as:
[1697] Mor 14566
A company found liable for goods bought by a partner, although the seller did not know of the copartnership, and the other partner had settled with the purchaser for them.
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I reported Thomas Logy, merchant in Edinburgh, against Adolphus Durham, clerk to the custom-house at Leith. Thomas sold James Moncrieff five hogsheads of wine. Moncrieff being now broke, Logy pursues Adolphus, as he who was in society and copartnery with James quoad these wines, and offers to prove it by his own account-books; which being inspected, it appeared that James and Adolphus were in a copartnery at the time of buying of these wines, and these very individual hogsheads were brought into the society and divided betwixt them, and that they are posted down as bought from Thomas Logy nominatim; but Adolphus does not state himself debtor therein to Logy, but to James Moncrieff; and what he was debtor in to James Moncrieff, in another part of the book, is balanced as cleared and paid off. From this abstract of the accounts, Logy argued, You knew the wines to be mine; you share them, and bring them as a part of the subject of your joint trade; you was in mala fide to pay Moncrieff till he had shewed you my discharge, exonering the society of this debt; and you should have retained for my payment. Answered, 1st, Adolphus Durham had no negociation with you: These wines were sold by you to James Moncrieff, whose faith only you followed, not so much as knowing we were in a copartnery, and whatever is done extra fines societatis does not bind the socii. The Lords argued, If Thomas had bought from James Moncrieff any goods that were in communione, an action would then have arisen to Adolphus for the price, albeit the other only made the bargain; ergo, a pari, Thomas must have access against him; and therefore found his account-book proved they were in a copartnery quoad these wines, and made them both liable. But Adolphus contending the debt was prescribed, being in 1683, and so not being insisted in within three years, the prescription of merchant-accounts within that time run against it; answered, The prescription is sufficiently interrupted by your own book, where these wines are posted as mine; and though it prove not pro scribente, yet it is good enough against him. Replied, If you make use of my book, you must take it complexly, and not divide it; for by it the wines are only to James Moncrieff's account, and I only constitute myself debtor to him for the same, and your name is only inserted designative to distinguish them from other wines. The Lords found the account-book did not prove them to be yet resting owing, but that Logy must prove it aliunde, scripto vel juramento of Durham. The third point was, if he could be convened in solidum, or only pro rata with James Moncrieff, deducting his share. The Lords found him liable in solidum ex natura societaties.
Fol. Dic. v. 2. p. 376. Fountainhall, v. 1. p. 806.
