Scottish Court of Session Decisions

Mortimer, a butcher, sued Hamilton for £26, as the amount of an account for butcher-meat sold by the pursuer to the defender. Hamilton defended, on the ground that he had not ordered the articles, and that he had been in the habit of giving regular weekly supplies of money to his servant to purchase butcher-meat for his household for cash.

After a proof, the Sheriff-substitute (Campbell) pronounced this interlocutor:—“Finds, in point of fact, that the various articles of butcher-meat specified in the pass-book which is annexed to the summons, and contains the account libelled, were furnished by the pursuer on the order of the defender's servant, Euphemia Webster or Mathieson, and were delivered to her personally, or at the dwelling-house of the defender, and were so delivered by the pursuer on the understanding and belief that the same were for the use of the defender; but finds that the defender did not order any of the said articles, or contract with the pursuer for the supply of these or any other furnishings, and that he did not authorize the said Euphemia Webster or Murray to contract debt on his account, or interpose his credit for the price of the said articles, or any part thereof; and that he did not know that the same had been furnished on his credit; and finds that, during the whole currency of the said account, the defender paid to the said Euphemia Webster or Mathieson £1 sterling weekly, and in advance, for the purpose of enabling her to purchase the butcher-meat necessary for the defender's household: Finds, in the above state of the facts, that in point of law the defender is not liable in payment of the account sued for; Therefore assoilzies the defender; Finds him entitled to expenses, &c., and decerns.”

The Sheriff-substitute referred to the following authorities:— Inches v. Elder, 27th November 1793, Hume 322; Fraser, Pers. and Dom. Relations, vol. ii, p. 450–1, and notes; Hamilton, 22d February 1825, 3 Shaw 394; Dewar, 22d June 1804, Hume 340; Faulds, 5th February 1861, 23 D. 437.

The pursuer appealed.

The following authorities were cited:— Stebbing v. Hainly, Peake, 47; Fleming v. Hector, 1836, 2 M. & W. 181; Pearce v. Rodgers, 11th July, 1800, 3 Esp. 214; Hunter v. Berkley, 1836, T. C. & P. 413; Hiscox v. Greenwood, 4 Esp. 174.

Trayner for appellant.

Brand for respondent.

The Court dismissed the appeal.

The majority of the Court held that the Sheriffs were right. The principle ruling this case had long since been fixed in the cases of Inches v. Elder, Hume, 322, and Dewar, Hume, 340. There was the greatest difference between giving a servant authority to purchase goods for ready money and giving her a mandate to pledge the master's credit. If a tradesman supplied goods on credit on the mere order of a servant, without having ever ascertained whether the master was cognisant of the servant having opened an account, he had only to blame his own rashness if he lost his money. A master supplying money to his servant for the necessary disbursements of his house, which money is appropriated by the servant to other purposes, is not to be made liable in double payment because a tradesman, without his authority, rashly supplies goods to that servant on credit. That was also the principle of the English cases. There must be a mandate, express or implied, before a servant can impledge a master's credit.