Scottish Court of Session Decisions

For some time Mr Mowat, a flesher in Glasgow, and Mr James Young senior, tallow-chandler there, were in the habit of dealing together, Mowat receiving from time to time certain sums of money for tallow to be delivered. When Young assumed his son as a partner the same course of dealing was carried on. This was an action raised by Young & Son for delivery of a certain quantity of tallow, which had been paid for, or for payment of £150 as the value. The defence was substantially that the money said to have been advanced for the tallow, of which delivery was now sought, was really given in payment of the balance of an account duo by James Young senior, and for which the firm was said to be responsible, as having taken over the universitas of the estate of James Young senior. Young & Son replied that Young senior had entered into a composition-contract with his creditors, to which Mowat acceded, for 10s. per pound, which composition had been paid. The defender maintained that he had acceded to this composition contract on the understanding that he was to be paid in full.

After a proof, the Sheriff (Bell), substantially adhering to the judgment of the Sheriff-substitute (Galbraith), pronounced this interlocutor: — “Finds that, in October 1862, the individual pursuer, James Young senior, was owing the defender the sum of £213, 5s. or thereby, but about that period the said James Young senior entered into a composition-contract with his creditors, including the defender, whereby they agreed to accept a composition of 10s. in the pound on their respective debts, in consequence of which the said debt of £213, 5s. was reduced to £106, 12s. 6d.: Finds that between October 1862 and April 1863, when the pursuers' firm began, James Young senior received tallow from the defender to the value of £118, 13s. Id., to account of which £80 was paid in March 1863, leaving a balance of £38, 13s. Id., which, added to the said £106, 12s. 6d., made the debt due by James Young in April £145, 5s. 7d.: Finds that the course of dealing between the defender and James Young senior, and afterwards between the defender and pursuers, was, that the defender got bills from time to time for a round sum for tallow delivered and to be delivered: Finds that the pursuers accepted the bill, No. 5-1, to the defender for £100, on 12th June, and the bill, No. 5-2, for £200, on 22d June 1863: Finds that the latter of these bills was a renewal of the bill No. 8, also for £200, which had previously been accepted by James Young sen., whose liabilities the pursuers undertook: Finds that the renewed bill was paid by the pursuers on the 23d June to the extent of £50, and, having been discounted by the defender at the bank for £150, was duly retired, as well as the bill for £100 by the pursuers at maturity: Finds that according to the pursuers there was thus paid to the defender the foresaid £145, 5s. 7d., due by James Young senior, and the further sum of £150 for tallow delivered and to be delivered: Finds it admitted by the defender that the tallow actually delivered by him to the pursuers was, as credited in the summons, 38 cwt. 2 qrs. and 17 lbs., amounting in value to £68, Is. 6d., and leaving still undelivered, if the pursuers' averments be correct, 45 cwts. 2 qrs. and 1 lb., or a value of £81, 18s. 6d.: Finds that defender denies in toto that he is under any obligation to deliver said tallow or refund said money, on the ground that, though he acceded to James Young senior's composition-contract, he did so under a private arrangement with him that he was to be paid in full, and that the pursuer, James

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Young junior acquiesced in this, and that the said £200 bill was renewed and retired for that object; but, Finds that James Young junior has not only deponed, when examined as a witness in causa, that he never gave any such assent, but has added that at the end of 1863 he sent the defender an account showing the state of his transactions with the firm, which state was made up on the footing that the defender was to be paid only 10s. in the pound of the father's debt, and that the defender made no objections to the state: Finds that this evidence is corroborated by other testimony, and there is no proof that the pursuers, as a firm, agreed that the old debt should be paid in full: Finds that, in these circumstances, it has been correctly found by the Sheriff-substitute that the defender is barred from pleading his own corrupt bargain with James Young senior as entitling him to throw the composition-contract overboard, and if he cannot do so, then he has been paid all he can claim in respect of James Young senior's debt, and he is still resting-owing, under the said two bills, the above-mentioned quantity of tallow, or its value: Finds that in the interlocutor appealed against the defender has been per incurimn ordained to give delivery of the whole quantity of tallow, said to have been originally contracted for, viz., 84 cwts. 1 qr. and 18 lbs., without crediting him with the 38 cwts. 3 qrs. and 17 lbs., receipt of which is acknowledged in the summons: Therefore, so far alters the said interlocutor, and ordains the defender to deliver to the pursuers, within three weeks, 45 cwts. 2 qrs. and 1 lb. tallow, with certification that, failing his doing so, decree will be given against him for the sum of £81, 18s., as the value of said tallow: Quoad ultra adheres to said interlocutor; dismisses the appeal,” &c.

The defender advocated.

Watson and Maclean for advocator.

Shand and Brand for respondents.

The Court adhered. They held that the defender, as founding on the illegal arrangement alleged on record, could not have effect given to his averments without proving that arrangement, even supposing that arrangement, if proved, to be a good defence to the action. But he had entirely failed to prove the arrangement, though he had been examined four or five times in the course of the proof; while, on the other hand, the pursuers gave evidence to the effect that there was no such illegal arrangement as the defender represented.