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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> James Wallace v. Robert Wallace [1872] ScotLR 9_363 (8 March 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0363.html Cite as: [1872] SLR 9_363, [1872] ScotLR 9_363 |
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Page: 363↓
Circumstances in which a father was held entitled to recover a sum of £500 from his son, in accordance with a somewhat peculiar family arrangement, although the action was solely laid on an alleged contract of sale between the pursuer and the defender.
This was an action at the instance of James Wallace, Rutherglen, against his son Robert Wallace. The conclusions of the summons were for payment—(1) of £500, more or less, as might be ascertained to be the value of the stock of drapery and other goods, said to have been made over by the pursuer to the defender on 8th September 1858, with interest thereon; (2) of £406, 3s. 3d., being rent at the rate of £25 per annum and interest thereon, for the shop occupied by the defender from 8th September 1858 to Whitsunday 1871.
The averments of the pursuer were as follows:—Previous to 1858 he had carried on business as a draper, and also as a spirit merchant, in certain premises belonging to him in Main Street, Rutherglen. In September of that year, being then about sixty-six years old, he entered into an arrangement with his son, the defender, by which the latter received possession of the shop as tenant, and took over from the pursuer the stock and goodwill of the business, which were of the value of £500, and granted a bill to the pursuer for that amount (now prescribed). The pursuer's only pleas were based respectively on the contracts of sale and location.
The Lord Ordinary ( Gifford), after a proof, held that the pursuer had failed to prove either the contract of sale or of location, and therefore assoilzied the defender.
His Lordship's view of the facts is stated in his Note:—“The father, who was getting up in years, and who had been assisted by his son in business agreed to make over the business to the son as his successor, but the whole to be carried on just as formerly, and from the proceeds of the business the expense of the maintenance of the father, his daughters, and his son, who were all living in family together, were to be defrayed as formerly. The father was proprietor of the shop, but no rent was to be charged to the son, because the common benefit of the business was to a large extent to be reaped by all, just as it had formerly been. In short, the son was to be colleague and successor to his father rather than purchaser from him.”
The pursuer reclaimed.
Solicitor-General and Crichton for him.
Fraser and Jameson for the defender.
The Court were not disposed to take so strict a view of the summons. It was not necessary for the pursuer's case that he should instruct an actual sale for a present price to the defender of the stock in trade. It was enough if he had proved a family arrangement, under which the stock and goodwill of the business was, for the purposes of that arrangement, estimated at £500.
The view which their Lordships took of the arrangement sufficiently appears from the interlocutor pronounced.
“ Edinburgh, 8 th March 1872.—Recal the said interlocutor reclaimed against: Find—(1st) That in or about September 1858 the pursuer, being then about sixty-six years of age, entered into an arrangement with his son, the defender, whereby the pursuer agreed to give up to the defender the goodwill and future profits of the business of draper and spirit dealer, then carried on by the pursuer in the premises belonging to him in Main Street of Rutherglen, and mentioned in the record, together with the stock in trade, and the occupancy rent free of the said premises, including that portion thereof in which the pursuer and his family then resided. on condition that the defender should become debtor to the pursuer in the sum of £500, and should maintain the pursuer and the family living in the said premises and assisting in the business; (2 d) That no particular time, at the lapse of which the said sum of £500 should be payable, and the said free occupancy of the said premises should cease, was expressly mentioned or stipulated between the parties, but it sufficiently appears that the said sum was not to be payable, and that rent was not to be exigible, so long as the pursuer and the members of his family, for the time being, continued to live and to be maintained in common with the defender, in the premises foresaid, which they did till on or about July last 1871, when, in consequence of misunderstanding between them,
Page: 364↓
they separated, and the arrangements foresaid for the common residence and maintenance came to an end, and was held by all concerned to have come to an end, and the defender, as was admitted at the bar, declined to support, and now refuses to support, the pursuer any longer. In these circumstances, find that the said sum of £500 must be held to have become payable at or about the date when the parties separated as aforesaid, and that the defender's right to occupy the foresaid premises rent free must be held to have terminated at the next term after said separation, videlicet Martinmas 1871: Therefore decern against the defender for the said sum of £500, with interest from and after the 29th July 1871, being the date of citation in the present action, but without interest prior to that date; and quoad ultra assoilzie the defender from the conclusions of the action; reserving to the pursuer all claim competent to him for rent of the said premises from and after the said term of Martinmas 1871, and reserving, farther, all claims competent to the parties hinc inde against each other, so far as not inconsistent with the foregoing findings, and all defences competent thereagainst as accords, and decern: Find no expenses due to either party.”
Solicitors: Agents for Pursuer— Webster & Will, S.S.C.
Agent for Defender— Lindsay Mackersy, W.S.
