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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stevens, Son, & Co. v. Grant [1877] ScotLR 15_7 (17 October 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0007.html Cite as: [1877] ScotLR 15_7, [1877] SLR 15_7 |
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Page: 7↓
[Sheriff of Inverness-shire.
A Sheriff Court action concluded for £20, 5s. 6d., as the balance remaining due, per account produced, on the defender's intromissions as the pursuers' agent for the sale of goods on commission. There was no other conclusion except for expenses. Held that an appeal to the Court of Session was excluded, under section 22 of the Sheriff Court Act 1853, as no decree that could be pronounced in the action would give the pursuer more than £20, 5s. 6d., the sum sued for, which must therefore be held to be the value of the cause.
Observations ( per curium) on the case of Inglis v. Smith, May 17, 1859, 21 D. 822.
Stevens, Son, & Co. raised this action against John Grant junr., concluding for £20, 5s. 6d., “being the balance remaining due to them on the defender's intromissions as their agent for the sale of certain chemical manures.” An account produced by the pursuers contained sums due on both sides to a much larger amount than the sum concluded for, but the balance brought out as due by the defender was £20, 5s. 6d.
The Sheriff-Substitute ( Blair) gave the pursuers decree for £14, 8s., with expenses. The Sheriff ( Ivory), on appeal, assoilzied the defender.
The pursuers appealed to the Court of Session. The competency of the appeal was objected to under the Sheriff Court Act 1853 (16 and 17 Vict. cap. 80), sec. 22, which excluded review where the value of the cause did not exceed £25.— Brydon v. Macfarlane, November 2, 1864, 3 Macph. 7; Drummond v. Hunter, January 12, 1869, 7 Macph. 347.
Argued for the appellant—Though the sum concluded for was under £25, still it was the balance on an account between the parties in which there were claims and counter-claims, and there was authority for holding that such cases could be appealed— Aberdeen v. Wilson, July 16, 1872, 10 Macph. 971; Inglis v. Smith, May 17, 1859, 21 D. 822.
At advising—
Here the summons concludes for £20, 5s. 6d., which is described as the balance of a much larger account. But there are no qualifying words, and it is clear that the pursuer could only have recovered £20, and nothing more. I know of no case in which the value of such a cause has been held to be greater than the sum concluded for.
The whole of this matter was thoroughly canvassed in the case of Aberdeen v. Wilson, July 16, 1872, 10 Macph. 971. In that case the summons concluded for delivery of certain fleeces, and failing delivery, for a sum of £20, or such other sum as the Court might award. The ease went to the whole Court, and it was held by a majority that, seeing there was a conclusion ad factum præstandum, and an indefinite conclusion for damages, the value of the cause was not below £25.
But it is quite certain, from the opinions of all the Judges, that if there had been no other conclusion in the summons in that case but one for £20, the Court would have found the appeal incompetent.
As to the case of Inglis ( Inglis v. Smith, May 17, 1859, 21 D. 822), it was a very peculiar one. The counter—account for which the pursuer in that case gave credit, which he was not bound to do, was the result of an entirely separate transaction, and the Court held the debit side of the account to be the real substance of the action. But that is not the case with the credit items in this case, and I therefore think the value of the cause is merely £20, 5s. 6d., and that so this appeal is incompetent.
But the case of Inglis v. Smith is, I think, distinguishable. There a debt or balance of £92 odds was claimed as due to the pursuer on the particular transaction in question; and that balance was reduced so far by crediting, or rather setting off against it. a counter claim due to the defenders of £57 odds, and then restricting the balance to £25. But it is obvious that the claim of the pursuer, standing, as it did, independent of the counter claim, greatly exceeded £25, so that by concluding and taking decree for the balance, after making allowance for the counter claim of £57, he proceeded on the assumption that he had a good claim of his own for the balance sued for plus the £57. In that case, therefore, the value of the cause to the pursuer was truly the balance he took decree for, plus the £57. But here the commission was an item in the accounting before any balance could be ascertained; or, to put it differently, the pursuers could have no claim, and no debt could arise in their favour, without crediting that commission.
I am therefore satisfied that the case of Inglis v. Smith is distinguishable from the present, and does not stand in the way of our finding, as I think we ought, that the appeal here is incompetent in respect the cause to the pursuer must be held to be less than £25.
It has been said that you must inquire into both sides of the account, and see what sums are due. But it does not matter what you have to
Page: 8↓
I had some difficulty in distinguishing this case from that of Inglis v. Smith, but the cases are distinguishable. In Inglis v. Smith the principle given effect to was that the sum given credit for was for a contra account; but the principle of that case, I may say, I should certainly not extend.
The Court refused the appeal as incompetent.
Counsel for Pursuers (Appellants)— Kinnear—Thorburn. Agent— Horatius Bonar, W.S.
Counsel for Defender (Respondent)— Campbell Smith—Millie. Agents— Wright & Johnston, Solicitors.
