Scottish Court of Session Decisions

Subject_1Partnership
Subject_2Change of Name of Firm
Subject_3Insufficient Interest to Support an Action on the part of a Landlord to Interdict a Firm of Distillers of which he had formerly been a Member from Changing the Name of the Firm during the Currency of the Lease.
Facts:

In this case the complainer sought to interdict the respondents, who were tenants of the Tobermory Distillery in the island of Mull, under and in virtue of a lease entered into between him and the firm of N. Campbell & Co. and the then partners thereof for seven years from 1st October 1879, dated 14th and 16th October 1879, from carrying on the business of the said distillery under the name of Main Brothers, or under any other name or firm than that of N. Campbell & Co., during the period of said lease, and also from selling in the market the whisky produced at the said distillery under the name of the “Mull Whisky,” or under any other name than that of the Tobermory Distillery Whisky. It appeared that the complainer, who was the heritable proprietor of the Tobermory Distillery, in 1879 entered into a partnership with a certain John M'Kill, the duration of which was to be seven years from lst October, and the purpose of which was to carry on the distillery business under the name and firm of N. Campbell & Co. In the contract of copartnery it was agreed (1) that M'Kill should manage the business; (2) that the firm of M'Kill Brothers, spirit brokers, Glasgow, should be sole agents for the sale of the whisky produced at the distillery; (3) that the partnership should take a lease from the complainer as an individual for the period of seven years from 1st October 1879 of the whole of the distillery buildings, &c. Accordingly the complainer executed a lease in favour of N. Campbell & Co. and M'Kill, in which there was, inter alia, a provision that the lessor, his heirs and successors, should be bound to take over from the lessees and their foresaids at the end of the lease the entire stock of whisky and casks at a valuation. There-I after the complainer retired from the business in consequence of his inability to contribute his share of the capital required, and on 1st November 1880 John M'Kill issued a circular to the customers of the distillery, in which he intimated, that as the complainer had retired from the firm of N. Campbell & Co. he proposed to assume his brother Alexander as a partner in the concern, and to carry on the business in the future under the name of Brothers, and further, to sell the whisky of the distillery under the new name of “The Mull Whisky.” In these circumstances the complainer brought this action, contending (1) that these proceedings would be injurious to his interests. The lease had been granted exclusively in favour of N. Campbell & Co. and the then partners of the firm. There was no right to assign the lease, but only a power to assume partners into the said firm of N. Campbell & Co. It was implied by the lease that the firm should be continued during the currency of the lease. At the end of the lease the complainer was bound to continue the business under the name of N. Campbell & Co., and it would be injurious to the business if the respondents were allowed to change to the name of M'Kill Brothers during the currency of the lease. (2) That it would injure the business of the distillery and the value of it to the complainer at the end of the lease to have the name of the whisky altered and the product of the distillery placed on the market under any other name.

The Lord Ordinary ( Rutherfurd Clark) refused the interdict, and the complainer having reclaimed, the Court adhered.