Scottish Court of Session Decisions

William Crear, timber merchant, Thurso, brought a complaint under the Debts Recovery (Scotland) Act 1867, against John Morrison, contractor, Scourie, concluding for payment of £47, 15s. 7d., the amount of an account for goods sold and delivered to the defender, for which he delayed to make payment. It appeared from the evidence that on the 29th March 1880 the pursuer had written to the defender in the following terms:—“In all our future transactions four months credit will be given to you on a running account.” The last entry in the account sued for was dated 25th November 1881, while the complaint bore the date of 1st February 1882. It also appeared that on the dependence of the action the pursuer had executed an arrestment of the defender's goods and effects.

The defender pleaded that payment of the account sued for was not exigible until the expiry of four months from the 25th November 1881, this being the period of credit allowed to him by the pursuer.

The pursuer denied that the period of credit claimed was allowed to the defender. On the 24th February 1882 the Sheriff-Substitute issued an interlocutor in which he found, inter alia, “That the term of credit agreed on has not been given to the defender with reference to the current account now sued for: Finds in law that the pursuer, in the face of his own letter, is not entitled to sue for the account libelled on until after the expiry of the credit allowed by him to the defender: Finds, therefore, that the action at this stage is premature; dismisses the same, with expenses to the defender; and decerns.”

The following note was appended to his interlocutor—“The Sheriff-Substitute might have preferred continuing this case until after the 25th March next, the date when the four months' credit claimed by the defender would undoubtedly be at an end; but he feels that to act thus, and to keep the case in existence, would be imposing a great hardship on the defender, inasmuch as on the dependence of the action the pursuer has already executed an arrestment of the defender's goods and effects. It may thus be that the defender has been shut out from the very funds with which he intended to discharge the account sued for, whenever the term of credit relied on had expired. He has made out his right to that term of credit by a letter under the pursuer's own hand, and the pursuer is not entitled to curtail the advantages as to credit therein given by arresting the defender's goods and effects during the currency of the credit. To get rid of that arrestment is thus a most important matter for the defender; and this result will follow the dismissal of the action which the defender has, by the establishment of his right to four months' credit, shown to have been brought into Court with undue precipitation.”

The pursuer appealed to the Sheriff-Depute ( Mackintosh), who on the 11th March issued the following interlocutor and note:—“The Sheriff having considered the pursuer's appeal and whole proceedings, Recals the finding in law contained in the Sheriff-Substitute's interlocutor, and with reference to the findings in fact therein, and to the documents produced, and pleas of parties, finds that the defender was at the date of the complaint liable to pay to the pursuer the first portion of the account sued for, amounting to £5, 5s. 7d., and was also liable to make payment of the balance of the said account now admitted by the defender, being £41, 15s. 5d., not later than 25th March 1882. Finds that it was not incompetent to bring the present action when the same was brought, but that the prayer of the complaint ought to have been qualified, and any decree under it must be qualified, by postponing the period of payment as regards the second portion of the account to the said 25th March 1882: Finds that it is now unnecessary to distinguish between the two portions of the account as regards the period of payment, and in respect that the indebtedness of the defender is not disputed, and that there is also no dispute as to the amount due; decerns and ordains the defender to make payment to the pursuer of the sum of £47, 1s. sterling, but supersedes extract of this decree until 25th March current.

“ Note.—The Sheriff thinks the Sheriff-Substitute has proceeded somewhat too strictly in this matter. He thinks the action competent enough, both in itself and as a foundation for arrestments insecurity. If the complaint had expressed the period of payment as at 25th March, there could not, the Sheriff thinks, have been any question, and as it is, the case is simply one where the decree asked requires to be qualified. The defender, however, was entitled to resist the decree asked, and is therefore entitled to an award of expenses; but as there was no tender of the £5, 5s. 7d. which was certainly due at the date of the complaint, and as the defender appears to have contended for a dismissal of the action, the Sheriff has modified the expenses to one-half of the taxed amount.”

The defender reclaimed, and argued that the decree pronounced by the Sheriff-Depute was incompetent under the Debts Recovery (Scotland) Act of 1867, in respect that it altered the findings in fact pronounced by the Sheriff-Substitute. That by sec. 10 of this Act, where neither party has required the Sheriff to take a note of the evidence, an appeal is incompetent against his findings of fact. Four months' credit was to be given on a “running account.” The account is to be taken as a whole. The ground of action against the defender is that he refuses to pay that which is due, but the pursuer by asking payment before the time is breaking his contract.

Authorities cited—Debts Recovery (Scotland) Act 1867 (30 and 31 Vict. cap. 96), secs. 8, 9, 10, 13, 18; Bell's Com. i. 325 and 714, ii. 68 and 69; Erskine, iii. 6.

Argued for the respondent—The agreement between the parties was a mutual contract; in return for the four months' delay the account was to be paid when rendered. A contract of this kind was not perpetual, it cannot apply to future transactions. There was mora on the part of the appellant after 26th July.

Authorities cited—Bell's Prin., sec. 46; Turnbull v. M'Lean, March 5, 1874, 1 R. 730; Dove v. Henderson, January 11, 1865, 3 Macph, 339;

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Fraser v. M'Intosh, December 19, 1867, 6 Macph. 170; M'Bride v. Williams & Company, June 28, 1881, 18 Scot. Law Rep. 609.

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