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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paterson v. Wilson [1883] ScotLR 21_272 (22 December 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/21SLR0272.html Cite as: [1883] ScotLR 21_272, [1883] SLR 21_272 |
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Process — Expenses — Decree in Name of Agent-Disburser.
A person signed and delivered to another two I O U's. In a subsequent action for the amount contained in them, he alleged that they were truly granted as receipts for re. payment of money which had been previously advanced by his brother to the pursuer. Held, after a proof pront de jure, that he had failed—the onus of proof being upon him—to establish his averment, and decree pronounced against him for the amount of the I O U's.
The pursuer of an action having obtained decree and been found entitled to expenses, the defender objected to decree for these expenses going out in the name of the agent-disburser, on the ground that in another litigation in which the pursuer was truly though not nominally the party interested, and which had been decided some time previously, and the subject-matter of which was different, he had obtained a decree for expenses which he desired to set off against the pursuer's claim. The Court repelled the objection, and allowed decree to go out in name of the agent-disburser.
Thomas George Paterson raised this action against Thomas Wilson for payment of two sums of £20 and £30 which he alleged to have been lent to him on 4th October and 4th November 1878, and for which defender had granted I O U's or acknowledgments of these dates. The defender stated that the pursuer had obtained advances from his (defender's) brother D. H. Wilson, and that he had repaid them on the dates mentioned, and that the documents founded on were truly receipts for these sums.
The Lord Ordinary (
“ Opinion.—This action concludes against the defender for payment of two sums of £20 and £30, and is laid upon two I O U's dated respectivly 4th October and 4th November 1878, and alleged to have been granted by the defender to the pursuer of these dates.
The pursuer's allegation is denied; and it is alleged by the defender that the only sums of £20 and £30 which he received from the pursuer at that time were received by him as cashier for his brother David Hay Wilson, S.S.C., in repayment of two previous advances by the latter to the pursuer of these amounts.
Lord Adam allowed a proof; and the proof has been taken before me. The parole evidence, in my opinion, is not satisfactory on either side. On the one hand, if the I O U's libelled were taken at the time as a record of the transaction, the pursuer appears to have made, or suffered to be made, in his books a most unfortunate mistake. For the first sum was originally entered by his brother as a loan to D. H. Wilson, and the second sum was originally entered as a loan to the firm of D. H. & T. Wilson. I cannot say that the correction of this mistake is satisfactorily cleared up. On the other hand, if the I O U's were intended to represent (as alleged by the defender) mere receipts for sums got in repayment of previous loans, it is remarkable that each sum should be entered in the books of the firm of D. H. & T. Wilson as received from the pursuer in loan and that the defender and his brother should only be able to represent them now as not received in loan by going into an alleged adjustment of accounts upon which no final settlement and discharge has taken place.
The first question between the defender and the pursuer is, whether these I O U's were written by the defender of the dates they bear, and were delivered to the pursuer to be held as his writs? If so, each of them is an acknowledgment of debt instructing a loan, and constituting a good ground of action. I did not understand this to be disputed. At all events, I hold it to be well settled ( per Lord President, Haldane v. Speirs, 10 Macph. 541). Now upon this question of fact I think that the evidence is clear. It shows that whatever may be said now about the money having been paid over by the defender to his brother D. H. Wilson, and as to D. H. Wilson being the true borrower, it was the defender who received the money and who granted the documents of debt. I think that these documents must be regarded as records of the transactions. I think that they were given as such at the time, and that to allow the defender—a man of business—to represent them now as recording transactions in which he had no concern, excepting as a mere hand, is inadmissible.
But a second question is raised upon the proof which has been adduced, viz., whether these documents of debt, though bearing to instruct loans, did not truly represent payments of money in extinction of debt? I must assume that proof on the subject is competent, for proof has been allowed. But the onus here is upon the defender ( Ross v. Fiddler, Nov. 24, 1809), and I think that he has failed to prove his averment. The averment is not reconcileable with the evidence. Indeed, both the defender and his brother practically admit that the money was at the time received in loan, and that it is only by a subsequent statement of accounts that they are able to represent the sum as payments to account.
A third point is raised by the defender, viz., that the pursuer in May 1879 adjusted an account with Mr D. H. Wilson, in which he
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On the whole, I find that the I O U's libelled are holograph of the defender, and were granted by him to the pursuer of the dates they respectively bear, and I repel the defences and grant decree in terms of the conclusions of the summons, with expenses.”
The defender reclaimed. The Court adhered and found additional expenses due.
After the account had been audited, the pursuer moved that the report should be approved of and decree allowed to go out in the name of the agent-disburser.
The defender objected, on the ground that two years previously he had obtained decree for expenses (which had not been paid) in an action at his instance, which, though nominally a decree against the Krisuvik Sulphur Co., of which the pursuer was a shareholder, was truly against the pursuer, the company being subject to judicial winding-up as having ceased to contain more than seven members, and pursuer therefore being liable for its debts. He was entitled to set off these expenses against the present award, and he could not do so if decree was given in the agent's name.
The pursuer replied—The former action was not an action raised against him personally, but one against the Krisuvik Sulphur Co., of which he was merely secretary and a shareholder, and for whose debt he was in no way liable. The company was in liquidation, and the defender's claim must be made to the liquidator who had been appointed. Compensation could only be pleaded between counter awards of expenses where the awards had been granted in the same action. The only exception was the case of Portobello Pier Company v. Clift, but although there were there two processes, they related to the same subject-matter, the parties were the same, and the cases proceeded at the same time and might have been conjoined.
Authorities— Portobello Pier Company v. Clift, March 16, 1877, 4 R. 685; Begg on Law Agents, 194; Stokes on Liens of Attorneys, p. 110; Stothart v. Johnston's Trustees, May 23, 1823, 2 Mur. 549; Washerton v. Hamilton, May 30, 1826, 4 S. 631 (N.E. 639); Halliday v. Halliday, January 12, 1828, 6 S. 406; Graham v. M'Arthur, Nov. 28, 1826, 5 S. 49 (N.E. 46); Gordon v. Davidson, June 13, 1865, 3 Macph. 938.
The
The Court gave decree in name of the agent-disburser.
Counsel for Pursuer (Respondent) — Boyd. Agent— A. Menzies, S.S.C.
Counsel for Defender (Reclaimer) — Lang. Agent— D. H. Wilson, S.S.C.
