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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Cheap of Leith, and Others, Executors of Thomas Cheap, late Merchant in London, deceased v. Andrew Aiton and Company, Merchants, Glasgow [1772] UKHL 2_Paton_283 (11 December 1772) URL: http://www.bailii.org/uk/cases/UKHL/1772/2_Paton_283.html Cite as: [1772] UKHL 2_Paton_283 |
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Page: 283↓
(1772) 2 Paton 283
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
No. 70.
House of Lords,
Subject_Dissolution of Copartnery — Liability of Representatives of a deceased Partner, for goods ordered in Company's name by one of the Partners, in alleged ignorance of his Death.—
Circumstances where representatives of a deceased partner not held liable for goods so ordered, and furnished after the death was known to the sellers. Reversing the judgment of the Court of Session.
The company of Messrs. Adair and Cheap, merchants in London, was dissolved by Thomas Cheap's death, who was killed in the expedition to Bellisle, in April 1761, and the account of his death published in the London newspapers of 23d May 1761.
His partner Adair had, on the 26th March previously, ordered by letter, signed in the social name of “Adair and Cheap,” a considerable quantity of lawns and other goods, from the respondents, to which they answered on the 1st April; “The clear lawns you order, shall be sent as soon as we have them from the bleaching,” and addressed their letter to Messrs. Adair and Cheap.
1761.
On the 21st May, Mr. Adair gave a second order, in the name of “Adair and Cheap,” he then being ignorant of the death of his partner.
Page: 284↓
On the 10th June 1761, after the death of Thomas Cheap was published, a considerable part of the goods were sent, which were ordered by the letters both of 26th March and 21st May 1761. amounting to £250. 13s. In the invoice sent along with these, they appeared invoiced to Charles Adair alone, and not to “Adair and Cheap,” as follows: “Mr. Charles Adair, bought of Aiton, Blackburn, and Colvill;” and on the margin, where the direction marks are put, C. Adair, London, pd. to N e.” And on the 22d July 1761 the remainder were sent in the same manner, amounting in value to £41. 9s. 10 ¼d.
Sometime thereafter Charles Adair became bankrupt, and the respondents ranked on his estate for their whole debt, including both goods previously sent, as well as the goods sent by the orders of 26th March and 21st May 1761.
They afterwards raised the present action for the balance (£389. 7s. 4d.) against the representatives of Thomas Cheap, the appellants. In defence, it was stated, that they were not liable for the goods ordered by Charles Adair of 26th March and 21st May 1761, and furnished on 10th June and 22d July thereafter, when by that time the respondents were acquainted with the death of Thomas Cheap, because the partnership was then known by them to be dissolved; and they, in evidence of this, had invoiced these goods, not to the firm of “Adair and Cheap;” but to Charles Adair alone. The question thus came to be, Whether the appellants, as representatives of Thomas Cheap, were liable for the value of the goods ordered on 26th March and 21st May?
July 5, 1768.
The Lord Ordinary pronounced this interlocutor: Find “the defenders (appellants) liable to pay the pursuers the price of the goods commissioned on the 26th March 1761, and sent by them on the 10th June thereafter; but found that they are not liable for the price of the goods commissioned on the 21st May, and sent by the pursuers on the 22d July said year.”
Aug. 4, —
Both parties represented against this interlocutor. And, in the meantime, the appellants having admitted that a certain balance was due, the respondents insisted on an interim decree for that admitted sum, which was obtained of this date. Against this a representation was also lodged.
Nov.26, —
Thereafter the Lord Ordinary pronounced this interlocutor, finding “The defenders liable to pay to the pursuers the price of the goods commissioned on 26th March 1761,
Page: 285↓
Mar. 2, 1769.
Reclaiming petitions being lodged by both parties, the whole Lords “adhered to the Lord Ordinary's interlocutor reclaimed against, so far as they find the defenders liable to pay the pursuers (respondents) the price of the goods commissioned on 26th March 1761, with interest from and after year and day after the date of the furnishing thereof, till payment; and further find the defenders (appellants) liable also to pay to the pursuers (respondents) the price of the goods commissioned on the 21st of May 1761, with interest from and after year and day after the date of the furnishing thereof, till the payment, and decerned.” Against this interlocutor three reclaiming petitions were presented and refused.
Mar. 11, 1769.
Feb. 1, 1770.
Feb. 21, —
Against these interlocutors the present appeal was brought. * It was
Ordered and adjudged that the aforesaid interlocutor of the 4th August 1768, and so much of the subsequent interlocutors as adhere to the same, be, and the same are hereby affirmed; and that the whole other interlocutors, as well of the Lord Ordinary as of the whole Lords of Session, in so far as respects the other points in the cause, be, and the same are hereby reversed. Reserving to the respondents, the said Aiton and Company, their relief, and all claims and demands competent to them, from or out of the estate of Charles Adair, in the said petition of appeal mentioned.
Counsel: For Appellants,
Al. Wedderburn,
R. Perryn.
For Respondents,
E. Thurlow,
Thos. Lockhart.
_________________ Footnote _________________
* The argument is well reported in Morison 14, 573.
