Two merchants purchased goods, for which they granted ajoint bill, and exported them. Intending afterwards to export another joint cargo, this they severally purchased. One of them bought his share from the merchant to whom the joint bills had been granted. The seller drew on both for the value. The one who did not pursonally purchase from him was not jtaund to accept.
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John Bryson and Robert Bousie, merchants in Edinburgh, made up between them a cargo to be exported on their joint account, by furnishing each their share of the goods, and by purchasing an additional quantity from Robert Ker, merchant in Paisley, on their conjunct bill, 1st April, 1728, for £.36 Sterling, payable six months after date. Afterwards they made up another cargo, by Bryson's furnishing his share as before, and Bousie's taking from Ker to the value of £.95, 28th September, 1728, for which he imagining both were to be bound, and not being undeceived by Bousie, drew upon tnem both, which Bryson refused to accept.
Bryson and Bousie, 2d October, 1728, Wrote to Ker, excusing the not punctual payment of the first bill, and added two postscripts by Bousie, in these words:—. “Sir, I have accepted the bill myself, because Mr. Bryson purchased as much value from one of his own acquaintance, and this is to keep clear accounts betwixt ourselves, being equally value of the two whole cargoes; but there is nothing in it, for, under God, you shall have payment sooner nor expectation.” And Bryson in these: “Sir, the above being the only reason, hopes you will not take it amiss.”
Ker immediately sent his son to Edinburgh, but Bryson still refused to accept; however, Ker did not lay any embargo upon the cargo, though the ship did not sail till after the 25th; but in this process he alleged he did not know how the goods were disposed of.
The voyage did not succeed, and part of the outward cargo of both stocks was returned; and the whole being arrested, was sold for the joint debts of Bryson and Bousie.
Ker pursued Bryson for payment of the goods as furnished to them in copartnery; and the Lord Ordinary, 11th January, 1745, “Having considered the circumstances of the case, particularly that lately before the date of the bill in question, the pursuer had furnished to the same persons a parcel of goods, for which, though of less than half the value of that for which the bill in question was drawn, he had taken them jointly bound; and that while the said first parcel was yet unpaid, the bill in question was drawn upon them jointly; together with the two postcripts, the one by Bousie, the other by Bryson the defender, subjoined to their letter to the pursuer, whereby they in effect acknowledged their being both liable to the pursuer, when they apologized for both not accepting, for this only reason, that it was to keep clear accounts between themselves; that further, the instructions to their supercargo of the 15th October, were given as by persons In copartnery, without distinguishing their several properties; and that last of all, when the goods for which the bill in question was drawn, were again returned to Scot, land, they were, by order of the Judge-Admiral, applied to the payment of debts, in which Bousie and the defender were jointly bound; repelled the defence.”
Pleaded in a reclaiming bill, That Bryson and Bousie were in no general society, having separate shops in Edinburgh. They were not even in a society of a particular branch of business to last for any time; but had only agreed to undertake together the exportation of these two cargoes upon their joint risk, and that by furnishing each their share of the goods; that this society of a particular adventure was well known in law, and common amongst traders, concerning which, there were three rules; 1st, That nothing was communicable but what arose from the particular negotium; 2dly, That the deed of one partner did not bind the other, unless it had an immediate connection with the adventure; and, 3dly, The society ended with the adventure: That the society in question had its commencement from the putting the stocks together, and ended with the disposal of them, and had no more concern how either's share was purchased, than if they had furnished their shares in money to make a joint purchase, it would have concerned the one where the other had borrowed it; that the bill formerly accepted did not bear them to have been in Company; nor was the second drawn upon them as in that capacity; and the postscripts to the letters, which were insisted on as acknowledging them to be conjunctly bound, implied the contrary, as Bryson refused to accept, for keeping clear accounts betwixt themselves, which his refusing to adhibit his name could not have effected, if notwithstanding he was bound: And whereas stress was laid upon the returns being applied for payment of his debts; that he was entitled to half the outward cargo, and also half the returns; and, if more than his property had been applied to his use, he behoved to be accountable for it.
Answered: That the two partners, had taken up the former parcel of goods on their joint credit, and had continued to trade in the same way that the second parcel was contracted for by Bousie, for his own and partner's account, before payment of the first, and so furnished by Ker; and Bryson, if he did not intend to continue the same method of dealing, was in mala fide not to have intimated so much; that their letter did not deny their being jointly bound, but, supposing it, made an apology for not accepting; so that Ker had still reason to rely on them both; that it was not the case of two persons contributing their share of goods; of but the furnishing and receiving by Bousie was societatis intuitu; and, according to the second rule laid down by the petitioner, the deed of one behoved to bind both the partners, being in a matter relative to the society; that there was no need of the bills being drawn as upon a Company, when the whole Company were therein named.
The Lords sustained the defence against payment of the bill libelled on.
Act. W. Grant.Alt. Brown.Forbes, Clerk.
Fol. Dic. v. 4. p. 285. D. Falconer, v. 1. No. 184. p. 247.
