Scottish Court of Session Decisions

The late George Balvaird raised an action before the Sheriff of Edinburgh against Mrs Thomson, the widow and representative of his brother-in-law, Robert Thomson, concluding for count and reckoning for his intromissions with the rents of certain houses. In defence, Mrs Thomson alleged that Balvaird had accepted a bill in January 1812 to Thomson for £87, 7s. 6d., which had been paid out of the rents intromitted with, and, therefore, that she was not liable to account for the rents to this extent. Balvaird pleaded, that the bill being prescribed could not be founded on. The facts, as appearing from the mutual statements, were these:—Balvaird and Thomson had signed a bond along with David Thomson, in 1805, for a cash-credit obtained from Sir William Forbes and Co., in which (it was said) they were merely cautioners; and on the 23d of January, 1812, Thomson made up and sent to Balvaird an account, bearing to be “State of the balance due by Mr George Balvaird to Mr Robert Thomson, on their conjunct bond with Mr David Thomson, late merchant in Edinburgh, to Sir William Forbes and Company, bankers in Edinburgh, of date 3d September, 1805.”

The account showed a loss of £194, 1s. 8d. sustained on the bond, and contained the following items:—

“To your half of this balance, … £97 0 10

By cash, as part of this sum, per order on Mr Black, 9 13 0

Balance due R. T. of this date, . . 87 7 10”

A letter was subjoined in these terms:—“My dear George,—Prefixed I send you a state of the balance due on our conjunct bond with my brother, which I hope you will find right; and have also enclosed a note for your acceptance for the balance. But although 1 have done this, I never mean to give you any trouble about the payment of it. My only reason for doing so is, that Mr Balvaird, an uncle of George's, of whom Thomson was tenant, has hinted that if I do not make a considerable advance of rent for the house, he will not give even the most trifling repair, but I am apprehensive will endeavour to make me leave it. Now, if it be considered that he was the person who made you sign the bond, it is rather illiberal on his part not to see you relieved. I hope, however, that you will mention to my sister, that although I hold the bill, it is merely meant as a check in case Mr Balvaird should give me trouble, (which in every point of view he ought to avoid ); and in that case only I perhaps might be able to retain my debt out of the rents of the two houses, but will never hurt you or my sister's feelings, or give you trouble on that subject, &c.” Balvaird accordingly accepted the bill, and sent it to Thomson. Thereafter Thomson acted for several years as Balvaird's factor, and in that character uplifted the rents of some houses belonging to him; and, on the death of his uncle, in 1814, Balvaird having succeeded to the two houses mentioned in the letter, Thomson had similar intromissions with their rents. He rendered accounts to Balvaird in 1815, 1817, 1819, and 1821, bringing out the balance due at each period, and in these he made no entry of the bill for £87, 7s. l0d. Thomson died in 1826, and there was found in his repositories an account-current, subscribed by him, which contained the following entry on the credit side:—

“Amount of your promissory-note to R. Thomson, dated 23d January, 1812, with interest thereon to 25th May, 1825, …. £167 11 1”

This was the last item in the account.

Under these circumstances, and with reference to the defence, the Sheriff found “that the deceased Robert Thomson, when he sent the bill, dated 23d January, 1812, for the pursuer's acceptance, did at the same time write the pursuer a letter, stating that he never meant to give the pursuer any trouble about the payment of it; that his only reason for sending the bill for the pursuer's acceptance was on account of hints from the late Mr Balvaird, as to advancing the rent payable by the deceased, and that, although he (the deceased), held the bill, it was merely meant as a check, in case Mr Balvaird should give him trouble about his rents; farther, found, that in the different accounts rendered by the deceased to the pursuer, no charge is made against the pursuer for the said bill, or the annual interest thereon, and that the said bill and interest is only charged in the account, November, 1825, found in the deceased's repositories after his death: Found, that, by the deceased's letter, 23d January, 1812, transmitting the bill for the pursuer's acceptance, he was barred from bringing forward any claim on said bill against the pursuer or his wife: and found the defender not entitled to insist in any claim arising from said bill.” And he refused a reclaiming petition, “reserving to the defender to instruct, by the writ or oath of the pursuer, that the defender's claim for £87, 7s. l0d. is resting owing.” He afterwards decerned against the defender, disallowing her credit for the bill or for the debt of £87, 7s. l0d. to which it referred. Balvaird having died during the currency of the action, his widow was sisted in his place as his representative; and Mrs Thomson brought an advocation, in which the Lord Ordinary “advocated the cause, recalled the interlocutor of the Sheriff, and before further answer, allowed the advocator to instruct, by competent evidence, that her late husband was entitled to take credit for £87, 7s. l0d. in accounting for the rents of the houses, with which he had intromitted in character of factor for the late George Balvaird.” ^*

Mrs Balvaird reclaimed.