Scottish Court of Session Decisions

This was an action brought under the Debts Recovery (Scotland) Act 1867, in which Murdo Mackay sued the defenders, John Sutherland and Nathaniel Mackay, conjunctly and severally, for £26, 13s. 1 1 2d. for goods, as per account produced. The summons was dated 2d October 1867.

The pursuer stated that the goods specified in the account sued for were forwarded by him to the defender Mackay on the order and credit of the other defender Sutherland, on whose account Mackay received the same, and he pleaded that the defender Mackay was liable in payment as having received the goods, and the defender Sutherland as being the person on whose order they were supplied. The defender Mackay admitted having received the goods, but pleaded that he was entitled by agreement to a deduction of 5 per cent., and tendered the balance. The defender Sutherland denied having ordered the goods on his own credit, or having undertaken to pay for them. He stated that, at the request of the other defender, Mackay, he asked the pursuer to forward the goods to the defender Mackay, and that in doing so he acted merely as Mackay's messenger; and that he did not guarantee payment. He pleaded that, not having ordered the goods on his own credit, he was not liable for the price; and that any alleged guarantee by him could be proved only by his writ.

On the 23d and 24th October last a proof was led before the Sheriff-substitute at Tain, who pronounced an interlocutor, in which he found, inter alia, that the defender Mackay was liable to the pursuer in the amount of the account sued for, in respect of his having purchased the goods through the agency of the defender John Sutherland, but under deduction of a sum of 10s. 6d., charged for a pack-sheet and bags, which had been returned: That the defender Sutherland was not liable to the pursuer for the price of the goods, on the ground of the orders having been given by him, in respect he informed the pursuer that the goods were ordered for the defender Mackay, and was not liable on the ground of the alleged promise of payment, in respect it was of the nature of a guarantee for the other defender, and was not in writing.

The pursuer and the defender Mackay appealed against this judgment of the Sheriff-substitute, and on the 7th of November the Sheriff (Cook) recalled the interlocutor of the Sheriflf-substitute, and found as matter of fact, (1) that the goods included in the account sued for were furnished by the pursuer for the use of the defender Nathaniel Mackay, with the knowledge of the said defender, but on the sole order of the defender Sutherland, acting, not as the messenger or agent for the defender Mackay, but as a party interested on his own account in the conduct and management of Mackay's business; (2) that the prices agreed upon between the pursuer and Sutherland for the said furnishings were the prices charged in the account sued for, No. 2 of process, without abatement of any discount; (3) that although the defender Mackay now admits liability for the said furnishings, he not only failed to pay, or offered to pay, the account sued for when rendered to him, but denied his liability, and represented the defender Sutherland as the party truly liable to pay the said account to the pursuer; (4) that the pieces of pack-sheet and the bags, forming the last two items in the account sued for, were returned to, and have been retained by, the pursuer: Found in these circumstances, in point of law, that the defender Mackay is liable in payment of the said account in respect of his own admission of liability, and as the party who received and used the goods included in the account, but under deduction of the sums charged for the last two items in the account, which were returned as aforesaid; and that the defender Sutherland is also liable in payment of the account as in a question with the pursuer, not as guarantor or cautioner for the defender Mackay, but as the party on whose direct and immediate order the whole goods were furnished:

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Therefore decerned against the defenders, conjunctly and severally, and in favour of the pursuer, for the sum of £26, 13s. 1 1 2d., as concluded for in the summons, but under deduction of the sum of 10s. 6d., as the value of the pack-sheets and bags, forming the last two items of the said account, and returned as aforesaid: Found the pursuer entitled to expenses as against both defenders, and decerned against them, conjunctly and severally, and in favour of the pursuer, for the sum of £3, 9s. 6d. as the amount of the same.

Both defenders appealed to the Court of Session.