Scottish Court of Session Decisions

Douglas contracted to perform the mason-work of a dwelling-house, of which the defender Heiton was the architect. Robertson supplied lime for the work, and now sued Douglas and Heiton for the price. Robertson's case was, that, not being sure of Douglas’ solvency, he declined to furnish him with lime except on the order and responsibility of Heiton as well as of Douglas; that Heiton ordered the pursuer to supply the requisite lime, stating that he would pay the pursuer for the same, and repay himself out of the money to be paid to Douglas; that the pursuer accordingly furnished lime to Douglas, and asked payment from Heiton, who, however, delayed to pay, but, in December 1865, wrote to the pursuer that, “in reference to the promise I made you regarding the lime supplied, I will deduct these sums from the amount due John Douglas, on the completion of his contract, to the extent of the funds in hand.” Heiton admitted the letter, but denied liability. Douglas having failed, Robertson sued him and Heiton for the price of the lime, resting his case against Heiton on the letter of December 1865, the conclusion being for payment of £82, “being the amount of an account for lime and bricks furnished by the pursuer to the said John Douglas, and which was supplied upon the order of the defender, the said Andrew Heiton, and for payment of the price of which he is also liable to the pursuer, under and in virtue of his holograph letter to the pursuer, dated 8th December 1865.” The Sheriff-substitute ( Barclay) assoilzied Heiton, on the ground that the letter contained no unconditional obligation of payment, but merely implied that, if the money of the contractor came into Heiton's hands, he would deduct the pursuer's claim before paying the contractor. The Sheriff adhered.

The pursuer advocated.