Scottish Court of Session Decisions

The defender was trustee on the sequestrated estate of John Cattanach, brother of Donald. The summons concluded to have it found and declared that Donald was tenant of a shop for the sale of draperies and other goods in Kingussie; that the stock and furnishings of that shop belonged exclusively to him; and that the defender should be decerned and ordained to deliver up the stock so far as undisposed of, and to hand over the proceeds and prices thereof so far as sold.

After a lengthened proof, the Lord Ordinary (Barcaple) found, decerned, and declared in terms of the declaratory conclusions of the libel, and decerned the defender to concur with the pursuer in uplifting a sum deposited in bank, which the parties had agreed to hold as the proceeds of the goods sold, and found the pursuer entitled to expenses.

His Lordship added the following—

“ Note.—The evidence is extremely conflicting, and the question at issue in regard to the ownership of the goods in the shop at Kingussie is left in much obscurity. But, on a review of the whole evidence, the Lord Ordinary is led to the conclusion that they belonged to Donald Cattanach.

“The parties concur in maintaining that they were not joint or partnership property. The question is, therefore, to which brother are they to be held to have belonged? It was strongly urged for the defender that, John Cattanach being bankrupt, he and his father and brother have no interest in the matter. This may be so; but the Lord Ordinary can only say that he entirely disbelieves their evidence. There are, however, facts not resting upon their testimony which tend to support the case of the defender. The most important of these is the undoubted existence of a firm of J. & D. Cattanach at Dingwall, which ceased to exist about the beginning of January 1868, when the Kingussie shop was opened, part of the goods from Dingwall being taken there. There is no evidence except that of the Cattanachs as to the respective interests of the brothers in that firm, or the arrangement made when it came to an end. There is the evidence of Mr Edmonstone of Aberdeen that he received and executed an order for goods to the value of £12, 9s. 3d. for the Kingussie shop from John Cattanach in his own name, though he has mislaid the letter. There is the fact that the license was taken in name of John Cattanach. And, lastly, there is the evidence of William Cumming that he was desired by Donald to furnish a sign-board with ‘J. & D. Cattanach,’ and that afterwards he was desired by Donald, in the presence of John, to put on only ‘J. Cattanach.’ It is remarkable that, though the order was given in January, the article was not furnished when Donald absconded in June.

“These are undoubtedly very important facts, tending to the conclusion that the shop was carried on by John, and that the goods belonged to him. But the Lord Ordinary thinks they are more than counterbalanced by the evidence on the other side. It goes to show that Donald was the party who ostensibly carried on the business, and with whom all parties contracted in regard to it, John being only recognised as shopman. Donald was undoubtedly the tenant of the shop, which he first took up to May 1868, and afterwards retook from that term, in his own name, and without any reference to John. The pass-books of customers bore the name of Donald Cattanach, written in his own hand, as the party to whom they were indebted. This must have been known to John, who made entries and signed receipts in these books. Donald gave orders in his own name to customers for goods which he happened not to have in the shop at the time, and these orders were implemented solely on his credit. There is strong evidence that the understanding of the place was that the shop was his, and that John was only shopman. With the single exception of Edmonstone, who supplied one parcel of goods on the order of John, Donald alone dealt with the merchants who furnished goods for the shop, even when they visited Kingussie; and they understood the shop to be his, and made the furnishings on his credit.

“Holding, as he does, the evidence of the Cattanachs to be altogether unworthy of credit, the Lord Ordinary thinks that the proof preponderates in favour of the pursuer.”

The defender reclaimed.

Shand and Rutherfurd for him.

Page: 606↓

Scott and Brand in answer.

The Court adhered, with additional expenses.