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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. M'Kendrick [1870] ScotLR 8_221 (14 December 1870)
URL: http://www.bailii.org/scot/cases/ScotCS/1870/08SLR0221.html
Cite as: [1870] ScotLR 8_221, [1870] SLR 8_221
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SCOTTISH_SLR_Court_of_Session
Page: 221↓
Court of Session Inner House First Division.
v.
Facts:
Where, under the Debts Recovery Act, A sued B in the Sheriff-court for the balance of a large account, which itself was much in excess of £50, though the balance sued for was only £47 odds; and where B in his defences took objection to all the items in the whole account, so as to bring into dispute a sum considerably in excess of £50, though he did not object to the competency of the action, but, on the contrary, joined issue and went to proof— Held, on appeal, that there was no incompetency in the summons as laid, on the ground that it concluded for the balance merely of an account which exceeded £50, the balance itself being under that sum. That it was not necessary to decide upon the merits of the objection, for if there was any objection to the competency at all, it was not in initio litis, but was introduced by the defender in stating his defences. That such an objection was capable of being waived by the defender; and as it had not been taken at the proper time, it must be held now to have been waived.
Per Lord President—The words “which are not founded on written obligations” distinguish the class of cases included under the Triennial Prescription Act from those under the Debts Recovery Act.
This was an appeal from the Sheriff-court of Perthshire in a case brought under the Debts Recovery Act of 1867. M'Kendrick, the pursuer, a joiner in Perth, had contracted to perform certain work for the defender at a contract price of £569. He had, during the execution of the work contracted for, been required to do extra work beyond the estimate, for which he charged the sum of £72, 14s. 4
d. in all. He had received payments to account amounting to £580; he admitted that the defender was entitled to keep back the sum of £10 until the work was finished; and he also admitted deductions to the amount of £4, 11s., leaving a balance on the whole account of £47, 2s. 10 1 2 d., the sum sued for in the Debts Recovery Court, as balance due “on account annexed.” 1 2 The extra work charged for in the account annexed, amounting to £72 odds, consisted of about thirty different items. To every one of these the defender objected in his defences, and also pleaded that the work was disconform to the plans and specifications. The amount charged as contract price was not disputed. The parties went to proof; a remit was made to a person of skill to inspect the work done and report; and upon 21st
Page: 222↓
April the Sheriff-Substitute ( Barclay) pronounced an interlocutor disposing of the case, containing special findings referring to the various items in the account, and bringing out a balance due to the pursuer as the true balance on the account sued for. In this interlocutor the Sheriff-Substitute had, by a clerical error, written the word “repel” instead of the word “sustain.” The error was palpably a clerical one upon the face of the interlocutor, and it did not affect the final and substantial finding of the amount due to the pursuer. The defender appealed to the First Division of the Court of Session.
Scott, for him, objected that the action was incompetent under the Debts Recovery Act, inasmuch as, though apparently only concluding for a sum under £50 in amount, it yet brought really into dispute the whole items of a large and complicated account, a result which it was intended by the Legislature to exclude. He farther objected that the debt sued for did not come within the category of cases mentioned in the second section of the Debts Recovery Act; that that Act only applied to such cases as came under the Triennial Prescription; and that this was not one of them.
Lord President —The words of the Act 1579, c. 21, “That are not founded upon written obligations,” are omitted in the Debts Recovery Act. That forms the distinction between the two.Strachan for the respondent.
Before disposing of the case, the Court instructed the Clerk to write to Sheriff Barclay and ascertain whether or not there was a clerical error in his interlocutor, as this was disputed by the defender and appellant. Sheriff Barclay replied that there was a clerical error, as observed by their Lordships.
At advising—
It is the nature of the defences pleaded in this action which seem to me to raise the difficulty. The account annexed to the summons begins with the amount of an estimate or contract price as its first item, about which there is, and indeed could be, no dispute. The remainder of the account, to the amount of £72 odds, consists of items of extra work done and charged for over and above the estimate. The defender challenges every one of these items, and so his defence raises a question concerning a sum exceeding £50, the limit authorised to be sued for under this Act. The difficulty and objection to the competency is therefore raised by the nature of the defence putting in dispute a larger sum than that concluded for in the summons. Whether the objection now raised by the defender is a good one or not, I do not need to decide, and therefore I give no opinion. Even if it be a good objection, it is not one that arises in initio litis; when it does become possible, on proponing defences, the defender does not raise it; on the contrary, he joins issue and goes to proof. Now I am of opinion that such an objection may be waived, and has been waived in the Court below, and that the defender cannot now be allowed to raise it here.
As to the merits of the case there is little room for doubt. There are some expressions, certainly, in the Sheriff's interlocutor of the 21st April 1870 which are not very intelligible, and the interlocutor itself winds up by repelling the pursuer's objection to the second branch of the inspector's report. On the face of it this is inconsistent with the former part of the interlocutor, and on reading the interlocutor carefully, it is quite clear that the Sheriff meant to “sustain,” and not “repel.” There is therefore manifestly a clerical error, but it does not affect the figures of the final and substantial finding.
The other Judges concurred.
The Court therefore dismissed the appeal.
Solicitors: Agent for the Appellant— John Galletly, S.S.C.
Agent for the Respondent— David Milne, S.S.C.