Scottish Court of Session Decisions

This was an action of damages brought by Alexander Ferguson, one of the partners in a sugar refinery in Leith, against the judicial factor upon the estate of his deceased brother, John Ferguson, the other partner in the said firm.

The pursuer's condescendence set forth that he and his brother had carried on business in Greenock up to the year 1852, and that in that year they had, under the firm of J. & A. Ferguson, taken a lease of the Leith Sugar Refinery, which

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property they afterwards bought. John Ferguson went to Leith to superintend the business of the firm in March or April 1852, but the pursuer remained in Greenock until the end of October of that year, when he went to reside in Leith, and thereafter took charge of the cash and counting-house department of the business. For some years after 1852, the business of sugar refining carried on by the firm of J. & A. Ferguson in Leith was well conducted, and proved very profitable. During the first period of five years after the commencement of the business ending in 1857, the firm were very successful, and realised large profits, after payment of all charges and expenses. During the whole of the said period the actual process of refining was superintended and conducted by skilled and competent workmen, many of whom had been previously engaged in sugar refining in the employment of the Leith Sugar defining Company, who had previously occupied the premises. The statements which were relied upon as grounds for an action of damages were as follows:—“From the time when the pursuer went to reside at Leith until the middle of the year 1857, his brother and partner, the late John Ferguson, was very much in Greenock or elsewhere, and he did not during that time take any charge of the sugar house, or of any department of the business, or interfere with the operations of the workmen. But in 1857 John Ferguson began to interfere in an improper and unwarrantable manner with the business of the refinery. He had no knowledge whatever, either theoretical or practical, of the various processes necessary for refining sugar. Yet, notwithstanding his ignorance of such matters, the said John Ferguson, at his own hand, wrongfully dismissed all the skilled and competent workmen who had previously been in the employment of the firm, and employed in their stead common unskilled labourers, who knew nothing whatever about sugar boiling or refining.” The consequence of the foresaid reckless and wrongful proceedings on the part of the said John Ferguson was, as alleged, great loss to the firm and to the pursuer as an individual, through loss of custom, waste of raw material and general deterioration of stock and machinery. The pursuer stated that he had frequently “remonstrated with his brother, the said John Ferguson, and objected to his proceedings, but his remonstrances and objections were treated with the utmost contempt.” The pursuer also intimated to his said brother that he would hold him responsible for the loss occasioned by these proceedings, but the only reply the pursuer obtained consisted of strong language and threats of personal violence. In addition to the waste and destruction of sugar and molasses as aforesaid, the production of refined sugar became gradually less and less until the end of the year 1860. About that time the refinery came almost to a stand still, John Ferguson having then dismissed all the workmen in the establishment with the exception of one man, who was retained apparently for the purpose of keeping up steam in the works. Matters remained thus until on or about the 21st May 1861, when John Ferguson shut up the doors both of the counting-house and of the sugar house, and secured them with chains and padlocks, in order to prevent the pursuer from getting access to the premises. He also at the same time locked the doors of all the other houses and places within the premises in order to keep out the pursuer. The pursuer was thus wrongfully and illegally debarred from access to the premises of the firm, and he was wrongfully and illegally kept out of these premises until the 18th of December 1863, The said John Ferguson, after shutting him out of the premises as aforesaid, refused to give the pursuer any access thereto. At the time when the pursuer was locked out of the premises, he had in his possession the key of the safe, which contained the cash-book of the firm and the titles of the refinery property. John Ferguson, in consequence presented an application to the Sheriff for warrant, ordaining the pursuer to deliver up to him the key of the safe. The pursuer, however, lodged answers to the application, and also applied to the Court of Session for the appointment of a judicial factor upon the estates of the firm. Negotiations were thereupon commenced between the pursuer and his brother John, with the view of settling the various matters of dispute which had arisen, but these negotiations came to nothing; and, meantime, on the 2nd February 1863, John Ferguson died. It farther appeared from the pursuer's own statements, that from the date of his brother's death in 1863, nothing material had been done towards winding up the concerns of the firm, and very little towards preventing farther deterioration and waste of the firm's property; his statement being that he was during that interval endeavouring to come to an arrangement, first with James Ferguson, his co-executor upon his deceased brother's estate, and afterwards with the present defender, who had been appointed judicial factor upon the estate. The pursuer's concluding statement was: “The loss and damage sustained by the pursuer in consequence of being illegally excluded from the premises, and from the destruction or deterioration of the goods therein, loss of trade, and otherwise, amounts at least to the sum of £43,000. The defender, as judicial factor upon the estate of the said John Ferguson, has been required to make suitable reparation to the pursuer in respect of the premises, but he refuses, or at least delays to do so, whereby the present action has been rendered necessary.”

He pleaded, “The pursuer having suffered loss, injury, and damage, as alleged by him, in and through the wrongful acts of the deceased John Ferguson, the defender, as representing the said deceased, is bound to indemnify the pursuer for such loss.”

The defender stated as preliminary pleas—“(1) The statements in the summons are not relevant or sufficient in law to support the conclusions of the summons. (2) The action is, in the circumstances above set forth, barred by mora, taciturnity, and acquiescence. (3) Even assuming that the late John Ferguson's conduct had been in any respect illegal, the pursuer having acquiesced therein, and not having adopted and insisted in any of the remedies which were open to him, to prevent loss and damage, is barred from insisting in the present action.”

The Lord Ordinary ( Jerviswoode) having heard parties in the procedure roll, approved of the following issues, which were proposed by the pursuer, and appointed them to be the issues for the trial of the cause, namely—

It being admitted that the pursuer and the said deceased John Ferguson carried on business as sugar-refiners at the Leith Sugar Refinery, Leith, as partners, under the firm of J. and A. Ferguson,—Whether the said deceased John Ferguson, during the years 1857, 1858, 1859, 1860, and

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1861, or during part thereof, wrongfully interfered with the management of the said sugar-refinery, to the loss, injury, and damage of the pursuer?

Whether, in or about the month of May 1861, the said deceased John Ferguson wrongfully shut up the said sugar-refinery, and wrongfully excluded the pursuer therefrom, to the loss, injury, and damage of the pursuer?

“Whether, in or about the month of May 1861, the said deceased John Ferguson wrongfully shut up in said sugar-refinery a quantity of sugars and goods belonging to the said firm, which thereby became deteriorated in value, to the loss, injury, and damage of the pursuer?”

Against the interlocutor approving these issues the defender reclaimed.

Millar, Q.C., and Marshall, for him.

Solicitor-General and Watson for the pursuer and respondent.

At advising—