Scottish Court of Session Decisions

The present action was raised by Nicholson & Wilson, ironfounders, Blaydon-on-Tyne, against G. C. Bruce, civil engineer, Edinburgh, concluding for payment of £120, 17s. 11d., being the amount of an account for railway chairs. The defence was that Mr Bruce had ordered the chairs in question as engineer for the Ballater Extension Railway, a private undertaking belonging to Colonel Farquharson of Invercauld; that the pursuers were fully aware of this, and transacted with him in the capacity of engineer; that by the usage of trade the defender in giving the order did not engage his personal credit, and that the pursuers in executing it relied for payment on Colonel Farquharson alone. The defender pleaded that the action ought to be dismissed, in respect that all parties concerned were not called.

The Lord Ordinary ( Mure), without noticing the preliminary plea, allowed both parties a proof of their averments. A considerable amount of evidence, both documentary and parole, was accordingly led, in regard to the circumstances under which the order for the goods was given and accepted. The letters of the defender in regard to the transaction, though they did not bear in gremio that the order was for the railway, were uniformly headed “Ballater Extension Railway.” Evidence was led in regard to the communings which passed between the pursuers and a Mr Eckersley acting for the defender. The Lord Ordinary found that the pursuers had failed to prove that the goods in question were furnished on the personal credit of the defender, and assoilzied

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him accordingly, and found the pursuers liable in expenses. His Lordship added the following Note:—“The goods to which this action relates were ordered by the defender when engineer for the ‘Ballater Extension Railway,’ of which Colonel Farquharson of Invercauld is the proprietor. They were consigned by the pursuers to the defender's address as civil engineer at Ballater, to the care of the party employed as resident engineer, and used by him in the formation of the line. When payment, however, was applied for to the agents of Colonel Farquharson, upon an account duly certified by the defender, they declined to pay it, in consequence of a dispute which had occurred between Colonel Farquharson and the defender. In these circumstances the present action has been brought against the defender, upon the ground that he had interposed his personal credit in the matter, and was liable in payment of the price. The question raised is attended with considerable difficulty; but, upon a renewed consideration of the evidence, the Lord Ordinary has come to the conclusion that it is not sufficient to establish the pursuers' case.

“In the letters of offer and acceptance, on which the action is laid in the record, the defender appears to have taken up the position of a party acting not on his own account, but as engineer and agent for another; and in every communication sent by him to the pursuers in relation to the transaction, whether by telegram or letter, he seems to have continued to disclose his position as that of a party acting for the ‘Ballater Extension Railway.’ In the letters addressed by the pursuers to the defender they do not at first allude directly to the railway; but their letter of the 30th of March 1869 is headed ‘Ballater Extension Railway,’ and seems to indicate that at that date they recognised the defender as acting not on his own account, but for the railway.

Dealing with the case, therefore, upon the correspondence alone, the question arises whether the defender, in thus accepting the pursuers' offer, can be held to have rendered himself personally responsible to them for the value of the goods? If the defender's letters, instead of being headed ‘Ballater Extension Railway,’ had borne, in gremio, that the defender accepted the offer for the railway, no doubt could, it is thought, have been entertained as to the defender being free from all personal liability for the price. The case would then just be the ordinary one of a party transacting, factorio nomine, for a disclosed principal, in which the agent is held not to bind himself, and the party with whom be transacts is held to look to the principal alone.

But a difficulty arises in the present case from the circumstance that it is in the beading, and not in the body of the letters, that the defender indicates that he is acting for another. In the view which the Lord Ordinary takes of those letters, they appear to him to bear, ex facie, that the defender was not acting on his own account, or pledging his personal credit, and to have been sufficient, at all events, to put the pursuers on their guard. The question, however, as to the precise meaning and import of the letters is one which cannot perhaps be held to admit of being conclusively solved by the terms of the letters alone, but to depend to some extent upon the understanding and usage of trade upon the subject. Now, as to this, the evidence for the defender appears to the Lord Ordinary to be conclusive to the effect that an engineer giving orders in terms similar to those founded on in the present case is not understood in the trade to bind himself personally, and that the manufacturer must look for payment to the railway, or other party on whose account the goods were ordered. This evidence is not met by any counter evidence for the pursuers, and is, in the opinion of the Lord Ordinary, considerably strengthened by that given by one of the pursuers, who says that when they offered to furnish chairs for the same railway in the summer of 1868, on the order of the defender as engineer, they would have looked to the railway, and not to the defender, for payment, if the offer had been accepted.

The written evidence—more especially when read with reference to the proof of the usage of the trade—being thus, in the view the Lord Ordinary takes of it, adverse to the pursuers, it remains to be considered whether the communings which took place between them and the witness Eckersley can be held to control the terms of the defender's letters, and to justify the pursuers in maintaining that they were entitled, notwithstanding those letters, to rely on the personal credit of the defender. The evidence as to what occurred at this meeting is very contradictory. The pursuers say that they were informed by Eckersley that the defender was to be paymaster, and that they were not made aware at the time that the chairs were for the Ballater Extension Railway. The evidence of Eckersley, on the other hand, is distinct that he told the pursuers that the chairs were for the railway, of which the defender was engineer and Colonel Farquharson was proprietor; and that he never informed them that the defender was to pay, but that they would get a certificate from him when the goods arrived, and would then get the money.

In this conflict of evidence the Lord Ordinary has seen no reason to think that either party has given an intentionally inaccurate version of what passed. But he is, upon the whole, disposed to place more reliance on this point upon the evidence of Eckersley than upon that of the pursuers.

But even if the preponderance of the evidence were in favour of the pursuers' version of what occurred, that would not, in the view the Lord Ordinary takes of the case, entitle them to recover against the defender. They ought, he conceives, in consequence of what had passed between them and the defender a few months before, to have been aware that he was engineer for a railway in the course of formation, called the ‘Ballater Extension Railway;’ and when they received the defender's letter of acceptance and other communications, in which he disclosed his position as still acting for that railway, they were, it is thought, distinctly warned that he was not the principal party in the transaction in question, and ought, if they intended to rely on the personal credit of the defender, to have made that clear to him at the time, which one of the pursuers seems to be under the erroneous impression they had done.”

The pursuers reclaimed.

Scott and Keir for them.

Watson and Robertson for the defender.

After hearing parties, the Court were of opinion that Colonel Farquharson should he made a party, and sisted the case, to allow the pursuers an opportunity of calling him.

The pursuers in consequence communicated with Colonel Farquharson, who at once paid the amount of the account.

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The case, which now resolved itself into a question of expenses, again came before the Court.

For the pursuers it was argued that Mr Bruce was the true debtor in the obligation, and that accordingly they were justified in suing him without calling Colonel Farquharson. They were entitled to their expenses; or at least no expenses should be found due to either party.

For the defender it was maintained that the whole expense of the action had been unnecessarily caused by the pursuers, who, if they had gone against Colonel Farquharson at first, would have got their debt paid, as the result showed.

At advising—