Scottish Court of Session Decisions

This was an action at the instance of Edward Kemble Pitts, glaziers' patent diamond manufacturer, London, against Robert Boyle Watson, of No. 165 New City Road, Glasgow, for payment of £29, 10s., being the amount of an account for diamonds furnished by the pursuer to the defender. The defender admitted that he had ordered and received the goods in question, but pleaded that they had been supplied solely on the credit of the Nailsea Glass Company, now bankrupt, but formerly carrying on business at Bristol, for whom the defender acted as agent in Glasgow.

A proof having been led, the Lord Ordinary ( Ormidale) decerned against the defender, on the ground that the diamonds had been furnished to him on his individual account and credit, and not as agent for the Nailsea Glass Company. From the proof it appeared that the defender had, when in London at the beginning of 1868, ordered the diamonds, partly for his son and partly for himself. At this time he had charge of the Glasgow warehouse of the Nailsea Glass Company; was paid by salary; and rendered to the Company weekly or monthly accounts of the sales. It appeared, however, that while the defender had full power to buy diamonds and other articles in the line of the Company's business, the Company had no means of ascertaining the purchases made on their account, except from the receipts sent in by the defender of the accounts settled by him. There was no proof, beyond the defender's own statement, that the diamonds in question had been sold on the Company's account.

The defender reclaimed.

R. V. Campbell for him.

Black and Begg for the respondent.

The Court unanimously adhered, on the ground that the defender had not acted factorio nomine, and indicated opinions, that, even if the goods had in the pursuer's knowledge been ordered on the Company's account, the exceptional character of the defender's agency would have rendered him personally liable. He was clearly the dominus of the business, as he ordered the goods and sold them on his own responsibility. This was not an ordinary case of agency. The goods were no doubt sent with an invoice to the defender, and it was his duty to show that they were not sent to him on his own account, and he had failed to do so.