Scottish Court of Session Decisions

This was an action of damages, brought in the Sheriff-court, for personal injury sustained by the pursuer Patrick Macalindan in June 1870, at one of the defenders' pits near Inchinnan, in the county of Renfrew, in consequence of the falling of a cage in which he was descending the pit, whereby he was precipitated to the bottom. The pursuer averred that the accident was the result of defect or insufficiency of the slides for the cage, consequent upon the culpable negligence of the defenders. The defence was, that after the accident the pursuer agreed to accept £6 in full of all demands against the defenders, and was thereby debarred from suing the action. In support of this defence two documents were produced. In the first place, an agreement (No. 7 of process) dated 2d December 1870, in these terms:—“I, Patrick M'Lundie, do hereby agree to accept of the sum of six pounds stg. for damages received in No. 1 Pit shaft on 10th June 1870, and this in full of all demands at this date. “ Pat. M'Lienden.

£6, 0s. 0d.”

And in the second place, a receipt (No. 8 of process) dated 3d December 1870, in these terms:—“Received from Messrs Robert Addie & Sons the sum of six pounds stg. for damage received in No. 1 Pit shaft on 10th June 1870, and this in full of all demands at this date.

Signed on Stamp, Patrick M'Londen.

£6, 0s. 0d.”

The Sheriff-Substitute ( Cowan) pronounced the following interlocutor:—

“ Paisley, 12 th December 1871.—Having heard parties' procurators, and considered the closed record and productions, before answer allows defenders a proof in support of their preliminary defence, and to pursuer a conjunct probation; grants diligence to parties; and appoints the proof to proceed upon the 11th January next, at 11 o'clock A.M.

Note.—While the Sheriff-Substitute is of opinion that such a document as the alleged agreement of No. 7 of process does not require a stamp, it appears to him that in the case of the pursuer, who may be an illiterate and uneducated man, it

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is proper that the documents Nos. 7 and 8 of process, being neither holograph nor tested, should be supported by parole testimony, not only as to the circumstances in which they were signed and handed to defenders, but also as to the real arrangement and compromises come to. He entertains no doubt of the competency of proving by parole such a compromise of a claim; and, while he does not consider that the documents as they stand are in themselves sufficient to bar the pursuer's claim, he is of opinion that they may prove to be important adminicles of evidence, along with the proof which may be led. The proof allowed at present is only as to the preliminary defence, for if that be true, there is a manifest expediency, both as regards time and expense, in not entering on the larger and costlier proof which would be required to ascertain the truth on the merits of the case.”

On appeal, the Sheriff ( Fraser) adhered, and remitted the case to the Sheriff-Substitute to be further proceeded with. The proof was taken, and the pursuer deponed that neither of the receipts were read over to him, and that he had not understood that they were in full of all claims against the defenders. The manager and the doctor stated, however, that it was distinctly understood that £6 was in full of all demands, and that the documents had been read to the pursuer before signing.

The Sheriff-Substitute pronounced the following interlocutor:—

“ Paisley, 6 th February 1872.—Having heard parties' procurators, and considered the closed record and proof adduced as to the preliminary defences stated, finds that the pursuer did, on or about 2d December 1870, deliberately and voluntarily agree to accept the sum of £6 from defenders in full satisfaction of all claim against them, and that upon the day following he was paid the said sum, and received it in full satisfaction of his claim; therefore sustains the preliminary plea stated on the part of the defenders; assoilzies the defenders from the whole conclusions of the action, and decerns; finds no expenses due to or by either party.

Note.—The Sheriff-Substitute is quite satisfied not only that pursuer accepted the £6 in full satisfaction of his claim, but that he did so with his eyes quite open to the whole circumstances of the case. It might, perhaps, have been better for him if, instead of pressing for a settlement before the manager left, he had taken the legal advice on which he has more recently been acting. But that consideration cannot affect or detract from the concluded settlement of the claim which he deliberately made with the defenders.”

The pursuer appealed to the Court of Session.

Mair, for him, argued that the discharge was only of claims for such injuries as the pursuer thought he had sustained at that date, but that since then the injuries had assumed a more serious aspect, and the pursuer was permanently disabled. That the discharge was at all events ambiguous, and a proof at large should be allowed, or the action sisted, so as to enable the pursuer to bring a reduction of the discharge on the ground of error— Dickson v. Halbert, Feb. 17, 1854, 16 D. 586.

Balfour, for the defender, argued that the discharge was clearly a full discharge of all the pursuer's claims against the defenders.

At advising—