Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Ayrshire, at Kilmarnock.

Arundale & Co., hat manufacturers, Glasgow, sued Alexander Picken, bonnet manufacturer, Stewarton, for £83,14s. 4d., “being the sum due to them for advances made to the defender by bills and in cash, and for returned goods, and overcharges on goods, to the amount of £503, 15s., whilst the defender sold to them goods to the value only of £420, Os. 8d., leaving due to the pursuers the foresaid sum of £83, 14s. 4d., per debit and credit account between the parties, commencing the 4th day of February 1868, and ending the 23d day of February 1869, annexed hereto.”

An account was produced with the summons.

The case turned entirely upon the statements and admissions of the parties on record, the material parts of which were as follows:—

Revised Condescendence for Pursuers; with Revised Answers for Defender.

Cond. I.—The pursuers aver as follows, viz.:— That they are hat and cap manufacturers in Glasgow, and the defender is engaged in the trade of bonnet manufacturer in Stewarton; from the beginning of the year 1868 till 1869 the parties had considerable dealings, the pursuers, on the one hand, purchasing and receiving goods made by the defender, as from time to time he was able to supply them, towards the payment of which they accepted four bills to the defender, which were discounted by him, and retired by the pursuers. The said bills are produced and referred to in the account annexed to the summons. Defender's counter averment denied.

Ans. I.—Admitted.

Cond. II.—The said bills amount in value to £465, 4s. 1d., but, in addition to this sum, the pursuers claim for goods returned to the defender, and for certain over-charges made by him, to the amount of £38, 10s. 11d., as shown in the detailed account. In all, the amount of said bills, goods returned, and over-charges, is £503, 15s.

Ans. II.—Admitted that the said bills amount in value to £465, 4s. 1d. Admitted that there were returns and some trifling overcharges. Denied that these amount to £38, 10s. 11d., and explained and averred that the £5, 5s. charged in the account on the debtor side, under date 15th October 1868, is erroneously charged, and is not due, and that the pursuers have admitted this to the defender, and have agreed to withdraw it. Quoad ultra denied.

Cond. III.—On the other hand, the defender sold to the pursuers goods to the value of £420, 0s. 8d., as detailed in said account, which, being deducted from said amount of £503,15s., leaves £83,14s. 4d. due to the pursuers, being the sum concluded for.

Ans. III.—Admitted that the defender sold goods to the pursuers. Quoad ultra denied, and reference made to the defender's Statement of Facts.

Revised Statement of Facts for Defender; with Revised Answers for Pursuers.

Stat. I.—The several sums specified in the debtor side of the account annexed to the summons, under dates 4th February, 30th July, 7th October, and 31st October 1868, are the amounts of four several bills for the said sums, dated respectively 4th February, 27th March, 5th June, and 31st October 1868, drawn by the defender upon, and accepted by, the pursuers, which were discounted by the former, and retired successively by the pursuers when they fell due. The said bills bear to have been granted for value, and were so in point of fact.

Ans. I.—Admitted that the bills here specified were granted. Denied that in point of fact full value was given for them, and, as explained by pursuers, they were granted to the defender as he required money and in anticipation that goods to the amount thereof would be supplied, but the defender did not do so.

Stat. II.—In the beginning of January 1868 the parties commenced dealing with each other, and from that period, down to the month of February 1869, the defender supplied considerable quantities of goods to the pursuers. The goods so supplied amount in whole to £495, 11s. 9d.

Ans. II.—Denied. The amount is incorrectly given, and reference is made to the account annexed to the summons, showing the true sum to be £420, 0s. 8d.

In the following articles of his statement the defender averred that on certain specified dates he supplied goods to the pursuers to certain specified amounts, for which he had not received credit, in whole or in part.

The answer for the pursuers was, “Denied. The defender has received credit for all goods supplied by him to pursuers.”

Stat. VII.—Towards the end of the parties' dealings, the defender was requested by the pursuers to furnish them with a statement of the accounts between them and him. This the defender did; but through inadvertence, these several sums of 6s., £40, 10s., and £31, 18s. 6d. [mentioned in the preceding articles], were omitted from the said statement by the person who made up the same. The defender's books contain due and regular entries of these sums.

Ans. VII.—Admitted that the statement referred to was furnished, but, as it has fallen aside, the pursuers cannot now speak to its terms.

Stat. X.—The defender produces herewith a correct statement of the accounts between the pursuers and him, showing a balance due by him to them of £2, 18s. 3d. This balance he has offered, and has all along been willing to pay, and he now consigns it in the hands of the Clerk of Court.

Ans. X.—Denied.

The diiferences between the accounts produced by the pursuers and defender will be found fully stated by the Sheriff in the Note to his Interlocutor of 28th February 1872.

The defender pleaded:—“(1) The bills founded on by the pursuers being bills drawn by the defender upon and accepted by them, the presumption is that the pursuers received value for the same, and the latter can only prove that the said bills, or any of them, were not granted for value by the writ or oath of the defender. (2) The action is incompetent, the same being essentially an action for repetition of alleged over-payments by

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the pursuers to the defender, which are not averred to have been made in error, and which, on the contrary, were made in the full knowledge by the pursuers of the state of accounts between them and the defender. (3) The first plea, above stated, is repeated. The bills founded upon prove a debt or debts owing from pursuers to defender.”

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

“ Kilmarnock, 25th October 1871.—.. Finds the action is at the instance of Messrs Arundale & Company, hat manufacturers, Glasgow, pursuers, and concludes against Alexander Picken, bonnet manufacturer, Stewarton, defender, for £83, 14s. 4d. sterling, as per account appended to the summons: Finds that during the year 1868 the parties had considerable dealings with each other, the defender from time to time forwarding goods to Glasgow, and drawing bills on the pursuers against the goods sent: Finds that four bills, amounting together to £465, 4s. 1d. sterling, were so drawn by the defender, who discounted them in the bank at Stewarton: Finds the said bills, when due, were retired by the pursuers, and are now produced by them: Finds the whole of said bills bear to be drawn for value received, and there is no allegation that any of them were granted for the drawer's accommodation: Finds the pursuers allege upon record that full value was not given for the bills: Finds this allegation can be proved only by the defender's writ or oath, and, unless so proved, that credit must be given for the whole amount in ascertaining the balance of account still due, and appoints the pursuers, within ten days, to lodge a minute, stating what mode of proof they mean to adopt; and decerns.”

The pursuers appealed.

The Sheriff ( Campbell) pronounced the following interlocutor:—

“ Edinburgh, 13 th January 1872.—… Recalls the said interlocutor, and, before answer, allows both parties a proof pro ut de jure of their respective averments, and to the pursuers a conjunct probation.

Note.—The defender's own account, No. 14 of process, which is averred by him on record to be a correct account, shows that, according to the course of dealing between the parties, furnishings were made by the defender to the pursuers, and that the pursuers accepted bills to the defender, not only for the amount of the furnishings already received, but to a considerable extent without value, in anticipation of future furnishings. From this account it appears that three out of the four bills founded on were granted for larger sums than were due. To give an instance, the last in point of date was admittedly granted for upwards of £40 more than was due at its date. It cannot therefore be said that the presumption here holds good that the bills were wholly granted for value received. This presumption is displaced by the defender's own judicial statements. And this being so, the question between the parties comes simply to be a matter of accounting, the defender claiming credit for furnishings which the pursuer does not admit, and objecting to things said to be erroneously debited to them. The proper course, in these circumstances, appears to be to allow the parties a proof prout de jure. The Sheriff has accordingly done this; but he has done so ‘before answer,’ in order to save any question that may arise in the course of the proof.”

On 12th February 1872 both parties lodged minutes renouncing probation.

The Sheriff pronounced the following interlocutor:—

Edinburgh, 28 th February 1872.—…..Finds that the account sued for, and the account, No. 14 of process, produced and founded on by the defender, are practically at one in regard to all the items, with the following exceptions, viz.:—(1) The item of £5, 5s., charged by the pursuers against the defender, of date 15th October 1868, in the account sued for, which item has not been proved, and is accordingly disallowed; (2) The items of 6s., £40, 10s., and £31, 18s. 6d., charged in the defender's account, No. 14 of process, against the pursuers for goods said to be furnished on the following dates, viz., 4th and 25th February, and 19th June 1868, which are disallowed, in respect that the furnishings are not proved; and (3) The item of £13, 9s. 6d., charged by the defender against the pursuers, of date the 17th December 1868, which, in so far as it exceeds the sum of £10, 13s., admitted by the pursuers, is disallowed as unproved: Finds that, after giving effect to these findings, there remains a balance due by the defender to the pursuers of £78, 9s. 4d. upon the account sued for; for which balance decerns against the defender, with interest thereon from the date of citation till payment: Finds the pursuers entitled to the expenses of process.

Note.—The pursuers and the defender appear to have had mercantile dealings with each other in the years 1868–9, the pursuers purchasing and receiving goods from the defender, and in return accepting and retiring bills drawn by the defender.

Founding on these dealings, the pursuers libel on the account attached to the summons. The items on the debit [side amount in toto to £503, 15s., and those on the credit side amount to £420, 0s. 8d.. leaving a balance in favour of the pursuers of £83, 14s. 4d., which is sued for.

On the other hand, the defender produces and founds on an account, No. 14 of process, which he avers to be correct.

These two accounts only differ in regard to five items. In other respects they substantially agree. The points of difference are as follows:—

The pursuers in their account charge a sum of £5, 5s. against the defender as of 15th May, which does not appear in the defender's account, and is objected to by the defender. The Sheriff has disallowed the charge. But, subject to that deduction, he has given decree against the defender for the amount of the account sued for.

The remaining four items in regard to which the accounts differ are contained in the defender's said account, but do not appear in the pursuers’. Three of them are for parcels of goods said to have been furnished by the defender to the pursuers of the following dates. viz.:—

February 4, 1868,..	£ 0	6	0
„ 25, „..	40	10	0
June 19, „..	31	10	6
And amounting in whole to	£72	14	6

“These furnishings the pursuers deny, and this denial is supported by the defender's own writ; for according to his judicial statement he rendered a state of accounts to the pursuers sometime previous to the raising of the present action, which does not contain, and does not claim credit for these three items. Now, the accounts of a party,

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like his books, are not evidence in his favour, but are, prima facie, evidence against him,—evidence, however, which may be overcome. And accordingly the defender avers that the account he so rendered was inaccurate, and that, de facto, he furnished to the pursuers the three parcels of goods charged for.

This being disputed by the pursuers, proof became necessary.

The defender resisted a proof pro ut de jure, and pleaded that the proof should be restricted to his own writ or oath. He put his case thus, viz.,— that the pursuers charged against him four bills, amounting together to £465, 4s. 1d.; that these bills were drawn by the defender upon and accepted by the pursuers; that they were then discounted by the defender, and retired at maturity by the pursuers, as the proper debtors therein; that the bills which covered the disputed items of account, and bore to be for value received, could not be contradicted but by the writ or oath of the defender.

Now, if there had been nothing in the record and relative account to show that the bills were not granted for value, this contention might have received effect. It appears, however, from the record and relative documents, that there was an account-current between the parties, and that the bills were not granted for value but only to account, and, to a considerable extent, by way of cash advance to the defender. The defender's own account, No. 14 of process, which is averred to be correct, shows that none of the bills was granted for full value. The first, according to that account, was accepted for £65 less than value; the second, for upwards of £20 less than value; the third (for £98), entirely without value, and the last for upwards of £45 less than value. In such circumstances, it is impossible to hold that the bills were granted for value received at the time. They were, to a large extent granted per advance, and it was quite open to the defender to prove that he had furnished the three parcels of goods above referred to towards extinction of the pursuers' advances.

Accordingly, the Sheriff allowed a proof to both parties, it being incumbent on the pursuers to prove the item of £5, 5s. above referred to. But both parties, however, having pronounced probation, the case comes back to be dealt with as it stands. Accordingly, the Sheriff has disallowed the disputed item of £5, 5s., which the pursuers decline to prove, and also the three disputed items which the defender declines to prove, amounting, as above mentioned, to £72, 14s. 6d. He has further refused to allow the defender more than the pursuer admits of the charge under date 17th December 1868.

In regard to all the other items, the accounts of the pursuers and defender, as already mentioned, agree, and the Sheriff has allowed the pursuers the balance that arises in their favour on the items as they so agree.”

The defender appealed to the Court of Session.

Guthrie, for him, argued—(1) That as the bills bore to be for value received, want of value could only be proved by the writ or oath of the defender; Wilson v. Lodes. Feb. 1, 1848, 10 D. 560; Chiene, July 20, 1848, 10 D. 1523; Brock, Nov. 11, 1813, 2 Macph. 71: City of Glasgow Bank, May 12,1869, 7 Macph. 757; Mercer, Dec. 21, 1864, 3 Macph. 300. (2) Even supposing a proof pro ut de jure competent, the presumption of onerosity must be displaced by evidence. The pursuers must prove their case. They cannot found on admissions made by the defender on record without taking the qualifications adjected, nor can they found on items in the account produced by the defender without taking the account as a whole; Milne v. Donaldson, June 10, 1852, 14 D. 849; Scott v. M'Cartney, June 23, 1843, reported in 14 D. 1087.

Scott and Hall for the pursuers—Where bills have been retired, and are used only as evidence, there is no rule that want of value can only be proved by writ or oath of the drawer. The defender claims credit for certain furnishings alleged to have been made by him, and it falls upon him to prove the furnishings.

After the debate, the pursuers' counsel moved the Court to allow evidence to be taken.

The Court refused the motion, Lord President observing—The question is, whether we are to allow the pursuers a proof, the defender not consenting. There is no doubt of the powers of the Court; and, if we thought necessary for the interests of justice that a proof should be allowed, we should not care much for the desire of either party. But this case stands in a different position. After the Sheriff allowed both parties a proof, they entered into a contract to renounce probation. Then they come here, and one of the parties to that contract asks to be relieved from it, and to be allowed to lead proof. I am for refusing to allow further evidence.

At advising—