Scottish Court of Session Decisions

This was an action by M'Rae, a commercial traveller, against a firm of timber merchants near Queensferry, and Alexander Thomson Williamson, South Queensferry, and Robert Williamson, Grangemouth, the individual partners of said company, for the sum of £50, with interest from 5th July 1876.

The pursuer averred that from 1st July 1876 till the end of September he had, according to

Page: 563↓

agreement, acted as commercial traveller for the defenders, at a salary of £104 per annum, with travelling expenses. About 5th July he advanced £50 to the defenders, who then represented themselves as in want of funds. For this he received a written acknowledgment, which was afterwards lost. No period of repayment was specified.

The defenders denied both employment and loan. They explained that in June 1876 they were contemplating a dissolution of partnership, and it was proposed that the pursuer should advance a sum of £200 to the defender A. T. Williamson, with the view of buying out the defender R. Williamson and becoming himself a partner. This proposal was not carried out. It was admitted that the defender A. T. Williamson owed the pursuer £17, 15s. 9d. in respect of private, not company, business.

The pursuer recovered the following documents under diligence:—

“Excerpt from Cash Book of Williamson Brothers. Fol. 112.

Dr. Cash, July 1876.

July 7. Alex. T. Williamson.

Recd. from him [Alex. M'Rae]…£50 0 0

“Excerpt from Journal of Williamson Brothers. Fol. 145. 31st July 1876.

To Alex. T. Williamson. 367. Recd. from A. M'Rae …£5000

“Excerpt from Ledger of Williamson Brothers. Fol. 367.

Dr. Alex. T. Williamson. Pri. a/c. Cr. July 31. By cash,£5000

“Excerpt from A. T. Williamson's Diary.

Cash Book, October 1876.

Date. Account of moneys. Received. Paid.

MacRae …£50 0 0 £0 0 0

“Letter, Mr Alexander M'Rae to

Mr A. T. Williamson.

South Queensferry, 26th Sept. 1876.

Mr A. T. Williamson,

South Queensferry.

Sir,—Unless you pay me the sum of fifty pounds sterling, due by you to me, on or before 6 o'clock P.M. of Thursday the 27th September 1876, I will take legal proceedings to enforce payment of same.— I am, Sir, yours, &c.,

Alexander M'Rae.”

The words “Alex. M'Rae” in the cash-book had been written over the original entry, and were admittedly in the pursuer's handwriting.

The defenders produced several excerpts from their cash book, showing entries of small sums paid Alexander M'Rae between 7th July and 21st August 1876, amounting altogether to £32, 4s. 3d.

The Lord Ordinary pronounced the following interlocutor:—

Edinburgh, 23 December 1876.—The Lord Ordinary having heard counsel for the parties, and considered the cause, Finds that the pursuer has failed to prove scripto the loan of £50 libelled on: Therefore assoilzies the defenders from the conclusions of the action, and decerns.

“ Note.—This is an action for payment of a sum of £50 alleged to have been advanced to the defenders Williamson Brothers by the pursuer on 5th July 1876. It is alleged that an acknowledgment for the sum was granted, but that it has been lost. The pursuer has produced in process excerpts from the defenders' books recovered under a diligence. He does not ask any further recovery of the writ of the defenders.

The defenders’ books do not instruct the constitution of the debt. There is no entry in them of any sum having been received from the pursuer.

The books, however, instruct the receipt by the firm, on 7th July 1876, of a sum of £50 from Alexander Thomson Williamson, one of the individual partners of the firm. The contention of the pursuer is that this is the sum in question; that it was not advanced to Williamson as an individual, and by him to his firm, but to Williamson as a partner of the firm, and for the firm; and that he (the pursuer) is truly the creditor of the firm for this sum.

There is also in the books an account against the pursuer, in which he is charged with a number of small sums paid to him during the months of July, August, and September 1876, amounting in all to £32, 4s. 3d. The pursuer proposes to read this account in connection with an admission made in answer to article 2 of the .condescendence, that ‘it is believed Mr A. T. Williamson is owing to the pursuer. £17, 15s. 9d.’The two sums together amount exactly to £50. The pursuer maintains that it must be inferred from this that the advances were made to him by the firm in repayment of the sum of £50 lent by him to the firm by the hands of the partner A. T. Williamson; that it proves the adoption of the loan by the firm; and that therefore he has sufficiently instructed the constitution of the debt. The Lord Ordinary does not concur in this view of the case. He is of opinion that the writs founded on do not instruct that the advance in question was made to the company.

The Lord Ordinary thinks that this is an action against the company and the partners qua partners, and that he cannot competently give decree against Alexander Thomson Williamson, as asked by the pursuer, for the sum admitted to be due by him, not as a partner, but in his individual capacity.”

Against this interlocutor the pursuer reclaimed.

Argued for him—The defenders’ cash book proves receipt of money, and the onus lies on them to show that they did not receive it as a loan, or that they repaid it— Fraser v. Bruce, November 25, 1857, 20 D. 115, where the Court looked at jottings of interest on the back of a promissory-note as supporting proof of loan scripto. At least, the admissions of the defenders entitle the pursuer to a proof by parole quo animo the money was received.

At advising—