Scottish Court of Session Decisions

Archibald Stewart and Robert Paterson Craig, residing in Glasgow, presented a petition in the Sheriff Court of Lanarkshire against John Phillips for the purpose of having him ordained to pay them the sum of £75, 13s. 8d., with interest from 30th April 1880 till paid. The grounds of action as stated by the pursuers were these:—In March 1877 they entered into a partnership or joint-adventure with Alexander Strachan, a commission agent in Glasgow, to take for a period of six years the shootings on the lands of Wester Airdrie and others, commonly called the Cumbernauld estate, Dumbarton. The said shootings were accordingly leased for that period from Mr Burns, the proprietor, the lease being in writing and dated 2d May 1877. Shortly after the lease was entered into they assumed Robert Livingstone as a partner with them in the shootings. Soon after 12th August 1877 Strachan injured his foot so badly that it was arranged that he should look out for someone else to take his place in the partnership. Ultimately John Phillips, the defender, agreed to take Strachan's place, and was accepted as a partner in the month of September 1877 for the unexpired period then to run of the lease, upon condition that he should pay a fourth part of the rent and other annual cost of the shootings. The defender only paid his proportion of the expenses for the seasons 1877–78 and 1878–79, but declined to pay his fourth part of the expenses of the year 1879–80, which the pursuers were compelled to advance and pay for him. These expenses constituted the sum sued for.

The pursuers pleaded—“(1) The defender having entered into the said partnership or joint-adventure along with the pursuers and the said Robert Livingstone, is bound to pay one-fourth part of the cost of the said shootings. (2) The pursuers having advanced and paid on behalf of the defender the sum sued for as his share of the cost of said shootings for the year from 30th April 1879 to 30th April 1880, are entitled to decree against him therefor, with expenses as craved.”

The defender averred that he had agreed to take Strachan's place in consideration of paying the latter £40, and in consideration of paying one-fourth part of any additional expense to be thereafter incurred during the season. He duly paid these sums for 1877–78, and also paid similar sums at the end of the next season of 1878–79. In the early part of 1879 he definitely told the pursuers that he could not again join in the shootings. He further, however, offered, out of friendship to Stewart, to pay one-fourth of the expenses, but this offer he withdrew when he found that the pursuers were trying to hold him bound as a joint-tenant for the rest of the lease.

He pleaded—“(1) The action is irrelevant and ought to be dismissed. (2) The pursuers' averments are irrelevant. (3) The pursuers' averments can only be proved by the defender's writ or oath. (4) Even assuming that a verbal agreement such as that alleged by the pursuers were proved by competent evidence, the defender was entitled to resile from it and bring it to an end. (5) The pursuers' averments being unfounded in fact and in law, the defender is entitled to be absolved, with expenses.”

The Sheriff-Substitute ( Erskine Murray) allowed both parties a proof before answer of their averments. Thereafter he found …” (3) That defender John Phillips agreed to come into the transaction in Strachan's shoes, taking his share of the stock, dogs, &c, his right to shoot, and his responsibility, on payment to Strachan of £40, which was paid; (4) that thereafter, during the rest of the seasons 1877–78 and 1878–79, defender continued to shoot with the other three over Cumbernauld, paying his share of the rent and expenses, and receiving his share of the game; and when the landlord proposed a surrender of the lease, defender was the person who proposed that a high bonus should be asked; (5) that at the end of the season 1878–9, he, as well as Livingstone, intimated their intention of not shooting on Cumbernauld next year, and, as in Strachan's case, steps were taken, by advertising and otherwise, to get strangers to fill up the vacancies; (6) that these attempts proving unsuccessful, Stewart, who managed the concern, having applied to defender at the commencement of the shooting season of 1879–80 for his share of the rent and expenses, he wrote back on 20th August saying he was quite willing to pay one-fourth share of the rent for the season, and suggesting that they should find someone to make up the difference, and adding that if Stewart let him know how much it was, he would send a cheque for it; (7) that the cheque, however, never was sent; and after further correspondence, negotiations, and attempts at arbitration, the present action was raised in February 1881 for £75, 13s. 8d., as defender's fourth share of the cost of the shootings

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for the season 1879–80: Found (8) that the defence taken was in law that the agreement libelled is not proveable except by writ or oath; and that if such a verbal agreement were proved, the defender was entitled to resile from it and bring it to an end; and, in fact, that he really made no agreement for more than a year, and that he was entitled to give up his connection with the concern at the end of every year: Found, on the whole case, and in law—(1) that a joint adventure or transaction of the nature libelled can be proved not merely by writ or oath, but otherwise; (2) that defender was proved to have entered into a joint adventure or transaction with pursuers for the purposes of the nature libelled, and that the sum sued for was due by defender to pursuers as his share in the liabilities under the transaction: Therefore decerned as craved.”

He added this note—“No one who considers attentively the real and written evidence can doubt for a moment that the defender really entered into the transaction averred, and agreed to become subject to the liabilities for which he is now sued. His conduct throughout was that of one who understood his position; but it is quite possible that in 1877, before commerce had become so bad, he may not have taken much thought as to the possibility of his wishing to retire from the transaction, in the belief that a substitute could easily be found—a consideration which may have had something also to do with the comparatively loose way in which the bargain was made; but that the bargain, as averred, was made cannot be doubted.

But it is argued that such a transaction cannot be proved except by writ or oath, being practically a lease or sub-lease. This is a mistaken view. The liability arising under the lease is only one of the incidents of the adventure or transaction. As a matter of fact, his share of the rent is only about £42, 10s., out of £75, 13s. 8d. due by him altogether. The facts as proved show that to view the matter simply as a sub-lease by pursuers to defender would be entirely to misconstrue the transaction.

“As to defender's alleged power to put an end to the partnership or joint adventure, he could not do without securing the other parties against the share of the liabilities which he had undertaken.”

The defender appealed, and argued—(1) In point of law this was an innominate contract, not having known prestations, and could only be proved by writ. It was not a contract of partnership, for there was no gain involved in it— Pooley v. Driver, Nov. 28, 1876, L.R., 5 Ch. Div. 472; Lindley on Partnership, vol. i., p. 2; Ersk. Inst., iii., 2, 20; Edmonston v. Bruce or Edmonston, June 7, 1861. It was just an assignation of a heritable right which required more than parole proof of its existence— Walker v. Flint, Feb. 20, 1863, 1 Macph. 417; Fowlie v. M'Lean, Jan. 18, 1868, 6 Macph. 254. But (2) even assuming parole proof to be competent in point of fact on the evidence, no such agreement as libelled had been proved.

The pursuers replied—(1) In point of law a verbal agreement followed by possession and rei interventus could be proved by parole evidence— Gibson v. Adams, &c, Nov. 20, 1875, 3 R. 144. (2) In point of fact the proof led disclosed exactly the agreement sued on.

The Lords made avizandum with the case.

At advising—