Scottish Court of Session Decisions

This was an action in which John Chisholm, sack contractor, Perth, sued John Robertson, grain merchant, Aberdeen, for the sum of £145, 7s. 3d., being the amount due by the defender for hire of the pursuer's sacks. The whole terms and conditions upon which the pursuer was in use to supply sacks on hire were contained in printed forms issued by him to grain merchants and others, and appended thereto was a printed form of order to be filled up by the person taking the sacks on hire, in the following terms—“J. Chisholm will please give the bearer sacks, which we hereby hire upon the above conditions, for grain, to be railed at* station for station.

“If to be shipped, enter ship's name and destination.”

The pursuer averred that several of these printed forms were filled in and signed, either by the defender himself or by some-one acting on his behalf; that he had had the use of the pursuer's sacks, and was therefore due the amount sued for, conform to account produced.

The defender pleaded, inter alia, that as the account ended on 26th October 1879, and this action was not raised until 22d November 1882, the account had undergone the triennial prescription.

The Act 1579, c. 83, provides—“That all actions of debt for house-maills, men's ordinaries, servants' fees, merchants' accounts, and others the like debt that are not founded upon written obligations, be pursued within three years, otherways the creditor shall have no action, except he either prove by writ or by oath of the party.”

On 20th February 1883 the Lord Ordinary ( Lee) pronounced this interlocutor—“Finds that the present action is founded on written obligations alleged to have been granted by or on behalf of the defender, in terms of the orders and relative printed conditions: Therefore repels the plea of prescription; allows to both parties a proof of their averments so far as not admitted, &c.

“ Opinion.—The present action is for the hire of sacks conform to account produced. The hires are said to be instructed by the orders contained in the bundle No. 11 of process; and these orders bear reference to conditions prefixed, regulating the terms upon which the sacks were obtained. They are alleged to be in each case filled in and signed either by the defender himself, or by some-one acting on his behalf; and if this allegation is disputed, I apprehend that it may be established by proof of the signatures, and of the authority of the granter to act for the defender where the signature is not that of the defender himself.

“The defender pleads the triennial prescription, and as the account ends 26th October 1879, and it is not disputed that the alleged debt is of the kind to which the statute applies, the only question is whether the alleged debt is ‘founded on written obligation’ within the meaning of the statutory exception.

It has long been settled that a mere order for goods is not sufficient to exclude the application

Page: 496↓

of the statute— Ross v. Shaw, M. 11, 115; Douglas v. Grierson, M. 11,116. But it is contended that the documents founded on in this case are not mere orders for the furnishings alleged to have been supplied, but contain within themselves all the elements of an obligation, inasmuch as they bear not merely a request for the sacks, but also an agreement to hire them ‘upon the above conditions.’

I think that this is according to the true construction of the documents, and therefore that the case is not within the same class as the North British Railway Company v. Sligo, 1 R. 309. What was desiderated in that case was a document granted by the alleged hirers of the waggons, or anyone on their behalf, containing the terms of the alleged agreement under which the waggons were said to be hired (p. Lord Shand, Ordinary, p. 305), or, in the words of Lord Neaves, a document ‘ eo ipso creating an obligation on the debtor afterwards sued.’ It was not thought necessary in that case that the document should be sufficient in itself as a voucher of the amount of the debt. Lord Neaves said—‘I am quite prepared to accede to the view that a claim may be founded on a written obligation, although it is not fully constituted by that written obligation—not fully evidenced by that written obligation.’ This is plainly implied also in the opinion of the Lord Justice-Clerk, and the case of Dickson, referred to by him (M. 11,090), is an excellent illustration of the distinction between sustaining a writing as sufficient to create the obligation, and sustaining it as a complete voucher of the debt. It is not enough therefore to say that the writings alleged do not instruct the receipt of the sacks referred to in the several orders, or the length of time for which they were detained. That does not destroy them as written obligations for the hire or payment of the sacks if received according to the terms of the contract.

I think that what was wanting in the case of the North British Railway Company v. Sligo is present here, and therefore that the plea of prescription is inapplicable to the case, in so far as founded on the hiring orders produced.”

The defender reclaimed, and argued—The order was not per se sufficient to constitute an obligation, and that therefore the debt was not “founded on a written obligation”—Bell's Comm. i. (5th ed.) 349; Ross v. Shaw, M. 11,115; Douglas v. Grierson, M. 11,116; Dickson v. M'Aulay, M. 11,090; Blackadder v. Milne, March 4, 1851, 13 D. 820; North British Railway Company v. Smith Sligo, December 20, 1873, 1 R. 309; Chalmers v. Walker, November 19, 1878, 6 R. 199.

At advising—