Scottish Court of Session Decisions

The executors and trustees of the late Miss Anne Anderson, residing at Westhaven, Forfarshire, sued Lindsay Webster, draper in Newburgh, Fife, for a sum of £140, which they alleged had been lent to him by Miss Anderson, but had not been repaid. The action was based on the following averments:—The defender, who was married to a niece of Miss Anderson, being pressed for money, and having to meet a bill payable on the 30th of March 1880, applied to her for a loan of money. She replied requesting him to inform her when it would be necessary to transmit the money to him. In reply he wrote her the following letter, dated 25th March 1880:—“My dear Aunt—Your letter of the 22nd reached me last night after the shop was shut. You ask me to let you know if the 1st of April would suit for sending the money. I have a bill to pay on the 30th, and would require it that morning. You would have to send it on me by Monday afternoon. Jeanie [defender's wife] joins me in sending her kindest regards to you, and hopes that this will find yourself and Jeanie, as it leaves us all, in good health.—I am, yours affectionately, L. Webster.” On receipt of this letter Miss Anderson on 27th March 1880 procured at a bank in Carnoustie a bank draft in favour of the defender for the sum of £140. This draft she at once transmitted to the defender, and he wrote on the 29th March the following letter: —“My dear Aunt—I beg to acknowledge the receipt of your letter with draft on Saturday night all safe; the shop was shut before I received it, or I would have replied at once on receipt. I have to thank you very kindly for the favour and obligement you have done me in those trying times of depression.” These letters were found after her death in Miss Anderson's repositories.

The defender admitted the receipt of the sum of £140 in March 1880, but averred that he had given Miss Anderson his IOU for the amount, and that she on the 4th July 1881, on the occasion of a visit to him and his family at Newburgh, had handed him back the IOU and told him to burn it, which he accordingly did. She had then and there, he averred, made him a donation of her claim against him in respect of the advance, and she had thereafter referred to this to him and his family, and expressed her satisfaction with what she had done.

The pursuers pleaded—“(1) The defender having borrowed and received the sum sued for from the said Anne Anderson, he is bound to make payment thereof to the pursuers. (2) The sum sued for being justly addebted and resting owing by the defender to the pursuers as trustees foresaid, they are entitled to decree as concluded for.”

The defender pleaded-“(1) The pursuers’ averments can be established only by the defender's writ or oath. (2) The defender not being indebted to the pursuers, should be assoilzied with expenses.”

The Lord Ordinary, after a discussion in the Procedure Roll on the defender's plea that the proof must be limited to his writ or oath, allowed a proof at large.

The pursuers, besides founding on the letters

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above quoted, led evidence to show that the deceased down to a few days before her death had spoken of the loan as subsisting, and had spoken to defender about the interest on it.

The defender's evidence was to the following effect:— st, As regards the constitution of the loan—The defender deponed that on the 12th May, about six weeks after he had got the loan, Miss Anderson, who was on very affectionate terms with him and his family, came on a visit to him. He was anxious to give her an acknowledgment of the loan, and though she was unwilling to take one, he insisted on writing her the I O U on a half-sheet of paper with a receipt stamp affixed, across which he wrote his name. This document she at last consented to take and put into her purse. This evidence was corroborated by Mrs Webster, the defender's wife. Isabella Webster, the defender's daughter, deponed that she had heard her parents talking occasionally about the I O U. 2d, As regards the destruction of the I O U, the defender deponed—Miss Anderson, at her visit to him about the 5th July, asked him for the account which she was due him for various articles he had supplied her with, and sometime in the afternoon she came down with his wife to his shop. He went with her into the office and after the account was discharged, she took the I O U out of her purse and handed it to him saying she was going to make him a present of the £140, and she asked him to destroy it by burning it. Finding there were no matches in the shop, he sent a witness named Scott to get some, and on Scott's return lit a fire and burned it. Thereafter Miss Anderson told the defender's wife and daughter what she had done. Mrs Webster deponed that she had seen Miss Anderson take a paper out of her purse and give it to the defender as a present, telling him to destroy it. Miss Anderson afterwards told her and her daughter that the I O U was burnt, and she had made the present. Isabella Webster corroborated her mother's evidence as to the deceased having spoken of the burning of the I O U, as did also another witness, who deponed that the deceased in a visit she had paid in his house on the day when the burning of the I O U was alleged to have taken place, had spoken of having made a handsome present to the defender, which was at a later part of the same day explained to him (witness) to refer to a gift of £140, and the burning of a document of debt. John Scott, who was defender's assistant, deponed to having been sent out of the office to get some matches, and to having seen defender, in Miss Anderson's presence, burning a half-sheet of paper, across which there was a receipt stamp.

The Lord Ordinary ( Kinner) assoilzied the defender from the conclusions of the action.

“ Note.—The burden of proof in this case plainly lies, in the outset, on the pursuers; and I do not think that they could have very satisfactorily proved their case, or the first element in their case, that an advance was made to the defender, without the aid of the defender's own evidence. I do not say that it was not possible to prove it; but there can be no doubt that the defender's own admission is a very valuable piece of evidence for the pursuers’ case; and I think he is entitled to have the benefit of the consideration, so far as it goes, that it appears from the first, when the question arose on Miss Anderson's death, that the defender at once admitted not only that he received the money, but that he received it by way of loan. He says, however, that although it was originally given to him by way of loan, the conditions were changed, as the deceased Miss Anderson made him a present of it, and did so by cancelling the document of debt which he had given formerly. Now, if his evidence is to be believed, I think that is quite sufficient, in point of law, to establish his case, or rather to meet the pursuers’ case.

If I am to believe what is said by the defender and his wife, I cannot sustain the action as an action for recovery of money lent. The pursuers say that that is an incredible statement. But then that requires that they should go this length—which I think they do go—that not only the defender himself, but also his wife and daughter, have perjured themselves in the box, but that they had entered into a deliberate conspiracy to defraud the pursuers in this action; and not only so, but in the way in which the case was presented on the evidence, that they had entered into a conspiracy to defraud the deceased lady herself, so far back as July 1881, because the mode in which the pursuers’ counsel undertakes to account for the evidence of what took place at Mrs Anderson's house at Newburgh is, that the defender's wife at that time saw the importance of inducing people to believe that the I O U which he had granted had been destroyed on that day. Now I should be very reluctant indeed to come to that conclusion unless I were forced to do so. There is certainly a good deal that requires some explanation, and a good deal still left in doubt in this case, but I think the defender's story is corroborated by two witnesses in such a way as to make it impossible for me to say that I believe it to be a false story concocted by him. In the first place, it is quite clear that on the occasion on which he says that he destroyed an I O U which had been given by him to his aunt, he did destroy, in her presence, some document, because the evidence of the boy Scott is quite clear and conclusive, and I do not entertain the slightest doubt as to its truth. But then, further, it is proved that that was the document of debt, and that the destruction of the document of debt was the mode which the deceased lady adopted of giving him a present, because that is proved by the evidence of the witness Anderson, whose testimony I cannot doubt, because he says that Mrs Webster, in Miss Anderson's presence, said that Miss Anderson had given the defender a present; and he says, as Mr Rhind has justly stated, that after the ladies had gone home he was afterwards told by his mother that she said to her it was £140, and that the document of debt was destroyed. Now, I do not see how to account for that evidence other than by giving effect to defender's story; and therefore I think the pursuers have failed to prove their case, and that the defender must be assoilzied with expenses, but subject to modification slightly in this respect, that I think the defender is not entitled to the expenses which were unnecessarily caused by his opposing a proof at large. The expense of the discussion in the Procedure Roll must not fall on the pursuers.”

The pursuers reclaimed, and argued—They had shown by means of the letters founded on a debt well constituted against the defender. He had failed to discharge the onus of proving that that

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debt was remitted. That a loan was constituted and wiped off, as the defender alleged, could not be competently proved by parole. (2) In any view, the evidence for the defender was not convincing.

The defender replied—In the case of Rutherford's Executors v. Marshall, July 12, 1861, 23 D. 1276, where the letters were more distinct as to the admission of a loan than those in this case, it was held that the loan was only provable by writ or oath. The letters here founded on did not instruct a loan apart from the defender's admissions, which must be taken as a whole. On the other hand, it was perfectly competent for the defender to prove the constitution and destruction of the document of debt by parole. This he had done to the satisfaction of the Lord Ordinary.