Scottish Court of Session Decisions

In this action the trustees of the late John Russell, a farmer at Branchel Burn, Cambusnethan, sought to obtain from Daniel Russell, brother of the deceased, a “full account of his intromissions as manager for the said John Russell of the farm of Branchel Burn aforesaid, for the period from Whitsunday 1880 till 12th November 1884,” and also as factor for a small property situated in Bonkle in the said parish for a period of six months. The latter branch of the case need not be further referred to.

John Russell being old and in feeble health from heart disease, asked his brother, the defender, who was till then a mason, to come with his family and live with him at the farm at Whitsunday 1880, and accordingly at that term the defender and his family went to live there. The brothers then intended that the lease should be transferred to Daniel. Meantime he continued to live at and manage the farm. In 1882 the landlord, as the result of the negotiations anent transferring the lease, refused to do so. Daniel and his family, however, remained at the farm, and conducted the whole business of it, selling and buying stock, produce, &c. He paid the rent at certain terms, but not at Martinmas 1882 or Martinmas 1884.

On 12th November 1884 John Russell died. Daniel had kept no books, and could give no account of his management, and this action was brought in March 1885 by John's trustees to obtain from him such accounting.

The defender stated—“(Stat. 1) Prior to the term of Whitsunday 1880 the defender, who had been a mason at Cambusnethan, was invited by the said John Russell to reside with him at the said farm of Branchel Burn, and accordingly at that term the defender and his family took up their abode at the said farm. (Stat. 2) At the date of the defender's going to reside with the said John Russell it was arranged between them that the lease of Branchel Burn farm should be transferred to the defender's name, and negotiations were opened with the landlord of the farm to have that done. (Stat. 3) Such negotiations, however, having failed, the defender agreed to continue his residence and that of his family with the deceased, and to do all he could towards the management and supervision of said farm, for which he was to receive wages at the rate of 24s. per week for himself, and his family were also to be suitably remunerated for their services in the farm. (Stat. 4) The defender continued to reside with his family at the said farm until the death of the said John Russell, and during that time acted under the said John Russell as farm-overseer. (Stat. 5) All the transactions of the defender during the time of his residence in the said farm were reported verbally by him from day to day to the said John Russell, who approved of same, and expressed himself perfectly satisfied with the result of the defender's intromissions with the affairs of the farm and property at Bonkle. No books were kept by the defender of such intromissions, and he never rendered to the said John Russell an account thereof, nor was he ever asked by the said John Russell for such an account. (Stat. 6) The defender has rendered to the agent for the said deceased John Russell's executors an account of his intromissions in connection with the said farm from the data of the said John Russell's death to 27th February 1885 [when he left the farm], which account has been lodged in this process by the pursuers, and which shows a balance due by the defender of £2, 19s. 5d.” He also stated that he had an account for wages to himself and his family, and that if any accounting were found to be required of him he had this account to set off against what the pursuers might be found entitled to receive.

He pleaded that having accounted to John Russell up to the date of his death for his intromissions, the pursuers had no title to sue him for an account of intromissions prior thereto.

The Sheriff-Substitute appointed him to lodge an account of his intromissions from Whitsunday 1880 to Martinmas 1884, the period embraced by the action.

He then lodged a minute stating that as he kept no accounts, and was not required by John Russell to do so, he could not lodge such account.

The Sheriff-Substitute then allowed him a proof of his averments, and to pursuers a conjunct probation.

At the proof the pursuers led evidence to show that John Russell had been obliged out of money he had saved to pay rents which the defender had not paid. It also appeared that the defender and his family had had their food and clothes out of the proceeds of the farm in addition to their living in the farmhouse. The defender had also given his son and daughter small sums of “pocket-money,” but, as he deponed, no regular wages. John Russell and his aged sister had occupied a separate room in the house, and had got milk, butter, &c., from Daniel, and Daniel deponed that he had also given John money occasionally when he wished it, but not more than a few shillings at any time. He also deponed that the farm was not profitable, but only made ends meet. The pursuers led proof, by evidence of men who knew the district and farm, to show it was a profitable farm, and ought to have yielded a certain profit. There was evidence that John was not content with Daniel, and did not get money from him, and had complained of that, the sister who lived with him deponing that he did not get more than £5 from Daniel during the whole four years the arrangement lasted. It was not, however, made quite clear whether the dissatisfaction of John was with Daniel's management or with his failure to account. The brothers appeared to have met almost daily about the farm-steading, as John, though feeble, went out almost every day, but the defender's statement, that though they never made any regular settlement, John always knew of all he was doing on the farm, and made no complaint, and did not ask for or suggest any formal accounting, was not supported by any other evidence. The defender deponed that when he did not get the lease he thought of leaving, and John induced him to stay, offering him 24s. a-week for himself and his wife.

The Sheriff-Substitute ( Birnie) pronounced this interlocutor:—“Finds (1) that at Whitsunday 1880 the defender entered on the farm of Branchel Burn, leased by his brother, the now deceased John Russell, on condition that he should pay for the stock at valuation, and obtain a transfer of the lease; (2) that he did not pay

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for said stock at valuation; (3) that said transfer was refused by the landlord in 1882, and that the defender continued to occupy said farm until February 1885; (4) that in this action the pursuers, the trustees of the said John Russell, conclude for an accounting during the time the defender occupied said farm; (5) that the defender kept no books; (6) that there fall to be debited to him value of stock at his entry, £425; value of seed and labour at his entry, £40; rent at Martinmas 1882, Martinmas 1884, and Whitsunday 1885, paid by the deceased John Russell or the pursuers, £180; four and three-quarters years' profits at £20 per annum, £95—making in all £740; and that there fall to be credited to him price of seeds, &c., planted prior to his entry, but paid by him, £30; half-year's rent at his entry, paid by him, £60; proceeds of sale when he left the farm, £371; sum received by the pursuers from the incoming tenant, £40; and value of milk, meal, potatoes, butter, &c., supplied to the deceased and his sister until the death of the deceased at Martinmas 1884, at 15s. per week, £175, 10s.—making in all £676, 10s., and leaving a balance in favour of the pursuers of £63, 10s.: Finds the defender liable to the pursuers in the said sum, reserving to the pursuers to claim from the defender the value of any articles sold by them, and credited, as above, to the defender, which may be found not to have belonged to them: Finds the defender liable to the pursuers in expenses, &c.

“ Note.—The defender says his deceased brother did not intend him to account, but that is not proved, and is improbable.

The findings in the interlocutor explain themselves.

The defender's son claims one of the horses sold by the pursuers, and their right of relief against the defender in the event of this claim being found good has been reserved.

The defender claims wages and board-wages from February 1885 until the following Whitsunday, on the footing that he was a servant entitled to notice, but the circumstances will not bear that construction.”

On appeal the Sheriff ( Clark) adhered.

The defender appealed, and argued—If there was to be an accounting the defender ought to be allowed wages, and the Sheriff, who treated him as liable to account, had allowed him none. But the case fell to be decided on the footing of implied accounting and discharge—Dickson on Evidence, sec. 620, and cases there cited; Stuart v. Maconochie, 1836, 14 S. 412.

Argued for pursuers—The interlocutor of the Sheriff was right. The defender had a duty to account, and met a demand for an accounting (which demand the pursuers were bound to make) by a simple statement that he had no account to give. The Sheriff had allowed him wages in reality though not in name in the accounting when rightly viewed. The case, however, was one of that kind in which a person of full age, and able to make a bargain if he wished, had given his aid to a relative, and the legal presumption from his making no bargain was that he meant to give his aid gratuitously—Fraser on Master and Servant, 44–5, and cases there cited. The cases on presumed accounting were very different. Stuart v. Maconochie was a case in which the intromissions (in 1818) of an illiterate person were called in question (in 1831) after a lapse of 13 years, and after the death of the original party who could have given an account. The element of mora went deeply into such cases, the presumption of accounting being applied to prevent an unfair accounting post tantum temporis. Here there was no delay, the defender being in the due course of administration called on for his account.