Scottish Court of Session Decisions

This was an action by John Ross, joiner, Stone-haven, against Mrs Jane Cowie, executrix-dative qua relict of Alexander Cowie, sometime feuar there, for a sum of £379, 4s. 6 1 2d. as the balance of an unpaid account for joiner work done on behalf of the deceased Alexander Cowie.

Cowie died on 25th September 1887.

The pursuer's account bore to begin at June 1875, and end at 4th May 1886. It was made up in the following manner—Under date June 1875 were sums amounting in all to £23, 2s. 6d. for jobbing work in a house in Stonehaven belonging to Cowie. From 22nd June 1876 to 28th May 1877 were entered sums amounting to £350,19s. 3 1 2d. for timber supplied, and for workmen's time at certain concrete houses in Stonehaven which Cowie had erected. Included in this account were two sums—one of £50, said in the account to have been paid on 22nd June 1876 to John Lindsay & Son, Montrose, being first instalment for concrete work, the other, £29, in the account said to have

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been paid to James Garvie & Sons for doors supplied by them. The whole entries subsequent to 28th May 1879 amounted in all to £3, 9s. 7d., made up of small jobbing items said to have been incurred in 1879, 1881, 1883, 1884, 1885, and 1886. They were all small jobbing entries. The last two items in the account were—August 15, 1885, To new pail and handle, 3s. 9d.; May 4, 1886, To attendance at sale of furniture, 2s. 6d. The pursuer gave credit for £100, £20, and £30, said to have been paid to account.

The defender averred—“(Stat. 2) The items of the account libelled under date June 1876, amounting to £350, 17s. 3 1 2d., have reference to work on two concrete houses in Ann Street, Stonehaven, erected by the said Alexander Cowie. These houses were erected at a cost of upwards of £1000, and the work performed on them by the pursuer was not of the nature of a jobbing or running account, and is entirely different in its character from the few small subsequent items which are of a regular jobbing nature. It is usual and customary for such work to be done under contract, and to be settled for whether done under contract or otherwise on its completion, and the whole other departments of the work except the joiner work were contracted for. The account prior to and under date June 1876, amounting in whole to £373,19s. 9 1 2d. falls to be treated as a separate and independent account from the subsequent items, and the pursuer has himself so treated it by charging interest on it separately to the extent of £131, 15s. 2d., and the account prior to and under date June 1876 is not a continuous or running account with the few small items amounting in the next ten years only to £3, 9s. 7d., and the account prior to and under date June 1876 falls by itself under the triennial prescription and is prescribed. It is not known and not admitted that the £100 here referred to were paid in the manner stated. Admitted that no formal contract was entered into for the execution of the work, and quoad ultra the counter averments are denied.” He also averred that the last two items of the account were not due and resting-owing, and had been inserted with a view to obviate the plea of prescription.

The defender pleaded, inter alia—“(1) The whole account, or at least that part of it prior to and under date June 1876, is liable to and has suffered the triennial prescription, and can be proved only by the writ or oath of the defender.”

The Sheriff-Substitute ( Dove Wilson) on 20th February 1888 pronounced this interlocutor:—“Finds that the portion of the account libelled, which is said to have been incurred prior to 23rd May 1879, can be proved only by the writ or oath of the defender, and appoints the cause to be enrolled for further precedure.

“ Note.—The earlier portions of the account for which the action has been brought are unquestionably prescribed, unless it can be made out that the later portions are mere continuations of them. It appears to me, however, that the later portions are of quite a different character, and that it would be a mere evasion of the prescription statutes to say that they were done under the same employment as the earlier. The later portions of the account are for trifling bits of jobbing work of a few shillings each, such as one might order from the nearest carpenter without anything in the shape of contract or arrangement. The middle portion of the account—that incurred in 1876 and 1877—was for the building of two houses at a cost of some £350, which undoubtedly had been the subject of special contract and arrangement; and it seems to me that it is not possible to speak of the account for the trifling repairs and supplies as being a continuation of the employment to build. The first portion of the account—that incurred in June 1875—has more analogy with the last portions, but it is separated from them by an interval of more than three years, as well as by the house building contract.

The defender treats the account for building the houses as falling under the triennial prescription. I should rather myself have thought that it fell under the quinquennial, but whether it fell under the one or under the other it seems to me to have no sort of connection with the other portions of the account, and if this view be sound it is plain that it can be proved only by writ or oath.

There are two large items in the account, one of £50 and one of £29, which apparently are claimed as having been cash advances on behalf of the defender's author. If they were they would be equivalent to loans to him, and are therefore also proveable by writ or oath only. I may add that it would appear to me to be exceedingly unfortunate were any other result to be reached. The defender's husband, who knew all about the work, is dead, and the defender at an interval of ten years from the conclusion of the transactions would necessarily be quite unable to obtain materials for her defence.”

The Sheriff ( Guthrie Smith) affirmed this interlocutor, “with this qualification, that the pursuer is at liberty to re-form the account by excerpting the payment of £50 to Laidlaw & Sons, and £29 to Garvie & Son, and any other disbursements made by him on behalf of the deceased Alexander Cowie; further, in respect it appears that two sums of £30 and £20 were received in loan from the deceased by the pursuer; … appoints the parties, with a view to a proof on these points, to amend respectively the revised condescendence and revised defences.”

Proof prout de jure was then allowed on the points specified in the interlocutor of the Sheriff.

The pursuer appealed to the Court of Session, and argued—The defender's plea of prescription should be repelled— Aytoun v. Stoddart, Feb. 4, 1882, 9 R. 631; Ersk. iii. 7, 17; North British Railway Company v. Smith Sligo, Dec. 30, 1873, 1 R. 309; Whyte v. Currie, Dec. 1, 1829, 8 S. 154; Wotherspoon v. Henderson's Trustees, July 10, 1868, 6 Macph. 1052; Vallance v. Forbes, June 27, 1879, 6 R. 1099; Fisher v. Ure, March 5, 1836, 14 S. 660. The averments as to £50 and £29 were not, as the Sheriff-Substitute thought, allegations of loan; they were averments that the pursuer, by mandate from the deceased, had advanced money for him. That could be proved by parole— Grant v. Fleming, December 10, 1881, 9 R. 257.

The respondent argued—The quinquennial prescription applied to the second part of the account. It applied to bargains about moveables, and was entirely applicable to such a case. Triennial prescription applied to the various parts of

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the account separately. They were separate accounts. It could not be said that there was here any formal contract for the erection of these contract houses, and no written contract was produced, but it was a separate piece of business performed upon a separate subject from that sued for in the other parts of the account, and fell under the quinquennial prescription. The continuity of the account was broken— Wotherspoon, supra cit.; Stewart v. Scott, February 28, 1844, 6 D. 889; Bell's Prin. 629; Ersk. iii. 7, 20.

At advising—