Scottish Court of Session Decisions

Alexander Christison, miller, Guthrie, in March 1900, raised an action in the Sheriff Court at Forfar against Keith Knowles, horse-hirer, Panmure Arms Hotel, Edzell, for £754, 9s. 1d., being the balance of an account for corn and food stuffs supplied by the pursuer to the defender on various dates between 2nd May 1887 and 30th November 1899, with the legal interest thereon.

The account sued on was stated as a continuous account, extending between the

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dates mentioned, showing payments to account upon various dates during that period, and bringing out the sum sued for as a balance due upon the whole account.

The pursuer averred that he was tenant of the meal mill at Arnhall, Kincardineshire, for twenty-seven years prior to Martinmas 1895, and since that date had carried on business as a corn-miller at the meal mill at Woodtown, between Fetter-cairn and Edzell; that the defender had occupied the Panmure Arms Hotel and Stables at Edzell as proprietor from 1884 till Martinmas 1895, and since then as tenant; and that the defender had also occupied a small farm near Edzell since 1884. The pursuer further averred as follows—“(Cond. 2) Ever since defender came to the said Panmure Arms Hotel stables in 1884 he ordered and obtained supplies of corn, meal, and food stuffs from pursuer from the meal mill at Arnhall, and latterly from the mill of Woodtown, for the said hotel stables and farm, and up till the commencement of the account sued for these were more or less regularly paid for. Since the beginning of this account, however, defender became very irregular in paying, and although he made payments from time to time as indicated in the account, there is a balance still due of £754, 9s. 1d., the amount sued for. A detailed account of the items supplied and payments made is produced herewith. Pursuer is still supplying the defender with food stuffs. (Cond. 3) In December 1895 defender, who was then making arrangements to have his hotel taken over by a limited liability company, although there was then a large balance due, requested pursuer thereafter to send a note of the items supplied each month, promising to pay these when rendered, and to pay up the old balance by instalments from time to time as he was able. In accordance with this arrangement a note of these supplies was given to defender each month, or at short intervals, and he paid instalments of what he was due pursuer for some time approximating the amounts of these monthly notes, and he also made payments to account of the balances then due on 6th January 1896 and 16th September 1897, and on the latter date promised to pay a further sum of £30, which, however, he did not do. Latterly defender became very irregular in paying instalments also, and on 25th September 1899 this action was threatened. After sundry correspondence defender's brother David Christie Knowles, offered to pay the balance admittedly due on these monthly notes, but refused to pay the older items. The payment offered was accepted on 5th December 1899, but only ‘without prejudice to any rights or claims the said Mr Christison may have for supplies given prior to December 1895.’”

The defender admitted that from 1884 onwards the pursuer had from time to time supplied the defender with corn, meal, and food stuffs, and that the pursuer was still supplying him with the same; that he had from time to time made payments to the pursuer for the supplies, and that from the month of December 1895 he had made monthly payments in satisfaction of the supplies of food received during the particular month. He also admitted that on 5th December 1899 his brother David Christie Knowles had paid £72, 14s. in discharge of the balance due by the defender to the pursuer as at 30th November of that year. The defender further averred that on a just account no balance was due by him to the defender.

The defender pleaded, inter alia—“(2) The action, in so far as concluding for food supplies prior to December 1895, is barred by the triennial prescription.”

The defender produced an account between the defender and pursuer rendered on 13th October 1899 by the pursuer's agent to the defender's brother D. C. Knowles. This account extended from 2nd May 1887 to 5th December 1895, and amounted (after deduction of a sum of £200 paid by the defender to the pursuer on 6th January 1896, and another sum of £20 paid on 16th September 1897) to £740, 15s. 10d. The defender also produced a number of receipted accounts applicable todates between April 1896 and August 1899, which showed that during that period monthly accounts had been rendered by the pursuer to the defender for the corn and food stuffs supplied during each month, and that these accounts were from time to time separately receipted when paid. The defender also produced a receipt dated 5th December 1899 granted in favour of D. C. Knowles for £69, 11s. 6d., being the sum of £72, 14s. mentioned above as paid by him less a contra account of £3, 2s. 6d. This receipt bore to be for “balance of monthly accounts due by his brother” the defender to the pursuer “for oats, &c., supplied up to 30th November last (and which monthly accounts are hereby discharged, but without prejudice to any rights or claims the said Mr Christison may have for supplies given prior to December 1895).”

On 7th June 1900 the Sheriff-Substitute ( Lee) pronounced the following interlocutor:—“Finds in fact that for many years the pursuer has supplied the defender with corn and other food stuffs; that from 1884 to December 1895 said goods were supplied on current-account, and the defender from time to time made payments to the pursuer in deduction of the amount due by him; that in December 1895 the account then current between the parties was closed by mutual arrangement, and that thereafter monthly accounts were handed to the defender, who has produced valid receipts in discharge of most thereof: Finds in law that in the circumstances stated the account which was closed in December 1895, and the subsequent monthly accounts, fail to be dealt with as separate debts, and that the term of prescription in the case of each runs from the last item in each account: Therefore sustains the second plea-in-law of the defender to the extent of limiting the pursuer's proof of the prescribed account to the writ or oath of the defender,” &c.

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The pursuer appealed to the Sheriff ( Johnston), who on 20th July 1900 adhered to the interlocutor appealed against.

On 6th December the Sheriff-Substitute pronounced the following interlocutor:—“Finds in fact that it is admitted by the pursuer that the whole items in the account dated subsequent, to December 1895 have been paid by the defender; … that the defender does not deny the constitution of the debt alleged by the pursuer from May 1887 to December 1895, and that the pursuer has failed to produce any writ of the defender showing the subsistence of the debt after three years from the close of the account in December 1895: Finds in law that the pursuer has not proved his debt by the writ of the defender as required by the Act 1579, c. 83: Before final judgment allows the pursuer, if so advised, to lodge a minute referring his debt in so far as prescribed to the oath of the defender, and for this purpose appoints the case to be put to the roll on Thursday 20th December 1900,” &c.

On 20th December the Sheriff-Substitute, in respect that the pursuer had failed to refer the debt sued for to the oath of the defender, assoilzied the defender from the conclusions of the summons.

The pursuer appealed, and argued—The account, payment of which was sued for, was a continuous account. All through the years the same course of dealing had gone on between the parties, and the defender had made no averment of any new or independent course of dealing. The change in 1895 was merely a change in the method of payment. The Sheriff-Substitute should therefore have repelled the second plea-in-law for the defender, and held that the whole account was to be considered as one— Ross v. Cowie's Executrix, Dec. 4, 1888, 16 R. 224. In any event, the pursuer was entitled to a proof to show that the account was continuous— Wotherspoon v. Henderson's Trustees, July 10, 1868, 6 Macph. 1052.

Argued for the defender—The account was not continuous. The old account was closed in December 1895. The subsequent accounts were settled monthly and fell to be dealt with as separate debts. The pursuer having produced no writ showing the subsistence of the debt due under the old account, it must be held to have prescribed— Beck v. Learmonth, Nov. 30, 1831, 10 S. 18.