Scottish Court of Session Decisions

Mrs Isabella Finlayson or Macnaughton, wife of Donald Macnaughton, innkeeper, South Kessock, with the consent and concurrence of her husband as her curator and administrator-in-law, raised an action in the Sheriff Court at Inverness against the trustees and executors of her deceased father Alexander Finlayson, farmer, Knockbain, in which she craved decree (1) for £238, 10s., with interest at 2 1 2 per cent. from 24th April 1896, and (2) for £78, with interest from the date of citation till payment.

The sum first sued for was the amount claimed by the pursuer as wages due to her as at 24th April 1896 for services rendered by her to her father as his servant and housekeeper for twenty-two years prior to that date. The sum second sued for was claimed by her as the amount of wages due to her for the period from 24th April 1896 to 8th September 1899.

In support of her claim the pursuer produced and founded on the following document:—“17 Academy Street, Inverness, April 24th, 1896.—This is to certify that my daughter Isabella receives at my death out of my estate the sum of £238, 10s. as wages worked for, with interest on said amount at the rate of 2 1 2 per cent. Also her wages to be hereafter £24 a-year while she stays with me. Paid her in small sums by cash to the amount of £16, 10s.— A. Finlayson.”

This document was neither tested nor holograph. Except the signature it was in the handwriting of the pursuer.

The pursuer pleaded—“(1) The pursuer having served the deceased as servant and housekeeper is entitled to payment of wages therefor. (2) The sum sued for being fair and reasonable, and acknowledged by deceased, the pursuer is entitled to decree as craved. (3) The deceased having undertaken to pay the pursuer the sum sued for, decree should be granted as craved.”

The defenders lodged defences, and pleaded—“(1) The pursuer not having served the deceased as servant and housekeeper, or in any other capacity, is not entitled to payment of wages. (2) The deceased not having undertaken to pay the pursuer the sum sued for, the defenders should be assoilzied. (3) Prescription.”

Proof was allowed and led.

Apart from the document produced there was no proof except the pursuer's own statement that there was ever any contract of service between her and her father. The pursuer, who was now forty-three, had lived as a daughter in her father's house nearly continuously from childhood down to 24th April 1896, and also thereafter until 8th September 1899, and rendered the domestic and other services usually rendered by a daughter living at home in her station of life. Her father was a tenant-farmer employing three hired men in addition to his son, and either one or two girls, working partly in the house and partly outside.

It was not disputed that the signature appended to the document produced was that of the pursuer's father. It was admitted that he could not write anything except his own name, and that he could not read writing.

With regard to this document the pursuer deponed—… “That paper has my father's signature to it. I saw him write it. That was written in Mr Sinclair, confectioner's shop, 17 Academy Street, Inverness, on the date it bears. Donald MacLennan, who is now dead, was present. … My father, myself, and Donald MacLennan were the only parties present. The girl, Miss Young, in Mr Sinclair's shop supplied the paper that No. 7 is written upon. … I often asked my father for wages. At last I met him in Union Street, Inverness, and wanted to leave home unless I could get my wages. He then said that he would secure my wages for me to stay as I was, for he could not want me. Donald MacLennan was going past at the time, and we three went into Mr Sinclair's and the paper was then written out in Mr Sinclair's… . Before filling up that document we figured out the sums in the shop. … After I married I heard that Donald MacLennan was ill. I went to his house one night and took the witness Duncan Cameron with me. (Q) Did you ask Donald MacLennan, in the presence of Duncan Cameron, whether the paper No. 7 of process, was signed in Donald MacLennan's presence by your father? [Question objected to. Objection repelled].” (A) MacLennan said yes. Cross My father dictated it to me.… I read it over to him… . MacLennan heard me read it over to my father, and he knew the whole thing.”

Miss Young deponed that she remembered the pursuer and her father coming into Mr Sinclair's shop with another man; that she was asked by Mr Finlayson for notepaper, pen, and ink; that she suppled them, the sheet of notepaper being like the document now produced; and that she saw them using the pen and ink, but did not see the paper signed.

Charles Leighton, carter, brother-in-law of Donald MacLennan, deponed that MacLennan came to his house in the spring of 1896 in the evening on his way back from Inverness … “He told me he had been in conversation with Finlayson of Sligo and his daughter in Sinclair the

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confectioner's shop in Academy Street; that Finlayson had signed an acknowledgment towards his daughter Bella for a sum something over £200, and also that he had given Bella from that date a rise in wage at the rate of £24 a-year… . MacLennan said he was present when Finlayson signed the acknowledgment.”

Duncan Cameron, sheep contractor, deponed—“I was going to see Donald MacLennan one day when pursuer said she would go with me; he was very ill at the time. It was not expected that he would get better. Pursuer went with me. She put a question to him. She asked him if he remembered when her father signed an acknowledgment. Although I cannot remember the exact words, he said, ‘Oh, yes.’ … Pursuer told me where it was, but I cannot remember if she asked Donald MacLennan. Cross-examined.—I am not sure of the exact words used.”

The pursuer's son Francis Finlayson, thirteen and a-half years of age, deponed that on 24th October 1899, while living with his grandfather Mr Finlayson, the latter had told him that his aunt and her husband had made a will to suit themselves, and added—“Tell your mother to keep the written paper I signed for her at Sinclair, the confectioner's, and she will come as well off as themselves.”

Roderick Campbell, ferryman, deponed—“I knew Donald MacLennan… . One day I went with the pursuer to his house when he was ill… . The pursuer asked him a question if he minded the time when he was in her presence about the signature at Sinclair's, and he said, ‘Yes, he was.’ It was her father Mr Finlayson's signature. MacLennan said he saw him sign the paper for pursuer. I could not say what the paper was for.”

The proof for the defence showed that none of the other children of Mr Finlayson had known of the writing till after his death. It was not disputed that the signature was that of Finlayson.

On 7th February 1902 the Sheriff-Substitute ( Grant) pronounced the following interlocutor:—“Finds in fact that No. 7 of process is the writ of the deceased Alexander Finlayson, and in law that it is sufficient to constitute the debt now sued for: Therefore decerns against the defenders, as concluded for.”

The defenders appealed to the Sheriff ( C. N. Johnston), who on 2nd April 1902 pronounced the following interlocutor:—“Recals the Sheriff-Substitute's interlocutor of 7th February 1902: Finds in fact—(1) That from childhood down to April 1896 pursuer lived as a daughter in her father's house, and rendered the domestic and other services usually rendered by a daughter living at home in her station of life; (2) that it is not proved that during this period any contract of service existed between pursuer and her father; (3) that upon 24th April 1896 pursuer refused to remain longer at home unless for the future on the footing of receiving wages as a servant; (4) that on said date, in consequence of pursuer's refusal to remain longer unless on the footing aforesaid, her father signed the document No. 7 of process; (5) that said document was written by the pursuer, that her father could not read writing, and that it is not proved that the document was read over or explained to him, or that he knew that it did more than secure the pursuer in payment of future wages; (6) that the pursuer thereafter remained in the household and service of her father until 8th September 1899: Finds in law—(1) That the pursuer is entitled to wages at the rate of £24 per annum from 24th April 1896 to 8th September 1899, and repels the plea of prescription as regards these wages; (2) that pursuer is not entitled to wages for any period prior to 24th April 1896: Decerns against the defender for payment to the pursuer of £78 sterling, being the sum contained in the second conclusion of her petition, with the legal interest thereon from the date of citation until payment.”

The pursuer appealed, and argued—The Sheriff-Substitute's decision was right and ought to be reverted to. If the question of wages was raised between a father and child in a distinct form during the period of employment, the presumption was in favour of the child's claim— Miller v. Miller, June 8, 1898, 25 R. 995, opinions of Lord Justice-Clerk, 999, and Lord Moncreiff, 1001, 35 S.L.R. 769, 773, 774. Here the document produced was clear evidence that this question had been raised between the pursuer and her father. There was no suggestion that this document had been got from Mr Finlayson by fraud, and it was admitted that the signature was genuine. It was therefore good as an acknowledgment of debt, a document of debt not requiring to be holograph or tested— Paterson v. Paterson, November 30, 1897, 25 R. 144, 35 S.L.R. 150; Theim's Trustees v. Collie, March 14, 1899, 1 F. 764, 36 S.L.R. 557. Further, if in order to make this document the writ of the pursuer's father it was necessary for her to prove that he understood its terms, the evidence led on her behalf conclusively did so.

Argued for the defenders—The only parole evidence in favour of the pursuer's claim was her own. Her testimony might be said to be backed up by this document, but there was enough in the case to show that this document had not been proved to be the writ of the pursuer's father. It had been concealed by the pursuer from all the members of the family until after the death of her father. The father could not read writing. There was no evidence that the document had been read over to him, or that he understood its import. It was therefore worthless and could not be regarded as his writ. Failing this document there was no evidence to support the pursuer's statements, and the case was ruled by Miller, supra. The Sheriff, however, had not been consistent in his judgment. He ought to have held that no wages at all were due. An interlocutor should be pronounced to that effect.