Scottish Court of Session Decisions

I am of opinion that the document upon which the pursuer founds cannot be held to be a document of debt as admitting an unqualified loan and a present indebtedness. It in no way acknowledges the existence of outstanding debt, either of the amount claimed by the pursuer or of any other amount. The purpose of referring to the fact that the pursuer had made advances to his father seems to be simply to lead up to his leaving to his son the one-half of the property for the building of which he had given assistance. But it in no view can be held as acknowledging a present debt, and certainly could not be read as indicating a debt of any fixed amount.

I would therefore move your Lordships to affirm the judgment of the Sheriff-Substitute.

Lord Young concurred.

Lord Trayner—This is an action in which the pursuer seeks to recover from his deceased father's trustees a sum of money which the pursuer avers he gave to his father in loan, and which has never been repaid. The Sheriff-Substitute has dismissed the action as irrelevant.

It may be observed, in the first place, that the pursuer does not aver that he lent his father the sum of £350 for which he seeks decree, but merely that he lent him “a considerable sum of money,” which I regard as an irrelevant statement, and one which could not be remitted to probation, as being too vague—that is, wanting in specification. Accordingly, as the record stands I think the Sheriff was right in sustaining the defenders' first plea-in-law. If that was the only, or indeed the real point in the case, an amendment of the record could easily obviate the objection. But the question argued before us was whether the letter of the deceased Mr Patrick was sufficient evidence of the alleged loan, and as I suppose the pursuer has no further or other writ of his deceased father to produce in support of his loan, the determination of that question will settle whether the pursuer can succeed in his claims. If that writ is insufficient to establish loan, then the defenders will be entitled to absolvitor.

The pursuer maintains that the letter he founds upon contains an unqualified admission of loan, and that being so, the only answer which can be made to his demand is that the admitted loan has been repaid or discharged. I agree in the law of this proposition if the fact is as stated. But in judging whether the letter in question contains an unqualified admission of loan, we must look not only to the words said to contain the admission but their context. As the Lord President said in the case of Muirhead ( 8 Macph. 461, 7 S.L.R. 273), “a holograph writing, so far as regards its import and effect, may be much influenced by the company in which it is found.” Now, it appears to me that the letter founded on does not amount to an unqualified admission of loan. It may certainly be taken as an admission that at some time previous to its date the pursuer “lent” some money to his father, but it is not an admission of loan which necessarily or reasonably implies an admission of present indebtedness. I think the writ to prove a loan must be so expressed as to imply existing indebtedness. To illustrate what I mean, take the case of an I O U; the mere language (or the letters used in place of words) implies that the granter of it owes to the grantee the sum therein named. But in contrast, take the case of one friend writing to another, or a son to his father, “I never can forget, or cease to be grateful to you, for the money you lent me ten years ago when I was so hard pressed.” From such an acknowledgment, per se, I would not infer a continuing and present indebtedness. The letter now founded on seems to me to belong to this latter class. The purpose of the writer was not to acknowledge any debt, but to indicate a certain action which he thought called for, or might call for, some explanation. I agree in the view expressed by the Sheriff-Substitute as to the meaning and effect of the letter in question, and would therefore grant the defenders absolvitor.

Lord Moncreiff was absent.