Scottish Court of Session Decisions

On 18th December 1904 James Thomson Caldwell, flesher, Vicar Street, Falkirk, brought an action in the Sheriff Court at Falkirk against James Dykes, flesher, High Street, Falkirk, to recover £97, 15s. 4d. alleged to be due him on an accounting; and on the 24th April 1905 the Sheriff-Substitute (Moffat) after a proof gave him decree for £73, 4s. 4 1 2d. but found neither party entitled to expenses. Parties acquiesced in the Sheriff-Substitute's judgment on the merits, but the pursuer took an appeal to the Sheriff on the question merely of expenses. The Sheriff (Lees) on 21st July 1905 recalled the finding as to expenses of his Substitute and allowed the pursuer one-half of his expenses. The defender appealed to the Court of Session.

The nature of the cause appears from the following findings of the Sheriff-Substitute in his interlocutor of 24th April:—“Finds in fact—(1) That in the beginning of July 1904 the defender was engaged to act as salesman and manager to the pursuer of a flesher's business at Vicar Street, Falkirk, at a salary of £1, 10s. per week, payable weekly, with a commission of ten per cent. on profits; (2) That there was no arrangement between the pursuer and defender that the defender should take over the business as soon as he was able to pay £300, or on any other terms; (3) That it was the duty of the defender to account regularly to the pursuer for the drawings of the business; (4) That in accordance with his duty the defender up to 8th October 1904 placed the drawings of the business to the credit of the pursuer's account in bank; (5) That the pursuer was in the habit of remitting money regularly for the payment of wages; (6) That on or about 8th October 1904 the defender entered into negotiations with the pursuer to purchase the said business; (7) That these negotiations did not come to a successful termination; (8) That from the 8th October 1904 the defender failed to account to the pursuer for his intromissions; (9) That the defender was dismissed from his employment as manager for the pursuer on 19th October 1904; (10) That the defender did not leave the employment but continued to carry on business until the evening of the 24th October 1904; (11) That on the evening of the 24th October the defender handed over the key of the shop to the pursuer and left the premises: Finds in law that the defender is bound to account to the pursuer for his intromissions in the management of the business up to 24th October 1904: Finds in fact (12) That on an accounting the defender is due the pursuer the sum of £73,4s. 4Jd. sterling; (13) That the defender has already paid to the pursuer, in obedience to the interlocutor of 19th December 1904, the sum of £51, 2s. sterling.” The defender had on record admitted his indebtedness to the extent of £51, 2s., and had made a tender of £85, not appearing on the record, to avoid the litigation.

Argued for the defender (appellant)—An appeal merely on the question of expenses was competent— Fleming v. North of Scotland Banking Company, October 20, 1881, 9 R. 11, 19 S.L.R. 4; Bowman's Trustees v. Scott's Trustees, February 13, 1901, 3 F. 450, 38 S.L.R. 557—and the finding of the Sheriff-Substitute was the right one in the circumstances of the case— Critchley v. Campbell, February 1, 1884, 11 R. 475, 21 S.L.R. 326; Mavor and Coulson v. Grierson, June 16, 1892, 19 R. 868, 29 S.L.R. 766. This was not a case where the pursuer was entitled as of right to expenses. The action was one of accounting, and in such a case a pursuer though successful was not entitled as of right to full expenses. The pursuer had taken the first step in appealing to the Sheriff, and therefore could not complain of this appeal.

Argued for the pursuer (respondent)—The Court would not look favourably on an appeal from the Sheriff Court merely on the question of expenses, and in this case ought not to reverse the Sheriff's judgment. The conduct of the defender had been unreasonable all through. He was under a duty to account to the pursuer, failed at first to do so, and when he did his statement of his intromissions was so unsatisfactory that the pursuer had to employ professional accountants to go into the matter. The Sheriff on these facts was justified in his interlocutor, which was indeed the only equitable one possible.