Scottish Court of Session Decisions

On October 19, 1905, Mrs Margaret Irvine or Colquhoun or Brownlee, 18 Carrington Street, Glasgow, widow and executrix of the late Robert Brownlee senior, 24 Burnbank Terrace, Glasgow, brought an action against Robert Brownlee junior, Merrylee, Cathcart, for payment of the sum of £2000, with interest from March 15, 1904. The said sum was the amount contained in a letter of guarantee granted by the defender to his father, the said deceased Robert Brownlee senior, who had given a mandate to his law agents to pay one of his daughters, Mrs Marion Brownlee or Barr, £5000, and received the said letter of guarantee guaranteeing payment of £2000 thereof by another daughter, Catherine.

The mandate to the law agent and the letter of guarantee were as follows:—

“41 West George Street,

Glasgow, 23rd February 1904.

James Findlay, Esq., Writer, Glasgow.

Dear Sir,—I hereby authorise you to make payment to my daughter Mrs Marion Brownlee or Barr of the sum of Five thousand pounds, in exchange for a discharge by her of her right of legitim and of all other claims which may be competent to her against me, my son Robert, my daughter Catherine, and Mrs Margaret Irvine or Colquhoun or Brownlee, or any of them.—Yours faithfully, Robert Brownlee.

Alex. Agnew, of 41 West George Street, Glasgow, law clerk, witness.

Robert Wyburn, of 41 West George Street, Glasgow, clerk at law, witness.”

“Glasgow, 23rd February 1904.

Robert Brownlee, Esq.

Dear Father,—With reference to the foregoing, I hereby guarantee payment to you by my sister Catherine of the sum of Two thousand pounds towards payment of the within-mentioned sum of Five thousand pounds.—Yours faithfully,

“ Rob. Brownlee Jr.

Alex. Agnew, of 41 West George St., Glasgow, law clerk, witness.

Robert Wyburn, of 41 West George St., Glasgow, clerk at law, witness.”

The facts of the case are given in the opinion ( infra) of the Lord Ordinary ( Salvesen), who, after a proof, on November 6, 1906, gave decree for £1950, with interest from March 15, 1904, and expenses.

Opinion.—“The late Robert Brownlee senior was thrice married. By his first marriage he had one daughter, now Mrs Barr. By his second marriage he had two children, the defender and Catherine Brownlee. During the lifetime of his second wife he contracted an intimacy with Mrs Colquhoun, the pursuer in this action, who was then a widow. After the death of his second wife he continued this intimacy with Mrs Colquhoun until 1901, when he married her. The defender and his sister were much opposed to this marriage, and it was kept a secret from them, at all events from Catherine Brownlee. Although the deceased continued on affectionate relations with his wife and regularly visited her, they did not live together, but I see no reason to doubt the pursuer's statement that he would have married her much earlier but for his fear of the defender and Miss Brownlee.

“The deceased was in business for many years as a timber merchant, and was so successful that at one time he seems to have been possessed of a fortune of over £100,000. During his lifetime he distributed his means amongst his near relatives, so that at the time of his death he was absolutely without means, and his funeral expenses have not yet been paid by any of those who benefited by his bounty. The pursuer is his executrix and universal legatory under a holograph settlement which he executed about a year before his death.

In 1891 the deceased made over to the defender a sum of £30,000, which is admitted by him to have been in large measure a gift. There is contemporaneous evidence that the deceased intended only to lend this sum to his son, but he did not obtain any acknowledgment of the terms upon which the money was given, and the defender refused to give any such acknowledgment, maintaining that the money had been gifted to him. Some years later Catherine Brownlee received a sum of £17,000, in respect of which she granted a full discharge of her rights of legitim. She said in evidence that she told her father at the time that notwithstanding this discharge she would expect him to make her further payments, and she admits having received at least £2100 worth of shares subsequently. The pursuer also from time to time obtained sums of money from the deceased, but there is no evidence which enables me to fix the amount. The defender and his sister seem to have entertained feelings of intense animosity towards Mrs Colquhoun, so much so that Miss Brownlee admitted in the witness-box that Mrs Colquhoun was to her like a red rag to a bull, and that she could not control either her language or her actings in her presence.

In the beginning of 1904 Mrs Barr, having heard of her father's extensive alienations of his estate, thought that it was time that she too was putting in a claim for a share. She had reason to believe from what her father had told her that one-third

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of the sum of £30,000 transferred to the defender's account had been intended as a provision for her. Her father seems to have recognised the justice of her claim, and negotiations were opened between the agents of the parties, which resulted in the deceased undertaking to pay Mrs Barr a sum of £5000. A hitch occurred in the settlement due to the fact that the deceased's only available means at that time seem to have consisted of a sum of £3000 due to him by the limited company which had taken over his business and mills. He accordingly endeavoured to withdraw from his obligation. The defender was aware that Mrs Barr claimed that a share of the money which had been transferred by his father to him had been so transferred for her behoof, and he was accordingly interested in having a settlement effected. Some negotiations followed, and finally a meeting took place on the 23rd February 1904, at which Mrs Barr agreed, on payment to her of £5000, to discharge her right of legitim and all other claims which might be competent to her against the deceased, the defender, Miss Catherine Brownlee, and Mrs Colquhoun, or any of them. In order to get this settlement carried through, the defender at the same time wrote and delivered the letter of guarantee which is printed in the record. He says that before doing so he had the authority of his sister Catherine to pay over a sum of £1718 which was standing at her credit in his books, and that he took the risk of inducing her to contribute also the balance. At the time that this arrangement was made the defender's position was that he declined to contribute any funds towards a settlement with Mrs Barr out of his own pocket, although he strongly resisted a proposed arrangement between Mrs Barr and the deceased that she should accept £3000 from him and have her claim against the defender reserved.

Mrs Barr and her agent naturally expected that the settlement would be carried out at once, but as there was some delay in doing so, Mrs Barr served an action on the deceased for payment of the £5000. Further procedure, however, was obviated by the deceased paying on 14th March the sum at his credit in the books of Brownlee & Company, Limited, amounting with interest to £3018, 14s. 10d. About the same date the defender signed a cheque for £1718, 8s. as his sister's contribution to a settlement, but refused to make any further payment. The balance of £262 was thereupon advanced by the pursuer in order that the settlement might be carried through, and this was accordingly done. In return for the £5000 Mrs Barr delivered a discharge in terms of the letter of 23rd February 1904.

The sum of £1718, 8s. paid by the defender's cheque is said to have consisted of a sum of £1653, 8s. 6d. and interest from 24th December 1903, which at that date stood at the credit of the deceased in the books of the defender, and bore to have been paid in cash. In the same books the exact amount is credited to Miss Brownlee on the same date, and it is to this transaction that the bulk of the evidence relates.

The pursuer's case is a perfectly simple one. She sues upon the guarantee for £2000, which she found in the repositories of the deceased. She maintains that according to its true construction the defender guaranteed the payment by his sister Catherine out of her own funds of the sum of £2000 towards payment of the £5000 which the deceased had agreed to pay Mrs Barr, and she says that she has now discovered that no part of that sum has been contributed by Miss Brownlee. The deceased received no obligation from Miss Brownlee to pay any sum, and accordingly the pursuer now seeks to enforce the guarantee against the defender to its full amount.

On record the defender disputes his liability to make payment of any sum, his defence being that his father wrote to him to make up the balance of £262, 17s. 3d., and that as the result of an interview between the parties he waived all claim under the guarantee. It is not, however, now disputed that the defender cannot rely upon this alleged verbal waiver as a discharge of his obligation, and that in any event he is liable for a sum of £281, 12s., being the difference between the £2000 guaranteed and the £1718, 8s. On the other hand the pursuer has not endeavoured to prove that the sum of £50 which was included in that remittance was not paid out of the proper funds of Miss Brownlee, and accordingly the sole controversy between the parties now relates to the sum of £1653 already referred to. The defender's case on record is that this sum was gifted by his father to Miss Catherine Brownlee on 24th December 1903, and that accordingly when he remitted it on 16th March thereafter he to that extent implemented his guarantee.

On the motion of both parties a proof was allowed habili modo, and parole evidence bearing on the transaction of 24th December was led without objection. The defender's counsel, however, now pleads that the documentary evidence is all that can competently be looked at, and that that evidence instructs that there was in effect an assignment by the deceased to his daughter of this sum of £1653; that either this assignment was by way of gift or was made in trust for behoof of the grantor; that in the latter case the trust can only be established by the writ or oath of the trustee; and that the pursuer's position in this process cannot be any better than if she had brought her action against Catherine Brownlee for payment of the £1653. He protested accordingly against the view that it lay upon the defender to instruct that a donation of £1653 was made to Miss Brownlee on the occasion in question. This ingenious argument, which I hope I have correctly apprehended, was supported by a reference to the case of Dunn, 25 R. 461.

In order to deal with this argument it is necessary to consider what are the documents founded on. They consist, in the

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first place, of an account-current between the deceased and the defender. It contains an entry opposite the date 24th December ‘To cash, £1653, 8s. 6d.,’ which squares the account, and contains a docquet signed by the deceased in these terms, ‘Settled this date.’ There is also a simple receipt of the same date for the same sum. These are the only documents under the hand of the deceased, and so far as they go they instruct that the account was settled by a payment in cash. It is admitted, however, that no cash passed. The defender, however, founds upon two other documents, the first a simple receipt, bearing date 24th December 1903, in favour of Miss Brownlee for the sum of £1653, 8s. 6d., signed by himself, and a corresponding entry to her credit in his books. These four documents, taken together, he contends are equivalent in law to a simple assignment under the hand of the deceased in favour of Miss Catherine Brownlee. If accordingly an action had been brought against Miss Brownlee she would have been entitled to have pleaded the Act of 1696, and as no document has been produced qualifying the absolute character of the assignment, the pursuer's case must necessarily have failed, unless she had chosen to refer it to the oath of the trustee.

In my opinion this argument fails on two grounds. In the first place, I do not think that the documents are to be treated as equivalent to a formal assignation by the deceased in favour of Miss Brownlee. If such a document had been subscribed there would have been prima facie evidence of the authority to transfer. Here the documents unconnected by parole evidence instruct no authority. The case of Dunn v. Pratt is differentiated, because the pursuer himself supplied the link that would otherwise have been required by averring that the title to the property had, by his authority, been taken in the name of the defender. In the second place, the Trust Act can, I think, only be pleaded by the alleged trustee, and not by a third party. The defender suggests that an action for the £1653, 8s. 6d. might properly have been directed against Miss Brownlee. I cannot conceive what claim the pursuer could have had against her. On the assumption that the £1653 belonged to the deceased, it has, so far as Miss Brownlee is concerned, been paid. The action against the defender is based on his own letter of guarantee that £2000 of her money should be made available for payment of the money due to Mrs Barr.

“The question, however, remains, whether the £1653 was, in March 1904, the property of Miss Brownlee or of the deceased. If it was Miss Brownlee's, it can only have become so by its having been gifted to her by the deceased on the 24th of December. The onus of proving donation is, of course, upon the defender; but I am far from saying that the evidence of the donee and of the defender, who is mainly interested in supporting the theory of donation, might not be sufficient, corroborated as it is by the receipt in the deceased's own hand, if that evidence had satisfied me that the deceased intended to make such a donation, and fully understood that he had done so. The value of the receipt as an adminicle of evidence is, however, completely destroyed by the letter No. 85 of process and the subsequent letter, the draft of which is No. 94 of process. The first of these letters is dated 19th January 1904, less than a month after the alleged gift, and followed upon an examination of the deceased's account by him in the books kept at the office of the limited company. It is in these terms—‘Yesterday I understood you to say that my account with Mr Robert was squared, while according to your own statement of 24th December last there was at that date a balance of £1653, 8s. 6d. in my favour. Will you kindly explain by return what became of this balance, and oblige.—Yours truly, Robert Brownlee.’ The reply to this letter, dated 20th January (No. 94) was admittedly instructed or dictated by the defender, and is a merely formal letter that the statement had been settled ‘as per enclosed copy receipt.’ To this a reply was sent asking particulars of the alleged settlement in a perfectly civil way. The defender does not think he received a letter in these terms; but I am satisfied from the evidence of Sinclair that he did, and that it made him very angry. The letter itself was destroyed and was never answered. These two letters are, to my mind, most instructive. They show that the deceased Robert Brownlee did not know when he wrote them that he had made a gift of the money to his daughter, and, what is even more important, the defender did not venture to suggest that at the time, although in evidence he puts forward a more or less circumstantial story. If he believed that his father's memory was failing him nothing would have been easier than for him to have reminded his father of what had taken place, and of the £1653 having been transferred to his sister's name with his authority. The letter of 20th January is, to my mind, most disingenuous, because it relies on a receipt for payment of a sum in cash which the defender well knew had never been made.

It does not avail the defender to say, as he now does, that the two letters I have referred to were written by young Colquhoun, and that his father could not have known the contents of what he was subscribing. If that were so it would equally apply to the receipt and docquet on the account, and would destroy their value as adminicles of evidence in support of the alleged donation. But further, I am of opinion that if there was undue influence used, it was by the defender and his sister, and not by the Colquhouns; and an incident which arose later, and which depended mainly on the evidence led for the defence, illustrates this.

The defender says he received a third letter, now destroyed, from his father, asking him for payment of the balance of £262, being the amount which had been supplied by Mrs Colquhoun in order to make up the £5000. The defender was

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admittedly due this, and even a larger sum, under the guarantee; but the receipt of the letter seems to have put him into a violent temper. He at once went off to his father, and according to Miss Brownlee there were high words, I should imagine entirely on the defender's side, which resulted in the defender's father, an old man of 88 or 89, apologising for having made such a demand. This matter is founded upon by the defender in order to establish a verbal waiver by his father of what is now admitted to be a good claim of debt. It could obviously not be used for such a purpose with any effect, seeing that the obligation said to be verbally waived rests upon a writing preserved by the obligee; but it throws a strong light on the defender's methods of dealing with his father, and of the dominant influence which he possessed over him.

I am not overlooking the fact that at the same time as the deceased is alleged to have made the gift of money to his daughter, he also executed gratuitous transfers in her favour of certain shares, and that these have not been challenged. There is no evidence, however, in this process, such as we have in the two letters before referred to, that the deceased did not know what he was doing; and the two transactions, therefore, stand upon an entirely different footing.

With regard to the parole evidence of gift, it consists almost entirely of the evidence of the defender, but slightly corroborated by his sister, for at the interview when the gift is said to have been made nothing seems to have been said by the deceased; but he simply signed the documents, which were already made out for his signature, without observation. The conclusion which I draw from the evidence is that the deceased knew that the money was being transferred into his daughter's name for his behoof, but that he never intended to make her a present of it, and what Miss Brownlee is reported to have said to Mrs Barr is strong confirmation of this theory. It may have been in the defender's mind that he would be able to appropriate this sum standing in his sister's name in his books towards implement of the guarantee, and that he had previously obtained her consent to his doing so, but if, as I hold, it was really the deceased's money, this will not avail the defender. Besides, I do not believe that Miss Brownlee was the kind of person who would readily have consented to give up to the Barrs so large a sum as £1653 if she really thought that it belonged to herself. On the other hand, the defender was most anxious to have a settlement with the Barrs carried through, so that he might be protected against claims at their instance with regard to the £30,000—a matter in which Miss Brownlee was not concerned.

As regards the interval of time which elapsed without any challenge by the deceased, I attach very little importance to it. At his age, and in the state of health in which he was, it was very unlikely that he should wish to expose himself to further altercations with his son.

On the whole matter the conclusion which I reach is that the defender has failed to prove the alleged donation of £1653, 8s. 6d., and that decree falls to be pronounced against him for the sum sued for, less £50 provided by Miss Brownlee towards implement of the guarantee.”

The defender reclaimed, and argued—The entries in the defender's books showed that Brownlee senior had discharged his right to the sum of £1653 in question conditionally on its being given to his daughter Catherine, and the transfer of the money was proved. A valid donation had therefore taken place unless the pursuer could prove a latent trust. That could only be done by writ or oath of the trustee, and the pursuer had not done so. Here there was no question as to animus donandi, for there had been a complete transference to Miss Brownlee by inter vivos gift, her father being divested, and her title being complete— Macfarlane's Trustees v. Miller, July 20, 1898, 25 R. 1201, Lord Adam at p. 1208, 35 S.L.R. 934. The cases cited by pursuers where the animus donandi must be proved were those in which transference was incomplete, or rested on documents of title which might be ambiguous, e.g., deposit-receipts— Macfarlane's Trustees v. Miller, ut supra. The position of endorsed deposit-receipts in this respect was indeed peculiar, the same effect not being given to them as to other documents. Even, however, if the onus had rested on the defender to prove donation it had been discharged by the documentary evidence. The Lord Ordinary's interlocutor should be recalled.

Argued for the pursuer—There was a strong presumption against donation, and the onus of proving donation was on the donee. If an alleged gift was challenged, there was always room for inquiry where the subject-matter of gift had not been transferred actually, but was alleged to have been transferred by means of documents— Sharp v. Paton, June 21, 1888, 10 R. 1000, L.P. Inglis at p. 1006, 20 S.L.R. 685. Mere delivery of deposit-receipts endorsed or in joint names did not infer animus donandi without proof— Jamieson v. M'Leod, July 13, 1880, 7 R. 1131, 17 S.L.R. 757; Crosbie's Trustees v. Wright, May 28, 1880, 7 R. 823, 17 S.L.R. 597; Dawson v. M'Kenzie, December 8, 1891, 19 R. 261, Lord M'Laren at p. 277, 29 S.L.R. 226. Here there was no document of gift under the deceased's hand, and it was a pure question of fact whether this sum of money had been given to Catherine Brownlee. No written or parole evidence had been tendered consistent with the theory of donation. The Lord Ordinary was right, and the Court should affirm his judgment.

At advising—