Scottish Court of Session Decisions

Murdo Mackenzie, Lombard Street, Inverness, brought an action against T. S. Macallister, hotel-keeper, Inverness, W. Macallister, wine merchant there, RobertBrown & Company, wine and spirit brokers, Glasgow, and Robert Brown, merchant, Glasgow, the sole partner of that firm, as such partner and as an individual, in which he sought decree (1) that the defenders should

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be ordained to account for their intromissions with the pursuer's estate, whereby the true balance due by the defenders, or one or other of them, might be ascertained; and (2) that the defenders should be ordained, conjunctly and severally or severally, to pay to the pursuer the sum of £2000, the balance alleged to be due.

The following narrative is taken from the opinion ( infra) of the Lord President—“The pleadings in this case are somewhat confused, but I think there is really not very much doubt as to the underlying case. As to whether that case has got any eventual merits in it, I am far from expressing an opinion. The matters arose out of a transaction whereby as long ago as 1893 the pursuer acquired a property called the Academy Street Hotel in Inverness. The price which had to be paid for it at that time was £3500, and the pursuer had not money to meet it. He raised the money first of all by bonding the property to such an extent as it would bear—we are not told the exact sum, but obviously it would not be to the full value of the property—and then by borrowing a sum of £1750 from a Robert Brown, who is one of the defenders in the action. Robert Brown, as acknowledgment and in security of this loan which he had given, took two things. He first took an acceptance for the sum of £1750, that acceptance being jointly given by the pursuer and by a certain Thomas Stewart Macallister, who is another hotel-keeper in Inverness. He also took an ex facie absolute disposition of the said hotel, but at the same time granted as a back-letter a minute of agreement by which he acknowledged that the disposition, although ex facie absolute, was truly in security, and by which also various arrangements were made as to the renewal from time to time of this acceptance for and the paying off of the £1750. The pursuer entered into possession of the hotel and carried on the business for about a year. That brings us to the year 1894, and then in that year, the arrangement about the money due not being altogether satisfactory, a new arrangement was made by which the pursuer agreed to pay over the whole of the drawings of the business to a Mr William Macallister (Thomas Stewart Macallister's son) under a deduction of twenty-five shillings per week for the maintenance of himself and his family, and the further deduction of the wages of an assistant. The Macallisters who took that money were, of course, out of the money to pay the necessary accounts which the pursuer incurred in connection with the business of the hotel, and—that was the theory of the arrangement—were to apply the balance to the gradual liquidation of the £1750. Well, that arrangement went on until the year 1904. In the year 1904 the position of affairs was altered, because in that year the premises were sold by a creditor in one of the heritable bonds, and the person that the hotel was sold to was William Macallister, the son of Thomas. After that time the pursuer was maintained in his position in the hotel as manager for William Macallister. Disagreements or misunderstandings, however, arose between them which eventuated in a Sheriff Court action at the instance of William Macallister against the pursuer, claiming an account of his intromissions as manager of the hotel, and that action was settled by a deed of settlement which undoubtedly embraced other matters than the matters raised by the action, because it dealt not only with the claims of the pursuer in the action, namely, William Macallister, against the defender of the action, viz., Mackenzie, but also dealt with claims that Mackenzie had against Macallister.

“Now, referring to the present action—the present action is brought by Mackenzie, and he calls Brown, Thomas Macallister, and William Macallister, and the first conclusion is against those three persons, and asks them to lodge accounts, ‘to exhibit and produce a full and particular account of their whole intromissions with the means and estate belonging to the pursuer.’ Now, the averment upon which that is based is an averment that these weekly payments which I have already mentioned of the drawings, which went on from the year 1894 till the year 1904, had provided money enough to more than pay off the £1750, to leave a balance in the hands of the defenders, which was due, of course, to the pursuer, and which now ought to be handed to him. The answer upon the merits is that that balance is wholly fictitious, that as matter of fact the drawings never amounted to such a sum as would pay off the £1750, but that the £1750 had really to be paid to Brown by Thomas Macallister, and that consequently there is no balance due. Now that of course is the merits of the action with which we are not at the moment dealing. The plea which we have got to dispose of is the plea of the relevancy of the averments upon which the action is based.”

On 27th November 1908 the Lord Ordinary ( Guthrie) repelled the defenders' pleas of irrelevancy and incompetency, and ordained them to lodge an account.

The defenders reclaimed, and argued, inter alia— On the question of competency— Esto that the action was irrelevant against Brown, it fell to be dismissed as against the other defenders also. A joint conclusion to account was in an entirely different position from a joint conclusion for payment. It was only Where the conclusions were pecuniary that an action dismissed as against one of several joint defenders would be allowed to go on as against the others. In the recent case of Fleming v. Gemmill, December 20, 1907, 1908 S.C. 340, 45 S.L.R. 281, where an action was allowed to proceed against remaining defenders, the conclusion was not joint, but joint and several.

Argued for respondent— On the question of competency—Esto that the action was not relevantly laid as against Brown, it could competently proceed against the remaining defenders— Milne v. Smiths, November

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23, 1892, 20 R. 93, 30 S.L.R. 105; Robinson v. Reid's Trustees, May 31, 1900, 2 F. 928, 37 S.L.R. 718; Reilly v. Smith, May 24, 1904, 6 F. 662, 41 S.L.R. 516; Brodie v. Coplan, March 30, 1906, 14 S.L.T. 35; Fleming v. Gemmill ( cit. supra). Esto that if the conclusions were so inextricably intertwined as not to be separable, the action would have to go — e.g., Maekersy v. Davis & Sons, Limited, February 16, 1895, 22 R. 368, per Lord M'Laren at p. 370, 32 S.L.R. 277—that was not the case here, for the separate liability of each defender was ascertainable.