Scottish Court of Session Decisions

A. & A. Campbell, W.S., Edinburgh, raised an action against Mrs Charlotte Campbell and another, executors-nominate of the late Arthur Campbell of Catrine, in which they sued for £1916, 8s. 3d. with interest thereon, being factor fees and commissions which they averred had been incurred by Mr Arthur Campbell to them.

The pursuers pleaded—“(1) The pursuers having done professional work for the deceased, are entitled to ordinary professional remuneration for that work. (2) The deceased having been justly indebted and resting-owing to the pursuers in the sum sued for, the pursuers are entitled to decree therefor against the defenders as his executors-nominate. (3) The statements of the defenders in Article 6 of the statement of facts, with reference to the understanding and agreement therein averred, can be proved only by writ or oath.”

Article 6 of the defenders' statement of facts was—“After the said Arthur Campbell retired from the partnership [31st July 1889], he left a certain amount of his business with A. & A. Campbell, including the collection of part of his income and the disposal thereof, but he himself personally attended to a good deal of his own business. Each year A. & A. Campbell made up, as at 31st July, and rendered a cash account between A. & A. Campbell and the said Arthur Campbell, allowing periodical interest on the balances at Arthur Campbell's credit, bringing the account to a balance at 31st July, and carrying forward the balance to the following year. In consideration of the said Arthur Campbell's having made over the business without any payment therefor, and of the valuable assistance and support which he rendered to his brother George, it was the understanding and agreement of the brothers that A. & A. Campbell should make no charge for the services rendered to Arthur Campbell. Accordingly no accounts for business services were ever rendered to the said Arthur Campbell, except that by special arrangement one or two accounts for particular pieces of work were debited to him in the cash accounts. No factor fee or commission was ever charged or debited in the annual cash accounts made up as aforesaid.…”

The defenders pleaded, inter alia—“(1) No title to sue.”

The facts of the case are given in the opinion of the Lord Ordinary ( Skerrington) who on 14th June 1910 pronounced the following interlocutor—“Sustains the first plea-in-law stated for the defenders in so far as it applies to the account sued for prior to 31st July 1904, and to that extent and effect dismisses the action, and decerns: Before answer, allows the defenders a proof of their averments in Article 6 of the statement of facts and the pursuers a conjunct probation.”

Opinion.—“The pursuers are a firm of Writers to the Signet in Edinburgh calling themselves A. & A. Campbell, and they sue for factor fees and commissions on an account for the period from 31st July 1889 to 31st December 1908. The firm consists of two partners, Mr George Campbell and Mr George Alexander Wright. The firm was constituted on 31st July 1904, and for a number of years prior to that date Mr George Campbell carried on the business by himself under the name of A. & A. Campbell. In these circumstances the creditor who is entitled to recover the account so far as applicable to the period from 31st July 1889 to 31st July 1904 is Mr George Campbell, and he could sue either in his own name or under the name by which he carried on business, viz., A. & A. Campbell. But the A. & A. Campbell who are the pursuers of the present action are the existing firm of that name, and are not Mr George Campbell as an individual. I see no answer to the first plea-in-law stated for the defenders, which is that the pursuers have no title to sue. The objection is a technical one, and could be easily put right by Mr George Campbell bringing a separate action or moving to be allowed to amend the present action by adding his name as a pursuer, and by adding an alternative conclusion for payment to him as an individual of the portion of the account incurred prior to 31st July 1904. But the pursuers have intentionally refrained from so libelling their summons because it was seen that if the action was laid in that way the claim for the earlier part of the account would fall under the triennial prescription, and the debtor Mr Arthur Campbell being dead, and there being no written evidence, the pursuers' case would be no further forward.

The question whether, from the point of view of the triennial prescription, the account is one continuous account or is two separate accounts does not really arise, seeing that I dismiss the action so far as regards the portion of the account prior to 31st July 1904. I may say, however, that I have no doubt that the plea of triennial prescription applies to the earlier part of the account. I see no legal principle upon which an account for work and services done by an individual can be treated as identical with a subsequent account for work and services done by a firm, and it does not seem to me to be in the least material that the individual while doing such work chose to describe himself by a firm name. I was referred to certain dicta of the Lord Justice-Clerk (Patton) in the case of Wotherspoon v. Henderson's Trustees (1868), 6 Macph. 1052, to the effect that it was not every change in the constitution of a company which would disturb the continuity of its current accounts. These dicta were purely obiter, as no question of that kind fell to be decided in the case of Wotherspoon any more than in the present case. A partnership may by agreement continue notwithstanding the death of a partner or the retiral or assumption of a partner, and in such a case where there is continuity in the company there will be continuity in the accounts due to the company. I have

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difficulty in figuring a case where a company has been dissolved and reconstructed but where the accounts due to the two companies should be treated as one account.

I accordingly sustain the first plea-inlaw stated for the defenders so far as applying to the portion of the account prior to 31st July 1904, and to that extent and effect I dismiss the action.

There remains the question as to the portion of the account from 31st July 1904 onwards. The defenders set forth in their statement of facts (particularly in statement No. 6) various facts and circumstances from which they say that it may fairly be inferred that the work was done on the footing that no charge was to be made therefor. The pursuers' counsel founded on the case of Taylor v. Forbes, 1853, 24 D. 19, and maintained that this defence could be established only by the pursuers' writ or oath. If it were necessary I should hold that I am not bound to follow the decision in Taylor's case, because I think it appears from the subsequent case of Scotland v. Henry, 1865, 3 M. 1125, that Taylor's case was a very special one, and I do not think that it would be held nowadays that a contract of the kind referred to is an innominate contract of such an extraordinary character that proof ought to be limited to writ or oath. But, as I have already indicated, I do not read the averments as meaning that the defenders undertake to prove by the testimony of witnesses that a parole agreement was entered into between the two brothers that the work was to be done gratuitously. The defenders' case is that there exist a number of circumstances which give rise to the inference that no charge was to be made. There is an analogy between the present case and a case where the defender undertakes to prove presumed payment. It is not competent to prove money payments except by writ or oath, but a defender may prove facts and circumstances which give rise to the inevitable inference that the debt has been satisfied or discharged in some way or other. I allow the defenders a, proof before answer of their averments in statement 6.”

The pursuers reclaimed, on the point as to title to sue, and in addition to Wotherspoon v. Henderson's Trustees (July 10, 1868, 6 M. 1052, 5 S.L.R. 689), referred to Bell's Prin., sec. 357.

The defenders were not called on for a a reply.