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SCOTTISH_HoL

Page: 876↓

(1859) 1 Paterson 876

REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.

No. 126

John Kirkland & Son, &c., Appellants

v.

Nisbet & Company, Respondents

JULY 15, 1859.

Subject_Proof — Correspondence — Witness's construction of document — Parole.—

At a jury trial in a question as to the extent of an order for goods given by the defenders to the pursuers, which mainly depended on the construction of correspondence, a witness was asked what an employer “would be entitled to expect” on receipt of a particular letter in the correspondence. The defenders claimed that they were entitled to put the question, so as to prove that no mercantile usage qualified the clear terms of the letter, seeing that the pursuers had averred and founded on such usage.

Held (affirming judgment), That the question was incompetent, 1. Because it was not so put as to relate to mercantile usage, but really asked the witness to construe the writ, which was the province of the Court and jury; and, 2. Because it was asking the witness to construe an isolated letter without shewing him the whole correspondence. ¹

The defenders appealed to the House of Lords, maintaining (in their printed case) that the judgment of the Court of Session should be reversed:—“1. Because the said question to the witness Kaeracouse was a competent question, and ought not to have been disallowed by the Lord President at the trial. 2. Because the exception taken to the ruling of the Lord President disallowing the said question, ought to have been sustained.” Smith v. Wilson, 3 B. & Ad. 728; Shore v. Wilson, 9 Cl. & F. 355.

The respondents supported the judgment, maintaining (in their printed case):—“1. As a general rule, the construction of written documents is for the Court, and there was nothing in the case to take it out of that rule, or to entitle the appellant to put the question which was objected to. 2. The question was irrelevant to the issue. 3. Having regard to the terms of the question, and the circumstances under which, and the time when it was put to the witness, it was unintelligible and inadmissible.” Calder v. Aitchison 5 W.S. 40.

Lord Advocate Moncreiff, and Rolt Q.C., for the appellants. The question was competent We wanted to prove that 600 tons of the sugar had been actually sold to us by the respondents, and that this was the meaning of the word “contracted” in the letter of nth Dec. 1850. We produced a witness to prove the mercantile usage, and asked him that question.

[ Lord Chancellor.—If you had asked the witness about the mercantile usage, that might have been well, but how could you ask him such a question as this: “What would the employer be entitled to expect from that letter?” That was asking the witness to explain or construe a written document. It was asking him the meaning of the document.]

_________________ Footnote _________________

¹ See previous reports 21 D. 1; 31 Sc. Jur. 3. S. C. 3 Macq. Ap. 796: 31 Sc. Jur. 641.

Page: 877↓

What we wanted was merely to explain the technical meaning of the word “contracted.”

[ Lord Chancellor.—But you must defend the question as put. The question was in substance—What is the meaning or just construction of the whole letter?]

[ Lord Chelmsford.—What a witness in such cases is called on to do is merely to explain some technical terms to assist the Court, and the Court then construes the document. You might have asked the witness what was the technical meaning of the word “contracted,” if it had any peculiar meaning. But you ask him the meaning of the whole written contract. You are not to use the witness as an interpreter, but only as a guide.]

[ Lord Chancellor. You are not to substitute the witness for the Judge.]

We can carry the argument no further.

Anderson, Q.C., for the respondents, was not called upon.

Lord Chancellor Campbell.—My Lords, I think that this question was very properly overruled by the learned Judge, because, in effect, it sought to obtain the opinion of the witness on the construction of a written document. There is no doubt that evidence may be competently given of mercantile usage to explain the meaning of peculiar terms used in trade. But—What is the meaning of a written document? is not a question proper to be put to a witness. The question here put was substantially this, What was the contract—what is the construction of the document? That was an improper question; and I have no difficulty in recommending your Lordships to affirm the unanimous judgment of the learned Judges in Scotland which overruled it.

Lords Brougham, Cranworth, and Chelmsford concurred.

Interlocutor affirmed, with costs.

Solicitors: Appellants' Agents, Gibson-Craig, Dalziel, and Brodie, W.S.— Respondents' Agents, Campbell and Smith, W.S.

1859