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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Roy v. Hamilton and Co. [1867] ScotLR 5_265 (15 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0265.html Cite as: [1867] ScotLR 5_265, [1867] SLR 5_265 |
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Page: 265↓
A party raised an action against his employers for £4000 as amount of salary and commission. Having ascertained in the course of a proof in the action that he had understated his claim, he brought a supplementary summons, concluding for conjunction with the former action, and, whether conjoined or not, for payment of £6000, under deduction of the sum to be decerned for in the former action. Pleas by defender of lis alibi and incompetency repelled, and competency of the second action sustained; and observed, that though conjunction was inexpedient at present, it might become expedient, and that in the meantime the second action might stand alone as a separate and substantive action under its second conclusion.
The defenders are merchants in Glasgow, and are engaged in the African trade; and the pursuer is an African agent, and acted as representative of the defenders on the African coast from October 1857 till the spring of 1862. He was remunerated at first by a salary, and latterly by a commission on the gross proceeds of the produce traded for by him, as realised in this country. In 1865 he raised an action against the defenders for £4292 as salary and commission, founding his conclusions on accounts supplied to him by the defenders. A proof was taken, in the course of which the pursuer, having recovered the account sales, and bills of lading, found the accounts to be erroneous, his commissions being in consequence largely understated. He thereupon raised a supplementary summons, the conclusions of which were thus stated:—“Therefore this summons on being called in Court ought and should be remitted and conjoined with an action now in dependence between the pursuer and defenders before our said Lords, ( Lord Kinloch) Ordinary, the summons in which was signeted the 23d day of May 1865; and the said summons being so conjoined, or whether the same shall be conjoined or not, the defender ought and should be decerned …. to make payment to the pursuer of sums amounting to £6260; but under deduction from the foresaid several sums and interest thereon, as the same became due and accumulated, of such sums as the defender can legally instruct to have been paid to account of the said sums and interest so accumulated at the dates of payment, or of such part of the foresaid sums as may be decerned for in the said action at the instance of the pursuer against the defenders raised as aforesaid on 23d May 1865.”
The defenders pleaded,—(1) Lis alibi pendens. (2) That the action was incompetent, and ought to be dismissed in as much as the whole claims competent to the pursuer against the defenders in respect of services rendered by him to them on their employment were embraced in the action already raised against them at his instance; and (3) that the second action could only be pursued on the first being abandoned.
The Lord Ordinary ( Kinloch) dismissed the supplementary action as incompetent, adding this note:—
“The present action has been raised, and is sought to be conjoined with the other, on the grounds, (1) that in the former action the commission due to the pursuer was under-estimated in consequence of his not being in possession of the due materials for rightly calculating its amount; (2) that in the former action he proposed to restrict and did restrict a certain charge to £100, and now, for what he thinks good reasons, departs from this restriction, and states the sum at a greatly larger amount.
There appears to the Lord Ordinary to be no good ground for supporting a supplementary action to be conjoined with the former process. There are grounds for abandoning the former action, and raising a new one. They amount simply to a discovery of errors in the first action now sought to be corrected. They are amendments of the
Page: 266↓
former record which cannot now be made directly in respect of the former record being closed; and which are now attempted to be made indirectly, and as the Lord Ordinary thinks irregularly. If the present attempt were successful, there never would be an abandonment of an action, but simply a supplementary summons.” The pursuer reclaimed.
Young, Clark, and H. Smith for him.
A. Moncreiff and Gloag for defenders.
Lord President—In this case the Lord Ordinary found the proceedings incompetent and dismissed the same, and his ground is in respect of the dependence of a previous action, to which this is represented as being supplementary. I am not able to agree with him in that. I think it is a competent action, whatever may be its fate hereafter. The first action by Roy against Hamilton & Company concluded for specific items amounting to £4292, which was represented on the record as being a balance due on a variety of accounts to him as agent. In the first action Roy says, in the 21st article of the condescendence, that since he resigned his situation as agent, he has endeavoured to induce the defenders to adjust their account with him, but without success, and on 23d May 1865, raised an action against them for £4292, 12s. 1d., and interest, under deduction of sums paid to account. The sum sued for was estimated by the pursuer from accounts furnished to him by the defender. These accounts so furnished to the pursuer have now been ascertained to be erroneous in several respects, and “accordingly this action has been raised in supplement of the other action, and with a view to its being conjoined therewith.” And then in the 13th article he says—“The balance due to the pursuer for his services prior to 5th November 1857 amounted to the sum of £300 of salary, exclusive of the ‘dash’ or per centage, which was not fixed. The pursuer was willing and offered to accept of the sum of £100 in full of the said dash, but the defender did not agree to the said offer, and it is hereby withdrawn.”
The effect of these two additions to the claim of the pursuer is to raise the amount from £4292, as concluded for in the first action, to £6200, as concluded for in this action. Whether the pursuer is well founded in making this additional claim, we have at present no means of judging, and it would be premature to enquire. Whether he is bound by anything in the former action, or outwith it, is a matter we have nothing to do with, but what I say is, that there is a claim in this action amounting to £2000 over the claim in the former action, and it appears to me that it must be competent to make that claim in some form or another. It may be a bad claim, but it is inconsistent with the forms of process in any Court to say that it is incompetent. And yet the Lord Ordinary has found that the summons is incompetent. If he means by that that the claim is incompetent, I do not agree with him. He may, perhaps, mean that it is put forward in an incompetent form. That leads me to consider the conclusions of the action. Now, the first conclusion is that this action should be conjoined with the former one. I give no final opinion on that matter. I am very clear that it is inconvenient to join them in their present state, and the Lord Ordinary probably is of the same opinion; but as to whether they may be afterwards conjoined, we cannot anticipate. In the other action, a large body of evidence has been taken, and now this additional claim is set up. It is not necessary to the subsistence of this summons that it should be conjoined, for the second conclusion is, “the said summons being conjoined, or whether conjoined or not,” and therefore in the second alternative I must inquire what are the other conclusions? They are for the entire sum of £6260, but under deduction of sums paid to account, and also of such part as may be decerned for in the first action. That appears to me to be a perfectly competent conclusion in form for recovery of the additional claim, on the assumption that the pursuer is well founded on the merits. I therefore think that the preliminary objections are not well founded. It is not of much consequence whether this is a supplementary or a separate summons. It is called a supplementary summons, but a summons by being called supplementary is not necessarily made so. It is supplementary when it cannot go on without the other, but it may be supplementary by adding to the former claim. But that is, in a sense, not supplementary, but separate and substantive. That is the case here. This summons could stand alone. There is no statutory rule established by Statute or Act of Sederunt to regulate this matter. We are to deal fairly with it on the ordinary principles of process, and I see no difficulty in sustaining this summons. There are some things mixed up in the preliminary pleas that may become available to the defender afterwards; for example, in the second plea, he says— [ reads second plea]. If you abstract the word “incompetent” it may become a good plea on the merits. I suggest that, to prevent the defender suffering prejudice, we dispose of the first and second pleas as preliminary pleas, but reserving them as pleas on the merits.
Page: 267↓
Solicitors: Agents for Pursuer— Henry & Shiress, S.S.C.
Agents for Defenders— Wilson, Burn, & Gloag, W.S.
