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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beveridge's Trustees v. Beveridge [1871] ScotLR 8_575 (23 June 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0575.html
Cite as: [1871] ScotLR 8_575, [1871] SLR 8_575

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SCOTTISH_SLR_Court_of_Session

Page: 575↓

Court of Session Inner House First Division.

Friday, June 23. 1871.

8 SLR 575

Beveridge's Trustees

v.

Beveridge.

Subject_1Partnership
Subject_2Process
Subject_3Relevancy.
Facts:

Averments held not relevant or sufficient to support an action invoking the interference of the Court in the affairs of a copartnery.

Headnote:

This was an action by the trustees of the late Erskine Beveridge against James Adamson Beveridge, manufacturer, Dunfermline. On the 24th October 1864 the truster, shortly before his death, entered into a contract of copartnery with his son, the present defender, to endure from 1st July 1865 to 19th March 1874. It was provided that in the event of Mr Erskine Beveridge's death during the subsistence of the contract the copartnery should continue, notwithstanding, as between his representatives or trustees on the one hand, and James A. Beveridge on the other. The contract contained the following clause:—“The books of the company, which shall contain all and every part of the affairs and transactions of the joint trade, shall be brought to a just and true balance at least once in every twelve months, and that at the 23d day of December in each year, and the profits or loss arising in the previous year's trade shall be shared by the parties in the proportions after mentioned.”

The averments of the pursuers, and the conclusions of their summons, will sufficiently appear from the Lord President's opinion.

The Lord Ordinary ( Ormidale) found that no relevant or sufficient grounds had been laid by the pursuers entitling them to insist in the present action, and accordingly dismissed the action.

The pursuers reclaimed.

The Solicitor-General and Watson for them.

Scott for the defender.

At advising—

 Judgment:

Lord President—The Lord Ordinary has dismissed the action in respect that no relevant or sufficient grounds have been laid by the pursuers entitling them to insist in the present action. The ground alleged by the pursuers is that they have been in partnership with the defender under a contract of copartnery dated 24th October 1864. In obedience to a clause in the deed, balance-sheets were made up for 1865 and the following years. The rest of the condescendence, in so far as it alleges any grounds of fact, is to be found in Article 9—“The said balance-sheets exhibit just and true balances of the affairs of the said copartnery of Erskine Beveridge & Company. The concern has been exceedingly prosperous, and large annual profits have been realised since 1st July 1865. The defender has from time to time drawn out of the business large sums to account of his fourth share of profits. But although he has been regularly furnished with the balance-sheets, the defender has hitherto declined to aid the trustees, or concur with them, in adjusting the same, according to the terms of the contract of copartnery, in order to fix and ascertain the amount of profits due respectively to him and to his father's trust, in consequence whereof it has become necessary to raise the present action.” It is not alleged that the defender has drawn any sums to account not justified by the balance-sheets. It is not alleged

Page: 576↓

that he has stated objections to the balance-sheets, or that he has done anything except to decline to aid the trustees in adjusting the balance-sheets. What do the trustees ask the Court to do? They ask for declarator that the defender is bound to concur with the trustees in bringing to a just and true balance the books of the firm once in every twelve months, and for decerniture against him to concur with the trustees in adjusting the balance-sheets, and to subscribe or otherwise authenticate the same in token of his acquiescence therein. Then there is an alternative conclusion that in the event of the defender appearing and objecting to the said balance-sheets, correct balance-sheets should be adjusted at the sight of the Court. The alternative is, that either the defender is to be ordained to concur in adjusting the existing balance-sheets, or otherwise, throwing these aside, correct balance-sheets are to be made up at the sight of the Court. Apart from the impossibility of finding any sufficient grounds for the interference of the Court at all, I am struck by the novel form of remedy proposed. I am not prepared to pronounce an opinion that circumstances might not occur where a partner is entitled to throw the affairs of the copartnery into Court; but this is not a course which a partner can take in the ordinary course of the partnership with no stronger allegation against his copartner than that he will not help him in adjusting the balance-sheets. By the contract of copartnery there is no obligation on the defender to express his acquiescence in the balance-sheets, and it would be rather a strong thing for the Court to create this obligation against him. I quite agree with the Lord Ordinary. I may say, at the same time, that I am the more easily reconciled to throw the action out of Court from the information we now have that there are other disputes between the parties which have not yet been finally determined. I quite understand the unwillingness of the defender to subscribe balance-sheets while he is objecting to some of the principles on which they are struck. This action would have no practical value if we could have sustained it. But I put my judgment on the same grounds as the Lord Ordinary.

The other Judges concurred.

The Court adhered.

Solicitors: Agent for Pursuers— T. J. Gordon, W.S.

Agents for Defender— Wotherspoon & Mack, S.S.C.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0575.html