Scottish Court of Session Decisions

This was an action under “The Debts Recovery Act 1867,” brought in the Sheriff Court of Aberdeenshire, in which James Chalmers, smith and ironmonger, Greenock, sued Robert Stewart Walker, Belhelvie, for the sum of £40, “per account produced. “The account produced was as follows:—

“Greenock, 1877.

Robert Stewart Walker, Esq.

To James Chalmers, smith and ironmonger,

Greenock.

1870. July 6. To 146 ft. wall rail.
To 296 ft. wall balusters.
To 8 gate posts.
To 4 iron gates.
To 7 dead locks.
To fitting up do., &c., as per offer,	£30	0	0
1877. August 16. To interest at 5 per cent., restricted to	10	0	0
	£40	0	0'

The defence pleaded was—(1) Prescription of the account, and (2) payment.

The pursuer founded on the following offer addressed to the defender's factors, and dated March 18, 1870:—'

Messrs Alex. Agnew & Co.

Gent.,—I hereby offer to supply and fit up, at Mr R. S. Walker's new house, Finnart Street,

Page: 120↓

about 170 feet of cast-iron railing, including three single and one double leaved gate, of pattern shown in drawing, with malleable iron frame and lock complete, for the sum of 9/9 stg. per lineal yard.

The lower part of gates to be measured and charged same as railing.—I am, your obed. servt.,

“ James Chalmers.

John Findlay.

On back—

Will complete the whole work for £30.

J. C.”

A proof was led in the cause, and the defender admitted that the work specified in the account had been executed, but deponed that he had paid it subsequently in 1874, but had lost the receipt.

The Sheriff-Substitute ( Dove Wilson) found “That the pursuer has failed to prove his allegation that the debt sued on is constituted by a written obligation, and therefore finds that the account libelled is prescribed: Finds further that the pursuer has failed to prove the subsistence or resting-owing of the debt by the writ or oath of the defender, and therefore assoilzies the defender from the conclusions of the action: Finds him entitled to expenses, and appoints the cause to be enrolled that their amount may be fixed.”

The Sheriff ( Guthrie Smith) on appeal recalled the Sheriff-Substitute's interlocutor, and found it proved that by the writing of March 18, 1870, the pursuer had contracted to complete the work in question for £30, that the offer was accepted verbally, and that that constituted a written obligation within the meaning of the Act 1579, cap. 83, and further that the defender had failed to prove his averment of payment.

He added this note:—

Note.—The point which is here raised is one of very considerable importance, and it is remarkable that although the Act of 1579 has been three centuries in operation, the cases on what perhaps is its most important clause are both few in number and somewhat indistinct in their result. In the one cited by the Sheriff-Substitute— Hotson v. Threshie, February 28, 1833, 11 S. 482—the question was not determined, but it was recently much discussed in the N. B, Railway Co. v. Smith Sligo ( 1 Rettie 309).

The Act says, that all debts of the class named ‘not founded on written obligations,’ must be pursued for within three years. The reason of the exception is obvious. In transactions provable by parole, witnesses misapprehend or forget what passed between the parties at the time, but when the contract is reduced to writing litera scripta manet, and the risk of mistake is removed.

What appears to have been settled is, that it is insufficient to show a written order for goods to prove a written obligation of the kind contemplated ( Ross v. Shaw, 1784, M. 11, 115; Douglas v. Grierson, 1794, M. 11, 116); nor is it enough, as the Sheriff-Substitute observes, that goods verbally ordered have been sent home with an invoice or other note or memorandum of the sum payable, but a written contract made with a tradesman, e.g., with a mason to erect a building, or a joiner to do some carpenter work, has been decided to be within the exception ( Watson v. prestonhall, M. 11,095, and see Blackadder v. Miln, 13 D. 820).

In this case the writing is an offer by the tradesman himself. It is complete in itself, and is quite distinct in its terms. It specifies the work to be done and the sum to be paid. It was delivered to the employer or his factor duly authorised, and the work was done on the faith of its being accepted.

It may be true that there is no formal acceptance by the debtor in writing, but it is well established that a written offer may be accepted verbally or by acting in terms of it (Dickson on Evidence, sec. 556). In almost every case of work done under a written estimate, the transaction takes the same form, and Lord Benholme seems to be of opinion that the statute would be satisfied ‘by an obligation on the one party which the other may take the benefit of whenever he chooses to do so.’ It appears to the Sheriff to be too great a refinement to say after the work is finished that this is not a debt constituted by a written obligation. Its terms are fixed, and the obligation is of a kind requiring a writing to discharge it.”

The defender appealed to the Court of Session.

Authorities— Watson v. Lord Prestonhall, February 21, 1711, M. 11, 095; Blackadder v. Milne, March 4, 1851, 13 D. 820; White v. Caledonian Railway, February 15, 1868, 6 Macph. 415; Barr v. Edinburgh and Glasgow Railway, June 17, 1864, 2 Macph. 1250; Douglas v. Grierson, 1794, M. 11,116, Bell's Fol. Cas. 974; Ross v. Shaw, 1784, M, 11,115.

At advising—