Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Forfarshire. James Nicoll sued William Reid for £66, 8s. 10d., the amount said to be due for joiner work done by the workmen of the firm of Nicoll & Reid to the defender's house. A preliminary objection to the title to sue was repelled by the Court (Nov. 15, 1877, 5 R. 137, 15 Scot. Law Rep. 89).

William Reid, the defender, had employed his son Alexander Reid, in July 1875, to execute the work of which the price was in dispute. The son was then a partner of the firm of Nicoll & Reid, joiners in Kirriemuir, the work being performed by their workmen.

On 31st December 1875 the partnership was dissolved, and the work in question was at that time valued as part of the firm assets in a settlement of the accounts between the partners. Alexander Reid, the son, died in July 1876. In October 1876 the pursuer had first demanded payment for the work. The defence to this action, on the merits, was that the work had been done by Alexander Reid as an individual, and that payment had been made to him before his death, and four cheques were produced in evidence of the payment of £42. The other circumstances of the case, so far as material, will sufficiently appear from the note to the Sheriff-Substitute's interlocutor and from the opinions of the Court.

The Sheriff-Substitute ( Robertson) gave decree for £24, 8s. 10d., the balance, thereby allowing the defender credit for the payment which he instructed by the cheques. He added this note:—

“ Note.—It is inconceivable that the defender was ignorant of a partnership which was well known in the district. When he employed his son as a joiner, he employed his son's partner as well. It is possible for one member of a firm to have private contracts in which his partner has no concern; but very special proof would be required that both employer and employed clearly understood this position, otherwise the usual rules follow

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the employment of one member of a firm. It is quite clear that the deceased Alexander Reid regarded his father's order as an order to the firm of Nicoll & Reid. The plant of the firm was employed, and wages were paid by the firm to the men who did the work. Not only so, but prior to the dissolution a valuation was made by the two partners of this very contract, so as to enable each to draw his fair share of the contract price before separating. It is of no consequence that the defender had little or no personal dealings with the pursuer.

Coming now to the payments alleged to be paid to the late Alexander Reid by his father, these can only be instructed by writ or oath of the payee in the usual way. As the Sheriff remarks in an action at present depending between the partners of this same firm—‘Parties who pay money, or who allege they have paid money, must take good care to preserve proper evidence of such payments.’

The defender may have paid all the sums he alleges in his defences, but he can only instruct four payments by writ, which amount to £42; and these are all that the Sheriff-Substitute can credit him with. It was carefully argued by the pursuer's agent that even these should not be credited. But parole evidence is here admissible to show under what circumstances the cheques were given. (See Bryce v. Young's Executors, 4 Macph. 312.) They were all granted during the progress of the work, and at distinct intervals of time. The drawing of a cheque seems to raise a presumption that a debt exists between the drawer and payee — ninety-nine cheques out of a hundred are drawn for the purpose of paying such debts. (See Lord President in Haldane, 10 Macph. 537.) If this be so, and if four cheques are granted to the partner of a firm during the progress of the work—that partner being the member of the firm through whom the whole contract was managed — the Sheriff-Substitute holds the oath of the grantee and his daughter-in-law to be conclusive that they were granted to account of this joiner work. It appears the pursuer was kept in ignorance by his partner that these payments had been made; but this is a matter between him and his late partner's executors.

Giving credit then to the defender for these payments by cheque, there still remains the question, what amount of work had the firm performed prior to its dissolution? and this part of the case has always appeared to the Sheriff-Substitute a delicate matter; for the valuation made for the information of the partners is not a document to which the defender is in any way a party. Nevertheless the Sheriff-Substitute has taken it as the only available guide to extricate the case. It seems to have been made in perfect bona fides; and the defender himself says he had paid more than the valuation to his son prior to the dissolution, which shows that the defender considered that amount of work at least had been performed by the firm up to that date.

For these reasons, the Sheriff-Substitute has decerned against the defender for the sum of £24, 8s. 10d.”

The Sheriff ( Maitland Heriot) recalled the Sheriff-Substitute's interlocutor, and decerned against Reid for the whole sum sued for—holding that the cheques could not be held to instruct the payments alleged, upon the authority of Haldane v. Speirs, 10 Macph. 537.

The defender appealed to the Court of Session, and argued that payments to the amount of £42 were sufficiently instructed by the cheques produced endorsed by Reid the son; and further, that payments to one partner were equivalent to payments to the firm.

The pursuer argued—The case of Haldane v. Speirs was in point. The cheques no doubt showed payments by the father to the son, but they did not indicate any specific work or contract under which the payment was made, and father and son might have many transactions other than this particular one. There was no presumption even from the sum paid that would refer it to any special piece of work.

Authorities— Egg v. Burnett, 3 Espinasse 195; Thomson on Bills, 257; Roxburghe & Co. v. Barlas, Jan. 15, 1876, 13 Scot. Law Rep. 215; Gibb v. Craik, 8 Jur. 421; Haldane v. Speirs, March 7, 1872, 10 Macph. 537; Ramchurn Mullick v. Luchmeechund Radakissen, February 1854, 9 Moore P.C. Reps. 69.

At advising—