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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walker v. Smith [1884] ScotLR 21_451 (1 March 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0451.html Cite as: [1884] ScotLR 21_451, [1884] SLR 21_451 |
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Page: 451↓
[Sheriff of Lanarkshire.
Held that an action against a husband at the instance of his mother-in-law for board and lodging afforded to his wife and infant child, whom he knew to be living with the pursuer and for whom he was not providing aliment, was founded on implied contract, and competent under the Debts Recovery (Scotland) Act 1867.
This was an action under the Debts Recovery (Scotland) Act 1867 in the Sheriff Court at Glasgow, at the instance of a Mrs Walker against her son-in-law Joseph Smith, for the sum of £31, 5s., which was alleged to be due in respect of board and lodging furnished by the pursuer to the defender's wife and infant child between 15th November 1882 and 25th June 1883.
Section 2 of the said Act provides—“It shall be lawful for any Sheriff in Scotland, within his sheriffdom, to bear, try, and determine in a summary way, as more particularly hereinafter mentioned, all actions of debt that may competently be brought before him for house maills, men's ordinaries, servants' fees, merchants' accounts, and other the like debts, wherein the debt shall exceed the value of £12 sterling, exclusive of expenses and dues of extract, but shall not exceed the value of £50 sterling, exclusive as aforesaid.”
The defence was (first) that the action was irrelevant, and also incompetent under the Act; and (second) that the defender was not due the sums sued for, and that he made no contract with the pursuer to aliment his wife and child.
A proof was taken, and the material facts are detailed by the Sheriff-Substitute ( Balfour) in the following interlocutor:—“Finds that this is an action raised by a mother-in-law against her son-in-law for board, washing, lodgings, clothing, and medicine furnished by her for about thirty-two weeks to the son-in-law's wife and child: Finds that the action is competent in this Court in respect that it is a claim for men's ordinaries, and in that category are included supplies or furnishings of the description already mentioned: Finds that the defender and his wife were married in April 1879, and they resided together until November 1881, when the defender left his wife; that at that time he left his wife in a house which he had taken
Page: 452↓
until Whitsunday 1882, and the defender paid the rent of the house, and also a weekly allowance of 15s. to his wife; that prior to Whitsunday 1882 the defender went to the house and took away the furniture, excepting three chairs, a table, and a grate in the kitchen, and he gave up the house, and took no other residence for his wife, but he says that he continued paying the weekly allowance until September 1882; that from and after 15th November 1882 the defender's wife and child resided with the pursuer, and received the supplies specified in the account sued for; that the defender was aware that his wife and child were living with the pursuer, and he paid them no aliment and made no provision whatever for their maintenance; that the defender alleges that in December 1882 he made an arrangement with his wife that he was to withhold aliment from her, and that by her orders he arranged to pay it to ‘her creditors,’ i.e., in payment of debts incurred by her after the defender left her, viz., in November 1881: Finds that to a certain extent the wife admits the arrangement, but she qualifies it by stating that she agreed to give up the aliment if the defender paid the accounts and took a home for her, and that she was to get £8 for aliment from him up to that time; that the defender's wife further alleges that she intended at that time to take a situation, and that she sent a man over to the defender to get his name in order to procure a sewing—machine, but he would not give it, and that then her child became ill and continued ailing until 31st May 1883, when it died, and that she was then unable for. work, as her time was entirely taken up in nursing the child: Finds, under these circumstances, that the defender has failed to prove an unconditional arrangement between him and his wife whereby she was to give up her claim for aliment and earn her own livelihood: Finds with regard to the actual arrangement made between the husband and wife (1st) that it was made subject to the conditions of him providing his wife with a home and paying her £8, which condition the defender did not fulfil; (2d) that it was made in the expectation that the defender's wife would be able to earn a livelihood by working for herself, which expectation was not realised on account of the child taking ill and requiring constant nursing; (3d) that the defender himself, according to his own showing, has not acted upon the alleged arrangement, because the aliment at the former rate, which he paid to his wife, viz., 15s. per week, would have amounted for thirty-two weeks to £24, and he did not apply that sum in paying accounts to the wife's creditors, but from the accounts produced in process it appears that after the December agreement was entered into the defender applied about £10 in payment of accounts which his wife had incurred for family purposes while he and she were residing together; and (4th) that the agreement, if absolute, might have affected the wife's own rights, but it could not affect the rights of the infant, and a considerable portion of the account applies to the infant: Therefore decerns against the defender as libelled, with five pounds nine shillings and sevenpence of expenses.” On appeal the Sheriff ( Clark) adhered.
The defender appealed to the Court of Session, and argued—Debts due ex debito naturali do not fall under the statute, but only debts depending on contract. Cases construing the Triennial Prescription Act 1579, cap. 83, were authorities here, as the language of the two Acts was the same.— Finlayson v. Gown, July 7, 1809, F.C.; Thomson v. Westwood, Feb. 26, 1842, 4 D. 833; Davidson v. Watson, M. 11,080; Moncrieff v. Waugh, Jan. 11, 1859, 21 D. 216.
The pursuer replied—This claim falls under “men's ordinaries.” It depended on implied contract, and was not ex debito naturali. — Taylor v. Allardyce, Jan. 16, 1858, 20 D. 401; Ersk. Inst. iii. 3, 92. The cases cited for the defender had reference to the aliment of minors, but a wife living separate from her husband was not in the same position.
At advising—
I agree with what Lord Ardmillan said in the case of Taylor v. Allardyce, Jan. 16, 1858, 20 D. 401—“That the triennial prescription or limitation introduced by the Act 1579, cap. 83, applies to an action for repayment of aliment, advanced on express or implied contract, as an ‘action of debt for men's ordinars, and other the like debts,’ appears to be the natural construction of the words of the statute, and the rule is so laid down by many authorities.” If that be so, then the question that remains is, whether there was here a contract, express or implied, between the husband and the wife that he was to make her an allowance for aliment. The separation was in November 1881, and at that time the husband made an agreement with his wife that he was to pay her aliment at the rate of 15s. per week, and if there was nothing more in the case than that, then, in the event of the wife going to live with anyone, she would come under an implied obligation to apply the 15s. per week she was receiving from her husband, so far as necessary, in payment of her board and lodging.
There was clearly an implied contract between the wife and the person with whom she was living, and it was on the faith of that implied contract that the board and lodging was given.
The husband may be said to have become a party to this implied contract, for he came under an obligation to furnish his wife with
Page: 453↓
There is a peculiarity in the case which, however, only at first sight seems to create a difficulty. That peculiarity is the fact that after the separation there was another arrangement made by which the wife agreed that her husband should be entitled to pay out of the sum allowed her for aliment the debts she had incurred since the separation. But that did not absolve the husband from paying the aliment, for payment of these debts was payment of the aliment. It was not contemplated that the whole of the aliment was to be applied in payment of the debts, but only so much at a time; that is what I consider the only reasonable construction of the agreement. As it has happened, however, none of the debts have been paid by the husband, so that there is no deduction to be made from the sum of 15s. per week, the whole of which is due from the date of the separation down to the present. Therefore what is apparently a peculiarity really disappears, and on the merits I have not a word to say that has not been anticipated by the Sheriff-Substitute in his remarkably well considered and well reasoned judgment.
The Court refused the appeal.
Counsel for Pursuer (Respondent)— Lang. Agents— Smith & Mason, S.S.C.
Counsel for Defender (Appellant)— Ure. Agents— Dove & Lockhart, S.S.C.
