Scottish Court of Session Decisions

Before the discussion in the appeal previously reported (to which report reference is made), Stronach (Wilson's trustee) presented a note in which he stated that he had been, since Whitsunday 1885, paying storage rent for the articles in dispute between him, as Wilson's trustee, and Barr, as Fraser's trustee, and craved the Court to grant warrant to him to sell the articles in dispute, “the proceeds of sale, under deduction of the expenses thereof, to be consigned in the hands of the Clerk of Court.”

On the 2d June 1886 the Court granted warrant as craved. The goods were sold, and the nett proceeds of the sale amounted to £262, 12s. 6d., according to a statement put in process by Stronach. He consigned £114, 18s. 9d. After the interlocutor of 17th December 1886

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had been pronounced, in which the plea of res judicata was sustained, with the result that the articles were held to belong to Fraser's estate, Barr (Fraser's trustee) examined the statement of account of sale, and the relative vouchers, and being of opinion that Stronach had in that statement deducted sums which were not expenses of sale, thereupon lodged a note to the Court, stating that the whole free proceeds of sale had not been consigned. After discussion on this note the Court on 6th January 1887 ordered Stronach to consign with the Clerk of Court £. 115, 11s. 5d., with interest at five per cent. from the 15th June 1886, the time of sale. Thereupon Stronach lodged with the Clerk of Court a deposit-receipt for the sum of £118, 16s. 3d., being principal and interest.

Thereafter Barr, as Fraser's trustee, lodged this note to the Court, craving the Court to grant him warrant to uplift the contents of the deposit receipt. Stronach lodged answers, which brought out that the sum in the receipt was (excluding the interest) the amount of the rent for storing the articles, and the expense of removing them to the store and making inventory of them. He averred that, owing to the difficulty of ascertaining who was the true owner of the articles in dispute, and to the protraction and uncertainty of the litigation, he was placed in a position of great difficulty. The goods in question consisted of “a quantity of building material and fittings (a great portion of it being ironmongery), that were lying partly around and within the unfinished buildings, and partly in some outhouses about the bakery. It had all been supplied by those creditors for whom he [Stronach] was acting, and it was being wasted through exposure and damp, and some of it was also being stolen. There were no locked doors on the new buildings; the ground was not even securely barricaded; and the police made a call upon the respondent, as the only person known to them as concerning himself with the property, to secure the goods in a more effectual manner. The rest of the goods lying in the bakery outhouses had to be removed because the trustee's right of possession of these premises had come to an end. On various dates he had the barricades repaired at his own expense. No one else took any charge of the goods. The bondholder who was advertising the property for sale also called upon the respondent to remove the material at once if it was to be removed at all.

“Accordingly at Whitsunday 1885 he, in the best faith, and as he conceived for the interests of all concerned, contracted with a firm of builders in Aberdeen (Garvie & Sons) to have these build-ing fittings and materials removed to premises of theirs where they would be under cover and lock and key. The materials were very bulky and numerous. The trustee made as economical an arrangement with Messrs Garvie as he could. At that time he relied upon the value of the material as increasing the amount of the estate under his charge, and it was his interest and concern to store them as cheaply as possible. He personally undertook to pay Messrs Garvie a rent of £4 a month for the space the materials occupied in their premises situated in Thistle Lane. These premises were 86 feet long and 30 feet broad. They had just been vacated by James Laing and Company, coachbuilders, and the rent they had paid was £4 per month. These premises are built of stone and slated, and are thoroughly water-tight, and all the ironmongery and other perishable goods were stored in them. When the goods were being removed it was found that the said space was not sufficient. There was a large quantity of flooring, and the respondent was obliged to lease from Messrs Garvie a covered shed in the same place, but entering from Rose Street, at a rent of £3 a month. Both places were required.”

He further explained that he deducted this sum of £115, 10s. 10d. paid as storage rent and cost of removal when he consigned the proceeds of sale, but that having been ordained by the Court, as above narrated, he consigned it as well as the £114 already consigned; that he had done so from his own funds. He maintained that he ought not, having acted on the best faith in difficult circumstances, to have to pay this money, and that it should be returned to him.

Barr argued—The expense of storage could not form a legitimate deduction. Stronach ought not to have removed and stored the goods. If he was in difficulty he should have sold them.

Stronach argued—Wilson being owner, ex facie he was entitled to deal with the goods as belonging to Wilson's estate. He had, in the peculiarity of the circumstances, no other alternative than to treat the goods as Wilson's property, and he was in bona fide in so doing.

At advising—