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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Reid v. Reid Brothers [1887] ScotLR 24_560 (7 June 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0560.html
Cite as: [1887] SLR 24_560, [1887] ScotLR 24_560

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SCOTTISH_SLR_Court_of_Session

Page: 560↓

Court of Session Inner House Second Division.

[Sheriff of Caithness.

Wednesday, June 7 1887.

24 SLR 560

Reid

v.

Reid Brothers.

Subject_1Proof
Subject_2Parole
Subject_3Competency
Subject_4Anomalous and Unusual Contract between Consigner and Consignee.
Facts:

In an action against the consigners of fish, at the instance of the consignee, to recover the amount of his advances upon the consignment, the defenders averred that by verbal agreement the pursuer had contracted to pay them certain fixed rates whatever prices the fish fetched in the market.

Question—Whether the alleged agreement could be proved otherwise than by writ or oath.

Opinions negative per Lord Justice-Clerk and Lord Young; affirmative per Lord Craig—hill and Lord Rutherfurd Clark.

Headnote:

William Reid, who was a herring-merchant at

Stettin, and was in the habit of advancing cash to fish-curers in Scotland against consignments of herrings to be sold by him on commission, sued Messrs Reid Brothers, fish-curers, Keiss, Caithness, for the sum of £147, 12s. 4d. This sum he averred was the balance due to him in respect of certain advances to them on a consignment of 99 barrels crown branded herrings, and 718 barrels of other sorts, which had realised a sum of £368, 7s. 6d., which he had credited to account of the advances, under deduction of freight and the usual consignment charges. The defenders disputed liability, and averred that the pursuer had agreed to give at least a full price of 26s. per barrel of crown branded full herrings, and 12s. per barrel of other sorts. Under this agreement they averred that the pursuer was bound to credit them in account with £559, 10s. instead of the £368, 7s. 6d. with which be had credited them, and that the difference between these sums was more than the sum sued for. After a proof, in which the defenders adduced parole evidence in support of the agreement, the Sheriff-Substitute ( Erskine Harper) assoilzied the defenders.

On appeal the Sheriff ( Thoms) recalled the interlocutor and gave decree for the sum sued for.

The defenders appealed. On the question as to the competency of the parole evidence, the defenders relied on the following authorities:—Dickson on Evidence, sec. 599; Bell's Prins., sec. 286; Stein's Assignees, Nov. 21, 1828, 7 S. 47; ex parte White in re Nevill, Jan. 14, 1871, L.R. 6 Ch. App. 397; Moscrip v. O'Hara, Spence, & Co., Oct. 23, 1880, 8 R. 36.

In reply, the pursuer, in support of his contention that proof by writ or oath was necessary in order to set up an agreement so unusual and anomalous as the present, cited Ersk. Inst. iv. 2, sec. 20; and Edmonston v. Bruce Edmonston, June 7, 1861, 23 D. 995.

At advising—

 Judgment:

Lord Justice-Clerk:—The agreement alleged here is one of a somewhat eccentric and unusual kind, and one can only account for the pursuer's having entered into it, if he did so, by his desire to keep the fishing connection which the defenders could bring him from going to some one else in the market. The defenders attempt to prove it by parole evidence—[ His Lordship then proceeded to consider the evidence, and came to the conclusion that the parole evidence did not prove the alleged agreement. His Lordship then proceeded]—But the question has arisen and has been argued to us, whether such an agreement can be proved by parole evidence? I have an impression that it cannot. I think the bargain was all on one side, and so repugnant to the nature of the original contract that it cannot be proved by parole. It falls therefore, I think, under the category of unusual and anomalous engagements which can only be proved by writ or oath. We must, I think, dismiss the appeal, and affirm the judgment of the Sheriff.

Lord Young—I am of the same opinion. The action is raised for a balance which the pursuer alleges is due to him on transactions between him and the defenders, by whom he was employed as agent to sell on commission herrings

Page: 561↓

consigned for the purpose. The defence is that he by a special bargain, which Mr Murray represents as one made for this occasion only, and in order to serve a particular purpose, agreed to make good to his principals 26s. and 12s. per barrel on different qualities of herrings respectively, whatever price he realised, and that as the transactions have not produced 26s. and 12s. he must make good the deficit. These are the exact terms of this exceptional bargain which is said to have been made for a particular purpose. I agree with your Lordship in thinking that such a bargain, looking to its nature and to what is said of it, is unusual and anomalous, and, according to our law, cannot be sustained unless it is supported by the writ or oath of the party disputing it. But I should desire, if it can be avoided, to refrain from deciding the question here, as I think the circumstances of this case are not favourable for doing so. I am of opinion, however, even if it is assumed that the agreement can be proved by parole evidence, that it has not been proved here. Therefore I agree in thinking that the pursuer ought to get decree for the balance of the amount sued for, which is, I think, due.

Lord Craighill.—I agree with your Lordships in the result, but if it were necessary in order to come to a decision in the case to give a final opinion on the competency of parole evidence here, I should be obliged to come to a different conclusion from your Lordships. The pursuer undertook to dispose of the defenders' herrings as their agent, and we have here a dispute regarding one of the terms of that contract. The proof, therefore, relates to the proof of these terms, and is incidental to the proof of the contract itself. It may be called an out-of-the-way contract, or an extraordinary contract, but if you are entitled to inquire by parole evidence whether the contract exists or not, and it is not disputed that you are, then by parole evidence also you may find out whether any of the conditions which are represented to have formed part of the contract really did so. I do not give that as my final opinion. I only say if it had been necessary for me to express an opinion, it would have been that just stated. I, however, agree with your Lordships in thinking that the parole evidence fails to show that the bargain alleged by the defenders was that which the parties truly entered into. [ His Lordship then considered the evidence.]

Lord Rutherfurd Clark—If this question were to be decided entirely by parole evidence, and on the footing that written evidence was not requisite to establish the agreement founded on, I should incline to the opinion that the defence had been established. I think the defenders' evidence is so clear as to establish it, and we have no rebutting evidence on the other side.

There remains the further question, whether the defenders are entitled to proceed on parole evidence alone, or if they must prove this agreement scripto, on account of its being of an exceptional nature. As I have no voice in the decision of the case, I shall abstain from giving an opinion on this interesting question, only contenting myself with saying that I have an impression rather in favour of admitting parole proof of the agreement here alleged, if the evidence is satisfactory to the Court.

The Court dismissed the appeal and affirmed the judgment.

 Counsel:

Counsel for Appellant— Graham Murray— M'Lennan. Agent— William Gunn, S.S.C.

Counsel for Respondent— Comrie Thomson— Watt. Agents— H.& H. Tod, W.S.

 1887

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URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0560.html