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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dougall v. Lornie [1899] ScotLR 36_927 (19 July 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0927.html Cite as: [1899] SLR 36_927, [1899] ScotLR 36_927 |
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Page: 927↓
[Sheriff of Fife.
Where a tradesman's account is paid by instalments, the payments are not applicable to the items charged in order of date so as to preclude the debtor from challenging any of these items.
The rule in De Vaynes' case ( De Vaynes v. Noble, Clayton's case, 1816, 1 Mer. 529, 15 RR. 161) does not apply to tradesmen's accounts.
George Dougall, plumber, Kirkcaldy, raised this action in the Sheriff Court of Fife against John Guthrie Lornie, for payment of £196, 18s. 7d., being the balance of an account due by the defender to the pursuer for work executed upon a linoleum factory belonging to the defender.
The account in question began on 10th November 1891, and ended on 27th May 1895. It was rendered in instalments to the defender, who made the following payments to account:—(1) On 9th February 1893, £70, (2) on 24th August 1893, £103, (3) on 21st May 1894, £170, and (4) on March 0, 1895, £50.
The defence was that the pursuer's whole account was overcharged, and that the pursuer had failed to render an account so detailed that it could be scrutinised and checked.
The pursuer pleaded, inter alia—“(2) The defender is barred from raising any objection to the account sued for so far as the same has been extinguished by the payments made by him to account.”
The defender pleaded, inter alia—“(4) The account libelled on being continuous, and the payments by defender to account thereof having been made on the condition that the accounts would be adjusted on completion of the work embraced therein, none of the items in the account have been extinguished by such payments, and the defender is not barred from objecting to any of these items.”
On 15th December 1897, after a proof on certain matters, the Sheriff-Substitute ( Gillespie) pronounced an interlocutor in which he found in law that “the payments by the defender must be held to have extinguished the items of the accounts in order of date, and that the defender is not entitled to raise objections of the kind which he seeks to raise except to the last account, and to the latter part of the previous account so far as not covered by the last payment to account;” and remitted to a man of skill to examine and report on the work contained in the last account and the latter part of the previous account.
The Sheriff ( Mackay) on 18th March 1898 adhered to this interlocutor, and thereafter, on the report by the man of skill, the Sheriff-Substitute
Page: 928↓
decerned against the defender for £173, 16s. 4d. The defender appealed, and argued that the examination of the items of the whole account was not precluded by the payments to account. The doctrine of indefinite payments was not applicable to a case such as the present.
The pursuer argued that the doctrine of indefinite payments applied, and cited Johnston v. Law, July 15, 1843, 5 D. 1372.
The Court recalled the interlocutor appealed against, and remitted to the Sheriff-Substitute to proceed.
Counsel for Pursuer and Respondent— W. Campbell, Q.C.— J. B. Young. Agents— Watt, Rankin, & Williamson, S.S.C.
Counsel for Defender and Appellant— Sandeman. Agent— W. B. Rainnie, S.S.C.