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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wyllie and Others v. Wyllie and Hill and John Hill [1866] ScotLR 2_166 (30 June 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0166.html Cite as: [1866] SLR 2_166, [1866] ScotLR 2_166 |
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Page: 166↓
Terms of a clause of arbitration in a contract of copartnery, which held (alt. Lord Mure) not to exclude an action for exhibition of accounts against one of the partners.
The contract of copartnery of the firm of Wyllie & Hill, coalmasters at Govan and Glasgow, contained a clause to the effect that the representatives of a deceased partner are ipso facto by the death of their predecessors to be partners. Mr Wyllie, one of the partners, having died on 4th September 1861, this clause came into operation. Mr Hill, the surviving partner, raised an action of declarator in 1862, to have it declared that Mr Wyllie's representatives were not partners, but in this action he was unsuccessful. Mr Wyllie's representatives now raised this action of count, reckoning, and payment. Mr Hill, the defender, pleaded, inter alia, that the pursuers were not partners, and that he intended to appeal against the judgment of the Court of Session in the previous action. Alternatively, he pleaded that if the pursuers are partners, the present action is excluded by a clause of arbitration in the contract of copartnery in the following terms:—“The said parties agree, if any difference or dispute shall arise between them anent this copartnery, or the true meaning and intent of these presents, to submit and refer the same to the amicable decision, final sentence, and decreet-arbitral to be pronounced by John Geddes, Esq., mining engineer in Edinburgh; whom failing William M'Creath, Esq., mining engineer in Glasgow, as sole arbiter mutually chosen by the parties, with power to the arbiter to issue decreets-arbitral, partial or final, which decreets, when issued, shall be final and binding on the parties.”
The Lord Ordinary (Mure) dismissed the action on the ground that the whole matter was reserved for the arbiters.
The pursuers reclaimed.
Gifford and R. V. Campbell appeared for the pursuers and reclaimers.
Gordon and Scott for the defender.
The Court held that the question between the parties related at present solely to the first conclusion for exhibition of the firm's books, and for an account of intromissions. The objection which the defender made was simply that the pursuers were not his partners. Now, this was a matter which the Court had already decided in the pursuer's favour, and it could not be reasonably imagined that they were to allow the arbiters to become a court of appeal upon that point. As to the applicability of the submission clause to any other question between the parties no judgment was given. The Lord Ordinary's interlocutor was recalled, and the plea founded on the clause of arbitration was repelled in so far as it went to exclude the action. Quoad ultra a remit was made to the Lord Ordinary, and the defender was found liable in expenses.
Solicitors: Agent for Pursuers— Alex. Wylie, W.S.
Agent for Defender— John Walls, S.S.C.
