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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson v. The Newhaven Co-Operative Store Co. [1885] ScotLR 23_47 (21 October 1885) URL: http://www.bailii.org/scot/cases/ScotCS/1885/23SLR0047.html Cite as: [1885] ScotLR 23_47, [1885] SLR 23_47 |
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Page: 47↓
[Sheriff of the Lothians.
A person alleging himself to be a partner in a company brought an action against it in a Sheriff Court to have it declared that he was, and had been since a certain date, owner of two shares in it; and (2) for payment of certain sums as profits on these shares. Held that the declaratory conclusion was unnecessary, and that it being withdrawn, the action was competent before the Sheriff.
Thomas Wilson, fisherman, Newhaven, presented a petition in the Sheriff Court of the Lothians against the Co-operative Store Company, Newhaven, and certain individuals, partners or members of the company, and also against John Linton (Combe), salesman of the company, praying for a decree “finding and declaring that the pursuer was on or about 1st December 1883, has since been, and is still a partner or member of the said company, and that the property and assets thereof at and since said date belonged and belong to the pursuer to the extent of two shares.” There were also petitory conclusions for payment to the pursuer by the defenders of two sums of £6 and £8, and for expenses.
The pursuer averred that he was an original member of the company (which was established in 1857 but was not registered or incorporated under any Act of Parliament) and was the owner of two shares on which five shillings a share was paid up, that in the beginning of 1883 he was induced by the defender John Linton, who made repeated representations to him that the company was not then in a prosperous condition financially, to transfer his shares to the said John Linton for the sum of 10s., which he (Linton) represented to be the value of them. He further averred that the representations of Linton with regard to the financial condition of the company were false and fraudulent, and made for the purpose of inducing the pursuer to sell his shares at a nominal value in pursuance of a scheme of Linton for acquiring the shares of the company for himself and his relatives at a nominal value; that subsequent to the transfer the company had paid two dividends or bonuses of £3 and £4 respectively; that having been thus induced to part with his shares by fraud and circumvention, he claimed to be still a shareholder of the company, and entitled to participate in these dividends, payment of which was refused to him by the committee of management.
The defence was a denial of the pursuer's averments of the reasons for selling his shares, and a plea that having by the transfer of his shares discharged all his claims against the company he was not entitled to decree under the declaratory conclusion of the petition.
The Sheriff-Substitute ( Rutherfurd) found that the action was incompetent in the Sheriff Court, and therefore dismissed it.
“ Note.—Actions of declarator are competent in the Sheriff Court only in so far as they are expressly authorised by statute. It is true that actions containing declaratory and rescissory conclusions are frequently sustained in this Court, where these conclusions are merely introductory or ancillary to the leading conclusions of the libel, but in the present instance the leading conclusion is to have it found and declared that the pursuer was on 1st December 1883, has since been, and is still a partner of the defenders' company. The other conclusions are merely subordinate to this, and are consequent upon the pursuer's succeeding in vindicating the right which he seeks to have declared. The action is not brought in terms of the Sheriff Courts Act of 1877, section 8, sub-section (2), for the purpose of determining a question relating to property in moveables. It is a declarator of partnership, and therefore appears to the Sheriff-Substitute to be incompetent in this Court.”
The pursuer appealed to the Sheriff (Davidson), who dismissed the appeal.
“ Note.—The main declarator asked is, that the pursuer should be declared to be a partner and member of the company. It is necessary that the Court should declare that before anything else
Page: 48↓
The pursuer appealed to the Court of Session, and argued—This was a declarator for the purpose of determining a question relating to property in moveables, and was therefore within section 8 of the Act. But even if the declaratory conclusion were incompetent, the Sheriff had done wrong in dismissing the whole action, for it was competent quoad the other conclusions— Moroney v. Muir, November 5, 1867, 6 Macph. 7.
The defenders replied—Unless the pursuer could establish his declaratory conclusion he had no title to sue, and the whole action fell to the ground. The pursuer was a mere member of the public. Before he could sue the company as a partner he must establish the fact of his partnership, and this could only be done by declarator— Fraser v. Hair, June 23, 1848, 10 D. 1402; Clark on Partnership, i. 396.
The Court being of opinion that the declaratory conclusion of the petition was not necessary, allowed the pursuer to put in a minute withdrawing that conclusion, and without delivering opinions remitted the case back to the Sheriff to proceed.
Counsel for Pursuer (Appellant)— Thorburn. Agents— Miller & Murray, S.S.C.
Counsel for Defenders (Respondents)— D.-F. Balfour, Q.C.— M'Kechnie. Agents— Irons, Roberts, & Lewis, S.S.C.
