Scottish Court of Session Decisions

This was an action at the instance of Paul Rottenburg, merchant, Glasgow, against John Duncan, Hope Street, Glasgow, James Brown, coal merchant, Glasgow, and the Triton Steamship Company, concluding against the defenders, jointly and severally, for payment of the sum of £450 with interest from 9th May 1892, or ( second) for payment of £450 with interest from 2nd January 1895; and for an account of their intromissions with the funds and estate of the steamship “Triton” from May 1892 to January 1895, and payment to the pursuer of his share of the balance of profits.

The pursuer averred that the defenders Duncan and Brown were two of the persons in whom the steamship “Triton” was, until shortly before the action was raised, vested, and that she was held by them, along with Thomas Brown, Milford Haven, in trust for the defenders, the Triton Steam Ship Company; that on 9th May 1892 the pursuer invested £450 in the purchase of a part interest in the steamship ‘Triton’; that in December 1892 a limited company was formed to acquire the ship, and without the pursuer's authority, he was entered as a shareholder; that the

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pursuer thereupon presented a petition for rectification of the register, and had his name removed; that he thereafter intimated to the defenders Duncan and Brown that he withdrew authority from them to deal with the ship, which was held in part for him, and asked for an account of their dealings.

The pursuer further averred—“(Cond. 5) Notwithstanding his intimation, on or about the 2nd January 1895 the defenders, Duncan and Brown and Thomas Brown, in breach of trust, conveyed the whole ship ‘Triton’ to the defenders, the ‘Triton’ Company, including the part held for the pursuer. The said company were well aware that the part of the ship in which the pursuer was interested was held by the defenders Duncan and Brown and Thomas Brown for him, and that they had no right or authority to convey it to the company. (Cond. 6) The said ship ‘Triton’ has, it is believed and averred, been traded with to this date. The pursuer has received no account whatever of the intromissions with said ship.”

He pleaded—“(1) The defenders Duncan and James Brown having, in concert with Thomas Brown and the other defenders, in breach of trust conveyed to the company the ship ‘Triton,’ including the pursuer's interest therein, the pursuer is entitled to decree with interest as craved. (2) Separatim, Or otherwise, the pursuer is entitled to decree with interest from 2nd January 1895 as craved, and to an accounting with the funds of the ship down to said date, and in his option, to decree for any balance due thereon.”

The defenders The “Triton” Steamship Company in their defences made a tender to allot shares to the pursuer for £450, or to grant in his favour a bill of sale for six 84th shares, being the number of 64th shares of the purchase price of the vessel represented by the amount subscribed by him, under burden of an existing mortgage on the vessel, and to pay his expenses up to date.

The Sheriff-Substitute (BALFOUR), after a proof by writ, on 13th March 1896 found that the pursuer had failed to prove the alleged trust, and assoilzied the defenders.

The pursuer appealed to the First Division of the Court of Session.

The Court on 25th June 1896 pronounced the following interlocutor:—“Recal the interlocutors subsequent to 20th May 1895, and in respect of the undertaking of the defenders on record (1) to procure and grant in favour of the pursuer a bill of sale for six sixty-fourth shares of “the ‘Triton’ s.s., under burden of existing mortgages, and (2) to account for the ship's profits from 1st January 1893, dismiss the action.”

It subsequently appeared that prior to this date, but subsequently to the tender in the Sheriff Court, the ‘Triton’ had been sold by the mortgagees, and by error on the part of the company this fact was not stated in Court. The parties accordingly presented a joint-minute, in which they moved the Court to cancel the above interlocutor, and put the cause to the roll for further procedure.

The pursuer argued that this could be done on the authority of Harvey v. Lindsay, July 20, 1875, 2 R. 980.

The Court on 10th July 1896 pronounced an interlocutor by which they, “in respect of the said minute,” and “that the pursuer and the defender James Brown were ignorant of the sale having taken place, appoint the Clerk of Court to cancel the said interlocutor, … and continue the cause in order that the pursuer may state what amendments, if any, he is desirous to make upon his record.”

The pursuer proposed to amend his record by adding to Cond. 5 an averment that the ship had since August 1893 been held by the defenders Duncan and Brown, who were also directors of the Triton Company, for behoof of that company without regard to the pursuer; that in December 1894 or January 1895 the existing mortgage was discharged, and that thereafter the defenders Duncan and Brown formally transferred the title in the whole ship to the Triton Company, and that company of new mortgaged the ship to the Marine Securities Corporation, which sold the whole ship, this being done without the pursuer's authority; that the pursuer's interest in said ship in August was not less than £450, and that in March 1894, in ignorance that Duncan and Brown had given up control of his interest, he had agreed with Brown, Sons, & Company to sell his interest for £337, 10s.; that Brown, Sons, & Company deposited £33, 15s. on account, which they forfeited by failure to complete the transaction; that the pursuer was willing to take the balance, viz., £303, 15s. as the value of his interest in said ship, and that by the defender's actings he had suffered loss and damage to at least the amount of £350.

The pursuer proposed also to add to Cond. 6 the averment that if he obtained decree for £450, or even £303 15s., he was willing to abandon his claim to an accounting. He proposed to add the following pleas-in-law:—“(3) The defenders having illegally and without the pursuer's knowledge or authority appropriated or otherwise disposed of the pursuer's interest in said ship, are bound to make good the value of said interest to him, and the pursuer is therefore entitled to decree as craved. (4) The value of pursuer's interest in said ship being not less than the sum sued for, or at all events (in the circumstances condescended on) not less than £303 15s., with interest from 30th March 1894, the pursuer is entitled to decree. (5) The pursuer having, through the actings of the defenders as condescended on, sustained loss and damage, is entitled to decree. (6) The loss and damage sustained being moderately estimated at the sum sued for in the first alternative conclusion, or at all events, as the sum of £350, which pursuer is willing to accept in full of his damage, he is entitled to decree in terms of the first alternative conclusion, or at all events for the said sum of £350.”

The defenders objected to the proposed amendment as incompetent.

Argued for defenders—The pursuer was

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attempting to bring before the Court a different claim, viz., damages, to that which his original action set forth, viz., restoration of the money which he had invested. Accordingly the amendment was incompetent by section 29 of the Court of Session Act 1868. The Court interpreted that Act very strictly— Russell, Hope, & Co. v. Pillans, December 7, 1895, 23 R. 256. Even if the amendment were competent, it was within the discretion of the Court to refuse it— Taylor v. M'Dougall & Sons, July 15, 1885, 12 R. 1301; Laning & Co. v. Seater, June 21, 1889, 16 R. 829; Forbes v. Watt's Trustees, Nov. 9, 1870, 9 Macph. 96.

At advising—