Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Edinburgh by Mrs Annie Morris or Mathieson, widow of the deceased William Mathieson, as an individual, and as tutor and administrator-in-law for his pupil children, against Hawthorns & Company, Limited, shipbuilders, Leith, in which the pursuer claimed damages for herself and her children, alternatively at common law and under the Employers Liability Act 1880, on account of the death of her husband.

The pursuer averred that on 13th May 1897, while working in the defenders' employment, her deceased husband was severely burned, and that on his being removed to Leith Hospital and examined, it was ascertained that the skin had been completely removed from his arms and hands, that he sustained a very severe shock to his nervous system, and suffered much from exhaustion; that he was never able to leave the hospital; and as the result of his injuries died there on 30th September 1897, and that his injuries were due to the fault of the defenders and of their foreman for whom they were responsible.

The defenders denied that the pursuer's injuries were due to their fault, or the fault of anyone for whom they were responsible, but in addition founded upon a certain document produced as a discharge of any claims which might have ever existed against them. This document was in the following terms:—“Received of Messrs Hawthorns and Company, Limited, this ninth day of July 1897, the sum of Twenty-five pounds and four shillings in full satisfaction and discharge of all claims accrued or to accrue in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the thirteenth day of May last while in the employment of the above.

Penny Stamp.

“£25: 4: 0 Annie Mathieson.

Witness—Geo. Johnston,

60 Cornhill Terrace, Leith, Bookkeeper. Witness—John Mackie, Clerk,

8 Pitt Street, Leith.

By authority of William Mathieson, 13 Abbey Strand, Edinburgh, who declares that he cannot write on account of sickness and bodily weakness, I, George Paterson Galloway, notary-public, Leith, subscribe these presents for him, he having authorised me for that purpose, and the same having been previously read over to him, all in presence of the witnesses afternamed and designed, who subscribe this docquet in testimony of their having heard authority given to me as aforesaid, and heard those presents read over to the said William Mathieson. Geo. P. Galloway,

Notary-Public

N. Armstrong, Nurse, Leith Hospital, witness.

W. Morrison Milne, Resident Surgeon, Leith Hospital, witness.”

This document had been adjudged duly stamped.

With regard to this discharge, the pursuer, in her condescendence as ultimately amended after the case had come to the Court of Session on appeal, averred as follows:—“(Cond. 4) … The pretended receipt and discharge is referred to. The pursuer and her husband never discharged the defenders of their liability.… Explained and averred that the defenders, on receiving a letter from a law-agent acting on pursuer's behalf, went behind his back to the pursuer, and got her and the deceased William Mathieson to sign a paper which he and she believed to be a receipt for £25, 4s. The said discharge was executed by the deceased William Mathieson under essential error induced by the defenders. At a meeting on or about 25th June 1897 between the pursuer and Mr Inglis, one of the partners of the defenders' firm, at 210 Great Junction Street, Leith, Mr Inglis, as representing the defenders, offered to pay to the pursuer on behalf of her husband £25, 4s., being seven months' wages. The said Mr Inglis represented to the pursuer that her husband had no legal claim against the defenders, but that they were willing to make her the said payment out of sympathy, and it was explained to the pursuer by Mr Inglis that she and her husband would be asked to sign a receipt for the said money. A draft receipt acknowledging payment of said sum by the defenders to the pursuer was then read over to her. This draft was different in its terms from the discharge subsequently presented to the pursuer for signature on 9th July. On the said 9th July the said discharge was not read over to the pursuer, and she signed it in the belief that it was in similar terms to the draft which had been read over to her on the 25th June. Nothing was said to the pursuer by Mr Inglis or by any other person representing the defenders with reference to a discharge of all claims competent to the said William Mathieson against the defenders either upon the said 25th June or upon any subsequent occasion. The pursuer immediately after the said meeting of 25th June explained to her husband what had passed at said meeting, and that the defenders had offered to pay him £25, 4s., seven months' wages, and that he would be asked to sign a receipt for this sum. At the time of executing said discharge on 16th July 1897 the deceased William Mathieson was in a weak condition in body and mind, being much depressed, and took no interest in what

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was being done. The said discharge was executed by him in the belief and in reliance upon the representations of the said Mr Inglis made to the pursuer as above stated, and by her communicated to the deceased, that it was a simple receipt for the sum therein stated. The deceased's attention was not directed to the fact that he was authorising the execution of a discharge of all claims competent to him against the defenders in respect of said accident. The pursuer is an illiterate person and wanting in intelligence.”

It was admitted at the bar on behalf of the pursuer that the statements made in the notary's docquet were true in fact, but it was explained that the discharge was signed by the pursuer on 9th July, and that the notarial execution on behalf of the husband did not take place till 16th July.

The notary was instructed by the defenders, but he was not their law-agent.

The pursuer pleaded—“(3) The pursuer and her husband having been induced to sign the pretended receipt and discharge by the misrepresentations of the defenders behind her agent's back, in the circumstances condescended on, the pursuer is entitled to have the same set aside by way of exception.”

The defenders pleaded—“(1) No title to sue. (3) In respect of the receipt and discharge founded on, the pursuer is barred from suing the present action. (4) The pursuer's statements as to the receipt and discharge founded on are irrelevant.”

On 28th February 1898 the Sheriff-Substitute ( Hamilton) issued the following interlocutor:—“The Sheriff-Substitute having heard parties' procurators, and having considered the record and productions, repels the fourth plea-in-law for the defenders, and before further answer allows the pursuer a proof of her averments (Cond. 4) with reference to the signing of the document No. 12 of process, and to the defenders a conjunct probation to proceed at a diet to be afterwards fixed.”

The defenders appealed to the Sheriff ( Rutherfurd) who on 29th March 1898 issued the following interlocutor:—“Recals the Sheriff-Substitute's interlocutor of 28th February last: Finds that the pursuer's averments with reference to the discharge (No. 12 of process) granted by her husband, the deceased William Mathieson, in favour of the defenders, are not relevant or sufficient to infer probation; and that the pursuer is barred by the said discharge from insisting in the present action: Therefore sustains the defender's third and fourth pleas-in-law; dismisses the action, and decerns: Finds no expenses due to or by either party.”

[The Sheriff's note is omitted in this report as it proceeded upon the original record as it stood before it was amended.]

The pursuer appealed, and argued—(1) The discharge was not validly executed. The stamp had not been cancelled by the notary as it ought to have been. Apart from this objection the notary should have signed twice, viz.—(1) at the end of the receipt itself as signing the receipt in place of the granter, and (2) at the end of the docquet, to certify the cause of his name appearing at the end of the receipt instead of the grantor's. This was in accordance with practice. The terms of the Conveyancing (Scotland) Act 1874, section 41, and of the relative Schedule 1, showed that two signatures were necessary. It was enacted that the notary should subscribe “the same,” that is, the deed itself, and not “the docquet thereto. It was no doubt true that in Henry v. Reid, February 10 1871, 9 Macph. 503, and in Atchison's Trustees v. Atchison, January 21, 1876, 3 R. 388, the notary only signed once, viz.—at the end of the docquet, but it was to be observed that in neither of these cases was this objection stated, and moreover in Henry v. Reid it was not necessary that it should be, as the notarial execution of the deed was successfully challenged upon another ground. See also Menzies Lectures 110, and Bell on Testing of Deeds, 169, 171. (2) There were here relevant averments ( a) of essential error, ( b) of essential error induced by the defenders, and ( c) of essential error induced by the defender's misrepresentations. All the negotiations which led up to the granting of the discharge took place between the defenders and the pursuer. They had no communication with the pursuer's husband. It was averred that the defenders misled the pursuer, and that she in turn misled her husband as to the nature of the deed to be executed by him, and that he consequently executed the discharge in the belief that it was a receipt, and not a discharge of all claims. These averments were sufficient— Stewart v. Kennedy, March 10, 1890, 17 R. 25, which was not as strong a case as the present, in respect that here misrepresentation was averred; Ritchie v. Ritchie's Trustees, January 13, 1866, 4 Macph. 292; M'Laurin v. Stafford, December 17, 1875, 3 R. 265, where essential error as to the nature of the deed granted was held sufficient, whether induced by the defender or not. It might be that averments as to weakness of body and mind were by themselves irrelevant in a case of this kind, but here the man's condition was relevant as showing how notwithstanding that the discharge had been read over to him he remained in essential error as to its nature in consequence of his inability to pay attention to its terms, and of his reliance upon what his wife had told him with regard to it. Neither North British Railway Company v. Wood, July 2, 1891, 18 R. (H.L.) 27, nor Mackie v. Strachan, Kinmond, & Company, July 15 1895, 23 R. 1030, were decisions upon the relevancy of such averments of essential error as were made by the pursuer here. (3) If as alleged by the pursuer, the sum paid by the defenders was merely a payment made in sympathy and not in discharge of legal claims, then the repayment of that sum was not necessary.

Argued for the defenders—(1) The notarial execution of the discharge was valid. Only one signature was necessary, viz., that appended to the docquet— Henry v. Reid, cit., and Atchison's Trustees v. Atchison,

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cit., in which latter case see per Lord Ardmillan at page 394 as to Henry v. Reid. In these cases there was only one signature. (2) The pursuer's averments as to the granting of the discharge were irrelevant. This was a transaction as to a doubtful claim, and ought not therefore to be set aside except upon the strongest grounds— Stewart v. Stewart, November 22, 1836, 15 S. 112. It was now conceded that the discharge was read over to the husband, and that he authorised it to be subscribed on his behalf. There was no relevant averment of essential error in the mind of the husband, and no averment whatever of any influence exercised upon him by the defenders. The averments as to essential error in the mind of the pursuer were irrelevant. Putting these aside, all that was said with regard to the husband was that he was in a weak condition of body and mind and had no independent advice. This was not enough— North British Railway Company v. Wood, cit., and Mackie v. Strachan, Kinmond, & Company, cit. These cases ruled the present. (3) Here a claim was made by the husband, and a sum paid in respect of it. In these circumstances the wife was not entitled to sue the defenders as in her own right but only as executrix of her husband— Darling v. Gray & Sons, May 31, 1892, 19 R. (H.L.) 31. (4) In any view, the sum paid to the deceased by the defenders must be repaid as a condition of the present action being allowed to proceed— M. Donugh v. P. & W. MacLellan, June 18, 1886, 13 R. 1000. (5) It was not a relevant ground for setting aside the discharge that the defenders had gone behind the back of the deceased's law-agent. The pursuer had plenty of time to inform her husband's law-agent and to secure his attendance when the discharge was executed if she had considered that necessary or desirable. The parties were at arm's length. There was no relation of influence or confidence between them.

At advising—