be, in the most undoubted manner, by the assessments authorised by the Act, will be marketable at probably twenty-five years' purchase." The creditors claiming, and the road trustees, represented against the debt commissioner's proposed decision, and after further procedure he issued revised notes by which he informed the parties that he had added five per cent. to his former valuation of 7s. 6d. per pound, and gave the following reasons for doing so:-"In reviewing his valuation he has had his attention prominently called to the fact that in place of the debts as valued, or the interest thereon, being payable by only one party, as heretofore, they may be eventually found payable by various different local authorities, thus causing much more trouble and expense in collection of principal and interest than under the former system. As the commissioner is directed to take into consideration every circumstance which might, in his opinion, reduce, enhance, or in any way affect the value of the debts,' he considers the change of debtors is one which does affect the value, and he has deemed it right to add five per cent. to his former valuation of 7s. 6d. per pound, thus making the value of the principal and accumulated interest 7s. 10 d. per pound.'

The County Road Trustees of Lanarkshire and Linlithgow considered the decision of the commissioner erroneous in point of law in adding five per cent. in respect of the change of debtors.

The question of law was-"Whether the change of debtors from one body to over twenty, and the consequent sub-divisions of the principal debt as valued, are circumstances which should be taken into account by the debt commissioner in making his valuation?"

Argued for Lanark and Linlithgow Road Trustees-The five per cent. added by the commissioner was not warranted by the statute. Expense of collection caused by change of debtors was not provided for by the Act, and could not be imposed by the commissioner. Expense of collection should render the debt less valuable, yet the commissioner had dealt with it as if it thereby was worth more.

Argued for the Duke of Hamilton and others. -The intention of the Legislature in this statute was to be considered. It was not intended that the creditor should be put in a worse position by the change of debtors than he was before. If the expense of collecting his interest were increased, that was to be dealt with by the commissioner under sec. 65. The provisions of this section were very wide, and he was quite within it in what he had done.

At advising

LORD PRESIDENT-The direction which the statute gives to the debt commissioner is that he is to "ascertain whether any and what debt is due, with the interest thereon." Now, the debt which the statute is here dealing with is a road debt, that is to say, a debt in which there is no personal obligation by the debtor, but only an assignation of the tolls, and he is to ascertain the value of that debt. He is further "to estimate and determine the same without regard to any personal or other collateral obligation undertaken by trustees or others." The creditor may have other securities, but these are not to be taken into account. In making such valuation the commissioner "shall take into account the interest paid on such debt out of the trust funds,

the state of repair of the roads or bridges to which the debt is applicable, and shall take into consideration every circumstance which might in his opinion reduce, enhance, or in any way affect the value thereof," that is, affect the value of the road debt or the security created by the assignation of the tolls. What is the true construction of this part of the 65th section? The debt commissioner has estimated this security as worth 7s. 6d. per pound, and what he has said to the creditor is virtually this-The statute has given you a new debtor, and instead of an assignation of tolls, and the right to demand payment of the interest of your debt from the trustees of a particular road trust, you will now have to collect your interest from more than twenty debtors. The commissioner thinks that this will detract from the value of the debt as he has estimated it. It clearly cannot add to the value of the debt, and as he claims, under section 65, power to take into consideration "every circumstance which might in his opinion reduce, enhance, or in any way affect the value of the debts," he has added 5 per cent. to his former valuation to cover the extra expense of collection. Now, I do not see where the commissioner gets the power to add that 5 per cent. to the original debt. There is certainly no such authority given to him in the statute. His proposal might be justifiable if looked at purely from an equitable point of view, but the provisions of the 65th section will not permit of such an addition being made to the original debt, and I can see nothing in any of the other clauses to support such a proposal.

The conclusion therefore which I come to is, that this addition of 5 per cent. allowed by the commissioner is unjustifiable, and not warranted by the statute.

LORD MURE-I have had considerable difficulty with this case, but as I understand your Lordships are agreed upon the matter I do not desire to dissent. Yet I cannot help thinking that in equity there is a great deal to be said for what the commissioner has done in this case. The Legislature has altered the nature of the creditors' security, and made the collection of the interest upon his debt more troublesome and costly than it formerly was. It has thus reduced or affected the value of the debt, and the creditor is to this extent prejudiced; upon that account something should be done to meet this prejudice, and as the provisions of section 65 are very general, and give the commissioner discretionary powers, I should have felt inclined to think that he had fairly exercised his discretion in the manner in which he has dealt with this debt.

LORDS SHAND and ADAM concurred with the Lord President.

The Court answered the question in the negative.

Counsel for Duke of Hamilton and OthersPearson. Agents-Tods, Murray, & Jamieson, W.S.-Waddell & M'Intosh, W.S.

Counsel for Road Trustees of Lanark and Linlithgow-Darling. Agents-Bruce & Kerr, W.S.

Thursday, July 9.

SECOND DIVISION.

[Lord Kinnear, Ordinary.

ALEXANDER'S TRUSTEES 7. THOMSON. Partnership-Contract of Copartnery--Representatives of Deceased Partner-Management.

Two parties to a contract of copartnery agreed to carry on a business in partnership, terminable in certain events. It was stipulated in the contract that one of them should take the active management of the business of the copartnery, and should be the manager thereof at a salary. The contract also contained a clause to the effect that the death. of either of the partners should not dissolve the copartnery, but that the representatives of the predeceasing partner should "be entitled to take his room and place in the copartnery, with this exception, that such representatives shall not be entitled to take the active management or carrying on of the business of the copartnery." After the busi

ness had been carried on under the contract for a number of years, the partner who had been manager died. The surviving partner thereupon assumed the management. The representatives of the deceased partner raised an action against the surviving partner to have it declared that, on a sound construction of the contract of copartnery, they collectively formed one partner along with the defender, that he had no right by himself to assume the management, and to exclude them therefrom, and to have him interdicted from so doing. Held that the pursuers were entitled to declarator that they collectively formed one partner with the surviving partner in the copartnery, but that they were not entitled to take any part in the active management thereof.

By agreement of copartnery dated 6th August 1870, William Thomson, clothier, Dundee, and Charles Alexander, printer, Dundee, on the narrative that they had for some time been carrying on business without any distinct arrangement as to terms and conditions, agreed to carry on business in copartnership as printers and newspaper proprietors in Dundee, under the firm of Charles Alexander & Company, and that for the period of ten years from and after the 9th day of April 1870, and thereafter until either partner shall give the other twelve months' previous written notice of his intention to dissolve the copartnership, when upon the expiry of such twelve months the copartnery shall come to an end; but the partner giving said notice shall be bound at any time during the running of the said twelve months to sell his whole right and interest in the copartnery, and its assets, under burden of his share of its debts, to the other partner, for such a price as shall be put thereon by two valuators, one of whom shall be named by each partner, or by an oversman to be named by such valuators, to act in the event of their disagreeing."

The assets of the copartnery were to consist of certain heritable property, and the copyright of the Dundee Courier and Argus, the Northern

Warder, and the Weekly News newspapers, and were to belong to the partners in the proportion of two-thirds to Thomson and one-third to Alexander. The parties further agreed that Alexander should take the active management of the business of the copartnery, and should be the manager thereof, at such salary as should be from time to time agreed upon between the partners, and that the profits of the business should belong in the proportion of two-thirds to Thomson and onethird to Alexander, and that the losses should be borne in the like proportions. The concluding clause was as follows-"And it is hereby further agreed that the death of either partner shall not dissolve the copartnery, but, on the contrary, the representatives of the partner deceasing shall be entitled to take his room and place in the copartnery, with this exception, that such representatives shall not be entitled to take the active management or carrying on of the business of the copartnery."

The parties carried on business as partners in terms of this agreement till the death of Alexander on 5th September 1884. He left a trustdisposition and settlement, by which he nominated and appointed Mrs Helen Anderson or Alexander, his widow, and Charles Alexander junior, his son, to be his trustees. This settlement contained the following clause-"I direct my trustees, as soon after my decease as possible, to convey and give over to my son Charles my whole right and interest in the business in which I am engaged at the time of my decease."

In October following Alexander's testamentary trustees raised an action in the Court of Session against Thomson to have it found and declared that on a sound construction of the agreement of copartnery between the said deceased Charles Alexander and the defender, dated the 6th day of August 1870, the pursuers, as trustees foresaid, collectively form one partner along with the defender in the copartnery formerly carried on by the said deceased Charles Alexander and the defender, and that the defender, in the events which have happened, has no right to assume or exercise by himself the active management of the business of the said copartnery, or to exclude the pursuers, as trustees foresaid, from an equal share in the regulation of the affairs thereof," and to have him interdicted from "assuming or exercising by himself the active management of the business of the said copartnery, and from excluding the pursuers, as trustees foresaid, from an equal share in the regulation of the affairs thereof, and from giving orders or directions, or incurring obligations in connection with the said business, without the consent of the pursuers, and from appointing or dismissing servants of the said copartnery without the said consent."

They averred that Charles Alexander the younger had been employed, with an interval of five months, in the office of the business from 1870 till the date of the action, and that for the last nine months he had by his father's desire, and with the knowledge and consent of the defender, taken the actual management of the entire business, and that shortly after Alexander the elder's death the defender had himself assumed the entire management of the business, and had intimated to the staff, and to the clerks and servants of the copartnery, that they were in future

Trs. v. Thomson

9, 1885

to take their instructions from him and not from Charles Alexander junior or the pursuers, and that he had threatened to dismiss Charles Alexander, and had stopped payment of his salary. They further stated-"The pursuers do not themselves claim the active management, but they claim an equal voice with the defender in determining how the active management is to be carried on, and they have all along been and still are ready and willing to concert measures with the defender for that purpose, and generally to consult with him upon all matters connected with the copartnery. The position taken up by the defender renders this impossible, and the present action has therefore become necessary."

The defender denied that Charles Alexander junior had been since 1870 continuously in the office of the firm; that his father had given him occasional employment there, but that from the irregularity of his attendance, and from his incapacity, his position was that of a mere supernumerary without any recognised position in the office, and that he was not fitted for any but the most subordinate position in any department of the business. He admitted having intimated to the staff that they should take their instructions from him, and that he had instructed the cashier not to pay any moneys in name of wages or profits to Charles Alexander.

The pursuers pleaded-"(1) On a sound construction of the said agreement the pursuers as trustees foresaid collectively form one partner along with the defender in the copartnery of Charles Alexander & Company, and are entitled to all the rights and privileges of partners. (2) The defender is not entitled, in the events which have happened, to assume or exercise by himself the active management of the business of the said copartnery, or to exclude the pursuers as trustees foresaid from an equal voice in the regulation of its affairs, and the pursuers are entitled to decree of declarator and interdict as concluded for."

The defender pleaded-" (1) The action having been raised without any joint deliberation on the part of the trustees at whose instance it is brought, and one of these trustees having disclaimed the same, the pursuers have no title to sue. (3) On a sound construction of the agreement of copartnery, and in the events which have happened, the defender is entitled, to the exclusion of the pursuers, to take the active management and carrying on of the business. (7) The pursuers are not entitled to take the room and place of the late Charles Alexander in the copartnery before confirming to his estate."

The Lord Ordinary (KINNEAR) pronounced this interlocutor-"Finds that the pursuers as trustees of the deceased Charles Alexander are entitled to take the place of the said deceased in the copartnery between him and the defender, and collectively form one partner with the defender in the said copartnery, and to this extent and effect finds and declares in terms of the conclusions of the summons: Quoad ultra finds that the pursuers are not entitled to take the active management of the business of the copartnery, and assoilzies the defender from the conclusions of the summons: Finds the defender entitled to expenses, &c.

"Opinion. The pursuers are a majority of the trustees, and as such are entitled to main

tain this action on behalf of the trust-estate notwithstanding the dissent of one of their number. It is settled law that a general disposition unconfirmed, although it may not be a complete title to discharge, is a licence to sue. The first and seventh pleas for the defender are therefore repelled. But the latter plea is only repelled because on the merits I am prepared to give effect to the defender's contention. I am not prepared to hold that the pursuers could without confirmation insist upon taking an active part in the management of the business, but I think they are entitled to have their interest in the copartnery declared.

"It is not doubtful that under the contract the copartnery was not dissolved by the death of Mr Alexander, or that his representatives are entitled to take up his interest in the concern. But it is stipulated that the representatives of a deceased partner 'shall not be entitled to take the active management or carrying on of the business.' It is said that this refers to a previous clause under which, while both partners were alive, the active management was committed to Mr Alexander, and that it means merely that his representatives are not to have the entire management to the exclusion of Mr Thomson. But it is equally applicable to the representatives of either partner, and a stipulation that the representatives of a deceased partner shall not exclude the surviving partner from all share in the management would be quite superfluous. On the other hand, it is perfectly intelligible that while partners may be ready to agree that their respective interests in their common business should transmit to representatives on death, they should nevertheless think it necessary to stipulate that persons of whom they know nothing should not be entitled to take an active part in the management of the business. This appears to me to be the meaning of the stipulation in question, and I think it excludes the pursuers' claim to have an equal voice with the defender in the regulation of their affairs."

The

The pursuer reclaimed, and argued clause providing that the representatives of a predeceasing partner were to take "his place and room" in the copartnery, evidently intended, when applied to the representatives of Alexander, that they were to to take the management, which was part of the deceased's "place and room therein.

Counsel for the defender were not called on.
At advising-

LORD YOUNG-The question in this case deals with the effect of a clause in a contract of copartnery which is dated in 1870, between the deceased Charles Alexander and the defender, by which they agreed to enter into partnership as newspaper proprietors. The contract of copartnery provides that they were to carry on the business for ten years and as long thereafter as they pleased, the partnership being terminable on a year's notice by either party. Business was carried on by them under the contract till 5th September 1884, when Charles Alexander died. A dispute has now occurred between his representatives and the surviving partner as to the meaning and effect of a clause in the contract. Alexander's representatives claim a share not only

in the property of the concern, but also in the management, while the surviving partner concedes them a right to an interest in the business but denies that they have any right to interfere in the management.

Now, the contract contains a clause stipulating that on the death of either party the copartnery should not be dissolved, but, on the contrary, that the representatives of the partner deceasing shall be entitled to take his room and place in the copartnery, with this exception that such representatives shall not be entitled to take the active management or carrying on of the business of the copartnery. Now, the survivor contends quite reasonably that this clause, while it gives to the representatives of the predeceasing partner an interest in the profit or loss of the concern, excludes them from any share in the management. But it is contended on the other side that this is not the true meaning of the clause, or, at least, that though it may be the prima facie meaning, the words are capable of another meaning which is really impressed on them by reference to the contract as a whole, particularly by reference to a prior clause giving the whole active management to Alexander, which is to this effect, "and he shall be the manager thereof, and for his services as such he shall receive a salary of such amount as may from time to time be agreed on between the partners." The contention of the defender is that the clause first referred to must be taken in its prima facie meaning, and that though Alexander had the active management during his life, his representatives, if he predeceased, were to take his right in the business with the exception that they were not to have the active management of it which belonged to him.

The Lord Ordinary is of opinion-and I agree with him that the words of the clause are applicable to the representatives of either party, and thus the true meaning of it is that contended for by the defender, and that the pursuers have shown no reason for impressing on it a more limited construction. I think the Lord Ordinary is right in this, and I see nothing in his judgment requiring any alteration or modification. The pursuers, as representatives of the predeceasing partner, will therefore take his share in the business, with the exception that they will have no part in the management, and the Lord Ordinary has rightly assoilzied the defenders from the remaining conclusions of the summons.

LORD RUTHERFURD CLARK-I am of the same opinion.

LORD JUSTICE-CLERK-I entirely concur.
LORD CRAIGHILL was absent.

The Court adhered.

Counsel for Pursuers (Reclaimers)-Darling. Agent-David Milne, S.S. C.

Counsel for Defender (Respondent)-Pearson -Law. Agents-Rhind, Lindsay, & Wallace, W.S.

Thursday, July 9.

SECOND DIVISION. [Lord Trayner, Ordinary. WALLACE & BROWN V. ROBINSON, FLEMING, & COMPANY. Sale-Disconformity to Contract—Timeous Rejection-Breaking Bulk.

A cargo of 615 logs of wood arrived in port on 14th June, and its discharge was finished on 26th June. The purchaser sold eleven logs from the ship's side without examination, and cut up in his yard thirteen other logs to fulfil an order. The latter were not delivered as they were found unsuitable. He subsequently had a great number of the other logs chipped in order to ascertain their condition, and on 3d July wrote to the seller's agents rejecting the cargo as disconform to contract. Held that the rejection was timeous, and that there had been no breaking of bulk nor act of ownership sufficient to bar rejection.

Opinion per Lord Trayner (Ordinary), that the purchaser must pay the seller the full amount received by him for the eleven logs sold, and not merely the amount of the invoice price relative to them.

Agreements and Contracts-Sale-Bill, Payment of Price of Goods by Acceptance of-Agent and Principal.

An agent for a disclosed foreign principal sold to a merchant in this country a cargo of timber, payment to be made "by approved acceptance to the seller's or agent's drafts payable in exchange for shipping documents." The purchaser, after accepting the seller's draft for an amount corresponding to the invoice price of the goods, rejected the goods on delivery as disconform to contract, and refused to honour the acceptance. In a suspension by him of a threatened charge on the bill by the agent, the latter pleaded that he acted only as agent, and that he held the bill for value, having given value to the principal for the amount of it by accepting the latter's draft, and was thus entitled to maintain the diligence upon the purchaser's acceptance independently of the contract of sale. The amount of the agent's acceptance to the principal did not correspond with that of the purchaser to the former. Held that the bill accepted by the purchaser related to the contract of sale, and that the agent could not maintain the diligence upon it while the contract remained unfulfilled by the principal.

In February 1884 Robinson, Fleming, & Co. of London, acting as agents for Anton Tuchhändler of Dantzic, agreed to sell to Wallace & Brown, of Arbroath, a cargo of wood. The sale-note contained these clauses-"All warranted to be of good, fresh, and merchantable quality, according to the usual mode of sorting at place of shipment; deliverable free on board a vessel according to the custom in the port of Dantzig. Payment by approved acceptance to the sellers' or agents' drafts at four months from date of bill

, Fleming & Co., &c.,

9, 1885

of lading, payable in London in exchange for shipping documents."

In June following, Wallace & Brown, after some correspondence, accepted Robinson, Fleming, & Co's. draft for £419, 13s. 1d., being the invoice price of the timber, in exchange for shipping documents. Robinson, Fleming, & Co. had previously accepted Tuchhändler's draft for £396, 6s. 5d.

A cargo of 615 logs of wood, consigned to Wallace & Brown, arrived at Arbroath on 14th June and was all discharged on the 26th. The official measurement of the cargo was completed on 1st July. Eleven logs were delivered to a purchaser from the ship's side while the cargo was in course of discharging, without being examined. Before the measurement was completed 13 other logs were cut up by Wallace & Brown in their yard into lengths and planks in order to fulfil an order to a customer who wanted the wood for joisting, but were not delivered, as they were not considered suitable. In consequence of the condition in which these 13 logs were found to be when cut up, Wallace & Brown had nearly all the rest of the logs, half of which were by this time lying in their yard and the other half in the tidal harbour, chipped on the sides in order to ascertain their condition. On 3d July they wrote to Robinson, Fleming, & Co. as follows"The cargo pr. 'Elise' @ Dantzig is now discharged, and part put into our yard, and we take leave to say that it is by far the worst lot of timber ever we had into our place, and we really wonder that the shipper should have attempted to ship such wood. Instead of the wood being good, fresh, merchantable quality, as guaranteed and contracted for, it is hardly fit for firewood, being full of black sap and rot to such an extent that in our judgment it is not worth 25 per cent of the invoice price, and we must decidedly refuse to take delivery of this shipment in fulfilment of our contract.

66

On 7th July they again wrote that they would use no more of the cargo until they saw what was to be done, and unless the shipper proposes something really substantial we must hold you responsible, applying to the Sheriff of the county to get a judicial survey made." On 15th July they wrote again that they had had the whole cargo examined by "a Glasgow gentleman," who was well versed in judging timber, in whose presence they chipped a great many of the logs in the yard and all that were in the dock, adding, “We must decidedly refuse to take this cargo in fulfilment of our contract."

Wallace & Brown refused to retire their acceptance for £419, 13s. 1d. when it was presented for payment on 30th September 1884. Robin

son, Fleming, & Co. thereupon wrote to Wallace & Brown intimating that they (Wallace & Brown) had no claim against them (Robinson, Fleming, & Co.) and that they would take summary proceedings.

Wallace & Brown then presented the present note of supension of a threatened charge on the bill at the instance of Robinson, Fleming, & Co. They averred the contract as stated in the sale-note and disconformity thereto of the cargo received, and that the bill was accepted by them without consideration, or otherwise in anticipation of fulfilment of the contract, which had not been fulfilled.

Robinson, Fleming, & Co. averred in defence that they acted as disclosed agents for Tuchhändler, and that they were holders of an acceptance for value, they having accepted Tuchhändler's draft for the price of the cargo. They denied that the cargo was disconform to contract, and averred further that Wallace & Brown had not timeously rejected it, but had taken delivery and broken bulk, and were not in a position to reject when they wrote the letters founded on.

The suspenders pleaded-"(1) The suspenders having accepted the said draft in anticipation of implement of a contract which the respondents and Tuchhändler have failed to implement, the suspenders are entitled to have the said threatened charge suspended. (2) The complainers having been entitled to reject said cargo, and having duly and timeously done so, they are not liable to pay the bill in question. (3) The respondents, not being holders for value, and having no higher right than Tuchhändler as regards the bill in question, the complainers are entitled to suspension as craved."

The respondents pleaded-"(1) Suspension should be refused in respect (1st) that the respondents acted as agents for the sale only of the goods, and being holders for value of the said suspenders' acceptance, the suspenders are bound to meet and pay the same; (2d) that the said contract was duly and entirely implemented by the sellers; (3d) that the suspenders took delivery of, broke bulk, and used said cargo; (4th) timeous rejection was not made."

A proof was taken, in which the facts above stated were proved, and in which it was established that the cargo was not conform to contract. The Lord Ordinary suspended simpliciter.

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Opinion. In this case the suspenders seek to suspend a threatened charge upon a bill for £419, 13s. 1d. which they have accepted to the respondents Messrs Robinson, Fleming, & Co., London, and the ground upon which the suspension mainly proceeds gives rise to various considerations. In the first place it is said—and it is the fact that the bill in question was accepted as against shipping documents, with reference to a cargo of wood sent from Dantzic to Arbroath on the suspenders' order. The contract is not an unusual one in any of its terms. It specifies

a certain kind of wood-red wood and white wood-to be delivered at Arbroath, and it is all warranted to be of "good, fresh, and merchantable quality, according to the usual mode of sorting at the place of shipment." When the shipping documents arrived they were forwarded by the respondents to the suspenders, aud in return for these documents, as I have said, they got the bill on which diligence is now threatened. The suspenders object to diligence being done upon that bill, on the ground, mainly, that the bill was granted in implement of their part of the contract, while the other part of that contract incumbent on the respondents has not been fulfilled.

"Now, obviously the first question that arises is that raised by both parties in their pleas-inlaw-Whether the contract has been implemented by the respondents, that is to say, whether they have furnished a cargo of the description specified in the bought-and-sold note between the parties? [His Lordship here reviewed the evidence