Kinnell v Peebles
| Jurisdiction | Scotland |
| Judgment Date | 07 February 1890 |
| Docket Number | No. 64. |
| Date | 07 February 1890 |
| Court | Court of Session |
Lord M'Laren. M, Lord Shand, Lord Adam, Lord M'Laren, Lord President.
PartnershipProof of.
ProcessReviewReclaiming NoteVerdict of jury.
Circumstances which were held insufficient to instruct a partnership between two sisters in a business which had been carried on uniformly under the name of the elder sister, but in which the younger sister had always assisted her.
Observations as to the duty of the Court first, in reviewing the judgment of a Lord Ordinary on a proof, and second, in considering the verdict returned by a jury.
Miss Euphemia Kinnell, residing with her widowed mother in Dundee, raised an action against her sister, Eliza, and her sister's husband, Mr Peebles, for declarator that she, Euphemia, was a partner with her sister in the business of a Fine Art Needlework Establishment. The business had been started in 1880, on the occasion of the girls' father being disabled by accident, at which time Euphemia was seventeen, and Mrs Peebles twenty-three years of age. Mrs Peebles was married in June 1888. The business was always carried on under the style of Miss Kinnell, but Euphemia had all along assisted her sister in the conduct of the business.
The question between the parties was solely one of facts. What these were may be gathered from the opinions of the Lord Ordinary (M'Laren) and of Lord Shand.
The Lord Ordinary on 30th July 1889 found and declared for the pursuer.*
The defenders reclaimed.
At advising,
Lord Shand.I listened to the argument in this case, and I have subsequently anxiously considered the evidence, with a strong desire, if possible, to
come to the same conclusion as my brother Lord M'Laren reached in the Outer-House. That desire to a considerable extent arose from what appears on the
evidence to be the fact in any view of the case, viz., that the pursuer, the younger of the two sisters, did, in the later years of the existence of the business,
a great deal to build up that business to what it is,so much so as to establish a strong moral claim, if not a legal claim, to have a share in the business as it is now carried on.
But, with all that desire, if the case is to be decided, as it must be, upon the evidence before the Court, I find myself unable to reach the conclusion I desire.
If the case had been one that depended entirely or to a very great extent on the credibility of the witnesses, I should have given such weight to his Lordship's view on that matter as to have acted on his opinion as to which of them were to be believed. But I think there are points in the legal bearings of the case, as well as in the proof, which make it not one of credibility at all.
With regard to the proof, what I refer to is this, that there is before us a considerable amount of documentary evidence, some of which has been in existence all through the history of the business, some which only came into existence shortly before the dispute arose; and to that written evidence I cannot give so little weight as his Lordship has done.
The pursuer, in undertaking to make out, as she does, right to one-half of the business, undoubtedly takes a considerable onus upon herself, for undoubtedly from first to last the business was carried on in the name of the defender, the elder sister. There may have been some trifling exceptions, but the business transactions generally appear to have been carried on in the Christian name and surname of Miss Kinnell, the elder. The leases of the first and second shops in which the business was carried on were in her name; the insurances on the stock were in the same position; the loans obtained in the course of the business were given on obligations by her; the bank account was in her name; cheques were drawn by her; and invoices were, generally speaking, in her name, indeed almost exclusively so. In short all documents that could be recovered proceeded on the footing of the business being the property of the elder sister, and all that has to be overcome by the pursuer coming into Court to claim a share in it. I am of opinion that the evidence is insufficient to do so.
The points on which the pursuer's case is rested by the Lord Ordinary are two, and two only. The first and main point, I might almost say the only point, lies in the facts as to the inception of the business. So far as anything else is considered, it seems to me that his Lordship's reasoning is rather directed to meeting points made by the other side than to fortifying the judgment which he has already arrived at upon his view of the inception of the business. The only other fact on which his Lordship relies is, I think, the fact that for some time the sole conduct of the business was in the hands of the pursuer.
But I think that too much is made of the facts as to the inception of the business. The advance of the money is only one out of many facts, while, as
I have pointed out, the whole course of the dealings in the business, and the writings in process, go to support the defender's case. Then, too, there is the evidence of Mrs Kinnell, the mother, and her actings. These shew that at the time the business was started she did not regard the younger sister as a partner, and she is the person, who, of all others, must be best acquainted with the whole circumstances.
The facts as to the origin of the business are these: The father of these two girls had been disabled by an accident, and it became necessary for the daughters to do something for their living. Their aunt and uncle took an interest in them, I think an equal interest in both, and suggested the starting of this fancy work shop. The offer which they made of 25 was made, I think, to benefit both alike. But, although that is so, I am not satisfied that the money was given on the footing that the pursuer was to enter the business as a copartner with her sister. I think it is impossible that it could have been seriously contemplated that these two young women should go into partnership. The elder was a girl of twenty-two, she was skilled in the work in which she was to deal, and she could bring with her some experience such as was necessary to inspire confidence in the public, and consequently bring business to the concern. On the contrary, the younger sister was only seventeen years of age; she had just left school, and had no proficiency in fine work, such as her sister had. She was expected to clean out the shop, go messages, and besides that to help her mother in house-work in the morning.
In such a case it is impossible to limit one's view to the money put into the business. One must look at the whole circumstances of the case, and looking at these, I think that the mere contribution of the money is a small matter. The considerations to which I have pointed lead me to give very little weight to the circumstances connected with the opening of the business. There is no doubt that it was started to assist the family, but it was not intended that any partnership should be formed.
Then Miss Kinnell's name was over the shop, and all the business was carried on on the same footing as I have already pointed out, and the younger sister would require a very clear and consistent body of evidence to meet these facts. So far as I see, she has been quite unable to meet them.
Take again the case of payments made to the younger sister: As regards these she stands in a position altogether different from that of a partner. The entries...
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Watt (or Thomas) v Thomas
...with copious citation of earlier authority, and I agree with him that the true rule is that expounded by Lord President Inglis in Kinnell v. Peebles, 17 R. 416, that a Court of Appeal should "attach the greatest weight to the opinion of the judge who saw the witnesses and heard their evide......
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Watt (or Thomas) v Thomas
...with copious citation of earlier authority, and I agree with him that the true rule is that expounded by Lord President Inglis in Kinnell v. Peebles, 17 R. 416, that a Court of Appeal should "attach the greatest weight to the opinion of the judge who saw the witnesses and heard their evide......