Landauer & Company v Alexander & Company
| Jurisdiction | Scotland |
| Judgment Date | 28 May 1919 |
| Docket Number | No. 58. |
| Date | 28 May 1919 |
| Court | Court of Session |
Lord President, Lord Mackenzie, Lord Skerrington, Lord Cullen.
CompanyWinding-upCreditors' petitionCreditors in a disputed debtSist enable creditors to constitute debtCompanies (Consolidation) Act, 1908 (8 Edw. VII. cap. 69), secs. 129, 141 (1).
In a petition at the instance of creditors for winding-up a company, the company lodged answers in which they denied certain of the averments of the petitioners with regard to the existence of the debt; and moved the Court to dismiss the petition.
The Court, in respect that it was doubtful whether there was a bona fide dispute between the parties as to the indebtedness of the company, sisted the petition to constitute their debt.
On 4th April 1919 Landauer & Company, merchants, 36 Fenchurch Street, London, presented a petition to the Court for an order for a winding-up under section 129 of the Companies (Consolidation) Act, 1908,* of W. H. Alexander & Company, Limited, which had its registered office at 166 Buchanan Street, Glasgow.
The petition, after stating that W. H. Alexander & Co. was formed to carry on the business of general merchants, commission-agents, and produce brokers, proceeded:
On or about 19th October 1918 the petitioners, through Messrs L. M. Fischel & Company, broker, of 36 and 37 Mincing Lane, London, sold to the said Company one hundred tons of Japanese Potato Starch No. 1 Quality at the price of 82 per ton, amounting under deduction of two brokerages of 1/2 per cent to the sum of 8118, payable against shipping documents. On or about 3rd February 1919, before the said price had become payable, at a meeting between a representative of the said Company and the said L. M. Fischel & Company as representing the petitioners, the said Company intimated that they were not in a position to implement their obligations under, inter alia, the said contract, and the petitioners accordingly, through the said L. M. Fischel & Company, by letter dated 4th February 1919, intimated that they would regard the said contract as broken. On or about 12th February 1919 the said goods were invoiced to the said Company but delivery was not accepted by the Company, and on or about 27th February 1919 the petitioners sold the goods against the said contract at the price of 33 per ton, being the market price thereof at the said date. The said price, under deduction of brokerage at the rate of 1 per cent, amounted to the sum of 3267, being the net amount realised subject to certain small adjustments. The loss to the petitioners due to the said breach of contract thus amounts to about the sum of 4851, being the said sum of 8118 less the said sum of 3267 subject to adjustment as aforesaid. The said sum of 4851 is due and owing by the said Company to the petitioners.
Thereafter, both by correspondence and at meetings between the representatives of the parties held on 12th February and 1st March 1919, the said Company admitted that they were liable for the said damages and declared that they were unable to pay the same. Further, at the said meeting of 1st March, they offered, subject to certain conditions, to pay a composition upon the sums due by them to the petitioners, but the petitioners were not, and are not, willing to accept the said offer.
The Company lodged answers in which it was averred:
1. Subject to the explanation hereinafter stated the respondents deny the alleged sale by petitioners to them of 100 tons of Japanese Potato Starch, and further deny (a) that petitioners have sustained
the loss averred by them; (b) that the respondents have admitted liability for damages; (c...
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