Stewart v Buchanan
| Jurisdiction | Scotland |
| Judgment Date | 23 October 1903 |
| Date | 23 October 1903 |
| Docket Number | No. 4. |
| Court | Court of Session |
Lord Young, Lord Trayner, Lord Moncreiff, Lord Justice-Clerk.
Partnership—Constitution—Contract—Construction—Repugnancy.—
Terms of a lease of premises granted by A to B, who was described as about to carry on business in said subjects, and of a relative agreement between the parties which declared, inter alia, ‘nor shall the first party, A, be or be held to be a partner in the said business, or liable for its debts and obligations,’ on which held that A was nevertheless a partner in the said business and liable for its debts.
This was an action in the Debts Recovery Court at Glasgow, brought at the instance of Robert R. Stewart, wine merchant, 184 High Street, Edinburgh, against ‘the “City” Stockrooms Company, 16 to 20 Springfield Court, Glasgow, and Robert William Saunders, 20 Springfield Court aforesaid, and Charles Buchanan, residing at 65 Montgomerie Street, Kelvinside, Glasgow, the only known partners of said company, as such partners, and also as individuals, all jointly and severally,’ to recover the sum of £34, 2s. 6d., being the price of goods supplied to the company.
The only one of the defenders who entered appearance was Buchanan, who pleaded that he was not a partner of the company, and had neither ordered nor received the goods the price of which was sued for.
Proof was allowed and led. The parole evidence, in the view of the case taken by the Court, may be disregarded. The documents produced were (1) missive of lease, by which Buchanan as the first party thereto let the premises, 16 to 20 Springfield Court, Glasgow, of which he was proprietor, to Saunders, as the second party thereto, dated 9th and 15th November 1901, and (2) a relative memorandum of agreement between Buchanan and Saunders, and bearing the same dates.
The missive of lease bore:—‘This missive of lease, entered into between Charles Buchanan, builder … Glasgow, heritable proprietor of the subjects hereinafter let,—of the first part; and Robert William Saunders, accountant, Glasgow, about to carry on business in the said subjects under the name or firm of the City Stock Rooms Company,—of the second part—Witnesseth that the first party has let and hereby lets to the second party, and the second party takes in lease from him those premises consisting of’ a building of five floors ‘forming Nos. 16 and 20 Springfield Court, Queen Street, Glasgow, with the fittings, fixtures, and furniture therein, and that on the following terms and conditions, viz:—First. The let shall be for the period of fifteen and a half years from the term of Martinmas 1901, but only from week to week, as hereinafter mentioned, and terminable as underwritten. Second. The rent of the said premises shall be £19, 5s. sterling per week, payable weekly on the Wednesday of each week during the currency of the lease, … Declaring that in the event of any breach or failure of the second party to implement and fulfil any of the stipulations, conditions, and provisions incumbent on him under these presents, or of any of the foresaid weekly payments remaining due and unpaid, the first party shall be entitled to break and terminate the lease on giving the second party one month's notice in writing. … Third. The first party agrees, in the first place, to fit up the ground floor and the first and second floors of the premises to suit the requirements of the second party's said business, as may be from time to time arranged between the first and second parties, and failing agreement, as the first party may determine; and thereafter, should the business shew good results and warrant further extension, in like manner and subject to the same conditions to fit up the remaining floors if and when in the opinion of the first party, as proved by results, they can be profitably occupied, including electric lighting and bells, partitions, counters, shelving, table tops, and trestles for supporting same, linings, water-closets and lavatories and all connections therewith to drains, tiling work, glazing work, painting works, outside and inside, and paperhangings, and to pay the cost and expenses of the said fittings and others to the extent of a sum not exceeding £1200, and the first party also agrees to furnish the premises as may be from time to time arranged with the second party, but failing agreement as the first party may determine to the extent of a further sum not exceeding £700, and at the expiry or earlier termination of the lease the whole fittings, fixtures, furniture, and others shall be and remain the property of the first party, in the absence of payment of loan. Fourth. … The second party shall have no power to assign the lease or invert the possession without the first party's consent in writing, but same shall not unreasonably be withheld.’
By the memorandum of agreement, to which Buchanan was the first and Saunders the second party, it was provided:—‘First. In addition to the two sums of (first) £1200 sterling agreed to be advanced by the first party in fitting up the said premises, and (second) the further sum of £700 sterling for outlays in furnishing the same, the first party agrees to advance the further sum of £100 as the same may in his opinion be required, and as he may think proper, from time to time, in starting and developing and carrying on the business of the second party in said premises, making in all the sum of £2000, which shall be placed to the credit of the first party on loan capital account in connection with the said business, and on which the first party shall receive interest at the rate of 71/2 per cent per annum, payable monthly; any additional sums required for necessary outlays in connection with the said business shall only be advanced by the first party in his discretion and option, and shall be repaid to him, with...
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