Allison v. Allison and Others [1904] ScotLR 41_501 (02 February 1904)

Allison v. Allison and Others [1904] ScotLR 41_501 (02 February 1904)

The Court held that the contract alleged by the pursuer was a complex commercial contract involving both service and sharing of profits, and not merely a contract of service or loan. Therefore, the restrictions on proof imposed by Act 1579, cap. 83, did not apply. The triennial prescription was inapplicable to such commercial contracts, and proof prout de jure was allowed.

Citation
[1904] ScotLR 41_501
Parties
Pursuer: David Allison; Defenders: Trustees of William Allison (deceased)
Jurisdiction
Scotland
Judgment Date
02 February 1904
Procedural Posture
Action of Count, Reckoning, and Payment / Appeal From Interlocutor of Lord Ordinary
Outcome
Interlocutor of Lord Ordinary recalled except as to certain pleas; proof allowed of parties' respective averments; conjunct probation allowed to pursuer; decerned.
Legal Topics
Proof Requirements for Innominate Contracts, Triennial Prescription, Commercial Contracts Involving Profit Sharing, Service Contracts, Application of Act 1579, Cap. 83
Contract Law Commercial Law Employment Law Proof Requirements for Innominate Contracts Triennial Prescription Commercial Contracts Involving Profit Sharing Service Contracts Application of Act 1579, Cap. 83

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Parties

David Allison

Pursuer

Trustees of William Allison (deceased)

Defenders

Procedural Posture

Action of Count, Reckoning, and Payment / Appeal From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether the alleged contract is subject to proof by writ or oath under Act 1579, cap. 83
  2. 2 Whether the triennial prescription applies to the pursuer's claim for share of profits and remuneration
  3. 3 Whether the contract is innominate and unusual, restricting mode of proof

Ratio Decidendi

The Court held that the contract alleged by the pursuer was a complex commercial contract involving both service and sharing of profits, and not merely a contract of service or loan. Therefore, the restrictions on proof imposed by Act 1579, cap. 83, did not apply. The triennial prescription was inapplicable to such commercial contracts, and proof prout de jure was allowed.

Court Disposition

Interlocutor of Lord Ordinary recalled except as to certain pleas; proof allowed of parties' respective averments; conjunct probation allowed to pursuer; decerned.

Orders

  • Recall the interlocutor of 14th November 1903 except as to repelling first plea-in-law for pursuer and first, second, and third pleas-in-law for defenders.
  • Allow parties a proof of their respective averments.