Blake's Trustees v. Jolly [1920] ScotLR 431 (01 April 1920)

Blake's Trustees v. Jolly [1920] ScotLR 431 (01 April 1920)

Where there are disputed questions of fact and law between the surviving partner and the representatives of the deceased partner regarding the construction and effect of partnership agreements, procedure by way of summary petition for appointment of a judicial factor is inappropriate. The proper course is to sist the petition to allow the respondent to raise an action of declarator to determine the parties' rights.

Citation
[1920] ScotLR 431
Parties
Petitioners: Mrs Margaret Wishart or Blake and three others, Trustees of Joseph Cumming Blake; Respondent: Francis John Jolly
Jurisdiction
Scotland
Judgment Date
01 April 1920
Procedural Posture
Petition (partnership Winding Up) / Inner House, First Division; Reclaiming Motion Against Lord Ordinary's Dismissal
Outcome
Petition sisted (stayed); interlocutor of Lord Ordinary recalled
Legal Topics
Winding Up of Partnership, Appointment of Judicial Factor, Interpretation of Partnership Agreements, Competency of Summary Petition Procedure
Partnership Law Civil Procedure Winding Up of Partnership Appointment of Judicial Factor Interpretation of Partnership Agreements Competency of Summary Petition Procedure

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Parties

Mrs Margaret Wishart or Blake and three others, Trustees of Joseph Cumming Blake

Petitioners

Francis John Jolly

Respondent

Procedural Posture

Petition (partnership Winding Up) / Inner House, First Division; Reclaiming Motion Against Lord Ordinary's Dismissal

Legal Issues

  1. 1 Whether summary petition is competent for appointment of judicial factor where there are disputed questions of fact and law between surviving partner and deceased partner's representatives
  2. 2 Whether the partnership agreements and supplementary agreements regulate the rights of the parties post-dissolution
  3. 3 Whether the appointment of a judicial factor is appropriate absent averments of misconduct

Ratio Decidendi

Where there are disputed questions of fact and law between the surviving partner and the representatives of the deceased partner regarding the construction and effect of partnership agreements, procedure by way of summary petition for appointment of a judicial factor is inappropriate. The proper course is to sist the petition to allow the respondent to raise an action of declarator to determine the parties' rights.

Court Disposition

Petition sisted (stayed); interlocutor of Lord Ordinary recalled

Orders

  • Process sisted until first sederunt day of Summer Session to enable respondent to raise action of declarator if so advised
  • Interlocutor of Lord Ordinary dismissing petition recalled