Sturrock v. Carphin [1913] ScotLR 409 (29 January 1913)

Sturrock v. Carphin [1913] ScotLR 409 (29 January 1913)

The trustee, by suing to enforce the contract right under the memorandum of dissolution, did not adopt the contract so as to render himself personally liable for the bankrupt's obligations. Adoption requires more than enforcement for realisation; it requires conduct analogous to taking possession under a running contract. No such conduct occurred here.

Citation
[1913] ScotLR 409
Parties
Pursuer: John Sturrock; Defender: George Henry Carphin, C.A., trustee on the sequestrated estate of the late John Logie Robertson, W.S., and of the firm of Wylie & Robertson, W.S.; Defender: William Robertson, F.F.A., as cautioner for John Logie Robertson
Jurisdiction
Scotland
Judgment Date
29 January 1913
Procedural Posture
Civil Appeal / Inner House, Second Division, Reclaiming Motion (appeal) Against Dismissal by Lord Ordinary
Outcome
Appeal allowed in part; defender assoilzied (absolved) from personal liability; action otherwise dismissed; pursuer to pay expenses.
Legal Topics
Personal Liability of Trustee, Adoption of Contract by Trustee, Bankruptcy Estate Administration, Dissolution of Partnership, Relief From Partnership Liabilities
Bankruptcy Trusts and Trustees Contract Law Personal Liability of Trustee Adoption of Contract by Trustee Bankruptcy Estate Administration Dissolution of Partnership Relief From Partnership Liabilities

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Parties

John Sturrock

Pursuer

George Henry Carphin, C.A., trustee on the sequestrated estate of the late John Logie Robertson, W.S., and of the firm of Wylie & Robertson, W.S.

Defender

William Robertson, F.F.A., as cautioner for John Logie Robertson

Defender

Procedural Posture

Civil Appeal / Inner House, Second Division, Reclaiming Motion (appeal) Against Dismissal by Lord Ordinary

Legal Issues

  1. 1 Whether a trustee in bankruptcy, by suing on a contract entered into by the bankrupt, adopts that contract so as to render himself personally liable for the bankrupt's obligations under it.
  2. 2 Whether the act of enforcing a contract right as trustee constitutes personal adoption of the contract.

Ratio Decidendi

The trustee, by suing to enforce the contract right under the memorandum of dissolution, did not adopt the contract so as to render himself personally liable for the bankrupt's obligations. Adoption requires more than enforcement for realisation; it requires conduct analogous to taking possession under a running contract. No such conduct occurred here.

Court Disposition

Appeal allowed in part; defender assoilzied (absolved) from personal liability; action otherwise dismissed; pursuer to pay expenses.

Orders

  • Interlocutor of Lord Ordinary recalled.
  • Defender assoilzied from conclusions directed against him as an individual.