RUSSEL v GLEN (Court of Session)

In defence, the defenders founded upon the clause in the contract of copartnery quoted above, which declared that the interest of a deceased partner was to be ascertained upon a medium struck between the annual balances immediately preceding and immediately subsequent to his death. The interest of the defenders, therefore, fell to be regulated by the annual balances of 1808 and 1809; and these balances, as struck at the time, could not be disturbed by any thing which occurred afterwards. It was by these balances alone that the rights of parties could be adjusted.

The Lord Ordinary found ‘that the annual balances struck in the company books previous to 30th April 1808 cannot now be altered;’ and remitted to an accountant ‘to report the true balances of the company's books as at 30th April 1808 and at 30th April 1809, and the value of Mr Glen's interest in the stock and shares of the company, as ascertained by a medium struck between these balances, in terms of the contract.’

The Court adhered to the Lord Ordinary's interlocutor, and found that the balance of 1808 and 1809 could not be opened up.

The Court were of opinion that the manner in which the balances were to be struck was pars contractus between the parties, and that, unless upon an error calculi , or upon grounds of direct fraud alleged and proved, the balances so struck could not afterwards be disturbed.

Lord Meadowbank, Ordinary. Act. Baird. D. & A. Thomson, W. S. Agents. Alt. D. M'Neill. John M'Kenzie, Agent. H. Clerk.