Hay and Kyd v Powrie: SCS 19 Mar 1886

The pursuers were in the habit of selling cattle to A, and taking in payment the joint acceptances of the defender and him at two or three months. These acceptances were renewed again for similar periods, and generally for less amounts, the difference being paid by A in cash either at the time of the renewal or shortly after. If it was not paid at the time, the pursuers debited A’s account in their books with it, and retained the old acceptance till it was paid. All communications betwixt the pursuers and the defender took place through A, for whom the defender was really a cautioner. On A’s bankruptcy the defender retired three of the acceptances, each of which was the last of a series of renewals, but the pursuers also claimed from him the differences between the amounts in certain acceptances and the acceptances by which they were renewed. They had in each of these cases retained the old acceptance till A should fulfil his promise to pay the difference. Held that the obligations in the old acceptances were not extinguished by novation or delegation; that there was no such giving of time to A as to free the defender, even if he were entitled to the equities of a cautioner; and that the pursuers were not barred from suing on the bills by the fact that the defender in accepting the renewals believed that to the extent of the differences in the amounts of them, and of the acceptances sued on, the pursuers’ claim had been reduced.

Citations:

[1886] SLR 23 – 567

Links:

Bailii

Jurisdiction:

Scotland

Contract

Updated: 09 May 2022; Ref: scu.580012