(1723) Robertson 438
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Negotiorum Gestor. —
The respondent having sent money by the appellant, to be by a third person laid out in stock, in his own name; on the death of this third person the appellant could not warrantably lay out the respondent's money in stock, in his the appellant's name.
In this case the son of the person deceased, having by letter given the first notice of the transaction to the respondent, and mentioned that the appellant has informed the writer of the letter, that he had given the respondent his option to stand to the bargain or not, this letter is held to be proof of such option tendered.
In August 1720, some communications took place between the appellant and respondent, relative to the investing of money in the public funds. The appellant being about to set out for London, the respondent delivered to him two York Buildings Co. bonds of 100 l. each, with an open letter, addressed to William Baird, of Auchmedden, Esq., then in London: This letter was of the following tenor:
“Edinburgh, 9th August, 1720. Dear Cousen, Receive from the bearer Mr. Thomas Rigge of Mortoun, advocate, two York Buildings bonds of 100 l. sterling each, bearing interest since 23d February last, payable 23d inst.; the interest is 6 l.; the one is marked letter A. (No. 9.) the other is marked letter A. (No. 309.) I have filled up your name in the indorsation (a) because I design you should put it in stocks for me till I raise more. If South Sea subscriptions can be purchased at 5, or 6, or 7 hundred, for so much ready money, Mr. Rigge will join the equivalent sum of mine in ready money; and if you can procure us credit, if he desire it for the surplus value of a subscription, I shall make the credit good as you, and he shall adjust the sum, either upon our
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( a) These bonds were payable to bearer, and needed not indorsement.
If Mr. Abercrombie of Glassaugh, or you will take the burden with him for me, for the said value, or for four or five hundred pounds, I shall make it good, and nobody needs scruple his security. What ever stock you put the money in, let me have the share, or the transfer in my own name, because I resolve to stand to it, especially if it be York Buildings, whereas those upon the place may incline to sell frequently; and I am not sure, but I may come up myself, or at least remit you more money. Let me have your answer upon receipt hereof.”
When the appellant arrived in London, he found Mr. Baird, to whom the letter was addressed, at the point of death.
The respondent received a letter from the appellant, dated at London, the 23d of August, 1720, informing him that his friend Mr. Baird was dead, and that he, the appellant had made no bargain for himself, because he thought the stocks would fall lower. And upon the 9th of September the respondent received a letter dated at London the 3d of that month, from Mr. Baird the son of the deceased, acquainting him of his father's death, and that the appellant told him, he had bought South Sea Stock at 780 l. per cent, and was willing the respondent's money should be in there or not, as he the respondent pleased; and Mr. Baird mentions that he had not called for the respondent's money from the appellant, but that it was safe in the appellant's hands. About this time secured the great fall of South Sea Stock.
The respondent on the 12th of September wrote both to the appellant, and to Mr. Baird; he told the appellant that having heard of his friend's death, and the surprising turn of the Stocks, he did not incline to meddle with South Sea Stock; and that he had written to Mr. Baird, jun., not to dispose of his bonds in the South Sea. The respondent afterwards received a letter from Baird, dated 20th of September, acquainting him, that the appellant had got payment of the two bonds from the York Buildings Company. The respondent on the 29th of September, wrote to the appellant requiring his bonds; or his money to be sent back immediately: and soon after he received a letter from the appellant, without date, but appearing to have been written about the end of September, or beginning of October, mentioning another letter formerly written by him to the respondent, but never received, by which letter the appellant said he wrote the respondent, that his money was put in with the appellant's own in South Sea Stock at 780 l. per cent., including the dividend, by the advice of Alexander Abercombie, of Glassaugh, Esq., and Mr. Baird, jun., on the 31st of August.
The respondent brought his action before the Court of Session against the appellant, to have the money from the sale of the
The appellant having reclaimed, insisting that it was the custom of the York Buildings Company to pay their bonds to the bearer without indorsation, or any other title, and that he according to that custom got payment of the bonds, and disposed of the money for the respondent's use as
negotiorum gestor: after answers for the respondent the Court on the 24th of November 1722, “found that Mr. Baird of Auchmedden, being dead, the appellant might warrantably uplift the money, and employ it for the respondent's behoof as a
negotiorum gestor; but found that the documents produced do sufficiently make it appear, that he employed the money and made a bargain in his own name, that he gave the respondent an option whether he would accept of the bargain or not, and that the first intimation of the bargain, appears to have been made by a letter from London
(a), dated 3d September, and that the respondent by his letter dated from Tullibodie, the 12th of September having declined to accept the bargain, he was not
in mora, nor bound thereby.” The appellant reclaimed against the last part of this interlocutor, insisting that he did not give the respondent his option; that this option was only mentioned in the letter from young Baird, and that it could only be proved
scripto vel juramento of the appellant: and the respondent having petitioned against the first part of the interlocutor; after mutual answers for the parties, the Court on the 15th of December 1722, “found that the appellant having taken stock in his own name, though for the behoof of the respondent, this was not to be reckoned warrantably done, tanquam
negotiorum gestor, in case by the forms the right to the stock could have been stated in the respondent's person, by taking it in his name though absent without a letter of attorney; but if it could not be so taken, found in that case, stock might warrantably be taken in the appellant's name, for the behoof of the respondent; and found that the letters produced, sufficiently instruct, that the appellant gave the respondent his option, whether he would accept the bargain as for his behoof or not, and adhere to that part of their interlocutor, finding that the first intimation appears to have been made by a letter from London, 3d September: and that the respondent by his letter dated at Tullibodie, 12th
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a) The letter from Mr. Baird junior.
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( a) The letter from Mr. Baird junior.
The appellant having presented another reclaiming petition after answers, the Court on the 9th of January 1723, “adhered to that part of the interlocutor of the 15th of December, finding the letters produced sufficiently instruct that the appellant gave the respondent his option whether he would accept of the bargain as for his behoof or not; and adhere to that part of the said interlocutor, finding that the first intimation appears to be made by a letter from London, dated September 3d, and that the respondent by his letter dated at Tullibodie, the 12th of September, having declined to accept of the bargain, he was not in mora or bound thereby; and found that this point determining the cause, there was no necessity to determine how far the appellant's acting in this affair tanquam negotiorum gestor was warrantable.”
Entered 18 Jan. 1722–3.
The appeal was brought from “an interlocutory sentence or decree of the Lords of Session of the 12th of July, and from part of an interlocutor, of the 24th of November, and from certain interlocutors of the 15th and 19th of December 1722, and 9th of January 1723.”
Heads of the Appellant's Argument.
The acting for the behoof of the absent, and ejus nomine, is always reckoned one and the same thing; if the animus and intention of the mandator are answered, it is not material by what person. The order was to put the money in South Sea, or York Buildings Stock; this was indispensible, as being the subject of the mandate, and it could not warrantably have been put in any other stock: but as to the modus or taking the security, that does not alter the case unless the respondent will shew any prejudice done him by not taking the Stock in his own name; for it was more convenient to take it in the appellant's name, and saved the expence of two transfers and letters of attorney, one to accept, and the other to sell, before the arrival of which from Scotland the market might have been lost.
As the person to whom the mandate was given, was dead, it could not be executed by him; and the appellant employed his friend's money, as he did his own, with no other view but to serve him; and if stocks had risen, then the respondent would have had the advantage. But the respondent did not answer the letters for three posts waiting to see whether stocks would rise or fall; if they had risen, then no doubt he would have acknowledged the appellant's good offices.
It does not appear by any legal proof, that the appellant gave the respondent an option to be concerned in the stocks or not; only Mr. Baird wrote to him, that the appellant had said so; but
Heads of the Respondent's Argument.
The respondent never gave any commission to the appellant, either to buy stocks for him, or to take up his money from the York Buildings Company; the only person he entrusted with the management of his money was the late Mr. Baird of Auchmedden. The only trust committed to the appellant was to carry up his money to London, to be forthwith delivered to Mr. Baird. And though the interposition of a negotiorum gestor may be allowed in ordinary affairs, yet the respondent believes no man will be allowed to game or practise stock-jobbing with another person's money, without an express commission directly given to him for so doing.
Though the respondent had expressly entrusted the appellant with the management of his money, yet he was not bound to take a share of any bargain made by the appellant, unless the appellant had given him immediate notice thereof by such a writing under his hand, as would have obliged the appellant by the laws of Scotland to have given the respondent a share of the profits, in case any had arisen from such bargain; and the appellant never having given any such notice to the respondent, it would be hard to oblige him to take any share of the loss, since he was no wife entitled to any share of the profit in case any had arisen.
As soon as the respondent had any notice that the appellant pretended he had made any bargain upon the respondent's account, though the notice was sent by a third party, and three days after the pretended bargain was made; yet the respondent was so diligent as to write by the very next post to the appellant, declaring that since his friend whom he had entrusted was dead, he would have nothing to do, with the stocks nor venture any of his money that way.
Judgment, 18 March 1723.
After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the interlocutory sentences or decrees therein complained of be affirmed: And it is further ordered that the appellant do pay or cause to be paid to the respondent the sum of 20l. for his costs by reason of the said appeal.
Counsel: For Appellant,
For Respondents, Dun. Forbes. Will. Hamilton.