(1758) 2 Paton 13
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Negotiorum Gestor — Interdiction.—
Held a party who acted voluntarily, and without any legal authority, for another, in changing the security of money lent, was liable, on failure of the new borrower, notwithstanding the person for whom he acted was of age—was present on the occasion, and consenting to the whole transaction, but was unable to manage his own affairs, from weakness of mind, and was soon thereafter interdicted.
From his living near the farm, Graham, the appellant, was induced to take an active part in the management of Thomas Ker's affairs. While in minority he had acted as his curator. This curatory was discharged on his coming of age. Yet Ker being weak in intellect, his mother continued to manage his farm after his attaining majority, and was in the practice of receiving aid in so doing from the appellant. This assistance was rendered after the appellant was discharged from the office of curatory, and before he was appointed one of Ker's interdictors, which took place sometime afterwards.
At this particular intervening juncture notice was given that a bond for £472, due by Mr. Fotheringham to Ker was to be paid up, unless the sum was allowed to lie at 4 ½ per cent. interest. Whereupon the appellant ordered the money to be received, and lent out to one Kinnear, a merchant, at 5 per cent. Kinnear failed, and the question was, Whether the appellant Graham was liable for the money so lost as negotiorum gestor?
The Court of Session held he was liable; and against this judgment the present appeal was taken.
Pleaded by the Appellant:—Thomas Ker being of age at the date of Kinnear's bond, and being present and concurring in the whole transaction, the same in law must be received as his own act. At that time he was not under any legal incapacity from acting in his own affairs, and under no constraint against lending his money; and the part the appellant took was merely that of a friend, lending his assistance to, instead of acting for another, in procuring an additional per centage for his money. This being the nature of the appellant's interference, none of the characters of negotiorum gestor, or of mandatory, apply to the case, and consequently no obligation arises which can make him responsible for the debt so lost; but, separately, John Ker, Thomas Ker's uncle, who acted as guardian to Thomas Ker's children after his decease, during which time Kinnear was solvent, ought to have called up the money from Kinnear, if he thought the security insufficient. Instead of this, the respondent, and John Ker, who acted for her children, remained satisfied with that security for two years.
Pleaded for the Respondent.—A person who voluntarily, and without any authority, takes the management of another's affairs, makes himself responsible for all the consequences. He excludes all others from acting, and therefore is bound to bestow great care, so much so, that mere negligence, without any ill design, will subject him in liability. The appellant, therefore, having managed Thomas Ker's affairs in the loan in question, without any authority, is liable for the loss of the money lent to Kinnear by the latter's failure. And it is no answer to this to say, that Thomas Ker was himself present, and acting in the affair, because Thomas Ker was notoriously at the time of weak and facile mind, and unable to comprehend, far less to give his sanction to any such transaction.
After hearing counsel, it was
Ordered and adjudged that the said interlocutors be, and the same are hereby affirmed.
Counsel: For Appellant,
For Respondent, C. Yorke, Al. Wedderburn.