Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MANDATE.
Subject_3 Mandatory is directly liable to the mandant, and is not entitled to place a sum recovered for him to his own credit in account with a third party, at whose desire he accepted the mandate.

Christiana Chalmers
v.
Innes and Hope, Merchants in London

Date: 8 March 1766

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[Faculty Collection, v. IV, p. 58, Dictionary 3489.]

Christiana Chalmers had right to L.24 sterling of prize money and wages due to her deceased son, a sailor. In consequence of the advice and recommendation of Young, a merchant in Stromness, she granted a letter of attorney to his correspondents, Innes and Hope, merchants in London, empowering them to receive the money. She delivered this letter to Young, and he transmitted it to Innes and Hope. Innes and Hope notified to Chalmers that they had received the money, and had placed it to the credit of Young. Chalmers brought an action against Young, concluding for payment.—His defences were, that he was not employed by Chalmers to receive the money, nor did he receive it: That, although he recommended, it was Chalmers who employed Innes and Hope as her attorneys: That consequently he himself could not be liable in payment of money which he had never received, nor for the intromissions of those he had never employed.

Process against Young was sisted until Innes and Hope should be called. Chalmers brought an action against them concluding for payment.

Argument for the Defenders,—He who undertakes to execute powers of attorney, does it from the confidence which he reposes in the person transmitting such powers; is understood to contract with him, and, according to the custom of merchants, is answerable to him. Were the case otherwise, no man would undertake to execute such commissions, and thereby become answerable to persons utterly strangers. Had the letter of attorney been transmitted directly by Chalmers to Innes and Hope, they would not have accepted of the trust, for they knew nothing of her, nor had they any security from her for their indemnification; but, as the letter of attorney was transmitted to them by Young, their correspondent, they accepted of the trust. Young was in effect employed by Chalmers. Innes and Hope might have paid the money to him, and they did what was equivalent, by crediting him with the money which they received; and if Young omitted to account with Chalmers, he omitted to do his duty.

Argument for the Pursuer,—The pursuer might have given the letter of attorney to Young, and authorised him to delegate. In such a case, Young would have been directly accountable to her; but, in fact, she gave him no powers: he was nothing more than a hand to transmit the letter of attorney from her, the mandator, to Innes and Hope, the mandataries; nor could they run any hazard in executing the trust and receiving the money, for they could always indemnify themselves by retention, and were bound to account for no more than the balance. If they could pay her by passing the sum to Young's credit, then a mandatory, instead of accounting with his constituent, may account with the person by whose recommendation the mandate was given, and will thus pay himself, not his constituent. “The Lord Gardenston, Ordinary, having considered that the pursuer's power of attorney was a direct commission to Innes and Hope to levy her son's wages, which commission they accepted of upon the recommendation of Young, therefore found that the defenders are accountable to the pursuer; without prejudice to the defenders to claim a full indemnification from Young, in case they shall make it appear, on accounting with him, that he was in cash to pay the demand.”

Upon advising a reclaiming petition and answers, “The Lords adhered, and found expenses due.”

Act. W. Oliver. Alt. Arch. Cockburn. OPINIONS.

Coalstoun. The money might have been paid by the defenders to Young: they did the same thing by giving credit for it.

Gardenston. No powers were given to Young.

Kaimes. Young comes in here only in consequence of his gratuitous offer to transmit the power of attorney. Young is no party.

Auchinleck. A letter of attorney may be given to one who may delegate.

President. The defender's plea is dangerous; for, according to it, a London merchant, or any other merchant at a distance, would, in consequence of a simple recommendation, always pay himself first for any debt due by the person recommending.