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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cullen v Stark [1835] CA 13_747 (13 May 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0747.html
Cite as: [1835] CA 13_747
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SCOTTISH_Shaw_Court_of_Session
Page: 747↓
v.
Subject_Agent and Client—Mandate.—
1. A country agent employed an Edinburgh agent to make a search for incumbrances—he afterwards rendered an account to his client, including the Edinburgh agent's account, and he got his own account paid, Held, in the circumstances, that the client had failed to establish that he had paid the Edinburgh agent's account to the country agent. 2. Question, whether, when an Edinburgh agent acts on the employment of a country agent, and renders his account to the country agent, who receives payment of it along with his own account from the client, the client is liable to pay over again to the Edinburgh agent on the country agent's failure.
Mrs Paterson, or Stark, proprietor of a heritable subject in Paisley, borrowed £150 from David Thomson, surgeon in Glasgow, and granted a bond and disposition in security over the subject. The lender's agent was Francis Erskine, writer in Glasgow, and the same person acted for Mrs Stark also. A search of incumbrances was required prior to the loan, and Erskine wrote to John Cullen, W.S., with a note of search, which he requested Cullen to make. Erskine, as a country agent, occasionally employed Cullen in the business of other clients. Cullen made the search, and returned the usual certificate to Erskine, along with his note of charges, amounting to £15, 3s. 9d. After the loan was effected, Erskine rendered an account against Mrs Stark, amounting to £60, 7s., and including charges for writing to Edinburgh to get the search made, and also
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“To packet with account for searches, |
£0 |
1 |
0 |
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To amount thereof, |
15 |
3 |
9” |
The account was objected to as extravagant, and Erskine subjoined to it, “Deduct, on account of circumstances, £15, 7s.” This left a balance of £45, and there was subjoined to the account, “1832. Feb. 22.—Settled per Dr Thomson, per annexed receipt.—F. E.” On 22d October, 1832, the following discharge was granted by Erskine:—“Received from David Thomson, Esq. the sum of £45 sterling, being amount of my account against Mrs Stark, Paisley, discharged of this date, and hereby referred to, and I hereby assign over to Mr Thomson my right of hypothec over her title-deeds.”
Cullen repeatedly rendered his business-account to Erskine, including inter alia the charge for a search on Mrs Stark's property. Erskine became bankrupt in November 1833, and Cullen then, for the first time, applied to Mrs Stark for payment of his account for executing a search on her property, and raised an action against her to enforce the demand.
Cullen pleaded, 1st, That the evidence showed that his account for the search had never been paid to Erskine at all. It amounted to £15, 3s. 9d.; and a sum of £15, 7s. was deducted “on account of circumstances,” but without any explanation, just before settling. This was just the pursuer's account, with a trifling abatement farther. And, 2d, That Erskine held no authority from him to settle with those clients who incurred accounts to the pursuer for business done for their behoof in Edinburgh; and, without such authority, the client was not entitled to pay the Edinburgh agent's account to the country writer, whose discharge was accordingly ineffectual.
Mrs Stark answered, 1st, That the untaxed account, of £60,7s., which was almost entirely charged for effecting a heritable loan of £150, was grossly overcharged; and that Erskine had agreed to deduct £l5, 7s. from the account, which still left a highly charged account for all the business done, including the express item of Cullen's charge. That account, including Cullen's, was paid and settled, in terms of the docquet on the account and relative discharge. 2d, As Erskine alone employed Cullen, and was moreover an ordinary employer of his in other business, and Cullen had rendered his account to him, Cullen looked to him only for payment, and it was necessarily implied that Mrs Stark was entitled to pay the account of Erskine, leaving him to pay Cullen under the sub-employment which subsisted between themselves, especially as Cullen had never recurred to Mrs Stark till after the failure of Erskine, which was above two years after Cullen's account to him was first incurred, he was not entitled now to come back upon her.
The Lord Ordinary “repelled the defences, and decerned against the defender in terms of the libel with expenses.” *
Mrs Stark reclaimed.
_________________ Footnote _________________
* “ Note.—This case involves no general question of liability as between an Edinburgh agent, acting on the mandate of a country agent, and the employer of the country agent. It rests on its own circumstances, which are very peculiar. The defender, Mrs Stark, was fully advertised that the searches which she ordered, and of which she and the lender, Thomson, took the benefit, were made by an Edinburgh agent; indeed she must have seen from the certificate sent with them, that they were made by the pursuer, and she was aware of the amount of his charge being £15, 3s. 9d. Of all these circumstances Thomson was also aware. Notwithstanding this, Thomson, at her desire, and for her behoof, paid Erskine the Glasgow agent's account, without requiring him to show any authority from the pursuer to receive that sum, or any voucher that it was paid to the pursuer. But the most material fact is, that Erskine deducts precisely the amount of the purser's account—plus, 3s. 3d. from his own; so that the pursuer's account has not been paid at all to Erskine, or to any one else. There is a notandum that the deduction was given on account of circumstances, but what these circumstance were, or on what articles the abatement was allowed, is not specified. It is plainly a colour to disguise the mala fides of the transaction.”
The Court accordingly adhered.
Solicitors: John Cullen, W.S.— W. Muir, S.S.C.—Agents.