Scottish Court of Session Decisions

In August, 1833, Thomas Walker, a young man, recently come of age, residing in Dollar, addressed a letter to George Somerville, residing in Edinburgh, promising him and his children 15 per cent upon any sums which Somerville might recover by means of an action against Walker's father, for payment of Walker's share of the goods in communion, in right of his deceased mother, Mrs Walker. The letter also appointed Somerville to act for Thomas Walker in various other matters, such as the management of a farm which Somerville was to select, and which it was proposed to stock out of the funds to be recovered by the action. A summons was raised against Walker's father, but within two months after the above letter was written, he and his father made an agreement, by which an annuity of £20 was settled on Thomas Walker, and his claims against his father were discharged. Somerville then alleged that Thomas Walker had no power to settle the action to the prejudice of the stipulations made in his favour by the letter of August, 1833, and he raised an action against Thomas Walker, libelling that the letter amounted to an agreement which had been acted on by him (Somerville), and could not be resiled from, and concluding for implement, or for damages.

He obtained decree in absence for the sum of £363, stated to be the commission, at the rate of 15 per cent, on the money which he alleged Thomas Walker would have recovered from his father, if he had not made an extrajudicial settlement. Thomas Walker then brought a suspension of the decree, and a reduction both of the decree, and letter of alleged agreement; the processes were conjoined, and the Lord Ordinary pronounced this interlocutor; “finds that the document brought under reduction as an agreement is truly of the nature of a letter or mandate, which the granter, if he had capacity to judge for himself, might recall at pleasure, subject to any claims for disbursement and remuneration for trouble which the mandatary might be able to instruct: That the pursuer, on 31st October, 1833, within little more than two months after the date of the said mandate, entered into an agreement with his father, whereby, in consideration of an annuity of £20, he discharged all claims held by him against his father, after which the pursuer's employment, under the said mandate, and the ground thereof, ceased: That the defender, nevertheless, on 11th July, 1834, took out the decreet libelled on, against the present pursuer, in absence, for the large sum of £363, as the alleged commission on a random sum supposed to be claimable by the pursuer, in right of his mother, out of the goods in communion at the period of her death, and also £30 more of alleged expenses: That the said decree proceeded on an agreement libelled on in the summons as dated in June, 1833, while no agreement bearing that date has yet been exhibited: That although the record has been closed in the present action, the defender has not condescended specifically on any disbursement made by him under the said mandate, nor produced as yet a single voucher to support a claim to any extent against the pursuer: That the said decree, under these circumstances, cannot be supported to any extent, and reduces, decerns, and declares respecting the same in terms of the libel: That no sufficient grounds have been assigned, and that it is unnecessary in the circumstances, and under the view taken of the mandate, to reduce the same: But that the pursuer having failed to condescend specially on any specific outlay in reference to the matters therein referred to, and to support the same by vouchers, the defender, hoc statu, has no just claim against the pursuer; but reserves to the defender to establish such claim in any new action before this Court or the Judge Ordinary, and to the present pursuer his defences thereagainst, as accords: In the suspension, suspends the letters simpliciter; and finds the defender liable in expenses in the conjoined actions subsequent to the execution of the summons of reduction and letters of suspension.” ^*

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^* “ Note.—The Lord Ordinary regrets that the defender did not accede to the recommendation of the counsel, and allow a remit to ascertain what amount of remuneration or outlay he could establish for any assistance give by him to the purser in the business to in the mandate. The defender having declined this, it has been necessary to give judgment on the merits, and upon the record as prepared. The reservation, however, in the interlocutor, will enable the defender still to constitute any claim he may be able to substantiate, in a speedy and economical manner.

“Expenses have been given, because the whole previous proceedings seem to have been founded in error, or on wrong data, and to be utterly useless to the parties.”

Somerville reclaimed.