Scottish Court of Session Decisions

This is an advocation from the Sheriff Court of Lanarkshire. The action is at the instance of Alexander Bartleman Davidson, master mariner, lately residing in Glasgow, now master of the steamer Georgiana, of Liverpool, and is directed against James Gray Lawrie, shipbuilder, Whiteinch, Partick. The summons concludes for £375, which the pursuer says was the stipulated and agreed upon commission at the rate of 2 1 2 per cent., between him and the defender on the sum of £15,000, being the price of a ship which the pursuer says he was the means of selling for the defender to Mr George Wigg, merchant, Liverpool. The pursuer brought about an interview between the defender and Mr Wigg, and ultimately a bargain was made. On 15th November 1862 a formal contract was executed between Mr Wigg and the defender, whereby he agreed, for the sum of £15,000 and £18,000 respectively, to build two steamers for Mr Wigg. Any question as to the second steamer is withdrawn in this process. Previous to the execution of this formal contract and during the communings that were going on between Mr Wigg, the pursuer, and the defender, the defender addressed the following letter to the pursuer:—

“Glasgow, 11th October 1862.

“Captain Davidson — Dear Sir, I could deliver my ship 212:o x 25:0 and 1510 in 2 1 2 months from date of order, with engines for 12 knots; and my price would be £15,000 cash; or I could deliver in 3

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months, with engines for 14 knots; and my price would be £ 18,500; both prices being subject to 2 1 2 per cent. commission.”

The pursuer mainly relies upon this letter. The defender resists the pursuer's claim on the following grounds:—(1.) Because the letter, on the assumption that it was written to the pursuer as an intending contractor on his own account, contained an offer which was not accepted. (2.) Because, on the assumption that the letter was written to the pursuer as Mr Wigg's servant, he was not entitled to found upon it to any effect. (3.) Because, as Mr Wigg did not accept the offer in the letter, no obligation under it arose. And (4.) because the defender did not thereby oblige himself to pay commission. Some alterations of details by which the vessel's speed was increased, on the defender's letter to the pursuer, were embodied in the contract of the 15th of November.

The Sheriff-Substitute (Strathearn) found that under the letter of 11th October the commission was earned when the pursuer procured a customer who gave the order, the alterations of details being subjects privative to the principals themselves. The case was not pronounced upon by the Sheriff, the appealing days having expired before the defender's agent discovered that the Sheriff-Substitute's interlocutor had been pronounced. After hearing parties, the Sheriff-Substitute had had the process at avizandum for five months. The Sheriff held that the appealing days having expired he had no power or discretion under the Sheriff Court Act to extend the time prescribed for lodging an appeal, or to allow an appeal to be received after an interlocutor has become final in any circumstances. His Lordship accordingly held the interlocutor of the Sheriff-Substitute final.

The defender advocated, and to-day the Court adhered to the Sheriff-Substitute's interlocutor.