Scottish Court of Session Decisions

In this action James Duncan & Company, merchants, Leith, sued James Lumsden, builder, Cumin Place, Grange, Edinburgh, for £70 as the balance of the price of a quantity of timber sold to him in December 1863. The summons was signeted on 29th June, and given in for calling on 11th July 1864. The defence was that the sum sued for and expenses had been tendered before the summons was given in for calling. This was denied by the pursuers, and the Lord Ordinary decerned for the principal sum sued for, and allowed to the defender a proof of the questions of fact contained in his 5th and 6th statements on record, and to the pursuers a conjunct probation.

These statements were as follows:—“5. The defender, on the forenoon of 11th July last, called on the pursuers' agents, Messrs Murdoch, Boyd, & Henderson, and tendered payment of the amount due under said summons, with expenses, as the same should be taxed; but the tender was declined. The defender then waited on his agent, Mr James Barton, who wrote to the pursuers' agents in the following terms:—‘Edinburgh, 11th July 1864. Gentlemen,—My client, Mr Lumsden, informs me that he called upon you this forenoon, and tendered you payment of the amount concluded for in a summons at the instance of your clients, Duncan & Company, against him, with expenses, as these should be taxed by the auditor, but that you refused the offer, and claimed certain other expenses, being those for an inhibition upon the summons, to which your clients are not entitled, and the use of which was most oppressive, as your clients are perfectly well aware that Mr Lumsden is a responsible man. Mr Lumsden will be prepared to pay the principal sum and interest here to-morrow at twelve o'clock noon, and the expenses of the summons will also then be paid, if taxation is found to be unnecessary. Of course my client will not be liable for any expenses incurred after his tender to you this forenoon.’ The agents for the pursuers replied to the defender's agent as follows:—‘120 Constitution Street, Leith, Edinburgh, 12th July 1864.— Duncan & Co. v. Lumsden. Dear Sir,—We have your letter of yesterday. It was not easy to ascertain what Mr Lumsden meant to do when he called for us yesterday, but apparently his proposal was to pay principal and interest alone. He distinctly said he would not pay any judicial expenses. We recommended him to go to his agent and make us a tender in the proper way if he wished to settle the case. He was informed that the case was lodged for calling before he came. It will not be convenient for us to send for payment today, but our clients are quite willing to receive payment of principal and interest, if that is not to be disputed, and to take a remit to the auditor to ascertain the amount of the expenses. It is quite evident that you have not been made aware of the circumstances of the case, else you would not hold the opinion that our clients' proceedings have been oppressive. Your client has intentionally, we believe, given our clients a great deal of unnecessary trouble in the matter; and you cannot be surprised at their resorting to any proceedings that appeared likely to secure their debt, when your client himself hinted that they would not get 20s. per pound of their debt. As we presume any charge for this correspondence will be objected to as extrajudicial, we decline to correspond farther on the subject.’ To this letter the defender's agent made the following reply:—‘Edinburgh, 7 St Andrew Square, 13th July 1864.— Duncan & Co. v. Lumsden. Dear Sirs,—I am in receipt of your letter of yesterday's date. Mr Lumsden told me that he distinctly tendered to you payment of the principal and interest claimed by your clients, along with the expenses of the summons, the only thing he refused to pay being the expenses of inhibition, until it was ascertained that these expenses were due by him; and my letter of Monday repeating his offer could leave no doubt as to his meaning. He called here yesterday at twelve o'clock with the money, but as you failed to attend to receive payment, he of course will dispute any claim for expenses after the date of his tender, and also interest on the principal beyond bank rates. If you will send me a state of the debt along with your account, the latter may be adjusted without sending it to the auditor, as you propose; and until I see it, I do not ask it to be taxed. There need be no difficulty in coming to a settlement at once. Mr Lumsden denies that he has intentionally or otherwise caused your clients trouble. He considers he has good reason to resist the present claim; but being averse to enter into litigation, he prefers paying the amount claimed and being rid of your clients.”

“6. Notwithstanding the tender made by the defender and his agent of the amount due under said summons, with expenses, the pursuers proceeded with said summons, and lodged the same for calling, and the same was called accordingly.”

The questions were tried before the Lord Ordinary

Page: 113↓

(Jerviswoode) without a jury, in terms of sec. 48 of the Court of Session Act, under which his judgments on facts is final. His Lordship found (1) that it was not proved that the defender on the forenoon of 11th July tendered payment as averred to the pursuers' agent; (2) that the letters above quoted were written and received; and (3) that no tender was made before the pursuers had lodged the summons for calling.

The defender reclaimed, and urged that the conduct of the pursuers' agents in going on incurring expense after the letter of 13th July was unreasonable; and that on the principle of the case of Ramsay, 19th March 1864, 2 Macph. 891, the party who had acted so unreasonably should be found liable in expenses. It was stated that the dispute about the expenses arose from the fact that the pursuers' agents charged the defender £8, 3s. 4d., as incurred on 13th July, and that the whole sum allowed by the auditor up to that date was £2, 18s. 6d.

The Court adhered.