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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hendry v. Grant and Another [1868] ScotLR 5_544 (27 May 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0544.html
Cite as: [1868] ScotLR 5_544, [1868] SLR 5_544
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SCOTTISH_SLR_Court_of_Session
Page: 544↓
Court of Session Inner House Second Division.
v.
Facts:
Law agents received from a client a sum of money for the purpose of getting the opinion of counsel as to the competency of an advocation, and of advocating the cause if so advised, or raising some other action. Nothing else was done than to take the opinion, which was adverse to advocation. The auditor having reported that the sum received was more than was required for that purpose,— Held that, the money being given for a specific purpose, the agents must return the balance whatever counter claim they had against their client.
The pursuer in this case, a farm grieve, pursued the defenders, a legal firm, for damages, and for the recovery of certain specific sums, upon two grounds—(1) that they failed to obey his express instructions in regard to raising an action at his instance against his master (by whom he said he had been improperly dismissed) in respect that while he ordered an action to be brought for a sum of about £28, including his yearly wages and allowances, the defenders only brought the action for half that amount, being the pursuer's claim for half yearly wages. The action for £14,4s. having been raised, the Sheriff-substitute decerned for the pursuer. The Sheriff altered this judgment; and the ground of action in this case was that, through the failure of the defenders to obey his express instructions, the pursuer had lost his remedy of advocation, whereby he could have got his rights against his master redressed; (2) the second ground of action was, that, after the final judgment of the Sheriff, the defenders had encouraged the pursuer in the idea that the process in the Inferior Court was capable of being advocated, and had taken from him £10, the purpose of which was expressed in the following receipt which they gave to him:—
“ Elgin, 3 d July 1866.—Received from Mr Wm. Hendry the sum of ten pounds sterling, for the purpose of getting counsel's opinion, and for advocating Hendry v. Grant, and raising such other action as may be necessary.”
(Signed) “ Grant & Jameson.”
The pursuer said that the defenders were guilty of a want of professional skill in supposing, and leading him to believe, that the process could be advocated.
The Court allowed a proof, and heard parties upon it.
W. A. Brown for pursuer.
Gifford and Lancaster for defenders.
The Court held (1) that the pursuer had failed to prove that he gave such instructions as he represented; (2) without affirming that the defenders had shown any want of professional skill in taking the opinion of counsel on the point, that advocation of the process was clearly incompetent; but (3) that the sum of £10, having been given for a specific purpose, must be so used, and being too large sum for taking the opinion of counsel, which was all the defenders did with it, they have to return the balance after deducting a lawful charge for agency and counsel's opinion.
The Court having remitted to the Auditor to tax the account, he reported that £4, 6s. was a lawful charge for that purpose, The Court accordingly decerned for the pursuer for the balance of £5,14s; but assoilzied the defenders from all the other conclusions of the action.
Solicitors: Agent for Pursuer— James Bell, S.S.C.
Agents for Defenders— H. & A. Inglis, W.S.