Scottish Court of Session Decisions

Lord President—The judgment which we are to pronounce, is in point of form to dispose of the reclaiming note now before us; but the whole question between the parties is now a question of expenses, the controversy, when handled in a practical way, having been narrowed to a very small compass. This affair of Hamilton's debt to Mayer appears to have been a very troublesome matter from the beginning, but I cannot help saying that Hamilton's conduct throughout, and particularly looking to the way in which Ferrier had dealt for him, was not reasonable or satisfactory. Nothing could be more unreasonable than to leave Ferrier to pay Ross' account—Ross holding a decree in which he could have done diligence against Hamilton—and then not providing the funds to reimburse Ferrier. There can be no doubt that when this dispute arose, Ferrier was greatly out of pocket in paying the sum for which summary diligence might have been done against Hamilton.

The shape which the matter took before it was brought into Court was this. Hamilton was desirous of having the whole affair of his debt put into one account, so that it might be dealt with-in a separate way from his ordinary account, and that was done in the account No. 7 of process. The amount was stated at £316, Os. 8d., and on 13th October 1865 £200 was paid to account, leaving £116, Os. 8d. Hamilton disputed this balance, but on what grounds we have never been able to see. We must suppose his grounds to be unreasonable, for he has not yet been able to justify them. The offer which he made to Ferrier was this—I will pay you £84, and not a farthing more. How he worked out that sum I do not know, but that he was wrong in that must now be held settled. Ferrier refused that offer, and said the amount is £116, Os. 8d., and if you won't settle I must take proceedings against you. Ferrier had stipulated, I think very cautiously and properly, that Ross should on payment give him an assignation to his account, if required; and so, when he found his client in this unreasonable attitude, he got from Ross that assignation, and then he gave Hamilton a charge for £112, 14s. Id., and 19s. as dues of extract. The question is—Was he justified in doing that? I do not say that it was not a strong step; but it must be kept in view that his client had put himself in a very false position by trying to disclaim what his client had done in paying Ross, and saying that he would not reimburse him. The client was in the wrong throughout the whole of this dispute, and therefore, the question comes to be—Whether in giving that charge, the agent was asking more than he was entitled to? It turns out, I think, that he was not. On the contrary, it is clear that if this account were made out in the way in which the agent was entitled to make it out, by charging interest and additional items, there is more due on the balance than the sum charged for. In these circumstances, I cannot help thinking that the charger was right throughout, and was entitled to take this mode of enforcing payment, and I am inclined to find the charger entitled to expenses. This I am all the more inclined to do when I look at the grounds on which the suspender resists payment. He does not say the charge was incompetent, but he says in his first plea— “The advances made by the charger in payment to Mr Ross of the sums now charged for, having been repaid to him by the complainer, the charge ought to be suspended as craved.”

That certainly is not well founded. And his second plea is to the same effect. On what all this was based, we see from the Lord Ordinary's interlocutor, namely, that this jotting, No. 7 of process, was to be held as a proper account-current, and that the £200 was to be so imputed as to extinguish the charge. That plea has no foundation. In the first place, we were all satisfied on looking to this account that it was not an account-current; and secondly, that if it were and the cases cited were to be applied, the effect would be to extinguish other portions of the business account, and leave this most undoubtedly unextinguished. I think, therefore, that the charger is entitled to prevail.

Loud Deas—The question between the parties is simply—Who was in the right? Now, I agree in holding that in the payment of that sum to Ross nothing was done but what was right. Hamilton no doubt says that he forbade Ferrier to pay that sum, but he has not suggested any ground on which Ross was not entitled to get payment of it, or to do diligence against him. It is clear, therefore, that Ferrier, in paying that sum, paid nothing but what Hamilton could be compelled to pay. He was entitled to an assignation, and to use the same remedies that Ross could use. I do not see that, having paid that money, he was not entitled to be reimbursed, leaving any question of the accounts open. There was no question of taxation raised at that time, for Hamilton says he objected to every item of the account. What is the result? There is no doubt that the account was subject to the well-known principle, that if a client does not choose to pay his account as rendered, but demands that it shall be taxed, his agent is entitled to alter and add to it. That is well settled. The client takes the risk if he insists on having the account audited. We must look therefore to the real sum due, and it turns out that there will be a sum of £9 more to pay than if Hamilton had paid when the account was rendered. There is no doubt, too, that an agent may, if he chooses, charge interest on his outlay, so it turns out that Hamilton will have to pay some £16 additional. Taking these two things together, the case is clear. It is hard no doubt that Hamilton should have to pay the mone, but it would be still harder to make Ferrier pay it.

The other Judges concurred.