Scottish Court of Session Decisions

This was an action at the instance of D. J. Macbrair, S.S.C., in Edinburgh, against Alexander Small, formerly farmer at Burnfoot, New Monk-land, to recover the amount of a business account incurred by Small to the pursuer as his law-agent in two actions, one of multiplepoinding and the other of declarator, which actions were subsequently conjoined and taken out of Court on a compromise on 24th February 1870 (7 Scot. Law Rep., 332). The question was, whether the defender had employed the pursuer through Messrs Moody, M'Clures, & Hannay, writers in Glasgow, to act as his agent in these actions. After the actions had proceeded for some time, and claims and defences had been lodged in the conjoined processes by the pursuer, both for the defender and for James Scott, grain merchant, Glasgow, a creditor of the defender, to whom he had assigned his right in the succession which was the subject of the litigation, a minute was entered into, and signed by counsel for the parties, whereby the cases were compromised and settled. But on 14th January last the defender appeared by another counsel and agent, and disclaimed having authorised any proceedings to be taken in his name, and especially that there had been any authority to compromise the case. A minute and answers having been ordered, and a proof led before Lord Ardmillan, the case was again heard in February, when, at the suggestion of the Court, a new minute of compromise was entered into, under which the defender got £125, his wife a provision of £1000, under the Conjugal Rights Act, and Scott the balance of the fund in medio. When this present action was raised it was agreed by the parties to hold the above-mentioned proof in the question of disclamation as the proof in the case. In the course of said proof a mandate by the defender in favour of the Glasgow agents was produced, authorising them to act for him in the action of multiplepoinding, but not making mention of the action of declarator, being dated before that action was raised. The said mandate, however, also authorised the agents to act as law-agents for the defender “generally in relation to the succession,” which was the subject of litigation.

On considering the record and proof, the Lord Ordinary ( Gifford) found that the pursuer had sufficiently proved that the defender, through his Glasgow agents, employed the pursuer to act as his agent, and that upon this employment the account sued for was incurred. His Lordship proceeded upon the ground that a sufficient written mandate in favour of the Glasgow agents was produced, and that the employment was fully instructed by parole evidence also. Employment by Scott was not inconsistent with employment by the defender too—the interests of both being up to a certain point the same, and the radical interest in the whole litigation with the defender.

The defender reclaimed.

Millar, Q.C., and Strachan, for him, argued—That the mandate, in any view, only referred to the action of multiplepoinding; and that as the agents had sacrificed the defender's interest to that of their other client Scott, who was the real litigant, and had the sole interest to defend the actions, the mandate fell, not having been acted upon in the sense in which it was granted.

Fraser and Guthrie, for the pursuer, were not called upon.

At advising—