Scottish Court of Session Decisions

In October 1870 the pursuer bought from the defender certain house property in Glasgow at the price of £16,000. Under the missives of sale the defender was to give the pursuer a valid title to the satisfaction of him or his agent, free of all expense. The missives were signed on 28th October, and on the same day the pursuer engaged a Mr Morrison to act as his agent in the matter. Morrison accordingly prepared a title for Dobbie, and on the 2d of December he and the pursuer and the defender met at the office of the latter's agent for a settlement of the transaction. Morrison alleged that the defender had agreed to give him one per cent, on the sale, and presented an account for £247, being £160 of commission, and £87 of fees for drawing the conveyance. To this account Duncanson objected. He had, he said, been asked by Morrison to sell the property to a client of his, and had, with some reluctance, agreed to do so on the footing that the price was a satisfactory one. He further asserted that Morrison had offered £16,000 on behalf of his client provided he got a free title; and as he (the defender) was averse to this, that Morrison said he would get the pursuer to employ him to prepare the conveyance, and that, in any event, the one per cent of commission should cover everything save the defender's fees to his own agents. He was, therefore, only due £160 in all. This arrangement Morrison denied. No settlement took place on 2d December, as the defender refused to accept the price under deduction of Morrison's account. As the pursuer had not enough money to pay the full price, he granted his promissory-note to Morrison for £193; and on the faith of this and about £46 previously paid to him by the pursuer, he was to advance £240 to Dobbie. The pursuer got dissatisfied with his agent for his dilatoriness, and alarmed about the purchase, as he learned Morrison was not a certificated agent, and on 9th December settled the transaction in his absence, and wrote to the defender to pay no attention to Morrison's letters. The pursuer then requested Morrison to give him back his note, as the purpose for which it had been granted had not been fulfilled, Morrison never having given him a penny of value for it. This Morrison refused to do, retaining it as payment of the debt due to him by Duncanson. Dobbie in consequence gave directions for an action against Morrison, and on the dependence of the summons used arrestments. Eventually, however, as “making the best of a bad bargain,” he took an assignation to Morrison's claim, and gave him a discharge.

The present action was accordingly based on the allegation that Duncanson was due £160 to Morrison for commission, and £87 conveyancing fees, and that Morrison had assigned his rights to the pursuer. The summons was thus framed in regard to the latter of these sums—“(2) of the sum of £87, 0s. 6d. sterling, being the amount paid by the pursuer to the said Archibald Maclean Morrison for the preparation of the disposition of the said subjects by the defender to the pursuer in implement of said sale, and which expenses the defender had become bound, by missive of sale between him and the pursuer of date 28th October 1870, to pay; the said two sums, amounting together to £247, 0s. 6d., but under deduction of two sums of £5 and £2 paid by the defender to the said Archibald Maclean Morrison, leaving a balance due to the pursuer of £240, 0s. 6d. sterling;—to which balance of £240, 0s. 6d. sterling the pursuer obtained right by assignation executed by the said Archibald Maclean Morrison in favour of the pursuer, of date the 28th January 1871, and duly intimated to the defender.” The defender pleaded—“The pursuer is not entitled to recover the amount of the ad valorem fee charged by Mr Morrison for the preparation of the said disposition,

Page: 554↓

nor the expense of extending the same, in respect that (1) Mr Morrison, in preparing the said disposition, did not act as the agent or on the employment of the defender; (2) by the terms of the agreement between the defender and Mr Morrison no further or other expense was to be payable by the defender than the said £160 in name of commission, and the stamp required for the disposition; and (3) Mr Morrison not having been a certificated agent at the time in question, was not and is not entitled to charge ad valorem fees.” He also maintained that the pursuer was barred from maintaining the present action by the settlement on 9th December in the full knowledge of all the circumstances.

After a proof, the Lord Ordinary ( Ormidale) held that £160 was all that the defender was liable to pay; that the pursuer sued for the £87 as assignee of Morrison; and that as the right to sue for this was in the pursuer himself, not in Morrison, he could not sue under the assignation; and as Morrison's employment was by the pursuer, not by Duncanson, the pursuer could not sue under that contract; and that, in any event, the defender was protected by the discharge granted by the pursuer on 12th December.

The pursuer reclaimed.

Shand and Lancaster for him.

Balfour and J. M. Lees in answer.

At advising, the opinion of the Court was delivered by Lord Neaves. Under the missives Dobbie was to have a free title. What a free title meant was not disputed. And Duncanson was either to pay it or reimburse Dobbie in the payment of it. It bad been argued that Dobbie sued here only as assignee of Morrison, and this was the view the Lord Ordinary had taken. But in reality Dobbie here sued in his own right, and that he fortified by founding also on the assignation unnecessarily did no harm. But he also sued as assignee of Morrison, for the £160 of commission. Morrison had been the procurer of a purchaser apparently in the matter, and he said it was stipulated he should get one per cent of commission on the price. He was therefore in petitorio as to the commission. He had no written evidence to prove this agreement. The only evidence was his own oath so far as supported by the defender's statement. But the defender gave a different account of the matter. No doubt he said one per cent was agreed upon at first, but that was on the footing that according to the usual form he should pay only half of the cost of the titles. But when it was arranged that he was to pay both sides he only agreed on the understanding the pursuer's title was to come out of the £160. The preponderating evidence was in favour of this view of the agreement, and therefore Duncanson should first pay Dobbie the cost of the title, viz., £87, and the balance of £160, less this sum, to Dobbie as assignee of Morrison. The Lord Ordinary had dealt with matters in his interlocutor which were practically of little importance, such as the discharge was, which was not a very formal one. His interlocutor must therefore be recalled, but practically the same result would be arrived at.