Scottish Court of Session Decisions

Lord Justice-Clerk—In this case I think that the judgments given by the Sheriff-Substitute and the Sheriff are well founded. The pursuer, we have it in evidence, himself told the defender that he did not know anything about these stocks; at that very time the defender knew of this difficulty or peculiarity as to their transfer, and presumably of their consequent depreciation in value in the London market, even if a sale could be effected. Yet the defender never said one word indicating his knowledge of this fact, but suffered Mr Mackenzie to go on with the matter and to sell the shares. The broker acted according to the orders he received, and the fault lies with the person whose concealment, or whose silence at least, caused the difficulty.

On the matter of expenses, however, I cannot think Mr Mackenzie is entitled to travelling expenses to London, which were incurred really in support of his own claim against the defender, and not in the latter's interest. Again, his personal outlays, time, telegrams, &c., are either covered by brokerage or they fall under the same category as the travelling expenses. With this change I should propose to your Lordships to adhere to the interlocutor reclaimed against.

Lord Ormidale—I quite concur in the views expressed by your Lordship in the chair. It is important to keep before us the fact that Mr Mackenzie was a young stockbroker commencing business in Dundee, and not likely there to have seen transactions in these particular stocks. But there is besides this a statement by Mr Ross, who introduced the defender to him, that he told Mr Blakeney that he knew nothing of this stock, and would through his London correspondents sell it for him. Now this being so, it appears to me that the silence of the defender was, to say the least of it, remarkable—indeed it was unaccountable when he knew, as we have it in evidence from the correspondence that he did, how matters truly stood and how the shares of these banks were unsaleable on the London Stock Exchange, or at least unsaleable in the usual way and with the ordinary rules as to delivery, transfer, and so forth.

This brings us to another question, whether Mr Mackenzie failed in any way to do his best to save the defender from loss so far as lay in his power? He bought at once, as he was bound to buy, other and saleable stock it cost more, but he delivered it to the purchaser and closed the transaction, and now he sues for the difference. I think he did all in his power, and I entirely concur with your Lordships in that result, and also as to the matter of the travelling and other expenses.

Lord Gifford—I am of the same opinion, and think the Sheriffs are right. Had this action been one brought under the civil law, it would have been one of those termed actio contraria ex mandato. Now the question is, did Blakeney authorise and instruct the sale? If so, he must pay, unless Mackenzie gave to his London correspondents different instructions from those which he received from the defender. But he did not do so. As to the fault committed by the pursuer in not sending copies of the certificates to London, if fault there was at all, it was of the nature of a culpa levissima, but the fault of Blakeney in concealing his knowledge I should class as culpa lata. The expense in going to London must be disallowed as really being a journey undertaken as to a question between a broker and his client.