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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moscrip v. O'Hara, Spence, & Co. [1880] ScotLR 18_12 (23 October 1880)
URL: http://www.bailii.org/scot/cases/ScotCS/1880/18SLR0012.html
Cite as: [1880] ScotLR 18_12, [1880] SLR 18_12
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SCOTTISH_SLR_Court_of_Session
Page: 12↓
Court of Session Inner House Second Division.
[Sheriff of Lanarkshire.
v.
Facts:
Circumstances in which an agreement that a notary-public employed by a firm to recover their debts was not to claim remuneration for the same was held to be proved by evidence prout de jure.
O'Hara, Spence, & Company, money lenders and bill discounters in Glasgow, employed George Clement Moscrip, a writer and notary-public, in recovering sums due to them by sundry debtors. After some years they sued him for the sum of £53, 10s., which they said he owed them as having served them in the above capacity. Moscrip resisted payment and raised a counter-action for payment of £230 for professional services and disbursements for and on O'Hara & Company's employment. In the latter action the defenders averred in defence that they had made an agreement with Moscrip with a view to the recovery of debts due to them, by which he was to receive nothing for the work done unless he were successful in recovering the whole or part of the debt sued for; and further, he was employed to recover accounts only, and was not to receive any extra-judicial expenses or to be paid anything for giving his knowledge as to the circumstances of debtors. Moscrip, on the other hand, denied all knowledge of the above agreement, and pleaded that in any view it must be proved by writ or oath of the defenders.
In the proof which was led before the Sheriff-Substitute it appeared that Moscrip kept no books. The nature of the above agreement was deponed to by three of the partners of the firm, and further it appeared that on several occasions the debtors had gone direct to their principals and paid the debt due along with the expenses of recovery.
The Sheriff-Substitute ( Lees) found that the pursuer was employed by the defenders to carry on their judicial and other legal business for them, but expressly on the footing that he was not to be paid by them for so doing, and was to look to the opposite parties for payment in the event of success; but he allowed him his outlays so far as bona fide incurred by him on the defenders' behalf on the other accounts produced by him. He added the following note:—“It appears the defenders' averments as to the footing on which the pursuer was employed by them are established. He was not a procurator of Court, and therefore not entitled to practise before it; but he and they knew that there would be little difficulty in Glasgow in finding agents to take up the matter on the same footing as himself.”
Moscrip having appealed, the Sheriff-Principal ( Clark) adhered to the judgment appealed against, adding this note:—“The result at which the Sheriff-Substitute has arrived appears to be substantially in accordance with the facts as brought out in evidence, and the law applicable to them. If either of the parties are not satisfied with the result, they have themselves to blame for not making the contract more specific. When parties choose to employ a gentleman who does not possess the legal qualifications of a law-agent, and if he chooses to accept employment involving the necessity of his employing a person duly qualified, there is great risk that the real intention of parties may be misunderstood on one side or the other—perhaps on both sides—and therefore their contract requires to be made so very specific as to exclude the necessity of interpretation or construction.”
Moscrip appealed to the Second Division of the Court of Session, and argued—(1) The agreement could only be proved by writ or oath.— Taylor v. Forbes, Jan. 13, 1853, 24 D. 19. (2) He was entitled to charge his principals in his capacity of notary-public.— Aitken v. Kirk, Mar. 15, 1876, 3 R. 595; Winton v. Airth, July 17, 1868, 6 Macph. 1095.
At advising—
The case, however, is not without difficulty and delicacy. There are two actions—the one at the instance of this money-lending firm against their collector—because that is truly the position in which Moscrip put himself—for certain sums of money which they say he collected on their behalf; the other action is at the instance of the collector against his employers for payment of professional services alleged to have been rendered by him to them in the course of recovering or of endeavouring to recover various sums of money due to them.
In regard to the first action I need say nothing, but with respect to the second the defenders plead that it was agreed between them and Moscrip that he was to give his professional and personal services for nothing, except what he might manage to extract from the debtors while collecting the debts. The collector denies this agreement, and pleads in addition that any such qualification of the contract of employment can only be proved by writ or oath.
Moscrip is not a law-agent, but only a notary-public; the business, however, in which he was principally engaged was not a notary-public's work, although I am not to be understood as saying that a notary-public who pays attorney-tax is not entitled to recover remuneration for his services, quantum meruit. Then I think the nature of the services rendered makes a difference in the strength of his claim for remuneration.
Although I am not disposed to interfere with or differ from Lord Rutherfurd's dictum in the case of Taylor v. Forbes, which has been referred to, still I am not inclined to follow it in this case. That was the case of a duly qualified practitioner suing for payment for professional services rendered in the ordinary course of his business. This is not a case of that kind at all. It is the case of an ordinary individual without any peculiar qualification undertaking certain business under a certain contract. The next question which arises is, whether the contract is proved, and what it was? I think it is proved that Moscrip was to carry on the legal and other business of these money-lenders on the footing that he was to look for his remuneration solely to the persons opposed to him, and that, of course, only in the event of success. From the evidence I hold that to be the contract. Three partners of the firm speak to that as being the arrangement. True, Moscrip denies that that was the agreement, and that is not the least unpleasant part of this case, because the case turns on simple averment and denial. The real evidence of the case shows, however, that that was the real nature of the contract. The exceptions from the ordinary course of dealing which were so strongly pressed upon us are the very cases which prove the defenders' case. They are all cases where the debtor paid the debt and expenses direct to the lenders, and the lenders then at once paid over the sum recovered in name of expenses to Moscrip. There is also the suspicious fact that the collector kept no books in which to enter his various transactions and services rendered to his employers.
On the whole, no case has been made out to us to show that the Sheriffs have been in error.
Their Lordships therefore adhered.
Counsel for Appellant— Kennedy. Agent— Thomas Carmichael, S.S.C.
Counsel for Respondent— Brand. Agent— John Gill, S.S.C.