Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Meier & Co. v. Kuechenmeister [1881] ScotLR 18_431 (18 March 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0431.html
Cite as: [1881] ScotLR 18_431, [1881] SLR 18_431

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 431↓

Court of Session Inner House Second Division.

Friday, March 18. 1881.

[ Lord Rutherfurd Clark, Ordinary

18 SLR 431

Meier & Company

v.

Kuechenmeister.

Subject_1Election
Subject_2Agent and Principal
Subject_3Suing to Judgment.
Facts:

A firm of shipbrokers raised an action in Germany against a shipmaster upon certain bills granted by him for advances on behalf of the ship. This action having been dismissed, on the ground that by German law it had not been raised tempestive, the brokers raised an action for the amount of the advances against the owners of the ship. It was pleaded that the pursuers had elected to take the master for their debtor. Plea repelled, on the ground that there had been no suing to judgment.

Headnote:

In November 1878 the vessel “Jacob Rothenburg,” of Rostock, Germany, stranded near Shields. Captain Wilde, the master and one of the owners of the vessel, appointed the pursuers of this action, who are shipbrokers and shipowners in Newcastle-on-Tyne, as brokers, and through them a contract of salvage was entered into under which the vessel was ultimately brought off the ground and taken into Shields in a damaged condition. Various claims for salvage, & c., were settled by the pursuers on the authority of Captain Wilde, and were repaid to them by the owners in December 1878. After that date certain other disbursements on behalf of the ship were made by the pursuers, and for these they received from the captain two bills drawn by him in their favour upon the firm of Küchenmeister & Völling, Rostock, for £200 and £26, 4s. 6d. respectively, both dated 23d January 1879, and both payable at three months after date. Küchenmeister & Völling were the managing owners of the vessel. The firm has since been dissolved, and the defender in this action was one of the partners of the firm. The said bills were duly presented to the drawees, who refused acceptance, and the bills were thereupon presented at the pursuers' instance against the drawer and drawees for non-acceptance and the drawer for non-payment. On 11th February 1880 the pursuers arrested the ship and took proceedings in Admiralty against the shipowners, which were unopposed. Under these proceedings the ship was sold in May 1879, and the pursuers placed to the credit of their account £85, 4s. 11d. derived from the proceeds of the sale. The said bills having matured and been dishonoured on 23d April 1879, the pursuers intimated to Captain Wilde their intention of holding him liable for the amount, and in July 1879 they received from him a payment of £60 to account. The pursuers thereafter raised an action against Captain Wilde, as drawer of the bills, in the German Court of his domicile, for the balance thereon, and obtained judgment against him in the lower Court; but on appeal the judgment was reversed and the action dismissed, on the ground that by German law the suit against the drawer should have been brought within three months from the date of the bills falling due.

The pursuers thereupon raised an action in the
Page: 432↓
Court of Session against Kfichenmeister for the amount unpaid of their account, on the ground that the disbursements above referred to were made on his employment and behalf. The defender was subjected to the jurisdiction of the Court of Session by arrestments used for that purpose.

One of the pleas-in-law for the defender was that the pursuers by their proceedings in Germany against Captain Wilde had elected to take him as their debtor, and could not now raise another action. The case was sent to the procedure roll for the consideration of this plea.

The Lord Ordinary pronounced an interlocutor assoilzieing the defender, and added this note:—“The parties requested that the case should be sent to the procedure roll in order to a decision on the defender's second plea-in-law. They stated that the first plea for the defender involved an inquiry into German law, which they were both desirous to avoid until the question raised by the second should be determined.

“The Lord Ordinary heard the defenders, but no appearance was made by the pursuers. He has, nevertheless, thought it better to decide the case rather than give decree by default.

In the opinion of the Lord Ordinary, the pursuers elected to take the master as their debtor. They sued him to judgment on the bills which he had granted, and which were binding on him alone. It does not matter that they were ultimately unsuccessful. They took judgment in a question with him, and though they were defeated on a plea which seems to resemble our plea of prescription, they may still sue him for the debt. The principles recognised in the case of Priestley, 34 L.J. Exch. 172, seem to the Lord Ordinary to sustain the plea of the defender.”

The pursuers reclaimed, and argued that there was no election. They contended that to sustain the plea of election there must have been a suing to judgment, and that an unsuccessful claim is not enough.

For the defender it was replied that election is a question of intention, and that the circumstances of this case indicated an intention on the part of the pursuers to take the captain as their debtor and to discharge the owners.

Authorities—for Reclaimer—Priestley, 34 L.J. Exch. 172; Curbis v. Williamson, 10 L.R. Q.B. 57. For Respondent—Bell's Comm. i. 536; M'Lachlan on Merchant Shipping, 131; Ferrier v. Dodds, 3 Macph. 562; Young v. Smart, 10 S. 130.

Judgment:

At advising—

Lord Justice-Clerk—The stake here is not large, but the questions raised are large enough. It is pleaded by the owners of this vessel that there cannot be an action against them and the master both, and that the pursuers having elected to take the master cannot now go against the owners. The Lord Ordinary has sustained that plea on the authority of the case of Priestley. Now, the doctrine of election is recognised in our law. In the case of a shipmaster and a shipowner, where the former is sued on his own obligation and decree is taken against him, he having relief against his owners, they cannot be sued also. That is common sense. But where there has not been a suing to judgment, or still stronger, where the action has failed altogether, it cannot be held that there has been election. Having sued the wrong man will not prevent the claimant from suing the right one. That seems to have been clearly laid down in the case of Curbis. I apprehend Justice Quain to mean, then, that for election there must have been successful judgment. On the whole matter it appears to me that no case of election has been made out. I must say that I think the German law should have been applied here. But that has not been pleaded.

Lord Young—I concur. Indeed, the only difficulty I had was whether the pursuers should not be left to their remedy in Germany. We have no natural connection with the parties here. However, we must obey the law, which gives an action in the Scotch Courts. I pointed out that according to the pursuers' averment their ground of action implies no liability against the master. The facts may be such that the master was liable as well as the owners, and that the pursuers were in a position to select either. But according to the case as stated I cannot see any case against the master at all. The averment in the condescendence is this—“In the end of 1878 and beginning of 1879 the pursuers made on the defenders' employment and behalf various disbursements.” Now, that is a very good ground of action, that on the employment of the owners of the ship the pursuers made disbursement. It may turn out that the master ordered them, but that does not appear, and I cannot assume it. It is said and admitted that the master drew a bill. But the bill is only an order by the master on the owner to pay a debt he knew they were due. He may incur liability by putting his name to that document. But that is perfectly consistent with there being no original liability on his part. The pursuer sued him upon the bill, but too late according to the law of Germany. They now sue upon their debt. The general rule of law in reference to agents is that if the agent acts as principal without saying anything about his principal he is liable. But if the party with whom he dealt finds out that he was an agent he may go against the real principal. But he cannot regard them both as principals; he cannot have the double remedy. The only other rule is that the agent, acting as such, merely does not bind himself at all. But the case of a shipmaster is an exception. He is an agent acting for a known and registered owner, but is himself liable. Now, I am not prepared to consent to the doctrine that the party who furnishes supplies to a ship on the order of the master must take either the master or the owner. I was under the impression that there is a joint liability—that the creditors could sue both. But assuming it to be otherwise, in this case there has been no proceeding to judgment. I think the Lord Ordinary's view of suing to judgment is erroneous, and I do not think the judges in the case of Priestley meant any judg: ment on a mere technical plea, for example. There must be a judgment debt.

Lord Craighill concurred.

The interlocutor of the Lord Ordinary was recalled, and the case remitted to the Lord Ordinary for further procedure.

Counsel:

Counsel for Reclaimers— Trayner— Taylor Innes. Agents— Boyd, Macdonald, & Co., S.S.C.

Counsel for Respondents— Salvesen. Agents— Beveridge, Sutherland, & Smith, S.S.C.
1881