Scottish Court of Session Decisions

The Auditor's report in the case of Gray's Trustees v. Drummond & Reid, June 7, 1881, supra, p. 551, having been enrolled for approval, the defenders, who had been found liable in expenses, objected to the said report on the following grounds—(1) That in course of the inquiry under the remit it had been ascertained that the pursuers' agents, Messrs James L. Hill & Company, received from Mr Dowell, who had been appointed to sell the furniture of Harthill Villa, a part of the commission charged by him for selling the furniture, and the full amount of that commission, without crediting the repayment, had been charged and allowed against the defenders. (2) That the account as audited included charges for the full professional remuneration of the pursuers' said agents connected with the sale of the furniture, and that the discount received out of the auctioneer's commission had not been credited. (3) That the pursuers' agents being bound to credit the said discount to the pursuers, the latter were bound to credit it in a question with the defenders. (4) The pursuers' agents had refused to state the amount of the said commission, and said that it had not been passed through their business books. The defenders believed that the amount of this commission was not less than £35, and they claimed that this sum be deducted from the amounts of the accounts as reported by the Auditor.

The pursuers' agent wrote to the Auditor in the following terms in explanation of his account—“Dear Sir,—With reference to the taxation of the non-judicial account in this action, I beg to mention that Mr Dowell allowed and paid me a portion of the commission charged by him for the realization and sale of the furniture poinded and sold in connection with the action. This allowance was treated by Mr Dowell as a personal commission, and he made it when settling other transactions with me, and it thus does not appear in my business books, and so was not known to my clerk who charged the account and attended the taxation.”

He also produced the following letter to himself from Mr Dowell, the auctioneer—“Gentlemen,—I beg to state that agents are not entitled to commission from us, or to any share of our commission for conducting sales of property or effects; but there are cases where, from a variety of transactions, and from personal consideration, we occasionally give a donation, which of course is directly out of our pockets.”