Scottish Court of Session Decisions

Page: 476↓

Robert Cockburn, aerated water mannufacturer in Edinburgh, employed, in 1882, Andrew Clark, S.S.C., Leith, to act as law-agent and man of business for himself and his wife. In that capacity Mr Clark received (1) a sum of £50, less the amount of a contra account by the debtor of £10, 8s. 6d.; and (2) a sum of £370, 0s. 8d. due to Mrs Cockburn. He rendered a cash account in which these sums were stated and accounted for, and in which he took credit for various payments made by him for the Cockburns, and for two accounts for various pieces of business done for them by him. These business accounts respectively amounted to £43, 4s. 6d. and £19, 4s. 8d. The cash account showed a balance due to Cockburn of £23, 10s., which was paid to Cockburn, and for which he granted a receipt on 30th April 1883. Cockburn thereafter employed another agent. On 28th November 1883 this new agent, by Cockburn's instructions, wrote to Mr Clark saying that the business accounts were overcharged, and that some of the items were for business not authorised and not necessary. He claimed that a balance was still due to him, and offered to accept £30 in full thereof. Clark declined to re-open accounts with him, and Cockburn then raised this action of count and reckoning, concluding for £30 as the balance due by the defender as agent for him and his wife.

Mr Clark stated in defence—“(Stat. 2) Upon the 30th April 1883 the pursuer called upon the defender with the view to a settlement. They went over the accounts together, and the pursuer asked and the defender consented to pay him £2 by way of abatement from his business accounts. The defender offered to submit his accounts to the Auditor for taxation if the pursuer desired it, but the pursuer said it was quite unnecessary, as he was perfectly satisfied, and he then waived his right to have said accounts taxed, and expressed himself perfectly satisfied with the balance then brought out, and both parties discharged each other.”

He pleaded, inter alia—“(3) The defender's business accounts having been duly rendered, adjusted, and settled, and the pursuer and defender having mutually discharged each other, the pursuer is barred from calling on the defender to account.”

The Sheriff-Substitute ( Rutherfurd) found in point of law that the pursuer by accepting payment of the balance of £23, 10s., and granting the receipt therefor, was not barred from insisting for taxation of the defender's business accounts; therefore remitted the defender's accounts to the Auditor, with instructions to tax the same as between agent and client, and to report, and continued the cause.

“ Note.—[ After pointing out that though the action was one of count and reckoning and payment, it was admitted that the defender had accounted for the cash received by him, and that the only question was as to the alleged right of the pursuer to insist for taxation of the account] — The defender alleges (Statement of Facts, article 2) that ‘on the 30th April 1883 he offered to submit his accounts to the Auditor for taxation if the pursuer desired it, but the pursuer said it was quite unnecessary, as he was perfectly satisfied, and he then waived his right to have said accounts taxed, and expressed himself perfectly satisfied with the balance then brought out, and both parties discharged each other.’ The defender also alleges that he was subsequently employed on different matters by the pursuer, who does not seem to have taken any objection to the defender's accounts until the month of November 1883.

“In these circumstances the defender maintains that the pursuer is now precluded from having the accounts in question taxed, but the Sheriff-Substitute is of a contrary opinion, for even taking for granted all that the defender alleges upon record, it comes to no more than this, that the pursuer, when he received payment of the sum of £23, 10s. on the 30th of April, and granted his acknowledgment for that amount, considered it unnecessary to have the defender's accounts taxed, and raised no question until the end of November, after he had consulted another agent. But, as Lord Deas observed in the case of M'Laren v. Manson, 1857, 20 D. 218, ‘The waiver of a client's rights to have business accounts taxed must appear in explicit terms before it can be pleaded against him by the agent, and the law is extremely jealous of any settlement of accounts between an agent and his client, as the parties do not meet upon equal terms— Mackenzie v. Mackenzie's Trs, 1831, 9 S. 730, per Lord Corehouse, 731; Colvil v. Jamieson, 1839, 1 D. 526, per Lord Medwyn, 528.’

“Holding these views, the Sheriff-Substitute does not think that the defender's averments are sufficient to entitle him to a proof. He states that at his meeting with the pursuer on 30th April 1883 he offered to submit his accounts to taxation, and if they are, as he alleges, fairly charged, it is difficult to see why he should now oppose this.”

On appeal the Sheriff ( Davidson) dismissed the appeal, but before answer recalled the remit to the Auditor of the Sheriff Court and remitted the defender's accounts to the Auditor of the Court of Session.

The Auditor taxed off the accounts as overcharged £10, 15s. 10d.

The Sheriff-Substitute giving effect to this taxation, and also disallowing certain charges in the accounts as being unnecessary (and the question as to which the Auditor had reserved), decerned against the defender for £19, 17s. 4d., with interest from 30th April 1883; quoad ultra he assoilized the defender. He found the pursuer entitled to expenses.

On appeal the Sheriff adhered.

The defender appealed, and argued—The account between him and the pursuer was settled, payment of the balance had been made by him, and the pursuer had granted his receipt therefor on 30th April 1883. The pursuer was not entitled seven months afterwards to demand that the business accounts of his law-agent should be taxed. He was entitled to a proof that the pursuer had waived his right to taxation.

The Court did not call upon counsel for the pursuer.

At advising—