Scottish Court of Session Decisions

Page: 629↓

In 1879 the pursuer bought a house in Hallcraig, Lanarkshire. The defender acted as his agent, and prepared the disposition of the property. The articles of roup contained the following clause:—“And it is hereby provided and declared that the exposers shall not be bound to deliver or exhibit searches of incumbrances over the said subjects; but in the event of any incumbrance being found by a purchaser to exist, and of the same being intimated to the exposers within six weeks after date of purchase of said subjects, the exposers shall be bound to purge the said lands and others thereof, and pay the expenses of the searches, or repay the purchaser the purchase price of the subjects, with interest from the date of purchase: Declaring, however, that if no such intimation be made to the exposers within said period of six weeks from date of sale, they shall not be bound to remove any incumbrances that may be found to exist, or to be at any expense in connection therewith.” The missive of sale also bore that searches were not to be required at the expense of the sellers, but that if the purchaser made search and found any burdens, and intimated the same, in terms of the articles of roup, then the obligations thereby laid on the sellers should have full effect. The missive was framed and written by the defender. The defender was agent for the sellers, but according to agreement and to save expense he acted for all parties.

In the year 1885 a demand was made upon the pursuer, as proprietor of the subjects, for payment of the principal sum of £30, due to John Nimmo under a bond and disposition in security granted in his favour, dated the 23d, and recorded in the New General Register of Sasines at Edinburgh the 24th, both days of June 1857, extending over said subjects, together with a claim for interest thereon from its date at the rate of five per centum per annum till payment. The total sum due under the said bond and disposition in security was £73, 10s.

This action was brought to have the defender ordained to purge the property of this bond, or alternatively for payment to the pursuer of a sufficient sum to enable him to pay off the bond and interest.

The pursuer pleaded—“(1) The defender having, by his gross carelessness or culpable neglect of his professional duty as law-agent, in carrying through the transaction condescended on, failed in his duty to the pursuer, as condescended on, he is bound to make payment of the contents of the bond and disposition in security described in the summons, and the interest due thereon, and to obtain the record purged thereof, in terms of the first conclusion to that effect. (2) Failing the defender making such payment, and purging the record as aforesaid, the pursuer is entitled to decree, in terms of the alternative conclusion of the summons, in order that he may have the said bond discharged.”

The defender pleaded—“(1) There having been no failure of duty, or want of professional skill on the part of the defender, he should be assoilzied. (2) The pursuer … having authorised the defender to dispense with searches, the defender is entitled to absolvitor, with expenses.”

The Lord Ordinary ( M'Laren) after a proof assoilzied the defender.

“ Opinion.—Mr Dickson having fully entered into the merits of the case has not removed the impression made on my mind by all the evidence in the case. It is an action against a solicitor to compel him to purge a small heritable property of a bond, and the ground of the claim is that the solicitor failed in his professional duty in not having caused a search for incumbrances to be made which would have led to the discovery of the bond. If this was a case of negligence—if the defender had forgotten to order the search—I should not accept readily an excuse that the client had not called on him to make the search. At all events in such a case I should require very clear evidence that the matter had been explained to the client, and that in the knowledge of his rights he had agreed to dispense with the performance of the duty. But in the present case my view is that the expense of a search was really disproportionate to the value of the property, and that the omission to require searches was not the result of negligence, but was a variation of the usual course of professional business common to larger transactions deliberately resolved upon by the different parties. Mr Macfarlane did not proceed rashly in the matter just assuming that the expense should be kept down, but he was at pains to ascertain whether in any reasonable probability there were existing bonds, and I think the explanations made to him (which were true in fact) were in the case of a property of such small amount sufficient to satisfy a reasonable man that searches might be dispensed with. I therefore fail to see that the advice given was unsound, or such as to render the party giving it liable in damages. If it was sound advice, and if Mr Macfarlane did his best to explain the matter to his client, I think he performed his professional duty. The loss which has resulted is therefore the loss of the pursuer, and he may recover part of it from the party who is liable primarily in payment of the sum secured by the bond. As to what that part may be we have no evidence, and this circumstance would have rendered it difficult for me to give an operative decree if I had come to the conclusion that the defender was liable.”