Scottish Court of Session Decisions

Robert Broatch, Solicitor, Edinburgh, brought this action against Thomas JackSon, Solicitor, Kirkcaldy, concluding, inter alia, for payment of £297, 19s. 7d., which he alleged to be due to him for business charges in respect of three actions, in which he had acted as agent on Mr Jackson's instructions, and in which Mr Jackson was personally interested. In reference to these actions he made the following averment— “(cond. 2) The defender employed the pursuer to act as his Edinburgh agent in three actions in which he was personally interested, namely, (1) an action of count, reckoning, and payment against the defender at the instance of the late Alexander Malcolm; (2) making up a title under the Presumption of Life Limitation Act in name of William Hutton, with reference to a heritable property in Leith and rents thereof, to which the defender had acquired a right; and (3) a multiplepoinding, Youden v. Rodgers and Others, in which the defender

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was a claimant. In connection with these actions the defender incurred to the pursuer the accounts for law-agency and relative outlays which are herewith produced. There is also produced a cash account-current between the pursuer and the defender, showing the payments made by the defender to the pursuer to account of the sums due to the pursuer under the foresaid business accounts. As shown in said cash account, the pursuer's account in Alexander Malcolm's action amounts to £262, 10s. 6d., of which £165, 19s. is outlay, to account whereof the defender has paid the pursuer £95, 17s., leaving a balance due of £166, 13s. 6d. The pursuer's account in relation to Hutton's property amounts to £90, 16s. 4d., of which £57, 8s. 6d. is outlay, to account where of the defender has paid the pursuer £16, 11s. 6d., leaving a balance due of £74, 4s. 10d. In conncction with said multiplepoinding, Youden v. Rodgers and Others, the pursuer's account amounts to £84, 7s. 3d., of which £41, 7s. 7d. is outlay, to account whereof the defender has only paid the sum of 12s. 2d., leaving a balance due of £83, 15s. 1d. On 11th May 1882 the pursuer lent the defender 5s., and on 14th August 1884 he paid an audit fee of 7s. 6d. on behalf of the defender. The balances upon the said business accounts, together with these two small sums, amount in all to £325, 4s. 7d, As shown by said cash account, the pursuer has further placed to the defender's credit certain small payments received by him, amounting in all to £27, 5s. 8d., which being deducted from said £325, 4s. 7d. leaves a balance due by the defender upon the law business conducted by the pursuer for him personally of £297, 19s. 7d., being the sum first concluded for in the summons. Said sum, subject to taxation, is due by the defender to the pursuer. £152, 6s. l1d. consists of and is the balance of the outlays, these amounting in whole, with said two sums of 5s. and 7s. 6d., to £265, 7s. 7d., and the payments made being £113, 0s. 8d. The remainder of the sum due consists of law charges. The accounts instructing the said sums have been rendered to the defender, but he refuses or delays to pay the same. With reference to the answer, it is admitted that the last items in the accounts sued on are dated in 1885 and 1886. Quoad ultra the statements in answer, except so far as coinciding with pursuer's averments, are denied. The defender's instructions in each of the three personal actions referred to were given and accepted in writing.”

The defender pleaded, inter alia—“(3) Prescription.”

In answer to this the pursuer pleaded— “(2) The said employment being founded on written instructions by the defender, and the constitution and resting-owing of the pursuer's claims having been admitted by the defender in writing, the pursuer's accounts against the defender are not subject to the triennial prescription.”

Certain letters passing between the parties in reference to Mr Broatch's employment in the actions in question were produced. Those relating to the case of the multiplepoinding, Youden v. Rodgers and Others, are quoted in the opinion of the Lord President, infra. Similar letters, which it is unnecessary to quote, passed in reference to the cases of Malcolm and Hutton.

By the Act 1579, cap. 83, it is enacted as follows— “Item, it is statute and ordained … that all actiones of debt for house mailles, mennis ordinars, servand's fees, merchands' comptes, and uther the like debts, that are not founded upon written obligationes, be persued within three zeires, utherwise the creditour sall have na action except he outlier preife be writ or be aith of his partie.”

On 20th February 1900 the Lord Ordinary pronounced an interlocutor by which he repelled the third plea-in-law for the defender and quoad ultra continued the cause.

Opinion.—“This is an action by a law-agent in Edinburgh against his correspondent, who is a writer in Kirkcaldy. The summons concludes for two sums, £297, 19s. 7d., and £462, 11s. 9d., or such sum as might be found due on accounting. The first sum is for the accounts claimed by the pursuer in three actions in the Court of Session in which the defender was a litigant, and the statements about it are in condescendence 2. The second sum is claimed for accounts and balances of accounts incurred in various actions conducted by the pursuer in the Court of Session as the defender's Edinburgh correspondent for the defender's clients. The averments bearing on this conclusion are in condescendence 3.

The defender pleads the triennial prescription, and the argument in the procedure roll was on that plea. Although the plea is expressed generally the defender's counsel stated that he did not press it against the second conclusion, and it was, I understand, conceded that there must be inquiry by proof as to that part of the ‘case. The plea was pressed against the first conclusion—that is, against the pursuer's accounts in the three personal actions. There is no doubt that if the Act applies the accounts are prescribed.

The pursuer's answer to the plea of prescription is expressed in the averment that ‘the defender's instructions in each of the three personal actions referred to were given and accepted in writing.’ And in support of that averment he refers to three letters by the defender, dated 4th July and 7th October 1881, and 3rd August 1882, and to the pursuer's replies, dated 7th July and 8th October 1881, and 8th August 1882.

That plea is thus expressed:—‘2. The said employment being founded on written instructions by the defender, and the constitution and resting-owing of the pursuer's claims having been admitted by the defender in writing, the pursuer's accounts against the defender are not subject to the triennial prescription.’ The plea is rather complicated, and mixes up matters which should be kept separate. But I understand that the pursuer pleads that his action for his accounts is taken out of the statute because his claims are, to use the words of

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the Act, ‘founded on written obligations.’ Strictly speaking it can hardly be said that the action is founded on written obligations, because the letters are not founded on in the original condescendence or pleas, and are only introduced in reply to the defender's plea. But I do not know that it has ever been held necessary that the written obligations founded on to exclude the statute must be founded on in the original pleading; and I think that the question is whether they are such documents as amount to written obligations in the sense of the statute.

Assuming the correctness of the copy-correspondence, the three letters by the defender which are founded on are simply letters instructing, or perhaps it may be said requesting, the pursuer to act for the defender in the Court of Session actions referred to. These are, I think, the most important letters, because it is said that they oblige the defender. The letters of the pursuer are not of the same consequence. They merely accept employment.

In considering this question the fact that the defender was a law-agent is unimportant. He was only a client, and the question is whether such letters of instructions by a client, with (or perhaps without) acceptance by a law-agent, exclude the application of the Triennial Prescription Act to an action for his account by the law-agent. The question is of general application and great importance, and of course it is quite different from any question as to proof by writ after the application of the Act has been affirmed.

There have been various decisions of considerable importance about this provision of the Act, but I do not think they decide the present question.

Before adverting to the authorities it may be observed, as noticed by Lord Benholme in the case of The North British Railway Company v. Smith Sligo, December 20, 1873, 1 R. 309, that the statute does not speak of written contracts but of written obligations, and I think that it has never been decided that a bilateral obligation is necessary to satisfy the statute. It is obvious also that what is essential is the written obligation of the defender. There may be some advantage in having the written obligation of the pursuer also, but that by itself is of no avail. Further, if it be not obvious on the words of the statute, it is at all events settled that the writing must originate the employment or contract, and that writings in the course of employment, although they may possibly be available as proof by writ, are not written obligations in the sense of the statute on which an action can be founded.

It has been decided in three cases reported in Morrison that an action for the price of furnishings is not protected from prescription by the mere fact that they have been furnished on written orders. These are Cheap v. Cordiner, Nov. 30, 1775. M. 11,111; Ross v. Shaw, Nov. 19, 1784, M. 11,115; and Douglas v. Grierson, Nov. 18, 1794, M. 11,116. I do not find the grounds of judgment in these cases very obvious, and I think that the arguments for the defenders stated in the reports have not been sustained in later cases, but they have been held to settle the law to that effect. Yet in Dickson v. M'Aulay, 1681, M. 11,090, in an action brought after the years of prescription for the price of goods furnished under a written order by the defender ‘to let his wife want nothing necessary, and to place it to his account,’ it was held that the quantities might be proved by witnesses, the pursuit being founded upon writ. This case has been quoted without disapproval in recent cases, but I suppose it is to be regarded as exceptional.

Professor Bell, in a passage in his Commentaries—i. 332—which has been approved of and adopted by Lord President Inglis in Chalmers v Walker, Nov. 19, 1878, 6 R. 199, states the law thus— ‘It has indeed been often contended that where a written order is given the debt is of a description to which the triennial prescription does not apply, as being a debt founded upon a written obligation. But this plea the Court has uniformly disregarded, on the principle that the Legislature meant to apply the triennial prescription to all debts in which there is not such a written constitution of the obligation as naturally requires a written discharge.’ It may possibly seem not perfectly easy to discover that meaning of the Legislature from a mere construction of the statute, although certainly this particular statute has in its judicial history been construed with remarkable freedom, and I cannot help doubting whether the latter words are supported by decisions.

The most important recent cases have, in my opinion, been Blackadder v. Milne, March 4, 1851, 13 D. 820; Chalmers v. Walker, ut supra; and Chisholm v. Robertson, March 10, 1883, 10 R. 760. In Black-adder's case the action was for payment of professional services as a witness against a bill before a parliamentary committee, and the written obligation founded on was only a letter by the defender employing him, and stating the fees which would be paid. The letter did not of itself establish the constitution of the debt, for it did not by itself prove that the employment was accepted or the services rendered. Yet it was held that the statute did not apply. There were two grounds of judgment, the one that the employment was not covered by the Act, and the other, entertained by a considerable majority of the whole Court, that the claim was founded on a written obligation. The case has been followed, but the first ground of judgment has not always been readily assented to. But I am not aware that doubt has been expressed about the second ground. I think that no writing by the pursuer was produced.

In Chalmers v. Walker the action was for payment of furnishings, and the writing founded on was a written offer by the pursuer to supply them. It was held that the statute applied. But it will be observed that there was no writing by the defender of any kind, and the Lord President observed— ‘A written obligation within the meaning of the statute must be an obligation

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constituted by writing and enforceable against the defender. … A man who binds himself by words spoken does not bind himself by written obligation.’ The writing was held insufficient, not because it was unilateral, but because it was the writ of the pursuer, and not the writ of the defender.

Chisholm v. Robertson is, I think, still more important and more in point. The action was for the hire of sacks, and the writing founded on was a form or order prepared by Chisholm, and expressing the conditions of the hiring. This was not signed by the pursuer but by the defender. This document was held to supply what was wanting in the offer in Chalmers v. Walker, namely, an obligation by the defender, and it was held that the statute did not apply. It was a unilateral, not a bilateral writ. It did not of itself prove that Chisholm had agreed to furnish the sacks, or that they had been furnished. Of course, it was obvious that Chisholm had agreed to furnish the sacks, but that was not made obvious by Chisholm's writ. I doubt whether the obligation by Robertson was an obligation which naturally required a written discharge. It appears to me that the latter part of the passage quoted from Bell's Commentaries did not apply to this case.

There were certain other cases quoted which I think of less consequence, but to which it is right to advert.

Macandrew v. Hunter, June 13, 1851, 13 D. 1111.—This was an action between agent and client, and certainly the employment was by the defender's writing. The case was a singular one, and I do not observe that the pursuer stated any objection to the plea of prescription. It seems to me that if such an objection had been stated it would necessarily have been sustained. The Lord Ordinary (Wood), however, sustained the plea of prescription, and in the same interlocutor, without any allowance of proof, he found that the documents produced by the pursuer satisfied the requirements of the statute, and established both constitution and resting-owing by the writ of the defender. In that case it did not signify whether the action was held to be founded on written obligation or not, and I think it cannot be held to be a judgment that it was not.

In Barr v. The Edinburgh and Glasgow Railway Company, June 17, 1864, 2 Macph. 1250, it was held that the statute did not apply, but because of the nature of the employment, not of the writing. But the reason why the writing was not held sufficient seems to have been that it was clear that the contract had been entered into before the date of the writing, and therefore that the action could not be founded on the writing. In that case Lord Neaves made certain observations tending to assimilate the case of a law-agent receiving written directions from a client to a sale of furnishings on written order. But Lord Neaves' remarks do not seem to refer to letters constituting the employment, but to letters written in the course of it.

The North British Railway Company v. Smith, supra, is more important for the opinions of the Judges than for the judgment, which is too much involved in specialties to be accepted as a safe precedent.

Whilst none of these cases absolutely rule the present, yet it seems to me that the case of Chisholm, in which a writ which did not of itself show that the order had been accepted or fulfilled was held sufficient to exclude the statute, warrants a decision of the question in favour of the pursuer to the effect that his claims are founded on written obligations, and that they exclude the application of the statute.

They are informal, it is true, and merely of the nature of letters in a correspondence. But the statute does not require any formality, and there is no case which holds it to be necessary. No doubt the same instructions might have been given verbally, but they were not so given, and I suppose could not have been so given conveniently; and I confess I do not see that they are the less written obligations because they might have been verbal. Further, the letters do not verbally express the defender's obligation, but I think they imply it as clearly as if it had been expressed. Further, it is said that the letters differ from the order in Chisholm's case, inasmuch as they do not express the conditions of the contract as the order in Chisholm's case did. But I am disposed to think that they do. There is in a question between agent and client a marked specialty, which is, that if there be no special bargain the law supplies the conditions. The amount of the law-agent's remuneration does not require to be expressed. The contract is that he shall do the work for the charges expressed in the table of fees and subject to audit. I do not say that there may not be special bargains, nor whether these special bargains may be proved by parole; but apart from special bargain the mere contract of employment contains all that is necessary for a complete contract without any mention of terms.

On the whole, I consider that these letters (supposing the employment accepted) fix an obligation on the defender as clearly as if it had been expressed in the most formal deed, and that therefore the claim for these accounts is founded on written obligation, and that the statute is therefore excluded.”

The defender reclaimed, and argued—The letters from which the Lord Ordinary inferred that the plea of prescription was elided were not “written obligations” within the meaning of the Act 1579, cap. 83. The words of that Act had been construed to mean written obligations to pay—Bell's Commentaries (M'Laren's Ed.), i. 349, where the cases of Ross v. Shaw, November 19, 1784, M. 11,115, and Douglas v. Grierson, November 18, 1794, M. 11,116, are cited. These authorities established that an account for goods, though ordered in writing, falls under the triennial prescription where the writing is only an order for the goods and not an express obligation to pay for them. Cheap v. Cordiner, November

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1775, M. 11,111, was another authority to the same effect. The present case was exactly the same, because when a man ordered goods from a shopkeeper the law imported an obligation to pay for them, just as when he instructed an agent to act for him the law imported an obligation to pay the agent's business charges. The passage referred to in Bell's Commentaries had been approved by Lord President Inglis in Chalmers v. Walker, November 19, 1878, 6 R. 199, and although the statement that a written obligation was one which required a written discharge went too far and could not be supported, yet it was an authority for the statement that more than a mere order for goods or services was required. More recent cases supported the proposition that an express obligation to pay was necessary to elide the plea of prescription— White v. Caledonian Railway Company, February 15, 1868, 6 Macph. 415; North British Railway Company v. Smith-Sligo, December 20, 1873, 1 R. 309. In Chisholm v. Robertson, March 10, 1883, 10 R. 760, the writing founded on contained all the terms of the contract. Blackadder v. Milne, March 4, 1851, 13 D. 820, was really decided on the ground that the employment from which the debt resulted was not one of those referred to in the Act. It was so treated in Barr v. Edinburgh and Glasgow Railway Company, June 17, 1864, 2 Macph. 1250, where it was held that letters requesting the attendance of an expert witness did not amount to a written obligation to pay him.

Argued for the respondent—On the words of the Act any written obligation was sufficient, and there could be no doubt that if a man instructed an agent to act for him, he undertook an obligation to pay for his services. Nor had any different rule been established by the decisions. The only cases referred to for the reclaimer— Ross, Douglas, and Cheape, if they could be held to have been rightly decided, were only authorities in cases of written orders for goods from a shop. In the case of other services a written order had long been held to be sufficient— M'Aulay v. Dickson, 1681, M, 11,090; Watson v. Lord Prestonhall, Feb. 21, 1711, M. 11,095; Bell, Dec. 16, 1755, 5 Brown's Supp. 840; M'Tavish v. Campbell, March 1777, 5 Brown's Supp. 543; Sadler v. M'Lean, Nov. 18, 1794, M. 11,119. The same rule had been upheld in Blackadder v. Milne, cit. supra, which was a fortiori of the present case, in respect that there was there no written acceptance of the employment. The authority of Blackadder was not in any way impugned by Barr v. Edinburgh and Glasgow Railway Co., cit. supra, as is shown by the opinion of the Lord Justice-Clerk there. The case of Chisholm v. Robertson, cit. supra, could not be distinguished from the present case. Brown v. Brown, June 11, 1891, 18 R. 881, was also an authority in the respondent's favour.

At advising—