Scottish Court of Session Decisions

James Burns, solicitor, Motherwell, brought an action in the Sheriff Court at Hamilton against John Colville, M.P., iron manufacturer, Motherwell, in which he concluded for payment of £164, 1s. 2d., being the amount of his account for professional services in connection with the Motherwell and Bellshill Railway Bill, of which the defender was the principal promoter. The defender admitted that the pursuer had been employed by the promoters as local agent in Motherwell in connection with the bill, and stated that they were willing to pay the pursuer's legitimate charges for work done in that capacity, but that they refused to pay a sum of £93, 12s. charged by the pursuer for going to and attending in London when the bill was before the Select Committee of the House of Commons, in respect that he was not requested by the promoters to go there.

Proof was allowed and led.

From the proof it appeared that the pursuer was employed by the defender as local agent at Motherwell in connection with the Motherwell and Bellshill Railway Bill.

The pursuer was Town-Clerk of Motherwell, and had been selected to act as local agent on account of his local knowledge. The principal agents for the bill were Messrs H. Lamond Lang & Company, writers, Glasgow.

The conditions of the pursuer's employment were embodied in the following letters

“John Colville, Esq., M.P.,

Motherwell. 21 st November 1899.

Motherwell and Bellshill Railway Bill.

Dear Sir,—As promised at our meeting to-day, I now write you with reference to my acting for the promoters of this bill. While it is natural that the promoters should desire to know the exact figure it will cost them for agency, owing to the nature of the work it is practically impossible to name a figure that would be fair to both parties. I am willing to undertake the work and do all I can to promote the bill on the usual professional terms, subject, if desired, to taxation of my account by the Sheriff Court Auditor at Hamilton. As requested I am calling meeting of traders for to-morrow night—Yours faithfully,

James Burns.”

Messrs H. Lamond, Lang, & Co.,

Writers, Glasgow. 22 nd November 1899.

“Dear Sirs,—I send you copy of letter I yesterday addressed to Mr Colville, M.P., and copy of his reply. To prevent any possible misunderstanding, it will be as well that I confirm the cancelment by phone last week of my letter to your Mr Lang on this subject, which I now do. Anything which I do, whether at your request, that of the Messrs Colville, or on my own initiative, in the promotion or interests of the bill will be on the terms stated in my letter of yesterday to Mr Colville.—Yours faithfully, James Burns.”

When the case was before the House of Lords Committee in May 1900 the pursuer did not attend in London. He had intimated that as he was busy he would prefer not to go to London at that time unless his presence was considered necessary, and had been informed that it was not necessary for him to go. After the bill had passed the House of Lords the local feeling with regard to it changed considerably. The Commissioners of Motherwell had previously been unanimously in favour of the bill, but after the hearing before the House of Lords Committee some of them changed their opinions and became hostile. When the time for the hearing before the House of Commons was approaching the pursuer intimated to Messrs Lamond & Lang that he proposed to attend. They did not intimate any objection to his doing so. The pursuer did not receive express instructions either from Messrs Lamond or from the defender to attend in London when the bill was before the House of Commons Committee. He was not expressly told that he was not so to attend. The pursuer went to London on 14th July. He accompanied the witnesses for the promoters. He left from Glasgow, and after calling at Mr Lang's office was seen off at the train by him. Mr Lang, with reference to this, deponed—“I understood he was going (to London) on his own account and for a holiday.” On his arrival in London he took the witnesses to a boardinghouse, where he had arranged for their accommodation. He then called at Mr Lamond's business room at the Westminster Hotel along with some of the witnesses, and saw Mr Lamond. He attended the sittings of the House of Commons Committee and sat beside the promoters and Mr Lamond. He made suggestions for the examination and cross-examination of witnesses. It was admitted that he was of use to the promoters in this way, and also in interviewing witnesses. Neither Mr Lamond nor the defender objected to his attendance before the Committee, nor did either of them warn him that he was not. to expect any remuneration for his services there. The defender deponed that he thought the pursuer was attending before the Committee by instructions of Mr Lamond. Mr Lamond deponed that he understood the pursuer was giving his attendance because of his personal interest in the bill, and was there “to see the fun” and for a holiday. The pursuer was not present at the consultations with counsel. Towards the close of the evidence Mr Lamond said to the defender, with regard to the pursuer, “What is that fellow doing here? I did not ask him to come up.” The defender deponed that this was the first intimation he had that the pursuer was there without instructions from Mr Lamond. After all or nearly all the evidence had been led, but before counsel had been heard, the pursuer was told that there was no occasion for his staying on and that he might go home. Upon receiving this intimation the pursuer went home, and he made no charge for attendance after that date.

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The pursuer's charge for his attendance in London was as follows:—(1) Going to and attendance in London when bill before Select Committee of House of Commons—engaged 10 days, £63; (2) Personal expenses—11 days, £23, 2s.; (3) Travelling expenses, £7, 10s.—Total, £93, 12s.

On 14th March 1901 the Sheriff-Substitute ( Davidson) pronounced an interlocutor, in which he found, inter alia, that the disputed items of the pursuer's account in connection with his attendance in London were not proper charges against the defender, and quoad the remainder of the account, remitted it for taxation.

The pursuer appealed to the Sheriff ( Berry), who on 21st May 1901 adhered to the interlocutor of the Sheriff-Substitute.

On 28th May 1901 the Sheriff-Substitute, in respect that parties had dispensed with taxation of the account, decerned against the defender for £66, 1s. 8d., being the sum admitted by the defender.

The pursuer appealed to the Court of Session, and contended that the evidence established that his attendance in London had been given on the employment of the defender. He cited In re Storer (1884), 26 Ch. D. 189; In re Foster (1878), 8 Ch. D. 598.

At advising—