Scottish Court of Session Decisions

(1) Brims & Mackay, Solicitors, Thurso, and Alexander Mackay, William Manson Brims, and James Young, all Solicitors, Thurso, the individuals of the firm, (2) the trustees of the deceased James Brims, Solicitor, Thurso, and (3) the now dissolved firm of Brims & Mackay, Solicitors, Thurso, brought an action against M'Neill & Sime, S.S.C., Edinburgh, and James Adam Pattullo and Henry Vetch, the individual partners of the firm, and also against James Adam Pattullo as an individual, the conclusion of which was that the defenders should be ordained “to exhibit and produce before our said Lords a full and particular account of the whole law agents’ fees recovered by them in the matters condescended on, whereby the true amount or proportion thereof due by the defenders to the pursuers may appear and be ascertained; and the defenders ought and should be decerned and ordained, conjunctly and severally, or otherwise severally, by decree foresaid, to make payment to the first-mentioned pursuers of the sum of £200 sterling, or such other sum as shall appear and be ascertained by our said Lords to be due by the defenders to the pursuers as the pursuers' share of said fees.”

The pursuers averred, inter alia—“(Cond. 1) The pursuers Brims & Mackay are solicitors and conveyancers, carrying on business in Thurso, and the other pursuers are the individual partners of said firm, and the representatives of a deceased partner of the now dissolved firm of Brims & Mackay, Solicitors, Thurso, which, however, subsists for the purpose of winding up. The deceased James Brims and the pursuer Alexander Mackay were the partners of the said dissolved firm of Brims & Mackay.

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It was dissolved as at 1st August 1901. By arrangement between the parties it is provided that all accounts due to the late firm of Brims & Mackay are to be collected by and paid to the present firm of Brims & Mackay. The defenders are a firm of Solicitors before the Supreme Courts of Scotland, carrying on business in Edinburgh. Before joining the said firm the defender James Adam Pattullo carried on business in Edinburgh as a solicitor.… (Cond. 2) Before he started business on his own account the defender Pattullo was a clerk in the employment of Messrs John C. Brodie & Sons, W.S., Edinburgh, with whom Brims & Mackay had considerable business transactions. In that capacity said defender came to know the members of the firm of Brims & Mackay, who transacted business with him on behalf of said firm. In or about the year 1893 he informed Brims & Mackay, and particularly the pursuer Alexander Mackay, that he was about to start business, and requested that said pursuer and his firm of Brims & Mackay should send him a share of their Edinburgh work. … [ the pursuers here gave an account of an alleged arrangement as to agency fees being made with Pattullo]…. The arrangement then made and subsequently acted upon was that of the sums received or recovered by the defender Pattullo in respect of the accounts incurred to him in connection with the various matters of business which Brims & Mackay might from time to time send him, the latter should receive from him the usual agency fees at the rate of one-third of the law-agents’ fees paid to him. … After the defender Pattullo joined the firm of M ‘Neill & Sime, Brims & Mackay continued to send him work, which was done by his firm under their firm name. Said work was always sent to defender Pattullo by letter addressed to himself, and it was sent on the same footing and under the same arrangement as Brims & Mackay had had with Mr Pattullo before that time. Since then the defender Pattullo and his said firm have acted upon the agreement before mentioned, and both have from time to time, as they recovered accounts in connection with matters sent to him by the pursuers, remitted to the pursuers their share of fees as aforesaid. This has been the invariable practice between the parties, and it was solely in reliance upon the defenders carrying out honourably the agreement come to that Brims & Mackay from time to time sent them business to transact for them in Edinburgh. It is the custom in the profession for agents in the country to receive such agency fees from the agents whom they employ in Edinburgh, and the pursuers relied upon this well-recognised custom. …” In condescendences 3, 4, and 5 they gave instances where the defenders had given the agency fees as claimed, and the details of the various transactions, ranging from 1894 to 1905, in respect of which they sued.

The pursuers pleaded, inter alia—“(2) The defenders having obtained the business transacted by them through Brims & Mackay on condition that they would pay to the latter agency fees at the rate stipulated for, the pursuers are entitled to decree as concluded for. (3) The defenders are barred by their actings from maintaining that no contract for agency fees was made.”

The defenders M'Neill & Sime pleaded, inter alia—“(1) No title to sue. (2) The action as laid is incompetent (3) The pursuers' averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (4) The arrangement or agreement condescended on with reference to the matter of agency fees is only provable by the writ or oath of these defenders. … (7) The pursuers' claims, if any, against the defenders in respect of items … condescended on being prescribed, the defenders are entitled to decree of absolvitor.”

The defender Pattullo had, inter alia, similar pleas.

On 26th March 1907 the Lord Ordinary ( Guthrie) sustained the second and third pleas-in-law for the defenders M'Neill and Sime, dismissed the action so far as directed against them, and decerned … Further, repelled the first, third, and fourth pleas-in-law for the defender James Adam Pattullo, and quoad the said defender and the pursuers, allowed them a proof habili modo of their respective averments.

Opinion—“The defenders M'Neill & Sime maintained their first, second, third and seventh pleas, namely, no title to sue, incompetency, irrelevancy, and prescription. The defender Mr Pattullo maintained similar pleas.

So far as the defenders M'Neill & Sime are concerned, I sustain their pleas to competency and relevancy, and dismiss the action against them.

The objection of these defenders to relevancy was founded on the absence of any relevant averment of an agreement between them and the pursuers to allow the pursuers a share of agency fees. The agreement founded on by the pursuers is alleged to have been made in 1893, when Mr Pattullo began business on his own account, and, as in a question with him, it is said to have continued after he became a partner of the firm of M'Neill & Sime in 1898. But I find no averment of any agreement between the pursuers and M'Neill & Sime, nor any sufficient averment of actings on the part of that firm which necessarily implied such an agreement apart from Mr Pattullo's alleged obligation.

On the question of competency both sets of defenders object to the proposal of the pursuers to recover one sum of £200 from them ‘conjunctly and severally, or otherwise severally.’ They point out that while Mr Pattullo's alleged obligation applies to the whole period covered by the condescendence, namely, from 1894 to 1906, M'Neill & Sime had admittedly no relations with the pursuers till 1898, when Mr Pattullo joined the firm. The result is, they say, that the summons contains a

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conclusion under which it would be possible to find M'Neill & Sime liable for the proportion of the £200 concluded for effeiring to the period between 1894 and 1898, for which, according to the pursuer's averments, Mr Pattullo is alone responsible. I think this objection is well founded, and that the case is indistinguishable from that of Sinclair v. Caithness Flagstone Company, 1898, 25 R. 703, per Lord Kinnear, page 707.

Turning now to the case against Mr Pattullo, I take first his seventh plea, relating to prescription. That plea cannot be disposed of at this stage. The pursuers aver that the accounts in question were incurred on written instructions, and further, that they formed one continuous series. These questions of fact must first be determined before the plea of prescription can be dealt with.

Mr Pattullo's plea on title to sue does not cover the whole accounts sued for. It relates to the period from 1894 to 1st August 1901, during which the firm of Brims & Mackay consisted of the late Mr James Brims and the pursuer Mr Alexander Mackay. Mr James Brims died on 1st August 1901, and thereafter the firm of Brims & Mackay, of which he had been a partner, subsisted only for the purpose of winding up by the surviving partner Mr Alexander Mackay. For the accounts alleged to be due in connection with work done during that period the only pursuers are the late Mr James Brims' trustees and ‘the now dissolved firm of Brims & Mackay.’ Mr Alexander Mackay is also a pursuer, but only as a partner of the existing firm of Brims & Mackay. It is said that in order to constitute a good instance for recovery of the accounts during the existence of the dissolved firm, Mr Alexander Mackay ought to have been a pursuer as the surviving partner of that firm.

This objection is technical, and in the absence of express authority in its support I repel it. It is admitted that in the case of an existing firm like Brims & Mackay, with a personal firm name, it is not necessary to conjoin the names of any of the partners in order to make a good instance. If this be so, I do not see sufficient reason for holding that a debt due to a firm, which, although dissolved so as to be incapable of carrying on business still subsists for the purpose of winding up, cannot be recovered without conjoining in the instance the surviving partner or partners, or at least the surviving partner who is in charge of winding up— 2 Bell's Coms. 527, 533. The cases quoted by the defenders in support of their view were cases where the firm name was descriptive and not personal, and where, therefore, whether dissolved or not, the names of the partners were necessary.

I shall therefore repel Mr Pattullo's first plea of no title to sue, and also his third plea to relevancy. I think the pursuers have sufficiently averred a case of express contract between him and them of the nature alleged by them, and have also made a sufficient case, so far as averment goes, as a foundation for their third plea.”

The defender Pattullo reclaimed, and argued—The action was incompetent on the ground that the two pursuers, the old firm and the new, were suing in one action for independent debts in which they had no common interest— Killin v. Weir, February 22, 1905, 7 F. 526, 42 S.L.R. 393; Gibson v. Macqueen, December 5, 1866, 5 Macph. 113, 3 S.L.R. 83. There was, besides, no separation of the amounts claimed by each. It was also incompetent on the further ground (recognised by the Lord Ordinary in the case of M'Neill & Sime, but equally applicable to Pattullo) that two defenders, viz., Pattullo and M'Neill & Sime were conjoined together, who had no common ground of liability, seeing that upon the pursuers' own showing the business was sent to Pattullo in the earlier, and to M'Neill & Sime in the later transactions— Smyth v. Muir, November 13, 1891, 19 R 81, 29 S.L.R. 94.

Argued for the respondents (who did not reclaim against the decision of the Lord Ordinary dismissing the action as against M'Neill & Sime)—The business had all along been sent to Pattullo, and the fact that he had joined the firm of M'Neill & Sime made no difference so far as his liability was concerned. Further, the mere fact that a pursuer brings an action against two defenders conjunctly and severally did not preclude him from proceeding against one of them— Robinson v. Reid's Trustees, May 31, 1900, 2 F. 928, 37 S.L.R. 718. This disposed of the reclaimer's last argument. As to his first argument (even assuming that the two firms of Brims & Mackay were unconnected persons, which was very far-fetched) there was no absolute rule against different pursuers conjoining in one action; it was a matter of convenience depending upon the circumstances of each particular case — Cowan & Sons, &c. v. Duke of Buccleuch, November 30, 1876, 4 R. (H.L.) 14, 14 S.L.R. 189. Here the most convenient course had been adopted of bringing everybody interested in the matter, either as pursuers or defenders, into the same action. The fact of there having been changes in the pursuers' firm was quite immaterial. In Nicoll v. Reid, November 15, 1877, 5 R. 137, 15 S.L.R. 89, an action at the instance of a sole surviving partner of a dissolved firm had been sustained as in substance at the firm's instance. A dissolved firm with a personal name could sue in its own name without the addition of the name of a surviving partner—Lindley on Partnership, p. 837.