Scottish Court of Session Decisions

Alexander Garrioch, manufacturer, 31 Blackfriars Street, Edinburgh, brought an action in the Sheriff Court at Edinburgh against J. M. Glass, solicitor, 86 George Street, Edinburgh. He claimed “payment of the sum of £150 for cash advances and bonuses thereon,” and craved the Court “to decern against the defender for payment of the sum of £150, with interest thereon at the rate of £5 per centum per annum from the date of citation to follow hereon till payment.” The £150 was to the extent of £75 made up of three sums of £30, £30, and £15, which the pursuer averred that he had advanced to the defender on behalf of Mr James L. Addie, Glasgow, and to the extent of £75 of bonuses of equal amount on the said sums. He founded his claim upon three letters, which were in the following terms:—

“86 George Street,

Edinburgh, 1st July 1907.

Received from Mr Alexander Garrioch on behalf of Mr James L. Addie of Glasgow the sum of thirty pounds sterling, which is to be repaid with a bonus of thirty pounds when the business of the South Wales Colliery transference takes place, which is expected by the end of the month of July current or early in August. I hereby guarantee the repayment of the above sum to the extent of thirty pounds sterling.

J. M. Glass.”

86 George Street,

Edinburgh, 24 th August 1907.

Received from Mr Alexander Garrioch on behalf of Mr James L. Addie of Glasgow the sum of thirty pounds sterling, which sum is to be repaid with a bonus of thirty pounds when the business of the South Wales Colliery transference takes place, which is expected by the end of about three weeks hence. I hereby guarantee the repayment of the above sum of thirty pounds sterling.

J. M. Glass.”

86 George Street,

Edinburgh, 15 th November 1907.

Received from Mr Alexander Garrioch on behalf of Mr James L. Addie of Glasgow the sum of fifteen pounds sterling, which sum is to be repaid with a bonus of fifteen pounds when the business of the Sans Lucas Company business is completed, which is expected to take place towards the end of the current month. I hereby guarantee the repayment of the sum of fifteen pounds. “ J. M. Glass.”

On record the defender averred that he had all along been willing to implement the guarantee undertaken by him in the letters, and tendered the principal sum advanced by the pursuer with expenses of process to date. This offer not having been accepted, the Sheriff-Substitute ( Guy) on 22nd October 1909 allowed parties a proof of their averments. The facts of the case as established by the proof are sufficiently disclosed in the interlocutor and note of the Sheriff-Principal, infra.

By interlocutor dated 24th February 1910 the Sheriff-Substitute granted decree against the defender for payment of (1) £30, with interest from 1st July 1907 till payment; (2) £30 with interest from 24th August 1907 till payment; and (3) £15 with

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interest thereon from 15th November 1907 till payment; quoad ultra he assoilzied the defender, but found him liable to the pursuer in expenses.

The defender appealed to the Sheriff ( Maconochie), who on 23rd March 1910 pronounced this interlocutor—“The Sheriff … recals the interlocutor of the Sheriff-Substitute now appealed against, sustains the appeal, and in lieu of the findings in said interlocutor Finds in fact (1) that the pursuer paid to the defender the sums of £30, £30, and £15 on the dates respectively mentioned, and on the terms set forth respectively in the documents; (2) that the said payments were made on the representation of the defender, that they were received on behalf of Mr James L. Addie of Glasgow, and that the defender had no authority from the said Mr Addie to borrow and receive the said sums on his behalf: Finds in fact and in law that the defender is liable as principal in said transactions to repay the said sums with interest from the date of citation: Therefore grants decree against the defender for payment to the pursuer of said three sums, with interest from the date of citation at five per centum per annum: Quoad ultra assoilzies the defender from the conclusions of the action: Finds the defender liable to the pursuer in the expenses of process down to the date of the lodging of the appeal: … Finds the pursuer liable to the defender in the expenses of the appeal. …”

Note.—“… The Sheriff-Substitute has granted decree for the three principal sums, with interest at 5 per cent. from the dates on which the money was paid over. I do not think that it was competent for him to do so, as all that is craved is interest at 5 per cent. from the date of citation. The defender has thus been successful in the appeal, and is therefore entitled to the expenses of the appeal. The defender, however, further maintained that alternatively he should be awarded expenses up to the date of the appeal, or that no expenses should be found due to or by either party. In deciding that question it is necessary to look at the position taken up by the defender on record. In answer 6 he says that he has ‘all along been willing to implement the guarantee undertaken by him in the letters set forth,’ and tendered ‘the principal sums advanced by him with the expenses of process to date.’ He never, so far as I can see, acknowledged liability as principal in the transaction, as in fact he was, but only as guarantor, and the tender does not meet the crave as it does not mention interest, and interest is, as I have stated, asked for. Doubtless the pecuniary difference between the crave and the tender is small, and in the ordinary case I might have come to the conclusion that neither party should be found entitled to expenses. But the case here is peculiar. It was not maintained before me that the Sheriff-Substitute was wrong when he said that he regarded the documents as ‘a representation that the defender, a law agent, had the power to receive money on behalf of Mr Addie, and to bind him to repay that money with the stipulated bonus,’ nor was it maintained that that representation was warranted by the facts, or that the pursuer was not led to make the loans on the faith of it. When the pursuer applied for payment to Mr Addie, that gentleman repudiated liability altogether on the ground that he had never given the defender authority to use his name or to raise money on his behalf. That being so, I think that the pursuer was entitled to sift the matter thoroughly in a court of law. Looking to the terms of the letters of acknowledgment founded on, it was, I think, necessary to have a proof as to the whole matter, as it was impossible to say what might come out as affecting the whole position. On the case as it turned out I do not feel inclined to stretch a a point in the defender's favour, and to find that no expenses should be given to the pursuer in the earlier stages of the case.”

The defender appealed, and argued—He was entitled to expenses from the date of the Sheriff-Substitute's interlocutor allowing proof. An appeal on a question of expenses merely was undoubtedly competent — Caldwell v. Dykes, May 25, 1906, 8 F. 839, 43 S.L.R. 606. He had tendered on record the whole sum for which he was ultimately found liable. It was true that he had omitted to tender interest from the date of citation, but that was an exceedingly trifling sum. The proof had been directed to wards the pursuer's establishment of right to the bonuses. In this he had been entirely unsuccessful. It was therefore right that the pursuer should bear the expense of this unnecessary proof.

Argued for the pursuer (respondent) — The tender was not for the full sum which the pursuer had ultimately been awarded. It did not include interest. The pursuer was therefore entitled to the expenses of the proof. Furthermore, it was the practice of the Court severely to discourage appeals on expenses only. Such appeals would not be entertained unless there had been a gross miscarriage of justice— Caldwell v. Dykes ( sup. eit.); Bowman's Trustees v. Scott's Trustees, February 13, 1901, 3 F. 450, 38 S. L.R. 557. That could not be said here according to the Sheriff's view of the case.