United Kingdom House of Lords Decisions

At this particular intervening juncture notice was given that a bond for £472, due by Mr. Fotheringham to Ker was to be paid up, unless the sum was allowed to lie at 4 ½ per cent. interest. Whereupon the appellant ordered the money to be received, and lent out to one Kinnear, a merchant, at 5 per cent. Kinnear failed, and the question was, Whether the appellant Graham was liable for the money so lost as negotiorum gestor?

Nov. 1756.

The Court of Session held he was liable; and against this judgment the present appeal was taken.

Pleaded by the Appellant:—Thomas Ker being of age at the date of Kinnear's bond, and being present and concurring in the whole transaction, the same in law must be received as his own act. At that time he was not under any legal incapacity from acting in his own affairs, and under no constraint against lending his money; and the part the appellant took was merely that of a friend, lending his assistance to, instead of acting for another, in procuring an additional per centage for his money. This being the nature of the appellant's interference, none of the characters of negotiorum gestor, or of mandatory, apply to the case, and consequently no obligation arises which can make him responsible for the debt so lost; but, separately, John Ker, Thomas Ker's uncle, who acted as guardian to Thomas Ker's children after his decease, during which time Kinnear was solvent, ought to have called up the money from Kinnear, if he thought the security insufficient. Instead of this, the respondent, and John Ker, who acted for her children, remained satisfied with that security for two years.

Pleaded for the Respondent.—A person who voluntarily, and without any authority, takes the management of another's affairs, makes himself responsible for all the consequences. He excludes all others from acting, and therefore is bound to bestow great care, so much so, that mere negligence, without any ill design, will subject him in liability. The appellant, therefore, having managed Thomas Ker's affairs in the loan in question, without any authority, is liable for the loss of the money lent to Kinnear by the latter's failure. And it is no answer to this to say, that Thomas Ker was himself present, and acting in the affair, because Thomas Ker was notoriously at the time of weak and facile mind, and unable to comprehend, far less to give his sanction to any such transaction.

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