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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Mitchell v. John Cullen, W.S. [1852] UKHL 1_Paterson_76 (11 April 1852)
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Cite as: [1852] UKHL 1_Paterson_76
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SCOTTISH_HoL
Page: 76↓
(1852) 1 Paterson 76
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 11
v.
Subject_Proof — Evidence — Presumption — Payment — Agent and Client —
A law-agent having received two sums in payment of specific accounts, gave only a receipt to general account, and afterwards claimed the full sums due on those specific accounts.
Held (reversing judgment) that the correspondence established that the payment was specific and not general. 1
The respondent brought an action in the Court of Session against the appellant, for payment of £172 2 s. 3 d., as a balance due on his accounts for professional business in conducting certain lawsuits for him. The respondent had been employed by Mr. Archibald Kerr, a writer in Glasgow, on behalf of the appellant. Various sums had been from time to time sent to the respondent, accounts had passed, a meeting of parties, and some communings, and a long correspondence ensued, in reference to a settlement. In defence it was maintained, that, in the circumstances, the accounts were to be held as having been adjusted and paid, excepting a balance of £30, which was tendered; and, at all events, that if the accounts for processes Mitchell v. Ranson and Dick v. Mitchell (processes the expenses in which formed the principal subject of contention) were to be held as still unsettled, the appellant was entitled to have these accounts audited in ordinary form.
The Court of Session held that two payments sent to the respondent were not chargeable to the specific account, because the offer to abate the sum in those accounts was not accepted in time. The question turned wholly on the import of the correspondence.
My Lords, the question which your Lordships have to decide in this case lies, certainly, in a very narrow compass. Mitchell had involved himself, in the course of mercantile transactions, in great litigation. He had a solicitor of the name of Kerr, who was not himself, as I understand, residing in Edinburgh; and Kerr employed Cullen (who is now the person contesting this question) as his representative.
I understand that, by the law of Scotland, Cullen holds two persons as being bound to him. Mitchell, the real client, is liable to him for business which he (Cullen) has transacted, and Kerr, the person through whom Mitchell employed Cullen, is also liable. Cullen has certainly a great advantage, therefore, in that respect; and Mitchell, I am afraid, has a corresponding disadvantage—that is to say, he is liable for the same amount both to Kerr and Cullen; and if that be so, I must say the sooner the law is altered in that respect, the better, as it appears to me, it it will be for Her Majesty's lieges in Scotland.
The questions now before your Lordships arise principally out of this double character which is filled by this gentleman; for Mitchell having to transact business through and by Kerr with Cullen, it has happened, as your Lordships will see, that the correspondence is sometimes carried on by Kerr with Cullen, and, in one of the instances which your Lordships have to consider, the same correspondence is followed up by Mitchell with Cullen; and even a difficulty has arisen at your Lordships' bar, between the learned counsel on opposite sides, to which correspondent (whether to Kerr or to Mitchell) a certain answer of Cullen's (to whom both were responsible) was addressed.
My Lords, the first question is simply this:—There were two matters—one was a matter in which Mitchell had involved himself, which is called Mitchell v. Ranson, and the question is, whether a certain sum of £150 (which certainly in part related to another transaction, and with which Mitchell had nothing to do) did bear specifically upon the costs in that particular case of Mitchell v. Ranson.
This case has been very well and very shortly argued. The decision of it depends on a very few letters; and I confess I cannot bring my mind to entertain any doubt whatever as to what the true construction of those letters is,—that the £150 would represent in part, if it be a specific appropriation, the bill of costs in Mitchell v. Ranson.
Now, I do not understand from the argument that there is any difference between the learned counsel as to the law applicable to this case; and, indeed, I think there can be none. The law in this respect is the same in Scotland as it is in England. There is no doubt that a person
_________________ Footnote _________________
1 See previous report
22 Sc. Jur. 646.
S. C. 1 Macq. Ap. 190:
24 Sc. Jur. 431.
Page: 77↓
As far as regards that question, therefore, in my opinion, the judgment of the Court below ought to be reversed; and it should be declared by your Lordships, that the £150 must be deemed to have been paid by Kerr on account of the debt of Mitchell in the case of Mitchell v. Ranson, and that credit must be taken for that as a specific payment.
Then, my Lords, we come to the other point, which, if possible, would appear to be still more clear than the one to which I have called your Lordships' attention. The Lord Ordinary was of opinion in favour of the appellant. The Lords of the Second Division overruled his decision; but nothing can be more clear or plain to my mind, than that the Lord Ordinary was right in the view he took of the case. The question simply is, whether, upon the two letters which passed between these parties, Cullen did agree to take £120 for a debt of £152 and upwards; and if he did so, whether the terms upon which he offered to do that were sufficiently accepted and acted upon to make that offer binding upon him, so that he could no longer depart from it. Upon that question there was a difference of opinion in the Court below, the Lord Ordinary being of opinion in favour of the appellant, and the Lords of the Second Division overruling that interlocutor, and deciding in favour of the respondent. (His Lordship then referred to the correspondence and continued)—Cullen says to Mitchell in the most clear and explicit terms—“It is a hard case upon you—you have sustained a great loss, and have incurred great expense: I will take £120 instead of £152 2 s. 3 d.; if you will send me £100 the remaining £20 may stand over.” Then, having said that, he afterwards comes and says—“You have not paid me the £20, and therefore I claim to charge you the whole £152 which I claimed in the first instance.” It seems to me that that is a most unrighteous demand, and wholly without foundation.
To the argument upon the nudum pactum, I need not refer, because no point can possibly arise upon it; consequently, this part of the interlocutor of the Lords of the Second Division, your Lordships, if you agree with me, will think ought to be reversed. I think it should be declared that the account of Mitchell was an account for the sum of £120, and that the £100 which was paid must be considered as having been paid in discharge of £100, part of that £120. Those two declarations I should propose to your Lordships. I propose that your Lordships should reverse the interlocutor complained of, adding those two declarations, and remitting the case to the Court below to do what is just.
Interlocutors reversed, with declarations and remit.
Solicitors: Second Division— Lord Robertson, Ordinary.— Thomas Deans, Appellant's Solicitor.— Surr and Gribble, Respondent's Solicitors.