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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jaffray v Simpson [1835] CA 13_1122 (1 July 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1122.html Cite as: [1835] CA 13_1122 |
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Page: 1122↓
Subject_Contract—Compromise—Proof.—
1. Circumstances in which found that an agreement to compromise an action against two defenders, involving the character of one of them (a lady), during the trial of an issue, by the counsel for the other defender and a friend of the lady, had been sanctioned by her, though concealed from her counsel, and although the trial was allowed to go on, and a verdict to be returned in her favour. 2. Parole proof admitted to prove the true nature of the transaction.
In an action of reduction of the latter will of the late Colonel Simpson of Plean, which was raised by the pursuers, Jaffray and others, his nearest of kin, against his relict, the defender Mrs Simpson, and the trustees under the will, founded on allegations affecting her character, a trial by jury took place on the 8th and 9th January, 1834, as mentioned ante, XII. 241 and 564. The pursuers publicly abandoned the case after the defenders had led their evidence, and a verdict passed for the defenders.
Thereafter the pursuers, alleging that their abandonment of the case was in implement of an agreement on the part of Mrs Simpson to pay them £2000, which she had subsequently refused to fulfil, raised the present action for payment. In defence, she maintained, that she never intended to sanction or to enter into any such agreement; or, at least, that the promise to give the pursuers a sum of money was not as a stipulation for such abandonment, but as a charitable donation.
The following issues were sent to trial:—
“It being admitted, that, on the 9th day of January, 1834, an issue came on for trial before the Lord Justice-Clerk and a jury, in which the
“1. Whether, on or about the said 9th day of January, 1834, the defender, by herself, or by another, or others acting under her authority, entered into a compromise with the pursuers, whereby she agreed to pay to the pursuers £2000, or any part thereof; and, whether, under the said agreement for compromise, the defender is indebted and resting-owing to the pursuers in the said sum, or any part thereof, with interest thereon?
“2. Whether, on or about the said day, the said agreement was entered into in the name of the defender; and, whether, on the said day, or subsequent thereto, she homologated or approved of the same, and is indebted and resting-owing to the pursuers in the said sum, or any part thereof, with interest thereon?
“3. Whether, on or about the said day, the defender, by herself, or by another, or others acting under her authority, entered into a compromise, whereby she agreed to pay to the pursuers, or to relieve the pursuers from payment of such sum as might be awarded against them as the costs incurred by the trustees of the said Francis Simpson, in an action then depending at the instance of the pursuers against the defender and the said trustees?
“4. Whether, on or about the said day, the said agreement to pay the sum last aforesaid, or to relieve the pursuers from payment of the same, was entered into in name of the defender; and, whether, on the said day, or subsequent thereto, she homologated or approved of the same?”
The facts, as appearing in evidence, were these:—The Dean of Faculty, Messrs Patrick Robertson and Hercules Robertson, were of counsel for Mrs Simpson at the trial,—Mr Solicitor-General (Cockburn) for Colonel Simpson's trustees,—and Mr Keay and others for the pursuers. Sir Edward Lees was the friend and confidential adviser of Mrs Simpson, and, previous to the trial, although she had not directly given him authority to enter into any arrangement, she had declared herself ready to do whatever he directed. She had, however, previously, in presence of her counsel, withdrawn a written authority to her law-agent to that effect, and put it into the fire. Between the counsel for the trustees and the counsel for Mrs Simpson there had been a great deal of joint consultation, but their views had differed as to the management of the trial, and the cases were to be separately conducted—the Solicitor-General acting as counsel for the trustees, and the Dean of Faculty being charged, exclusive of the counsel for the trustees, with the case of Mrs Simpson. Sir Edward Lees attended the trial at the request of Mrs Simpson, and sat within the bar; but he was not aware of there
In fulfilment of this engagement, when the counsel for Mrs Simpson were leading evidence, the pursuers did not cross-question their witnesses; and, at the close of the evidence, Mr Keay, on the part of the pursuers, abandoned the case, and made a complimentary speech, expressing their regret at the action having been brought. A verdict was immediately found for the defenders.
On the termination of the trial, the Solicitor-General addressed the following letter to Sir Edward:—
“ My Dear Sir Edward,—Lest there should be any misunderstanding hereafter, I think it right to state what I conceive the terms agreed to by us verbally to have been. They were—
“1. That no costs should be demanded from the pursuers. As the trustees had nothing to do with the arrangement, this implies, that if they should take a judgment for their costs, that judgment is to be satisfied by Mrs Simpson.
“2. That £500 should be given to the pursuers, as their costs.
“3. That, besides this, each of the three pursuers should be paid by her £500.
“This was not arranged in the slightest degree as a compromise. On the contrary, it was understood that the defence was triumphant, and that the pursuers were completely beaten by the evidence, and that a verdict and judgment for costs was absolutely certain. But these concessions were made by you, as Mrs Simpson's friend, solely as a piece of voluntary humanity on her part, to relations of her husband, who were misled, and had a natural temptation to try to set aside a deed which ousts them. Nobody can fail to feel that Mrs Simpson, by this spontaneous liberality, after her success was clear, has raised herself in the estimation of all who are aware of the facts. The arrangement was meant by her, and was taken by the pursuers, solely as charity.
“This being the case, the sooner you get them paid off the better. I have spoken to nobody, as it is better that you should get it settled. I have told Mr Campbell, the agent of the pursuers, not to do any thing at least for a month, as I was confident that within that period, you, in such way as you thought proper, would get every thing adjusted. Yours very faithfully,
(Signed) “H. Cockburn.”
To this there was afterwards subjoined:—
“I approve of the arrangement made by my friend Sir Edward Lees.
(Signed) “E. S. Simpson.”
The envelope was addressed—
“( Private.)
“ Henry Cockburn, Esq.
“To be delivered to Mr Solicitor-General in presence of Mrs Simpson.
“E. S. L.”
The above letter was to be kept by Sir Edward, so as, if necessary, it might be exhibited, in case any allegation were made that the case had been compromised. It appeared that, on a rumour getting abroad that such was the true character of the transaction, Mrs Simpson became anxious to get possession of the document; and she afterwards placed the matter in other hands, and refused to fulfil the agreement.
Various letters, but none of them very explicit, were produced; and Sir Edward Lees deponed, that, after the trial, he told Mrs Simpson of the true nature of the arrangement, and that on this and two other occasions, she expressed herself strongly in approbation of it. She afterwards entertained Sir Edward, the Solicitor-General, and Mr Robertson (one of her counsel) at dinner, on which occasion they congratulated her on her victory. Both at the time when this arrangement was made and at the dinner, Mr Robertson, as well as her other counsel and her agent, were entirely ignorant of the compromise, and the Dean of Faculty deponed, that he would not only not have sanctioned it, but, if necessary, would have moved the Court to interpose.
“To warrant a verdict for the pursuers, it must be proved that a compromise was entered into to the effect expressed in the issues, and that the defender either gave authority beforehand to enter into such a compromise, or approved of it after it was entered into. But the question, whether any agreement entered into was a compromise or not, depends on the whole evidence, written and parole, taken together, and not on any particular words ostensibly used. [And I may observe, that, if the Court had held the case to depend exclusively on any such words, they would have judged of the construction of the words before sending the case to trial.] But the question in this trial, with reference to this point of the issues, is, whether upon the evidence the Jury are satisfied that, notwithstanding that it was part of the arrangement made that the money to be paid should be stated, and the undertaking for it ostensibly concluded, not as the result of a compromise, but as a voluntary engagement by Mrs Simpson, the whole transaction, as proved, was in reality a compromise, whereby the trial did not come to its natural termination, and the defender obtained a verdict without the case having gone to the Jury, so as to call on them to give their own judgment on the evidence led?”
His Lordship having summed up the evidence on both sides, the Jury returned a verdict for the pursuers upon all the issues.
Solicitors: John Campbell, W.S.— Robert Rutherfurd, W.S.—Agents.
