Scottish Court of Session Decisions

This was a question as to the authority of a law agent to compromise a case, and resolved itself, according to the view taken of it by the Court, into one of fact. Orr had employed Meikle and Smith, writers in Kilmarnock, to borrow some money for him, which he says they failed to do; they, on the contrary, asserting that they had done all that they could and proposed. A loan of £150 was admittedly procured. Meikle and Smith, who had advanced this sum, and in security thereof taken both a bill from Orr and a bond over some heritable property in security of the loan, afterwards rendered to him an account of upwards of £21, for business done on his account in the transaction. Orr refused to pay, and instructed Mr May, writer in Largs, to defend the action. May was not entitled to practice in the Sheriff Court of Kilmarnock, where the action mas brought, and he instructed Mr Andrews, writer, Kilmarnock, to attend to the case, and gave him a note of the defence to be stated. Andrews was of opinion that there was no good defence to the action, and wrote so to May, suggesting either a remit to The auditor or acceptance of an offer of compromise made by the pursuers. A long correspondence ensued between Andrews and May, from the early part of which it was clear that Orr would neither do the one thing or the other. In the latter part of the correspondence, May, in one of his letters, used the expression.

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“You must just go on, and do the best you can.” No communication had ever taken place between Orr and Andrews, and it was not proved that May had communicated any of the letters written by Andrews to Orr, except one that The latter admitted having seen. He also admitted two conversations in the street on the subject. May died in 1866, and none of his business books have been recovered, but it was proved that he was on very intimate terms and almost in daily intercourse with Orr.

After a long correspondence, Andrews, without putting in defences to the action, joined with the defenders in a remit of the account to the Auditor, and consented that decree should pass against Orr for the sum taxed. Orr then brought a reduction of this remit and of the proceedings that followed thereon.

The Lord Ordinary ( Kinloch) reported the case to the Court on the pursuer's issue, expressing an opinion that the pursuer was entitled to an issue, on the ground that without authority an agent has no power by the law of Scotland to compromise an action. After some discussion, the issue was superseded, and the Court remitted to the Lord Ordinary to take proof of the parties' averments, under the Evidence Act. The case came before the Court on the reported proof.

Giffford and W. A. Brown for prusuers.

Clark and Gebbie in answer.

The Court held (1) that Andrews rightly considered that he had authority from May to settle, and that May's letters were susceptible of that construction; and (2) that it must be assumed, from the intimate relation between the parties, that Orr knew what May was writing, and that Andrews' letters were communicated to him by May.