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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Millar, Walker, & Millar v. Brodie's Trustees [1902] ScotLR 39_651 (06 June 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0651.html Cite as: [1902] ScotLR 39_651, [1902] SLR 39_651 |
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Page: 651↓
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Held ( rev. judgment of Lord Kyllachy, Ordinary) that the triennial prescription did not apply to the account of the law-agent to a trust, where his appointment as law-agent was recorded in a minute entered in the sederunt-book of the trust.
The late Robert Brodie died in 1871, leaving a trust-disposition and settlement by which he appointed Andrew Millar junior, writer in Paisley, and others, as his trustees. The trust-disposition contained, inter alia, a power to the trustees “to appoint any one or more of their own number, or any other proper person or persons, to be factor or factors or law-agent or law-agents under them for the management of the trust estate, and to allow such factors suitable remuneration for their trouble, and such law-agents the usual professional fees.”
At the first meeting of the trust, held on 1st March 1871, the trustees appointed the said Andrew Millar junior to be law-agent and factor to the trust. The appointment was recorded in the minute book of the trust in the following terms:—“The meeting then appointed Mr Andrew Millar junior, one of their number, to be law-agent and factor on the estate, with the usual remuneration.” The minute from which this is an extract was signed on behalf of the trustees by one of the trustees, who had been appointed chairman, and had been authorised by the meeting to sign the minute.
Andrew Millar junior, who was a partner of the firm of Millar, Walker, & Millar, solicitors in Paisley, died in 1888. In 1901 the present action was brought at the instance of the firm of Millar, Walker, & Millar, Thomas Walker and James Millar, the surviving partners thereof, and Alexander Millar, executor-dative of the late Andrew Millar junior, against James H. Dunn, writer in Paisley, and others, the surviving and assumed trustees in Robert Brodie's trust. The action concluded for payment of £174, 12s. 10d., being the account for professional services rendered by Andrew Millar junior, as agent for the trust, from 20th February 1871 to 7th July 1880.
The defenders pleaded, inter alia—“(4) The account sued for having undergone the triennial prescription, it can be proved only by the writ or oath of the defenders.”
The Act 1579, cap. 83, enacts—“That all actiones of debt for house-mailles, mennis ordinars, servands' fees, merchantes' comtes, and uther the like debts that are not founded upon written obligations be persewed within three zeires, utherwise the creditour sall have na action except he outher preife be writ or be aith of his partie.”
On 8th March 1902 the Lord Ordinary (
Kyllachy ) pronounced an interlocutor by which he sustained the fourth plea-inlaw for the defenders, and before answer allowed the pursuers a proof scripto in support of the account sued for, and the defenders a conjunct probation.The pursuers reclaimed and argued—It was now settled that the triennial prescription was elided where the account sued for depended on a written contract of employment, even although there was no written obligation to pay for that employment— Broatch v. Jackson, June 8, 1900, 2 F. 968, 37 S.L.R. 707. What was required was a written mandate. Here the mandate was the minute. The law-agent of a trust carried on the legal work under the authority of the minute by which he was appointed law-agent; he did not require a special mandate for each piece of work. When appointed law-agent, it would be his duty to summon a new meeting of the trust. He would charge for that, but the only mandate which he could have would be the minute constituting his employment. For later pieces of work he might be expressly instructed by the trustees, but that was only instructions as to how his mandate was to be carried out. The case of the law-agent to the trust was not analogous to the case of an individual employing a law-agent, because while the individual might or might not have occasion for the continuous services of a law-agent, a trust necessarily required them. Neilson v. Magistrates of Falkirk, November 17, 1899, 2 F. 118, 37 S.L.R. 71, was not inconsistent with this theory, because in that case the pursuer, though he alleged that he had originally had a written contract of employment, averred that that contract had been departed from, and that the salary he sued for depended on a verbal agreement.
Argued for the respondents—This was not a case of written obligation. The minute did not constitute Millar's employment, it was only a historical record that he had been employed. A contract recorded in writing was not the same thing as a contract constituted by writing— Ireland & Son v. Rosewell Gas Coal Company, March 9, 1900, 37 S.L.R. 521. Even if the minute was a written obligation, the law-agent did not act under it. He required separate instructions in order to perform particular work. There was no real destinction between the appointment of a law-agent by a trust and by an individual. Broatch v. Jackson (cited supra) was the case of the employment of a law-agent to do a particular piece of business. To bring the present case under the same rule the
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pursuers would require to show minutes of the trust employing Andrew Millar to do each particular item for which there was a charge in the account. Separatim—the firm of Millar, Walker, & Millar had no title to sue. Andrew Millar was appointed as a factor, and the debt sued for was due to him, not to the firm of which he was a partner— Mabon v. Christie February 8, 1844, 6 D. 619. At advising—
The defenders plead, inter alia, that the account sued for having undergone the triennial prescription, it can be proved only by the writ or oath of the defenders, and the Lord Ordinary has sustained this plea, and before answer allowed to the pursuers a proof scripto in support of the account sued for, and to the defenders a conjunct probation. The question therefore which we have to decide is whether the claim of the pursuers is founded upon a written obligation within the meaning of the Act of 1579, c. 83. If it is not founded upon a written obligation the Act applies—if it is founded upon a written obligation, the Act does not apply, and the pursuers are entitled to a proof of their claim prout de jure.
Mr Robert Brodie died in February 1871, and on 1st March of that year a meeting of his testamentary trustees, four in number, was held, Mr Robert Robertson being appointed chairman, and authorised to sign the minute of the meeting. Mr Robert Brodie by his testamentary settlement authorised his trustees to appoint one or more of their own number, or any other proper person or persons, to be factor or factors or law-agent or law-agents under them for the management of the trust estate, and to allow such factors suitable remuneration for their trouble, and such law agents the usual professional fees. The trustees accepted the offices severally conferred upon them, and signed a minute to that effect appended to the testamentary settlement. The minute bears that “the meeting then appointed Mr Andrew Millar junior, one of their number, to be law-agent and factor on the estate, with the usual remuneration,” and authority was given to him to perform certain duties appropriate to the situation.
Mr Andrew Millar junior was at this time a partner of the firm of Millar, Walker, & Millar, and I understand that it is not disputed that this was known to the trustees when they appointed him to be law-agent and factor with the usual remuneration. The pursuers allege in their condescendence that “in appointing the said Andrew Millar junior they made the appointment for behoof of the said firm of Millar, Walker, & Millar,” and that “the said minute constituted a written obligation by the said trustees to pay to the said Andrew Millar junior and his said firm the amount of the account incurred by the said trustees under and in respect of the said appointment of the said Andrew Millar junior.” The pursuers further allege that in pursuance of this appointment, and of instructions given by the trustees from time to time, Andrew Millar junior, or his firm, performed the the legal business of and connected with Mr Robert Brodie's trust from 7th February 1871 to 7th July 1880, being the work and expenditure in respect of which the sum sued for is claimed.
The important question is whether the minute of meeting of 1st March 1871 expresses or implies such a written obligation as to prevent the Act of 1579, c. 83, from being applicable to the case, and I am of opinion that it does. We had occasion in the case of Broatch v. Jackson, June 8, 1900, 2 F. 968, to consider the construction and effect of the Act of 1579, c. 83, and we there held that the triennial limitation did not apply to a law-agent's account where the agency was constituted by a letter from the client requesting the agent to act for him and a letter from the agent agreeing to do so. As the previous decisions were carefully examined and commented on in that case, I do not think that it is necessary to repeat that examination and comment now. It is sufficient to say that I am of opinion that the minute of 1st March 1871, taken along with the acceptance by Mr Andrew Millar junior of the offices of law-agent and factor on the estate with the usual remuneration, constituted a written obligation on the part of Mr Robert Brodie's trustees to pay to him or to his firm the usual professional charges for his services as law-agent and factor, and that consequently the present claim is founded upon a written obligation within the meaning of the Act of 1579, c. 83. It is well known that where a law-agent is a member of a legal firm he must in the ordinary case contribute to the firm the profits derived from any business which he may bring, and that much of the business may be performed by other members of the firm, unless the client stipulates that it shall be done by the particular partner alone. Being of this opinion, I consider that the defenders' fourth plea-in-law should not have been sustained, and that the pursuers should not have been limited to a proof scripto, and I think that the Lord Ordinary's interlocutor of 8th March 1902 should be recalled, and that the parties should be allowed a proof of their respective averments, and that the pursuers should be allowed a conjunct probation.
Page: 653↓
The Court recalled the interlocutor of the Lord Ordinary and allowed a proof.
Counsel for the Pursuers and Reclaimers— Clyde K.C.— Guy. Agents— Campbell & Smith, S.S.C.
Counsel for the Defenders and Respongents— W. Campbell, K.C.— M'Lennan. Agent— J. Murray Lawson, S.S.C.
