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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Masco Cabinet and Bedding Co., Ltd v. Martin [1912] ScotLR 597 (20 March 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0597.html Cite as: [1912] ScotLR 597, [1912] SLR 597 |
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Page: 597↓
(Single Bills.)
In an action for two sums on separate grounds of liability the pursuers obtained
Page: 598↓
decree for one of the two sums only, and the defender obtained decree for modified expenses. On the Court being moved to grant decree for the defender's expenses in name of the agent-disburser, the pursuers opposed the motion on the ground that they ought not to be deprived of the right to set off the sum for which they had obtained decree against the expenses found due to the defender. The Court refused the motion.
The Masco Cabinet and Bedding Company, Limited, pursuers, raised an action in the Sheriff Court of Lanarkshire at Glasgow against A. G. Martin, one of the directors of the company, defender, for payment of £290, 14s. 5d., being (1) £163, 7s. 4d., the amount of a debt which the pursuers averred had been guaranteed by the defender and the interest thereon, and (2) £233, 3s. 2d., the amount which the defender had drawn in excess of his remuneration as a manager of the company at the date of his dismissal, under deduction of £111, 14s. 3d., the amount standing in the pursuer's books at the defender's credit.
On 11th November 1910 the Sheriff-Substitute ( Welsh) decerned against the defender for £283, 10s. 9d.
The defender appealed to the Sheriff ( Gardner Millar), who on 22nd March 1911 dismissed the appeal.
The defender thereupon appealed to the Court of Session.
On 29th February 1912 the Court pronounced an interlocutor finding that the pursuers had failed to prove by competent evidence that the defender had guaranteed the debt of £163, 7s. 4d., but that the defender was liable to repay to the pursuers the sum of £231, 17s. 8d., being the amount of salary overdrawn, under deduction of the sum of £111, 14s. 3d., and finding “the pursuers liable to the defender in expenses in this Court modified to one half.”
On the case appearing in the Single Bills on 20th March 1912 for approval of the Auditor's report, counsel for the defender moved the Court to grant decree for the taxed amount of the defender's expenses as modified, in name of the agent-disburser.
Counsel for the pursuers opposed the motion, and argued—The pursuers were entitled to set off the sum for which they had obtained decree against the expenses found due to the defender— Grieve's Trustees v. Grieve, 1907 S.C. 963, 44 S.L.R. 737; Lochgelly Iron and Coal Company, Limited v. Sinclair, 1907 S.C. 442, 44 S.L.R. 364. This was not an extrinsic claim of compensation, and the law agent was not therefore in any better position than the principal party— Munro v. Bothwell, September 16, 1846, Arkley, 118 ( per Lord Moncreiff at 120) had been overruled.
Argued for the defender—The expenses were awarded to the defender on account of his success in the first branch of the case, which had no connection with the second, in which he had been unsuccessful. The expenses awarded to him could not therefore be set against the sum for which he had been held liable, as the two were not partes ejusdem negotii— Lochgelly Iron and Coal Company, Limited v. Sinclair ( sup. cit.); Fine v. Edinburgh Life Assurance Company, 1909 S.C. 636, 46 S.L.R. 480.
The Court (
Counsel for Pursuers (Respondents)— Hon. W. Watson. Agents— Dove, Lockhart, & Smart, S.S.C.
Counsel for Defender (Appellant)— James Stevenson. Agent— Harry H. Macbean, W.S.
