Scottish Court of Session Decisions

Subject_1 IMPLIED OBLIGATION.

John Mackenzie
v.
John Somervell

Date: 4 January 1738
Case No. No 13.

An indorser of a bill wrote to the indorsee, desiring him to give the acceptor the delay he requested, adding, “you’ll lose nothing by it.” Found that he was obliged to relieve the indorsee of what damage he might sustain by the delay.

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John Somervell being creditor to Campbell of Carrick, by bill, indorsed the same to James Lochead, on this condition, That the indorsee should take his hazard thereof without recourse. Lochead, after this, protested the bill whereupon Carrick applied to Somervell the indorser to use his interest with Lochead for a delay, upon which Somervell wrote a letter to him of the following tenor: “Sir, Carrick came here this day, who says it is not in his power to pay his bill I indorsed you these two months, having a sum to pay at Whitsunday; and, as he has all the inclination you should have the money, if he could raise it, I therefore beg you’ll give him a delay for the time he demands, which will oblige him and me, and ye’ll lose nothing by it.— I am,” &c. After this, Lochead assigned this debt to Mackenzie, who insisted against Somervell, libelling on the above letter, as importing a cautionary obligement for Carrick.

For the defender, it was urged, That the import of the missive was no more than giving an opinion Lochead would eventually lose nothing by the the favour asked; but could not mean, that he intended to come under an obligation to make up such loss, if it should happen; which appears from the expression, ‘ and ye’ll lose nothing by it;’ for the contraction ye’ll is made use of instead of you will, but is never used as a contraction of you shall; betwixt which two expressions there is a great difference, as the one imports the writer's opinion about what would happen; but the other, viz. you shall, implies an engagement in the writer to make good the verity of his assertion.

For the pursuer, it was answered, That, from the letter, it was plain, the defender did not interpose as a friend or adviser anent what he thought most expedient for the interest of the creditor, seeing it is at Carrick's desire he asked the delay, which was a direct stating himself a cautioner; and, in consequence thereof, Lochead, who was going on in diligence when he received the missive, forbore for upwards of two months. It is true, that a mandate, granted only for the sake of the mandant, infers no obligation; but a mandate, on account of a third party, which is the present case, does oblige the mandant to repair any loss the mandatary shall incur by following thereof. Besides, it would have been ridiculous to ask of Lochead to suffer the effects of his debtor, viz. the sum that Carrick was to pay away at Whitsunday, to be withdrawn, and to relinquish the method pointed out to him by law for attaching thereof, unless some other security was to be substituted in the place of what he passed from. And, as to the observation on the letter, it is believed the word ye’ll has the very same meaning in Scots, that you shall hath in English.

The Lords found, That the letter implied an obligation on the defender to relieve Lochead of all damages he might sustain in delaying diligence against Carrick., but found, That he has the benefit of Carrick's being first discussed.

C. Home, No 78. p. 130.