Scottish Court of Session Decisions

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^* “The most important facts in this case are these :—Mr James Hunter having acquired right to certain subjects in Glasgow (the Star Inn, and Ingram Court property), conveyed them to his eldest son, the pursuer, with right to the rents from Martinmas 1815, as a provision to him. The defender, who had been the confidential man of business of the father, is by him recommended to his son, and he is appointed by the pursuer factor over the property (1st June, 1816), with ample powers of management. It is stated by the pursuer, and seems to be true, that James Hunter agreed to be at the expense of the large repairs and alterations requisite at the renewal of the leases of the property, and to relieve the pursuer of these, while he continued liable for ordinary repairs, as proprietor.

“The lease of the Star Inn expired in May, 1818. Mr James Hunter corresponds with the defender about these repairs (Letters, 15th November, 1817);9th January, 1818; 26th January, 1818); and, in particular, on 11th February 1818, writes the defender—‘You will recollect that I am to be at the expense of these repairs, with a promise to pay the money as soon as the amount is stated.’ This is further corroborated by Mr James Hunter's answer, of 19th December, 1819, to the defender's inquiry of 11th December.

“The pursuer's accounts, from Martinmas, 1815, to Martinmas, 1818, are furnished by the defender (19th April, 1819), containing Sums for incidental repairs, but nothing for the repairs on the renewal of the lease.

“ The pursuer's second accounts, from Martinmas, 1818, to Whitsunday, 1822, were furnished by the defender, also containing incidental repairs only; and, on 15th July, 1822, this and the preceding account were examined with the vouchers, found correct, and the balance paid and discharged.

“When the lease of the Star Inn was again about to expire, and repairs to become necessary, the pursuer, 7th January, 1823, stated to the defender that his father was to be liable for the amount. The defender mentions this to Mr James Hunter, who answers, 9th June, 1823, that in this ‘Mr William Hunter was quite correct, and as soon as you inform me what they come to, I will Send you a bank post bill for the same.’ This the defender notifies to the pursuer, 10th August, 1823. Repairs were executed accordingly, the last item of which was paid by the defender, 12th May, 1824.

“The third account furnished to the pursuer by the defender, is from Whitsunday, 1822, to Whitsunday, 1826, containing, as usual, ordinary or incidental repairs, but none of the repairs on the renewal of the lease. This account does not seem to have been objected to, but no settlement of it took place.

“After various pressing letters from the pursuer, to get a continuation of these accounts, the defender writes, on 26th November, 1830, that he is just finishing the state of the old accounts with his father, and he wishes to postpone Bending those of the pursuer till these are rendered, on account of the repairs which were entered into his father's account. The pursuer having stated that be considered his account distinct from his father's, they were rendered, 20th June, 1831, without these repairs, and without hinting that the pursuer was liable for them.

“For his account, Mr James Hunter began to press the defender in the beginning of the year 1816, and continued to urge this in a series of perhaps the moat urgent letters which were ever addressed by a principal to his agent, down to the year 1831, when they were at last rendered, There seems no sufficient apology for such extraordinary dilatoriness. When the account was furnished, on 6th July, 1831, to Mr Hunter, it contained the various Sums paid by the defender for repairs on renewals of the leases. By this time Mr James Hunter had become embarrassed, and unable to pay (Letter, 11th July, 1831), and the consequence has been the present claim against the pursuer for payment.

“It is not distinctly stated, but it is of consequence to know, when first Mr Hunter became unable to pay this sum. He states in his letter, 28th July, 1831, that in 1824 or 1825 he could have paid. There is a most urgent letter, 31st October, 1829, to the defender, as to settling these accounts, owing to certain losses that had occurred, and subsequent letters of a like import, on 3d March, 8th June, 24th July, 1830, &c. But as it appears, by letter of 11th July, 1831, that he did not expect the balance to be against him, these requests do not indicate any ability to pay. This matter will require farther investigation.

“The defender was fully informed that the pursuer was to be relieved of the expense of these repairs by his father, and the pursuer was apprised that the defender was so, and that he would settle the amount with his father, by the very important letter, 15th January, 1825, at which time the whole repairs were paid for, and also by finding his instructions, as well as those of his father, obeyed, that they should not be charged in the accounts rendered to him. On the other hand, the pursuer knew that, from the defender's very gross negligence, the accounts had not been settled with his father; but he could not know, and might rather suppose the reverse, that there was any balance due to him on this account.

“If the failure of the defender to attend to the very urgent and often renewed requests to render his accounts to Mr James Hunter, has alone prevented him from obtaining payment, in consequence of his supervening bankruptcy, and thus made him claim the amount from the pursuer, it seems not very equitable that the pursuer should suffer from the neglect of the defender, which, in the circumstances of the case, was culpable. The Lord Ordinary does not hold that mere neglect, the passive act of a creditor, will liberate a cautioner, or party against whom be has a claim of relief; but here there was a neglect to obey repeated and express conjunctions to perform an ordinary and bounden duty, which, ex hypothesi, would have secured payment from the one party, who had undertaken to pay and relieve the other, while, at the same time, that other party was thrown off his guard by having his account settled without notice of these other claims for which he was entitled to hold the other, was taken as the sole debtor. There was much more than the mere passive act of the creditor.

“It seems impossible to doubt that the accounts, which were settled and discharged up to Whitsunday, 1822, was a positive act of the defender, which, with the delay of rendering his accounts, which prevented payment being made as promised, cuts off all claims for prior repairs. It is said that at this time the sum claimed in this account amounted to £792, 15s. 8d.

“It may be more doubtful whether the subsequent claim is also cut off, amounting to £177, 16s. 7d. The accounts to 1826, though rendered, have not been settled, although they do not seem objected to. However, here too, the Lord Ordinary is inclined to hold, from the conduct of the party, which was not passive merely, that he has lost his claim against the pursuer. His conduct was a practical refusal to render his accounts to the debtor, who was to have paid, and was anxious to pay, while these articles were carefully excluded from the accounts of the other party. But before applying these principles, it is necessary to ascertain whether Mr James Hunter was in a capacity to pay at the time he offered, and when his inability to do so first took place.”