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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Birrell v. Taylor [1884] ScotLR 22_103 (19 November 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/22SLR0103.html Cite as: [1884] SLR 22_103, [1884] ScotLR 22_103 |
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An underwriter of a policy of insurance on a ship sued the owner for repetition of the sum of £38, 8s. 9d. alleged to have been overpaid in respect of damage sustained by the ship. The sum sued for was made up of £23, 1s. 3d. said to be due to the pursuer, his own right, and of the claims of two other underwriters under the same policy, each of whom had assigned his interest to the pursuer in consideration of the sum of £7, 13s. 9d. Held that as the assignations were for value, the sum sued for exceeded £25, and that the action was competent in the Court of Session.
Question—Whether if the assignations had been gratuitous the claims were sufficiently connected to entitle the pursuer to sue?
This was an action at the instance of Walter Birrell, underwriter, Glasgow, for himself, and as assignee of James A. Birrell and John Hardie, underwriters there, against Robert Taylor, shipowner, Dundee, for the sum of £38, 8s. 9d.
On 4th December 1879, the defender, through his brokers, Messrs Joseph Gibson & Company,
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Dundee, effected a policy of insurance with the pursuer, and James A. Birrell and John Hardie, and other underwriters, for £3500 on the screw-steamer “Neilson Taylor,” belonging to the defender, for twelve months from 19th December. The pursuer underwrote this policy for £75, and James A. Birrell and John Hardie underwrote it for £25 each. On 23d September 1880 the “Neilson Taylor” sustained damage at sea. After this damage had been repaired Mr Joseph Gibson, average stater, Dundee, made up an average statement from accounts and information supplied by the defender, bringing out as the amount payable by the pursuer and other underwriters on the policy the sum of £2152, 15s., or £61, 10s. l d. per cent. The pursuer, and James A. Birrell and John Hardie, through their brokers, Wingate, Birrell, & Company, passed this claim of £61, 10s. l 3 4 d. per cent., and on 29th April 1881 paid to the defender their respective proportions of the claim, amounting in all to £76, 17s. 6d. 3 4 In this action the pursuer averred that after this settlement he discovered, in December 1881, that the accounts on which the average statement was based contained many items not incurred in consequence of the stranding, but really incurred for alterations, additions, and improvements on the steamer; that several of the accounts were grossly overcharged, and that the amount thereof had not really been paid by the defender. The pursuer further averred that the defender knew all along that the claim of £61, 10s. l
d. per cent. was far more than the loss caused by the stranding; but that in the full knowledge of this fact he falsely and fraudulently represented to Mr Gibson and to Messrs Wingate, Birrell, & Company, and to the pursuer and James A. Birrell and John Hardie, that the claim was all made in respect of loss caused by the stranding. Further, that the defender falsely and fraudulently represented to the same persons that he had paid the whole of the accounts, when he knew that he had objected to some of them as overcharged, and had in consequence refused to pay a large part thereof. The pursuer averred that the sum of which he and James A. Birrel and John Hardie had been defrauded by the defender amounted in all to £38, 8s. 9d. The pursuer produced assignations by James A. Birrell and John Hardie to him of their claims against the defender. These assignations each bore to have been granted in consideration of the sum of £7, 13s. 9d. paid by the pursuer. 3 4 The defender stated in his defences that these assignations were granted without value, and for the sole purpose of trying to make the claim up to the sum of £25. This, however, was not maintained at the bar.
The defender pleaded that the action was incompetent in the Court of Session.
The Lord Ordinary (
M'Laren ) on 17th October 1884 repelled this plea.“ Opinion.—In this action by underwriters against a shipowner, the defender maintains that the action is not competent in the Court of Session, because the pursuer is an assignee of other underwriters, and the interest of any one underwriter is less than £25.
I agree that it is not competent by vesting a series of unconnected claims in an assignee to evade the rule against claims below the value of £25. But here the claims arise upon the same document, and the underwriters might have sued collectively in their own names for their several shares. In such a case the aggregate of all the claims is the value of the cause.
The case appears to me to be undistinguishable from Nelson [10th June 1876], 3 R. 810.”
The defender reclaimed, and argued—The contract here had been implemented, and the ground of action was fraud; there was therefore no community of interest. The sum for which the pursuer sued in his own right was under £25. Gibson, Thomson, & Co. v. Cameron, June 9, 1827, 5 S. 731; Dykes v. Henry and Others, March 4, 1869, 7 Macph. 603.
The pursuer replied—The assignations to the pursuer were for value, and the difference which the cause would make to the pursuer was the sum in the conclusion of the summons. Even if the assignations had not been for value, the question arose out of the same set of circumstances— Nelson, Donkin, & Company v. Browne and Others, June 10, 1876, 3 R. 810.
At advising—
In the present case, however, I think there was a community of interest before the assignations were made, because the action is for repetition, or charges which are said to have been improperly made and paid by different parties who were interested in the same policy.
Now, it was settled in Nelson's case that when the parties, in circumstances similar to the present, stood as defenders, an action against them for an amount exceeding £25 was competent, though the sum alleged to be due by each was less than that amount. In the present case the pursuer has acquired the other interests, and founds on the assignations by which those rights were conveyed to him, and he has therefore taken himself—for I must assume that the assignations were for value, as they bear to be, and are not challenged by way of reduction—out of the decision in the case of Gibson, Thomson, & Company. I think that the pursuer is possessed of the whole interest, and that he is therefore entitled to sue.
I assume that the assignations were for value, and were not assignations to the pursuer as a mere trustee to recover for the assignors. They bear to be for value for the sums of £7, 13s. 9d.
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The case of Gibson, Thomson, & Company, then, has no application if it is assumed or conceded that the assignations were for value, as there the ground of judgment was that the assignations were gratuitous, and simply to enable the pursuer to sue.
That being so, the pursuer's interest in the cause is the sum sued for, £38, 8s. 9d., and that is a sum which quite entitles him to sue in this Court. I agree with Lord Shand that if the assignations had not been for value it would have been a difficult question, whether, on the ground of community of interest, the action would have been competent. That would have raised a nice question, and I should have required to give it more consideration before deciding it.
The
Counsel for Pursuer (Respondent)— Mackintosh— Dickson. Agents— J. & J. Ross, W.S.
Counsel for Defender (Reclaimer)— J. P. B. Robertson— Hay. Agents— Rhind, Lindsay, & Wallace, W.S.
