Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. XIV.

Discharge of Trust. - Settlement of Factory-accounts. - Expenses of plea after extract.

Graham
v.
Rochead

Date: 5 January 1683
Case No. No 87.

A factor, after having settled accounts, found not entitled to demad salary.

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John Graham, chamberlain to the deceased Alexander Murray of Melgum, pursues Janet Rochead, as relict and executrix, for payment of 6000 merks, due to him as chamberlain for several years; and albeit that he was discharged of his chamberlain accounts, yet the same bore a reservation of all sums by bond, ticket, or otherwise due by the pursuer to the defunct.—It was alleged for the defender, That the pursuer was only negotiorum gestor; and unless paction were proved the time of the entry to his service, he could not pursue the reprsentatives of the defunct for a salary, after the chamberlain accounts were fitted by the defunct, and a discharge granted to the pursuer.——The Lords sustained the defence, and assoilzied the defender.

Fol. Dic. v. 1. p. 439. P. Falconer, No 39. p. 21. *** Sir P. Home reports the same case:

John Graham having pursued Janet Ruthven, relict of the deceased Alexander Murray of Melgum, for payment of 6000 merks, as his factor and chamberlain fee, for managing of her husband's estate before his decease; alleged for the defender, There was no salary due, because there was none conditioned; and the defunct, her husband, in his own lifetime, did entertain the said John Graham and his children in his house, which must be allowed in place of the fees, seeing her husband never promised him any more but to maintain him in his house; as also, he having counted with her husband, he did grant a discharge of his intromissions, which necessarily implies either there was no salary due, otherwise he would have craved allowance thereof in his accounts; or if there was any due, it was allowed at counting.—Anwered, That albeit there was no express condition for a salary, yet ex natura rei, the pursuer having managed Melgum's affairs for the space of five years, he ought to have a salary, seeing by the law, whoever manages another man's affairs, the party whose affair is managed is liable for a salary to the pursuer that manages the same actione negotiorum gestorum; and it is denied that he got any salary allowed at the fitting of his accounts; and it cannot be otherwise proved but scripto vel jurumento; and the accepting a discharge of his intromission cannot militate against him, because it bears a reservation of all that was due to him by bond, ticket, or otherwise.——The Lords, in respect the pursuer had fitted his accounts with this defunct, her husband, and had taken a discharge of his intromission, without seeking allowance of any salary, and that there was no paction for a fee or salary when he entered to the service; therefore found there was none due.

Sir P. Home, MS. v. 1. No 349.