Lamonby v Foulds, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 26 November 1927 |
| Docket Number | No. 10. |
| Date | 26 November 1927 |
| Court | Court of Session |
Lord President (Clyde), Lord Sands, Lord Blackburn, Lord Ashmore.
Process—Review—Appeal from Sheriff Court—Competency—Value of cause —Action for delivery of motor lorry or payment of £297—Retention of lorry under lien for account for £31—Offer on record to deliver lorry on consignation of £31—Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sec. 7—Sheriff Courts (Scotland) Act, 1913 (2 and 3 Geo. V. cap. 28), Sec. 3.
An action was brought in the Sheriff Court concluding for delivery of a motor lorry, and, failing delivery, for payment of the sum of £297. The defenders maintained a right to retain the lorry under a lien for payment of an account for repairs and garage rent amounting to £31, 13s. 11d., and they offered on record to deliver the lorry on consignation of this sum. The Sheriff, holding that the defenders had a lien for their account for repairs amounting to £8, 17s. 2d., ordained them to deliver the lorry on the receipt of that sum from the pursuer. The pursuer appealed to the Court of Session.
Held that the appeal was competent, in respect that, under the conclusions of the action, decree could have been granted for a sum exceeding £50.
Muirhead v. GilmourUNKUNK, (1909) 46 S. L. R. 425, 1909, 1 S. L. T. 235, considered.
Retention and Lien—Lien for repairs—Hire-purchase—Hirer prohibited by owner from creating lien for repairs—Prohibition not disclosed to repairer.
In terms of an agreement for the hire-purchase of a motor lorry, the hirer undertook ‘to keep the said motor vehicle and accessories in good repair and working condition (but this shall not authorise the hirer to create any lien thereon for repairs).’ The hirer handed over the lorry to a firm of motor engineers for repairs, without informing them of any limitation on his title to the lorry. The hirer failed to pay the owner of the lorry in terms of the agreement, and also failed to pay repairers for the repairs executed by them. The owner having sued the repairers for delivery of the lorry, they pleaded that they were entitled to retain it under a lien for payment of their account.
Held that the repairers had not acquired a lien over the lorry, in respect that the hirer's title excluded the right to create a lien.
Joseph Fell Lamonby, automobile engineer, Uddingston, brought an action in the Sheriff Court at Edinburgh against Arthur G. Foulds, Limited, automobile engineers, Edinburgh, in which he craved the Court to ordain the defenders to deliver to him a motor lorry, and, failing delivery, to grant decree against them for payment of £297.
The facts of the case, as disclosed by a proof, were that the pursuer had hired the motor lorry to George Stewart, a contractor, for a term of thirteen months for a sum of £377, payable £80 for the first month's hire in advance, and the balance in twelve monthly instalments of £24, 15s. It was provided that, on the termination of the agreement, the hirer should become entitled to buy the lorry at the price of ten shillings. The agreement contained the following provision:—‘During the continuance of the agreement the hirer undertakes to keep the said motor vehicle and accessories in good repair and working condition (but this shall not authorise the hirer to create any lien thereon for repairs).’ During the currency of the hire-purchase agreement, the lorry was handed over to the defenders by John Stewart, the father of George Stewart, for the purpose of repairs. The precise relationship between John Stewart and George Stewart in this matter was somewhat obscure, but the Sheriff-substitute, the Sheriff, and the First Division held it established that John acted as George's agent. He did not disclose to the defenders that he was acting as an agent for George, nor did he disclose any limitation on the latter's title to the lorry. George Stewart's name was painted on the lorry when it was handed over to the defenders, and it was registered in his name. The defenders executed certain repairs on the lorry for which they charged a sum of £20. They obtained decree for this sum and for £2, 3s. 11d. of expenses against John Stewart, but they recovered nothing under this decree. George Stewart meantime failed to make the payments due under the hire-purchase agreement with the pursuer, and the latter obtained a decree in absence against him for delivery of the lorry. He then raised the present action against the defenders, in which the latter averred that they were entitled to retain the lorry under a lien for payment of the above sums, amounting to £22, 3s. 11d., together with a sum of £9 for garaging the lorry. The defenders offered on record to deliver the lorry, on the pursuer consigning these sums, amounting to £31, 3s. 11d., in Court, the money when consigned to be subject to such lien as the defenders had acquired over the lorry. The pursuer did not accept this offer.
The pursuer pleaded:—‘(1) The pursuer, being the owner of the motor lorry referred to in the crave of the initial writ and being entitled to possession thereof, is entitled to decree as craved. (2) The defences are irrelevant, and ought to be repelled. (3) Resjudicata. The defenders, having elected to sue the said John Stewart for the cost of said repairs, &c., and having sued him to judgment on the footing that he had contracted therefor as principal, are barred personali exceptione from now pleading that the said George Stewart was the principal party for the execution of said repairs.’
The defenders pleaded, inter alia:—‘(4) Esto that the said motor lorry was in the possession of the said George Stewart as hirer under said agreement for hire-purchase, and that the pursuer was the owner thereof, the said George Stewart was, both at common law and under said agreement, entitled to have all necessary repairs made upon said lorry and to instruct the defenders to make such repairs, and the defenders having been instructed to execute and having executed the repairs condescended on, they have acquired a special lien over said lorry for payment of the account thus incurred to them. (5) Separatim, the said George Stewart being in fact the owner of the said motor lorry under said agreement, the defenders have acquired a special lien over said lorry for payment of the account incurred to them upon his instructions. (6) The defenders having, in the circumstances narrated on record, a special lien at common law over said motor lorry for the accounts incurred to them for repairs thereon and garaging thereof, any decree of delivery pronounced in favour of the pursuer must be subject to payment by him to the defenders of such accounts. (7) In the circumstances narrated on record, the pursuer is personally barred from pleading that the said George Stewart is not the true owner of the lorry, and that the defenders are not entitled to the benefits of the lien conferred on them at common law.’
On 17th February 1927 the Sheriff-substitute (Orr), after a proof, found that the defenders had acquired a lien over the lorry for payment of their account for repairs and garaging, less certain specified items, and ordained, the defenders to make delivery to the pursuer of the lorry, but only upon payment by the pursuer to the defenders of the sum for which the latter had acquired their lien.
The pursuer appealed to the Sheriff (Crole) who, on 18th June 1927, adhered to the interlocutor of the Sheriff-substitute, but found that the amount of the account for repairs, for which the defenders had acquired a lien, was only £8, 17s. 2d. He also found that the defenders had not a lien for payment of their charges for garaging the lorry.
The pursuer appealed to the Court of Session, and the case was heard before the First Division on 1st and 2nd November 1927.
The defenders objected to the competency of the appeal, and argued;—The appeal was incompetent in respect that the value of the cause did not exceed £50.* The value of the cause was the value of the true substance of the cause, not of the formal
conclusions.1 The cases of Singer Manufacturing Co. v. JessimanSC2 and Aberdeen v. WilsonUNK3 could not be regarded as authoritative in view of the decision in Muirhead v. GilmourUNKUNK.4 The real subject in dispute here was not what the pursuer demanded, but what he refused to pay in order to obtain delivery. The pursuer could obtain delivery on consigning £31, and he was not entitled to found on his refusal to take that course as inflating the true value of the cause.5
Argued for the pursuer;—The appeal was competent. The value of this cause was the value of the motor lorry, which was £297. Under the alternative conclusion for payment, decree could competently have been granted for this sum. The measure of the value of the cause was this sum, and not the sum for which decree was in fact given.6Muirhead v. GilmourUNKUNK4 was distinguishable, on the ground that in that case it was admitted that the property had been disponed in security, and the only question in dispute was in regard to a sum of £10, said to be covered by the security. Here it was denied that any lien existed over the lorry in dispute.
Counsel were then heard on the merits of the case.
Argued for the pursuer (appellant);—(1) The defenders had not acquired a lien over the lorry. They could not have done so, because the title of Stewart, who handed over the lorry to them, excluded the power to create a lien. It might be that, if there had been no prohibition against creating a lien, Stewart's duty to keep the lorry in repair would have entitled him to subject it to a lien.7 But in order to found a right of lien he must have had authority either express or implied from the owner for the creation of a lien, or the owner must have acted in such a way as to lead the defenders to believe that authority had been given.8 Mere possession by the hirer did not warrant the creation of a lien against the true owner. (2) The defenders...
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