Nov. 29. 1851. Kennedy No. 49. Gilkison v. But the COURT held that their finding as to the expenses must be construed to mean that the petitioner was to get all the expenses allowed by the statute; and they intimated that they were not disposed to distrust the judgment of the Second Division in the case relied on. They accordingly sustained the objection by the Railway Company to the Auditor's report, which was approved of quoad ultra; but in respect that the Railway Company had not appeared in the case until it had been remitted to the Auditor, they refused to give them the expense of the discussion. Mackay and Howe, W.S., Petitioners' Agents. Webster and Rennie, W.S., Respondent's Agents. FIRST DIVISION. GILKISON, MARSHALL'S TRUSTEE, v. RAMAGE AND SON. Patent-Principal and Agent.-Accounting. Held that where an agent for the sale of a patent article was entitled to use it in his own trade, he was not bound to account for the nett profits of each job in which he so used it, but only for the market value of the article itself as fixed by the patentee. Nov. 29. 1851. THE question involved in this case was one of accounting as between principal and agent. The facts of the case were these: Mrs Marshall obtained letters patent for a plaster composition, or cement, to which she gave the name of Intonaco. This cement consisted of two parts, the one called the base, the other, which was the most important, called the bind, being in a proportion to the base of somewhat less than one to a hundred. The bind was sold by the patentee separately from the ingredients constituting the base, with which it is united before being put to use; and when thus sold, printed directions were given to the purchasers, instructing them how it was to be mixed with the base, which, consisting of stucco and such like substances, could, for the most part, be easily procured. The value attached to the bind in that uncompounded state was at the rate of four shillings per gallon. The defenders in this action are plasterers in Edinburgh; they were appointed agents for the patentee by the following letter addressed to them by Gilkison, then her agent, and now pursuer in this action, as trustee on her sequestrated estate :-"Port-Glasgow, 27th May 1845.-Dear Sirs,- With reference to the conversation I had with you in Edinburgh lately, I now beg to offer you the Nov. 29. 1851. agency of the patent Intonaco for your good city, upon condition Gilkison v. that you do all in your power to promote and introduce it, for Ramage and which I agree to pay you at the rate of 15 per cent., say fifteen Son. per cent. commission, you guaranteeing the sales, of which you will render to me an account at the end of every quarter. I shall be glad to know if this offer meets your approbation. I am," &c. "P.S.-I shall be able to forward you a quantity of the Intonaco in the course of a few days." The Intonaco was not sent to the agents as apparently contemplated by this letter, but the patentee instructed her agents in the manufacture of the bind, which they sold in its uncompounded state to third parties with directions for use; and these sales were recognised and adopted by the patentee. They also manufactured it for their own use as plasterers, and in both instances accounted to the patentee for the same at the above-mentioned rate of four shillings per gallon, under deduction of the price of materials used in its manufacture, and fifteen per cent. commission on the whole quantity, either sold or manufactured for their own use. This the patentee held to be an encroachment on her right of patent, maintaining that Ramage and Son, as agents, were not empowered or privileged to sell or use the bind separately, but only in its compounded state as Intonaco, except in the case of sales to parties at a distance, when they were entitled to sell the bind alone, with printed instructions for use; and that they were bound to account to her for the profits calculated upon the whole cement as compounded when sold, and upon the whole job when used by them as plaster, under deduction merely of fifteen per cent. commission as agents. The patentee admitted the right of the agents to use the Intonaco in their own trade, but the parties differed as to the principle upon which the agents were to account for the quantity so used. Ramage and Son brought an action against Mrs Marshall in the Sheriff Court for an alleged balance in their accounts of £24, 3s 9d., for work done, articles furnished, and money advanced, and including their commission on sales of Intonaco. Mrs Marshall brought a counter action against Ramage and Son, proceeding on the above principle of accounting. Proof was led by both parties, and the Sheriff found for Mrs Marshall. On advocation, both actions were conjoined, and the Lord Ordinary (Wood) found that it had not been proved that Ramage and Son had not the right to sell the bind separately to third parties in Edinburgh; that in such sales the profit appertaining Gilkison v. Son. Nov. 29. 1851. to the patentee was the balance of the price remaining, after deducting the materials and labour supplied by Ramage and Son, Ramage and together with fifteen per cent. of commission; and that, in plastering jobs in which the compounded cement was applied, Ramage and Son were not liable to account for the profits of the whole job, but merely for the price of the bind at the rate of four shillings per gallon, subject to the above deductions. Against this interlocutor Gilkison reclaimed. The patentee left the Simpson and Dean of Faculty for reclaimer. This is a case of pure agency. Gilkison's letter confers nothing beyond a general agency, and that limited to the city of Edinburgh. The agents must therefore account for the whole profits. The fact of Mrs Marshall having sold the bind separately to third parties, and recognised the sale of it by her agents to parties at a distance, did not entitle Ramage and Son to use the Intonaco in their own trade, and account as for the bind alone. nature of the agency to be settled by the law of principal and agent, Paley, 3d ed. pp. 33, 37, 51, 107; Story's Commentaries on the law of Agency, sec. 107-8. The principles there laid down have been recognised in many decisions, amongst others, Anderson v. Shand, 8th June 1833, 11 S., 688; Campbell v. Little, 13th November 1823, 2 S. 484; Richardson v. Roscoe, 18th May 1837, 15 S. 952. Wood and Inglis for respondents.-There is no doctrine in law to support the principle of accounting here contended for, which practically amounts to this, that the patentee was to be a partner in the business of Ramage and Son on the footing of drawing eighty-five per cent. on the profits, and being liable to none of the loss. The letter established nothing of this sort, and no tradesman would accept an agency on so unreasonable terms. The law referred to applies only to the case where the agent is not entitled to use the article in his own trade. But it is admitted that Ramage and Son were entitled to do so. They propose to account for what was so used, on the same footing as if it had been sold to a stranger plasterer. Ramage and Son received no Intonaco from the patentee, but only bind. There was not even a price fixed for the sale of Intonaco when compounded; and the whole circumstances, therefore, shew, that they were entitled to use and account for the bind when received from the patentee, or manufactured by themselves, as they had done. The LORD PRESIDENT. This agency was established for the - purpose of increasing the sale of the patent article, and the pro- Nov. 29. 1851. position of Gilkison is, that the agents were precluded from Gilkison v. using it in their own trade, without accounting for the whole Ramage and profits of the jobs in which it was used. There was no ground Son. for holding this. The bind, being capable of being put up in small bulk, was what the patentee herself transmitted to purchasers, with directions for using it with the base. The agents were entitled so to sell it; and it could not be supposed that they were to be placed in a worse position than other tradesmen of Edinburgh, by themselves being precluded from using it. As to the mode of accounting, no specific value had been attached to the Intonaco; but the market-price of the bind had been fixed by the patentee at four shillings per gallon. That must be held, therefore, to be a fair remuneration to her for the substance compounded. It must be taken as the basis upon which Ramage and Son were to account to her; for if you get rid of the bind as a test of the price, you have no fixed price at all. No other principle of accounting had been established by the patentee, upon whom the onus of proof was laid. The other Judges concurred. THE COURT, therefore, adhered to the interlocutor reclaimed against, and remitted to the Lord Ordinary, with power to dispose of all questions of expenses. John Walls, S.S.C., Reclaimers' Agent. Lothians & Finlay, S.S.C., Respondent's Agents. FIRST DIVISION. CARGILL v. SIR JAMES FORREST, Bart., AND OTHERS. Bill-Chamber-Suspension and Interdict.-Note of Suspension and Interdict refused where the interdict was craved against the members of an acting committee of an association, on the allegation by complainer, that he had been illegally excluded from the meetings of the committee, by being refused notice of such meetings. No. 50. Cargill v. For This was a reclaiming note against an interlocutor pronounced Nov. 29. 1851. by Lord Colonsay, Ordinary on the bills, refusing a note of suspension and interdict at the instance of Robert Cargill, writer to rest, &c. the Signet, against Sir James Forrest Bart., and others, in the following circumstances: Nov. 29. 1851. Cargill v. Forrest, &c. About the beginning of the year 1845, an association was formed for the establishment of a colony at Otago in New Zealand, in connection with the Free Church. At a meeting of the association held at Glasgow, on 10th August 1847, a committee was appointed, of which Cargill, and the respondents were members. In the course of their proceedings, Cargill brought certain charges against the secretary, which, being referred to a sub-committee to investigate, were declared (5th June 1848), to be unsubstantiated; and the minutes of the committee bear, that the secretary discontinue inviting Cargill to attend. Cargill renewed his complaints against the secretary, and preferred a claim to be summoned to the meetings of the committee. Accordingly, at a meeting of the committee, 22d November 1850, it was declared that the charges made by Cargill had been carefully and fully investigated; that it had been expressly understood, by the meeting at which the sub-committee were appointed, that to whichever party, the accuser or accused, the result of the investigation should prove unfavourable, said party should cease to be connected with the committee; that Cargill, not having withdrawn, the committee of 5th June had directed the secretary to discontinue inviting him to attend their meetings, and for these and other reasons, they therefore now refused farther investigation as impolitic and unjust. Cargill, still continuing to assert his rights as a member of the committee by protest and otherwise, the other members of committee resigned; and at a special general meeting of the Otago Association held at Glasgow on 14th May 1851, their resignation was accepted, their previous proceedings confirmed, and a new Edinburgh committee, of which the respondents were members, and from which Cargill was excluded, was appointed. Cargill now presented this note of suspension and interdict to prohibit the respondents acting as members of the committee, at any meeting to which he has not been duly summoned to attend as a constituent member thereof, or in any way carrying out the resolutions of the various meetings of the association. The Dean of Faculty and Solicitor-General for reclaimer. The whole proceedings of the Edinburgh Committee were illegal, in respect they did not send Cargill notice of their meetings, which they were bound to do. Nor could their resignation deprive him of office, as resignation is an individual act requiring the consent of each individual member. Counsel also contended that the meet |