Boyle & Co. v. Morton &Sons [1903] ScotLR 40_254 (14 January 1903)

Boyle & Co. v. Morton &Sons [1903] ScotLR 40_254 (14 January 1903)

The indemnity agreement did not bind the pursuers to allow their names to be used for an appeal at the defenders' request on the same terms as the original indemnity. The correspondence after judgment showed both parties treated further proceedings as requiring new agreement. The pursuers were entitled to refuse to proceed with an appeal except on new terms, and their refusal did not disentitle them to indemnity for the original action's costs.

Citation
[1903] ScotLR 40_254
Parties
Pursuer: Boyle & Company; Defender: Morton & Sons
Jurisdiction
Scotland
Judgment Date
14 January 1903
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Second Division
Outcome
appeal allowed; interlocutor of Lord Ordinary recalled; decree for pursuers
Legal Topics
Indemnity, Construction of Contract, Right to Conduct Litigation, Appeals, Obligations Under Indemnity Agreements
Contract Law Indemnity Construction of Contract Right to Conduct Litigation Appeals Obligations Under Indemnity Agreements

Case Brief

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Parties

Boyle & Company

Pursuer

Morton & Sons

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, Second Division

Legal Issues

  1. 1 Whether the indemnity agreement required the pursuers to allow their names to be used for an appeal at the defenders' request and on the same terms as the original indemnity.
  2. 2 Whether refusal by the pursuers to allow an appeal except on new terms constituted a breach of contract disentitling them to indemnity.

Ratio Decidendi

The indemnity agreement did not bind the pursuers to allow their names to be used for an appeal at the defenders' request on the same terms as the original indemnity. The correspondence after judgment showed both parties treated further proceedings as requiring new agreement. The pursuers were entitled to refuse to proceed with an appeal except on new terms, and their refusal did not disentitle them to indemnity for the original action's costs.

Court Disposition

appeal allowed; interlocutor of Lord Ordinary recalled; decree for pursuers

Orders

  • Interlocutor of Lord Ordinary recalled
  • Decree for the sum sued for in favour of the pursuers