Scottish Court of Session Decisions

The summons in this suit, at the instance of Duncan Macfarlane, schoolmaster, Gowanbrae, Port-William, against the School Board of the parish of Mochrum, concluded for payment of £100, with interest at £5 per cent. on £37, from 15th May 1874, and on the sum of £62, 10s., from 11th November 1874.

The facts of the case were these:—The pursuer was teacher of the parish school of Mochrum under the Parochial and Burgh Schoolmasters Act, 1861, at a salary fixed by the heritors and minister, by minute dated 30th January 1862, of £50 per annum, and he also drew the school fees. After the passing of the Education (Scotland) Act, 1872, and on 15th December 1873, the School Board, at a full meeting, passed the following resolution:—

“Mochrum Church Vestry,

15th December 1873.

Board met. All the members present. Mr Maxwell in the chair.

Inter alia—A letter from Mr Macfarlane, the schoolmaster, dated 9th inst., in reply to a request from the chairman relative to his returns to the Board respecting his income from school fees for the last year, were laid before the Board.

The meeting agreed to adjourn consideration of this letter until Mr Macfarlane be present, and take up the next business before them.

The Board, on resuming consideration of Mr Macfarlane's letter, above referred to (he being now present), fix his salary at £125 sterling per annum. This salary Mr Macfarlane accepts, as schoolmaster, in a letter dated this day (15th inst.)”

On the same date the pursuer wrote as follows accepting the salary;—

“Dear Sir,—Mr Gillespie informs me that the Mochrum School Board have agreed to give me £125 sterling per annum as salary as parish teacher. I agree to accept this amount.—I am, dear Sir, your most obedient servant,

“D. M. Macfarlane.”

After some correspondence between the defenders and pursuer, in which they requested him to furnish them with a list of scholars and the fees due from each, and he expressed his willingness to give a sight of his register of scholars to their clerk, on 7th February 1874 the defenders passed the following resolution:—

“Resolve—(1.) To recal their resolution, of date 15th December 1873, to give the teacher of the above school a fixed salary of £125.

(2.) To appoint his salary for the present six months, beginning Martinmas 1873, and hereafter, to be at the same rate and on the same conditions as those fixed by the heritors and minister in the aforesaid minute of 30th January 1862, with the exception of the words ‘school board of this parish’ shall be substituted for the ‘heritors and minister.’

(3.) To give to the teacher, in addition to the above salary, the fees actually collected and accounted for to the treasurer, it being understood that if it shall be proved that the teacher is prejudiced as to his emoluments by the lowering of the school fees, the School Board are willing to make up the deficiency if necessary.

(4.) That the treasurer shall assist the teacher to collect the fees due up to the present time, but that hereafter the teacher shall collect them himself, and account for them to the treasurer, in accordance with the opinion of the Board of Education.

(5.) That a copy of the above be sent to the teacher.”

On 3rd June they passed the following resolution;—

Board met. All the members present. Mr Maxwell in the chair.

Inter alia—The Board resolve that the alteration in Mr Macfarlane's salary, by minute of meeting dated 7th February 1874, to £50 per annum, and the school fees, take effect from the 15th May 1874, and authorise the clerk to pay the balance due to that date, according to the old arrangement.”

The defenders paid the pursuer £25 on 20th May 1874, and on 4th June sent him a cheque for £37, which he returned, as it had become apparent parties were at issue as to the salary.

Pursuer now claimed £100, being balance of his salary unpaid, with interest.

The pleas for the pursuer were:—(1.) Under the agreement mentioned in Article 2 of the Condescendence, the defenders are bound to pay to the pursuer, as teacher of the public school of Mochrum a fixed salary at the rate of £125 per annum. (2.) In the circumstances, the pursuer is entitled to decree as concluded for, with interest and expenses.

The defenders' pleas were:—(1.) The pursuer's averments are irrelevant and insufficient. (2.) The arrangement of 15th December 1873 was terminable by the defenders—1. At their pleasure. 2. On the pursuer's failure to supply information necessary for the defenders collecting the school fees. 3. On reasonable cause, and for the better management of the school funds. 4. In any event, on the lapse of one year from Whitsunday 1873. (3.) The defenders having been ready and willing, and having offered before this action was raised, to pay the balance of £37, 10s., due at Whitsunday 1874, and the sum of £25 due at Martinmas 1874, this action was unnecessary; and the defenders, upon payment as aforesaid, are entitled to absolvitor, with expenses.

Page: 458↓

It was contended for the pursuer that defenders were found by their contract of 15th December to pay him a fixed salary at the rate of £125 a year.

The defenders contended that, under section 53 of the Education (Scotland) Act, they had absolute discretion as to the manner of paying the teacher's salary, and that so long as they did not prejudice the pursuer they could alter their mode of payment at pleasure or on reasonable cause; at all events, that the contract of 15th December was terminable on the lapse of one year from Whitsunday 1873.

The Lord Ordinary ( Young) pronounced the following interlocutor:—

“28 th January 1875—The Lord Ordinary having heard counsel for the parties, and considered the record and process, repels the defences, and decerns against the defenders in terms of the conclusions of the summons: finds the defenders liable in expenses, and remits the account thereof, when lodged, to the auditor to tax and report.”

The defenders reclaimed.

At advising—