(1829) 3 W&S 389
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1829.
1 st Division.
Subject_Implied Obligation — Mutual Contract. —
Held, (affirming the judgment of the Court of Session), that a road-contractor is liable for the wages of workmen hired by a person acting ostensibly as the over-seer of the contractor, but who, it was alleged, was a sub-contractor,—there being no satisfactory evidence that he was known in this character to the workmen.
Glennie raised an action before the Court of Session against the appellant M'Phail and Robert Cooper, alleging, that in 1820 M'Phail had contracted to form and make a road from New Pitsligo to Banff; that he had employed Cooper as his overseer or foreman; and that Cooper had hired him (Glennie) to work on the road, which he had done, and for which there remained due to him a balance of wages, for payment of which he concluded. In defence, M'Phail admitted that he was the principal contractor, but alleged, that Cooper had entered into a subcontract with him for executing a part of the road, and that
The case, however, is very different, when you come to consider the situation in which the workmen are placed who are employed to do the work; and I think, wherever there is a subcontract, it should be distinctly explained to them what is the nature of the transaction between the other parties. It is said here, that there was a sub-contract; and a missive is referred to as proving this. Now, I don't say that this is to be thrown out of view in a question between M'Phail and Cooper. In arranging between themselves, this may be all very well, and Cooper may be bound to relieve M'Phail; but when you consider the
_________________ Footnote _________________ * See 3, Shaw and Dunlop, No. 388. p. 571.
_________________ Footnote _________________
* See 3, Shaw and Dunlop, No. 388. p. 571.
Lord President.—I am of the same opinion; and just on the grounds stated by Lord Gillies. In short, whatever might be the private agreement between the two, I think they are both liable.
Appellant.—The summons is rested on the ground that Cooper was the appellant's overseer, and as such employed the respondent. But it is proved that Cooper was a sub-contractor; and as it is admitted that the respondent contracted with him, and not with the appellant, he cannot make any claim against the appellant.
Respondent.—It is proved that the appellant was the contractor for the road, and that the respondent was hired to work on that road; it is therefore irrelevant to say that Cooper was a subcontractor, unless the knowledge of that fact be traced to the respondent. But this has not been done. On the contrary, it has been proved, that all the workmen regarded him as the appellant's overseer, acting for his behoof; and that, till Cooper became bankrupt, the alleged sub-contract was kept latent.
The House of Lords ordered, that the interlocutors complained of be affirmed.
Solicitors: Spottiswoode and Robertson— Moncreiff, Webster and Thomson,—Solicitors.