Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 3_282_1, [1867] SLR 3_282_1

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SCOTTISH_SLR_Court_of_Session

Page: 282↓

Court of Session Inner House First Division.

President

3 SLR 282_1

Cameron and Co.

v.

Gibb.

Subject_1Reparation
Subject_2Breach of Contract
Subject_3Master and Servant.

Facts:

Circumstances in which a servant found liable in £100 damages to his employers for breach of contract of service.

Headnote:

This was an advocation from Glasgow. The pursuers, who are stationers in Glasgow, sued the defender for £300 damages for breach of contract, he having in September 1864 left their service without their consent, and having before throwing up his engagement clandestinely carried on business on his own account. The Sheriff-Substitute (Glassford Bell) in his interlocutor “finds that the pursuers have proved both by the defender's own admissions, when examined as a witness in causa, and by other evidence, that said defender broke his said engagement at the time set forth; and the defender has failed to prove that there was any sufficient ground to justify his so doing, and in particular, has failed to prove either that the pursuers themselves wished to discontinue his services, or that they, on their part, committed any breach of the terms of the engagement: Finds that the pursuers have also proved out of the defender's own mouth that he transacted business with at least thirty customers of his own between January and September 1863, when in the pursuers' employment, and the defender has failed to prove that he did this with the pursuers' consent or acquiescence; it being, on the contrary, proved that the pursuers expressly refused their consent when it was asked, and were ignorant until after the defender left them, that he was so carrying on any private business in breach of his engagement: Finds that immediately after breaking his engagement with the pursuers, the defender assumed a partner and commenced a business, under the firm of James Gibb & Company, of precisely the same character as that carried on by the pursuers, and for nearly fifteen months of the time he ought to have been in the pursuers' employment entered into an active competition with them in nearly all the districts in England and Scotland in which they had customers, whereby the pursuers' emoluments were seriously affected.” He therefore found damages due, and assessed them at £150. The Sheriff (Alison) altered, but only to the effect of reducing the damages to £100.

Both parties advocated.

Fraser and R. V. Campbell were heard for the pursuers.

Mackenzie and Cattanach for the defenders.

The Court adhered to Sheriff Alison's judgment.

At advising,

Judgment:

The Lord President—The first question is whether the pursuers have made out the two grounds of damage libelled. I can see no reason for doubting the soundness of the leading findings in the Sheriff-Substitute's interlocutor. It would be a mere waste of time to go into the evidence. The defender was not entitled to read the memorandum of engagement in the way he says he did,

Page: 283↓

especially in the face of the pursuers' protest. The breach of contract therefore follows as a necessity, because he left during the currency of the period. It was not necessary for the pursuers to prove that the defender was carrying on the same kind of business as they. It is enough that the time which was to be exclusively occupied in their service was occupied by the defender for his own personal benefit. Then comes the question of damages, which is always an embarrassing one. There are three considerations on which I think the claim to damages can be supported. 1. The loss of time which was abstracted from the pursuers' business and devoted to the defender's own affairs, the pursuer having paid him therefor both salary and travelling expenses. 2. The inconvenience caused to the pursuers in the conduct of their business by the sudden and unexpected breach of contract of the defender, which drove them to look out for a successor under embarrassing circumstances. 3. There must have been some falling off of business in the districts of the country travelled by the defender, some of which, at least, was attributable to his conduct. Putting these things together, and dealing with the question as a jury would do if it had been before them, I arrive at the same result in regard to the amount of damages due as the Sheriff Principal.

The other Judges concurred.

The pursuers were found entitled to full expenses in the inferior Court, and four-fifths of their expenses in this Court.

Counsel:

Agents for Pursuers— MacGregor & Barclay, S.S.C.

Agent for Defender— Alexander Wylie, W.S.
1867