Scottish Court of Session Decisions

This was an action of damages for breach of contract. The defender had engaged to serve the pursuers for three years as a commercial traveller, during which he obliged himself to devote his whole time and attention to promote the interests of his employers, and not to “engage in any other business for himself or for behoof of any other person.” The pursuers were, on the other hand, to pay him a salary and allow him certain commissions on orders.

In September 1865 the defender left the service of the pursuers, who thereafter brought the present action against him, alleging that he had in breach of his engagement, and during its currency, deserted their service, and also that he had engaged in business in the same line and diverted custom from the pursuers.

The defence was a denial and a statement that the pursuers had themselves broken the agreement by failing to employ him as a traveller, ad requiring him to perform duties different from those tor which he was engaged, and also by not having paid him the stipulated commission.

The case was reported on issues by the Lord Ordinary (Kinloch).

The pursuers proposed the following issue:—

“It being admitted that on 3d May 1864 the pursuer and defenders entered into the argument No. 7 of process—

“Whether, during the currency of the said agreement, the defender did in breach thereof desert the service of the pursuers, and engage in business for himself, or for behoof of some other, to the loss, injury, and damage of the pursuers?”

Damages laid at £l000 sterling.

The defender at first proposed counter issues, but eventually withdrew them, and contended that the pursuers were bound to insert “wrongfully” in their issue. The pursuers objected, and the Lord Ordinary reported the matter to the Court. His Lordship indicated a view adverse to the defender's contention, and suggested that the time of the alleged desertion might be made more specific.

On the suggestion of the Court, the pursuers broke up the proposed issue into two, and fixed the date of the alleged desertion at September 1865. Their Lordships were unanimously of opinion that the pursuers were not bound to insert the word “wrongfully.”

The issues for the pursuers as finally adjusted are as follow:—

“1. Whether, in the month of September 1865, during the currency of said agreement, the defender did in breach thereof desert the service of the pursuers to the loss, &c.

2. Whether, during the currency of said agreement, the defender did in breach thereof engage in business for himself, or for behoof of some other person or persons, to the loss, &c.”

The defender was found liable in expenses.