Scottish Court of Session Decisions

In this action the pursuer sues Messrs Hannan, Kerr, & Co., of Glasgow, for £300 as remuneration for work performed for them abroad in the following circumstances:—In 1860 the pursuer entered into the defenders' service as clerk, cashier, and book-keeper, at a salary of £90 per annum. The engagement was made by letter, and the stipulation contained in it was—“It is understood that your whole attention is to be devoted to our business, and that you shall not have any other business to attend to.” The pursuer continued in their service until March 1862, when he left Glasgow for Bergen, at the desire of Hannan, Kerr, & Co., to conduct an investigation for them at that place of the affairs of a firm which embraced the same partners. The defenders paid him his expenses to and from Glasgow, and a considerable sum to account of his expenses there. He returned to Glasgow in August 1862, and resumed his duties as clerk, book-keeper, and cashier, and he continued there until October 1862. He now claims £250 in this action, raised in January 1866, as remuneration for the extra work performed by him in January. In October 1862 the pursuer became clerk to the other defenders Kerr, Wilson, & Co., at a salary of £2, 2s. a week, and while in this service he was sent to London to arrange a lawsuit against the firm, and, on several other occasions, to pay debts and settle claims there; for these extra services he claims £50.

The Lord Ordinary dismissed the action, on the ground that the statements of the pursuer were not relevant or sufficient to infer the conclusions of the action. His Lordship added the following note to his interlocutor:—

“On 31st December 1860 the pursuer entered into the service of Messrs Hannan, Kerr, & Co., as clerk, cashier, and book-keeper, at a salary of £90 per annum. The period of service was indefinite. The engagement was made by letter, bearing date 8th November 1860, and the letter expressly stipulated—‘it is understood that your whole attention is to be devoted to our business, and that you shall not have any other business whatever to attend to.’

The pursuer was continuing in this service on 27th March 1862, when he left Glasgow for Bergen, on an employment described in a letter of that date, addressed to him by the Company, and running thus:—‘You will proceed to Bergen, and there,

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acting for our firm and Messrs Hannan & Kerr, proceed thoroughly to investigate the business and books of Wilson, Kerr, & Company, and have a balance struck. You will also get explanations of the many transactions of which we do not understand the merits, and see that they are legitimate and business-like, notifying your opinion to Mr Wilson if they are not so. You will also proceed to inquire into the reason of the very heavy balance at the debit of that firm in our books, and, in accordance with our private letter of that date, see that immediate steps are taken to bring it within the limits of three thousand pounds. Trusting that the result of your visit will be satisfactory and beneficial to all concerned, we are,’ &c.

It is explained by the pursuer that this Bergen firm of Wilson, Kerr, & Co., was composed of the same parties who formed the Company of Hannan, Kerr, & Co., though their interests were in different proportions, and the business of each firm was distinct from that of the other.

The pursuer proceeded to Bergen, where he arrived, as he states, about the beginning of April 1862; he returned to Glasgow in August 1862, when he ‘resumed the duties of clerk, book-keeper, and cashier.’ He continued in the service, as he states, till 1st October 1862, when the firm of Hannan, Kerr, & Co. was dissolved.

The pursuer seeks, by the present action (not raised till 24th January 1866) to make good a claim for extra remuneration, over and above his salary of £90, in respect of this employment at Bergen. He estimates the sum to which he is entitled at £250.

It appears to the Lord Ordinary that the pursuer has not set forth relevant and sufficient grounds for this claim. It is not said by him that any contract took place between him and Hannan, Kerr, & Co., to the effect of his obtaining any amount of extra remuneration. The letter of 27th March 1862, last quoted, is silent on the subject. He says ‘it was the pursuer's understanding that extra remuneration should be received.’ He does not say that it was the understanding of Hannan, Kerr, & Co.—which would have been somewhat more to the purpose; there being thus no agreement on the subject, it would require something very peculiar in the nature of the employment to infer a right to extra remuneration in the absence of stipulation. The Lord Ordinary cannot discover anything having fairly or reasonably this effect. The work in which the pursuer was employed in Bergen—‘acting for our firm’—as the letter bears, was, in substance, just the work of a clerk and book-keeper. Of course, when working at Bergen, he was not working at Glasgow, and the difference, in his position, was little else than that he was doing in Bergen the same kind of work which otherwise he would have been doing in Glasgow. The Lord Ordinary has paid every attention to the allegations of the pursuer as to what his work in Bergen was. He can find nothing of so different a character from the work in Glasgow as to make it incredible or unreasonable that the pursuer should go on at Bergen at the salary he held at Glasgow. The pursuer was, of course, not bound to go to Bergen against his will. But it may be very well supposed that he would go willingly enough, having his expenses paid, as the defenders admit they must be. The circumstances, as narrated by the pursuer himself, are such as, in the estimation of the Lord Ordinary, made it incumbent on the pursuer to make it a special stipulation for extra remuneration if he intended that his services should be on any other footing than that of his current salary. In the absence of any such stipulation, the Lord Ordinary conceives that no other conclusion can be arrived at than that, with mutual assent, the pursuer's services at Bergen were to be considered part of those which he was rendering to Hannan, Kerr, & Co. for his current salary of £90 per annum.

On 2d October 1862, the pursuer entered into the service of the new firm of Kerr, Wilson, & Co., ‘as cashier and book-keeper,’ on a minimum salary of two guineas per week. He continued in this service, as he himself states, till July 1863. Between October 1862 and March 1863 he alleges he was specially employed in settling claims of various descriptions connected with the Bergen firm of Wilson, Kerr, & Co., and disposing of goods and merchandise that had belonged to them, in which the firm of Kerr, Wilson, & Co. had an interest.’ He says that, ‘further, on the 11th December 1862 he was sent by said firm of Wilson, Kerr, & Co. to London, for the purpose of arranging a lawsuit at the instance of John Leisk & Company, merchants there, against the said Norwegian firm.’ For these services he now claims a sum of £50 over and above his stipulated salary. The same considerations as in the former case impel the Lord Ordinary to think that sufficient ground for this claim has not been laid. There is nothing in the character of the alleged services which might not fairly admit of his employers asking him to occupy in this way a part of the time in which he was to employ for their behoof, and his consenting to do so without thinking of additional remuneration. If he consented to the proposed work without any stipulation for extra payment, he must be assumed to have undertaken it as a part of his salaried employment. To enter such a case into a nice critical measurement of the two employments, so that wherever the one varies in a hairsbreadth from the other, extra remuneration is to be implied, however little thought of, still less stipulated at the time, would, it is conceived, be to introduce a new and inexpedient principle into the law of master and servant.

The pursuer, besides concluding for the extra remuneration hitherto alluded to, also concluded for two specific sums in name of unpaid expenses. The defenders do not deny that the pursuer's expenses were to be fully paid;—what they say is, that they were so. There is here no objection as to relevancy, and the matter may be inquired into on its merits, if the pursuer thinks it advisable to press it further.”

The pursuer reclaimed.