Scottish Court of Session Decisions

This respondent was for some time in the service of the suspender. While he was in that position some circumstances had arisen which created a suspicion on the part of his employer that he was not acting fairly with regard to some patients. That led to a bargain which is embodied in the writing on which the present case is founded. The terms of that agreement are very precise. The respondent sets forth that he had, during the three months of his service with the suspender, always acted consistently with professional honour, and that he bound himself to continue so to act so long as his engagement subsisted. And then he bound himself under a penalty of £500 that after the termination of his connection with the suspender as assistant, he would not accept of the practice of the slate quarries to the exclusion and disadvantage of the suspender. We have nothing to do here with the penalty. This is an action to enforce performance of the obligation itself. It proceeds upon the statement that the respondent had accepted the practice of the slate quarries to the exclusion and disadvantage of the suspender. Now, the first question is, is the admitted fact that he had accepted that practice on its being offered to him, a contravention of that agreement? It is said that it is not, and the only reason urged in support of that contention is, that it is not to the suspender's exclusion and disadvantage. Now, what is the meaning of these words except this, that he would not put himself into the position of being a rival of the suspender in the practice of medicine in this locality. That is the meaning of the words; for in all such professions a man who has had the exclusive privilege of practising in a certain district, experiences exclusion whenever another man comes in and practises, in so far as he gets any practice, and to that extent it is to his disadvantage and exclusion. And accordingly when this case was before us formerly these words were carefully considered, and Lord Colonsay made them the subject of remarks in which we all concurred. I am of the same opinion as I was then, that the respondent, by beginning practice within the district mentioned in this agreement, was to that extent operating to the exclusion and disadvantage of the suspender, who had at that time the exclusive practice of that locality. There is no doubt therefore that what the respondent did was directly within the meaning of this agreement. We are told that the suspender, if he had not been excluded by the respondent, would have been excluded by some one else. But that did not put an end to this man's agreement. Assuming it to be true, it may have diminished to some extent the interest of the suspender to enforce this agreement, but it did not liberate the respondent, and that is the only question with which we have to deal.

I have attended carefully to all the statements made by the respondent in this record, because I was anxious to see that I had not overlooked anything that might have been held a relevant ground for liberating this respondent from his agreement. I have not been able to find any such statement. I think the agreement is subsisting and binding.

But it is contended that this is a pactum illicitum, and cannot be enforced by a. court of law. But no reason for that has been stated by the respondent. There are a number of authorities which show that such agreements are lawful and enforceable. The case of Curtis, 29th Nov. 1831; Watson, 14th July 1863, and Stalker M. 9455, all show that such agreements were recognised by the Court. Neither on authority nor on principle do I see any objection to such agreements. It was said that there were several authorities leading to the opposite conclusion. But the answer to that is, that these authorities relate to the emoluments of public offlcers. Now, a public officer is appointed with such an amount of remuneration for his services as is held to be required in order to ensure the services of a properly qualified person; and if such a person, by a deliberate bargain, passes from a portion of his emoluments with the view of getting rid of competition, it is held that he is guilty of a breach of duty as a public officer, and that there is reason to fear that, he being deprived of the emoluments necessary for the due performance of these duties, these duties may not be performed. That principle has no application to the case of a private contract such as that now before the Court. On these grounds, I think the interlocutor of the Lord Ordinary is well founded.

Lord Deas and Lord Ardmillan concurred.

Lord President absent.