Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Inverness-shire, the appellants being the defenders in the Court below. The action was brought by John Fraser, shopman, formerly of Inverness, against the firm of Fraser & Co., Inverness, concluding for salary at the rate of £100 a-year, in respect of services as traveller and shopman between September 1866 and February 1868. The defence was that the pursuer was not to be remunerated by salary, but by a share of the profits of his own sales.

After a proof and production of correspondence, the Sheriff-substitute ( Thomson) found for the defenders.

The Sheriff ( Ivory) recalled, and found for the pursuer, and allowed him £90 for the whole period.

The Sheriff added the following note to his judgment:—“Notwithstanding the terms of the correspondence which passed between the parties immediately before the pursuer went to Inverness, they are both agreed that the proposed partnership was never carried out. This view was adopted by both parties in their statements in the record, in their evidence, and at the debate, and it appears to the Sheriff to be confirmed by the other evidence in process. The parties, however, while they both agree that the pursuer never acted as a partner of the defenders' firm, differ as to the precise footing on which he gave his services to the defenders. The pursuer says that during the period in question he acted sometimes as shopman, sometimes as traveller, but that no terms of remuneration were fixed. The defenders, on the other hand, maintain that, shortly after the pursuer came to Inverness, he entered on his duties as traveller upon the understanding that he should receive as remuneration for his services one-half of the nett profits of all sales made by him; and that he continued to act on this footing until his dismissal. The Sheriff is of opinion that the defenders have failed to substantiate this defence; the only evidence in support of it being the defenders' own statement, which is contradicted by the pursuer. On the other hand, it appears to the Sheriff that the pursuer has succeeded in proving that during the period in question he gave his services to the defenders, sometimes as shopman, sometimes as traveller, and that no terms of remuneration were fixed. If this view is sound, there seems to be no reason to doubt that the pursuer is entitled to a fair remuneration for his services; and the Sheriff has accordingly allowed him such a sum as in the whole circumstances appears to him to be fair and reasonable.”

The defenders appealed.

Mackintosh for them.

Keir in answer.

The Court adhered to the Sheriff's judgment.