Scottish Court of Session Decisions

Ann Urquhart, whose age was thirty, brought an action against her father William Urquhart, and against Thomas Fairweather, his trustee under a trust deed for behoof of creditors, granted 27th March 1904, in which she sued defenders for £257.

Pursuer averred that wages were due her by her father for serving in his shop as shop-woman and milliner from Martinmas 1896 to Whitsunday 1898 (78 weeks), and as dressmaker, milliner, and shopwoman from then till the granting of the trust deed, nearly six years (305 weeks), and as housekeeper for the three years preceding the granting of the trust deed. She further averred that a reasonable wage for these services (after deductions for board, lodging, and clothes) amounted to the said sum of £257.

This claim was in view of the triennial prescription restricted by minute to £96, being the corresponding amount for three years.

The action was defended by Fairweather, who denied that any wages were due to the ursuer, and that there was any agreement etween the pursuer and her father that she should be paid wages.

The facts were as follows—Pursuer's father and mother, her brother, her elder sister and herself, had seven or eight years previous to this action resided at Pitten-weem in Fifeshire. Her father and brother were gardeners there, her elder sister was a dressmaker, and pursuer herself was learning dressmaking, and as an “improver” was earning 7s. 6d. a week. On his wife succeeding to a little money William Urquhart (pursuer's father) removed to Strichen, where he bought a business as general merchant, and a house. The whole family removed to Strichen with their father, the son being taken into the business, of which he had no prior knowledge, “just to have it called ‘Urquhart & Son,'” though whether he was actually a partner or not did not clearly appear.

According to the pursuer the understanding on which she accompanied her father was, “he was to give me remuneration for my services, but he did not say how or in what way he would remunerate me.” Her elder sister came on the same understanding.

According to her father, after a family meeting and consultation at Pittenweem, when it was agreed they should all keep together, they came north with him “on the understanding that there would be employment for all in the business,” but he did not think anything was mentioned about remuneration at that time.

For the first year or so after coming to Strichen the elder sister took charge of the dressmaking, pursuer helping at it and the drapery department. The elder sister kept what she made as her remuneration. The younger sister did not receive or ever ask for wages. She only got her board and what money she required for clothing and pocket money, which was very little.

After about a year the elder sister married and left Strichen. The dressmaking was given up for about a year, and then the pursuer took it up and took charge of it till the granting of the trust-deed—a period of about five years. It was the only successful part of the business, and she eventually had as many as four assistants. For the three years preceding this action the pursuer had also acted as her father's housekeeper, her mother having died two years before and

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having been ill for the year preceding her death.

The only occasion subsequent to leaving Pittenweem and before the granting of the trust deed, on which remuneration was mentioned between pursuer and her father was in May 1902. The business had not been doing well, and there was a proposal, which fell through, to sell it and the house. Her father on that occasion said that if the business were sold she would be paid for her services, but whether along with or after his creditors was not clear on the evidence; there was no mention of the amount she was to be paid.

The father's affairs became embarrassed in the beginning of 1904, and inquiry was made into them. In the month of March the defender Fairweather saw William Urquhart several times about his affairs, and got detailed lists from him of claims against him, including among others a claim for a servant's wages. On 21st March Messrs G. & J. M'Bain, chartered accountants, made an approximate list of liabilities from William Urquhart's books and his information, and this also included the servant's wages but made no mention of the pursuer's. The meeting of creditors was then held on 29th March, when a state of affairs was exhibited, and the trust deed signed by William Urquhart as sole partner. Up to this point there was apparently no suggestion made by pursuer or her father that she had any claim against him. When the matter was first mentioned was not quite clear. William Urquhart said he mentioned it to the defender Fairweather and to his agent Storie the day of the meeting of creditors. This was denied, and the claim was not noted though a claim for a servant's wages was noted, and also a claim by pursuer for some furniture. Fairweather stated that the first mention was on an occasion identified as 7th May. The first letter on the subject was dated 10th May.

The Sheriff-Substitute ( Robertson) on 10th February 1905 pronounced the following interlocutor:—“Finds in fact (1) that the pursuer is the daughter of William Urquhart, formerly merchant at Strichen; (2) that the compearing defender is trustee under a trust-deed for behoof of creditors granted by the said William Urquhart on 29th March 1904; (3) that for about seven years prior to said last-mentioned date pursuer worked for her father and assisted in his business, taking charge of a dressmaking department, and also (for the last two years) acting as house-keeper; (4) that but for the pursuer's assistance it would have been necessary for said William Urquhart, if he carried on this department of his business, to have engaged someone else at an expense of from £1 to £1, 5s. a-week; (5) that pursuer was grownup and earning wages elsewhere as a dressmaker's improver when she came to Strichen with her father and mother and began to work for her father as above stated; (6) that when pursuer began working for her father there was no definite agreement between them that she was to be paid wages, nor was any rate of wages or terms or conditions of employment mentioned; (7) that in point of fact pursuer never asked wages from her father and received none, though she got her board and what clothing and pocket money she required, which amounted to very little; (8) that no mention was made of this claim by the said William Urquhart when giving information as to the state of his affairs before and at the time of the signing of the trust-deed, nor for some weeks thereafter, when the claim was mentioned to the present defender: Finds, in above circumstances, that pursuer is not now entitled to claim wages as against her father's estate, and assodzies defender Thomas William Fairweather, as trustee foresaid, from the conclusions of the action, and decerns,” with expenses, &c.

The pursuer appealed to the Sheriff ( Crawford), who on 6th April 1905 affirmed the interlocutor appealed against.

The Sheriff held that even on the view of the law most favourable to the pursuer there was but a slight presumption in her favour, and that was displaced by the two facts “that no claim was made for seven years, and no claim was intimated at the time that the bankrupt executed a trust deed.”

The pursuer appealed to the Court of Session, and argued—(1) Apart altogether from presumption, the facts and circumstances of the case justified the claim. The son was a partner or at any rate had an interest in the business, and so got no wages. The daughters had no interest in the business. The elder had been remunerated; why should not the younger, who had not waived though she had not pressed her claim. She accepted the Sheriff-Substitute's findings in fact except (6), but maintained that here there was an agreement between the pursuer and her father. This distinguished the present case from that of Miller v. Miller, June 8, 1898, 25 R. 995, 35 S.L.R. 769. It was true no rate of wages was specified. Pursu er was therefore entitled to a quantum meruit. (2) There was in law a presumption that where services were rendered wages were due, even in the case of relations— Anderson v. Halley, June 11, 1847, 9 D. 1222, and especially Lord President Boyle at p. 1227. True, in the case of parent and child it might be only slight—Lord Moncreiff's opinion in Miller. The present case, apart from the agreement above referred to, differed from Miller in that the pursuer entered her father's business after she was grown up, and gave up her former employment to do so. As to the Sheriff's objections—no claim was made for seven years, because pursuer knew her father's business was not prospering. It was a mere oversight of her father's that no claim was intimated at the time the trust deed was granted, and the claim was intimated within two months after. In M'Naughton v. Finlay son's Trustees, November 4, 1902, 40 S.L.R. 645, the sole question decided was that an alleged written contract W'as not the deed of the defender.

The defender argued—There was no definite agreement here to pay wages. It

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was the case of a family business, where all worked for its success, and in the success of which, if it succeeded, all would participate. The case was similar to that of Miller. The remarks of Lord President Boyle in Anderson were wider than necessary to decide the case, and were opposed to older decisions.