Scottish Court of Session Decisions

On 15th October 1906 John Mackenzie, Uig, Isle of Skye, at one time factor on the estate of Kilmuir, Skye, belonging to the defenders, raised an action against Walter Lumley, 41 St James Street, London, and another, as trustees of the late George Alexander Baird of Strichen and Stichill, in which he concluded for (1) £200 as damage for dismissal without due notice, and (2) and (3) for £250 and £100 as remuneration for extra work done and services rendered, which he alleged did not fall within his duties as factor.

The defenders, inter alia, pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons. … (4) The other services condescended on being within the scope of his ordinary duties and employment as factor, the pursuer is not entitled to be specially remunerated therefor, and the defenders are entitled to be assoilzied from the second and third conclusions of the summons.”

The pursuer, who had acted as factor under previous proprietors, had been continued in office by the late Mr Baird, at a salary of £150, with free house, coals, and light, and two cows' grass, and after Mr Baird's death in 1893 he had continued to act for the defenders at least until after the sale of the estate in 1904. He produced an appointment as factor by the defenders, and averred — “His [ i.e., the pursuer's] powers and duties as detailed in said appointment were ‘to collect, levy, and uplift, and if necessary to call, charge, and pursue for the rents, revenues, and proceeds of the said lands and estates, including the proceeds of the thinnings of the woods, and other income thereof, and to grant receipts and discharges therefor, and also full power when he shall consider it necessary or expedient to apply for sequestrations against tenants, and to take all necessary measures for removing tenants from their possessions, as also full power to attend and vote in our absence at all meetings of heritors in which we are interested, and of parochial boards, meetings of local authorities, and all other parochial meetings, and meetings of Commissioners of Supply and of Fishery Boards in the different parishes and districts in which said lands and estates are situated, and also to pay out of the said rents and others all feu and teind duties and public and parochial burdens exigible from and in respect of said lands and estates, and the wages to the ordinary workpeople employed thereon, and all expenses connected with ordinary or necessary repairs, and generally the whole expenses of local management of said lands and estates so far as necessary or proper, and to remit the balance of said rents and others to … our commissioner.’”

In support of conclusion (2) the pursuer averred:—“(Cond. 6) In the year 1892 the large farm of Duntulm, rented at £400, became vacant, and as a tenant could not be got the pursuer was asked by the proprietor Mr Baird to take over the farm on his behalf. The pursuer did this, and worked it successfully until 1895, when a tenant was got. In 1898 Monkstadt, the largest farm on the estate, was in like manner taken over by the defenders, and was worked successfully for them, at their request, by the pursuer for seven years, until the termination of his engagement aforesaid. The pursuer has received no remuneration for managing these two farms—a duty entirely outside his factorial work—and as no rate of remuneration was agreed upon between the pursuer and defenders at the time the pursuer is entitled to such remuneration on the principle of quantum meruit. In respect of these services the pursuer claims £25 a-year for

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ten years—£250 in all, being the sum concluded for in the second conclusion of the summons. With reference to the statements in answer, it is denied that there were competent farm managers who carried on the farms and were fully remunerated therefor. Explained that the pursuer appointed farm grieves to act under his instructions, but they had nothing whatever to do with the actual management. The pursuer attended to the buying and selling of stock, engaging servants, and the general management of the farms. Before the said farms of Duntulm and Monkstadt became vacant the pursuer had carried on what were recognised by the defenders to be his ordinary factorial duties in terms of said engagement as factor, and these did not involve farm management. In respect of these duties the pursuer's salary had been fixed at £150 per annum, with other emoluments specified in Condescendence III. On the said farms becoming vacant he was expressly asked by the defenders to undertake the management of the farms until a tenant could be found, when his duties would revert to the ordinary factorial work of the estate. Explained further that no rate of remuneration having been agreed upon between the pursuer and defenders in respect of these extra services, which were recognised by the defenders and their agents to be outside his factorial duties, he was not in a position to debit any specific sum in the estate accounts. The conduct of these farms entailed a large amount of work by the pursuer in managing the said farms, and led to his working long after the usual business hours. Details of the work so performed by the pursuer will be produced in his accounts. Explained further that the defenders led the pursuer to believe that they would appoint him factor on another estate, or otherwise compensate him for this work, and that there would be no necessity for his lodging any formal claim. The defenders, however, failed to do this, and the pursuer then lost no time in putting forward his claim. Quoad ultra the defenders' statements in answer are denied. Explained that both the pursuer and the defenders all along contemplated the adjustment of the pursuer's present claims arising in consequence of his extra factorial work.”

In support of conclusion (3) pursuer averred—“(Cond. 7) The pursuer also did a large amount of extra work for the defenders in connection with reports and valuations which he was employed to prepare (1) in 1889 by Mr Baird, when the latter's business affairs were transferred from Glasgow to London; (2) in 1893 by the defenders when Mr Baird died; and (3) by the defenders when Mrs Baird died. The defenders are called on to produce the valuations and reports. The pursuer also prepared an elaborate feuing plan, on the instructions of the defenders, when the feuing of the village of Uig was in contemplation, and the Court of Session having adopted the plan, feuing has proceeded in accordance with it. Further, on five different occasions, when the Crofters Commission visited the estate, the pursuer represented the defenders on their instructions, and in the main succeeded in defending from reduction the rents of 450 crofters who had appealed to the Commission. Further, when negotiations for the sale of the estate to the Congested Districts Board in 1902 took place, rentals and valuations were specially prepared by the pursuer on the instructions of the defenders, and in the end the estate was sold to the Board at a price of £80,000. The pursuer was employed by the defenders in connection with estate and other business on behalf of defenders until the end of November 1905. This involved a great deal of correspondence and attendances, preparation and examination of and reporting as to accounts, &c., for all of which the pursuer has received no remuneration whatever. In respect of these and other services of an extra factorial nature, which involved the large amount of work specified in his account which will be produced, the pursuer, maintaining his right to be remunerated for the said work on the principle of quantum meruit, claims £100—the sum sued for in the third conclusion of the summons. The defenders' statements in answer, so far as not coinciding herewith, are denied.”

[The averments in italics were added by amendment.]

On 7th February 1907 the Lord Ordinary ( Guthrie), while allowing a proof on the first conclusion, found that the pursuer had stated no relevant averments to support the second and third conclusions of the summons, and dismissed them.

Opinion.—“In answer to the pursuer's motion for a proof at large, either in ordinary form, or before answer, or habili modo, the defenders asked the case to be dismissed as irrelevant….

The question of relevancy must be considered with separate reference to the pursuer's three conclusions.

The sum first concluded for is for damages on account of the pursuer's termination of the defenders' office as their local factor on Kilmuir, in Skye, without sufficient notice. … I therefore think this part of the case must go to proof.

The second and third conclusions of the summons are for sums alleged to be due for extra factorial work done by the pursuer. The defenders do not deny that considerable work was done by the pursuer beyond the duties which necessarily fall to every factor to perform, but they maintain that, on the pursuer's own statement, these duties were such as factors often perform without extra remuneration, and that, in the absence of any averment by the pursuer of antecedent contract, or of acquiescence in an intimated claim, or even of contemporaneous intention to make a claim, the pursuer's case is irrelevant. Put baldly, they maintain that if a servant engaged to perform certain duties does others in addition, however different from his original duties, without anything being said at the time or until the termination of the service about extra remuneration, he can in no circumstances have any claim for remuneration.

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I am not prepared to assent to the proposition thus stated, notwithstanding the support it appears to derive from certain dicta in the case of Latham v. Edinburgh & Glasgow Railway Company, I860, 4 Macph. 1084, and in the case of Rose v. Earl of Fife, 1803, 5 Paton's Appeals, 115. I think special circumstances might be averrred as to the nature of the duties, the period over which they extended, the expenses they entailed, the time and labour they involved, and the value of the extra services rendered in relation to the amount of the agreed-on salary, which might found a relevant claim for remuneration. A domestic servant engaged on ordinary terms, who occupied part of his leisure during the day in press copying his master's letters might have no legal claim for extra remuneration, while if, being discovered, subsequent to his engagement, to be an expert typist, he did his master's typewriting, working overtime and enabling the services of a regular typist to be dispensed with, he might be legally entitled to extra remuneration, even if, although averring expectation of extra payment, he could not prove contract or acquiescence. In the latter case the circumstances might be such as necessarily to imply a right to remuneration, while in the former case they did not.

In this case, however, I do not find any such averment of special circumstances as would, if proved, enable the Court to differentiate the case from the decisions above referred to of Latham and Rose. The extra services are all related to the work of a factor directly or indirectly, and it is not even averred that the pursuer ever contemplated making any claim for extra remuneration until after he received notice of the termination of his engagement.

In these circumstances, while I think the pursuer is entitled to a proof under his first conclusion, I hold his averments in support of his second and third conclusions irrelevant. …”

The pursuer reclaimed, and argued—The defenders had recognised that the pursuer's claim was well founded, for they had applied to the English Court for authority to give him an “honorarium” of £300, which however the Court of Chancery had refused. The averments on record showed clearly that the work in respect of which he sued for payment was extrafactorial work. His salary of £150 had been fixed before the work in question was even contemplated. This was not a case of temporary management of unlet farms, for the management had lasted for ten years. The farms managed by the pursuer were partly arable, so that he had to attend to the rotation of crops as well as to the buying and selling of stock. The Lord Ordinary here desiderated special circumstances and these had now been averred. A factor's work was not capable of being exactly defined, but it certainly did not include the work detailed in condescendences 6 and 7. Where nothing had been said as to remuneration on either side the law implied reasonable remuneration for extra work done quantum meruit. That was what the pursuer now claimed.

Argued for respondents—The Lord Ordinary was right. The pursuer had made no specific claim prior to the present action. Esto that the defenders had been willing to give him an honorarium that did not imply the admission of any legal claim. The pursuer had a free house and was therefore expected to live on the property and give his whole time to its management. He had failed to aver specifically ( a) his duties as factor, ( b) any duties performed that did not naturally fall within the scope of a factor's office, and ( c) the existence of any agreement as to remuneration for these alleged extrafactorial services. The claim was therefore irrelevant and should be dismissed— Latham v. Edinburgh and Glasgow Railway Company, July 18, 1866, 4 Macph. 1084. The pursuer had managed the unlet farms without making any claim at the time, and had rendered and settled accounts periodically without raising any such question. The present claim was clearly therefore an afterthought and was made too late— Rose v. Earl of Fife, April 25, 1806, 5 Pat. App. 115. The general powers enumerated in the pursuer's appointment did not derogate from the recognised duties appertaining to a factor's office. The pursuer did not aver that the duties set forth on his appointment excluded those he now alleged to be extrafactorial, or that they were inconsistent with them. The attendances before the Crofters' Commission were just the kind of duties that would be done by the factor on a highland estate like that of Kilmuir in Skye.