Scottish Court of Session Decisions

William Brown Macdougall, Fairlands, Chingford, Essex, assignee of Robert Macdougall, 44 Granby Terrace, Hillhead, Glasgow, raised an action in the Sheriff Court at Glasgow, against John Bremner, measurer, 55 Trefoil Avenue, Shawlands, Glasgow, to recover the sum of £68, 4s. 3d. with interest.

The pursuer averred that Robert Macdougall, the assigner, had full charge and control of certain buildings which were being erected by his son John Cyril Macdougall during the years 1902 to 1906, and had in employing the defender as measurer, the contract of employment being verbal, stipulated as a condition of such employment that the defender should pay him, Robert Macdougall, three quarters per cent. on the total amount of the various tradesmen's contracts as brought out in the measurements; that the measurements came to £9095, and 3 4 per cent. thereon to £68, 4s. 3d.; and that Robert Macdougall had on 21st June 1906 assigned the claim to him, the pursuer.

The defender, inter alia, pleaded—“(1) The action is irrelevant.”

On July 25, 1906, the Sheriff-Substitute ( Fyfe) sustained this plea and dismissed the action.

Note.—“I think that it is accepted law that innominate contracts of an anomalous and unusual character cannot be constituted by parole testimony alone. The pursuer's case is laid solely upon a verbal arrangement, under which his author was to receive the sum now sued for. The only question, therefore, is whether that arrangement founded on falls within the description of contracts which cannot be proved parole. I think it very obviously does.

The case laid is—(1) that Robert Macdougall being the building superintendent for John Cyril Macdougall, and acting as such superintendent, engaged defender as the measurer for the building [that is to say, that Robert Macdougall as superintendent, and defender as measurer, were alike the employees of John Cyril Macdougall]; (2) that Robert Macdougall, on his employer's behalf, undertook to pay defender certain fees, but that on his own behalf Robert Macdougall arranged verbally with defender that of such fees—which were represented to the employer as going into defender's pocket—a proportion was really to find its way into the private pocket of Robert Macdougall.

This secret commission arrangement is what pursuer wants to prove parole. I do not think the action as laid is relevant.

I think also that the case is irrelevant in respect the sum sued for is claimed by Robert Macdougall personally. Upon pursuer's own statement of his case, Robert Macdougall could not take this sum personally, for he says he was John Cyril Macdougall's agent, and if an agent gets a rebate upon an account payable by his principal, that rebate belongs not to the agent but to the principal.

I think, further, that the case as stated is not relevant, because a rebate upon fees cannot be claimed until the fees themselves

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have been paid, and it is not here averred that John Cyril Macdougall has paid the measurer's fees to defender. I accordingly sustain defender's first plea-in-law..…”

The pursuer appealed, and argued—The Sheriff-Substitute was wrong, and should have allowed a proof. The claim was not for a rebate on fees but for a commission, and the contract was not so unusual as not to be provable by parole, for the stipulation flowed naturally from the contract of employment— Forbes v. Caird, July 20, 1877, 4 R. 1141, 14 S.L.R. 672; Henderson, Tucker, & Company v. The United Collieries, Limited, January 26, 1904, 11 S.L.T. 653. (The Court suggested the alleged contract was illegal.) There was no plea of pactum illicitum, and even if there had been it would not have been good. This was not a case of seeking to make a profit or get a commission contrary to the interests of a principal. The fees to be paid to the measurer were the ordinary fees which the principal would have had to pay in any case—compare Laughland v. Millar, Laughland, & Company, February 19, 1904, 6 F. 413, 41 S.L.R. 325.

Argued for the defender (respondent)—It had been suggested from the Bench that the contract, if there was one, which was denied, was pactum illicitum and contrary to public policy. On that ground it was within the powers of the Court to refuse to lend its process to the enforcement of the contract, and though there was no express plea to that effect, the plea of irrelevancy was sufficient. The alleged contract was clearly illegal— Laughland v. Millar, Laughland, & Company, ut supra. It would have come under the Prevention of Corruption Act 1906 (6 Edw. VII, cap. 34). That clearly proved it was corrupt. To validate such a contract the pursuer must aver that it had been disclosed to the common employer. It could not be enforced at law— Harrington v. The Victoria Graving Dock Company, 1878, L.R., 3 QBD 549.