Scottish Court of Session Decisions

Jane Inglis, Ravenscraig, Peebles, pursuer, brought an action against Alexander Bunten Smith, accountant, Pollokshields, Glasgow, defender, for payment of £850.

The pursuer averred—“(Cond. 2) At Whitsunday 1880 the pursuer, who was then eighteen years of age, entered into domestic service with the defender's parents, who were then residing at Carmyle House, Carmyle. She remained in service with the family until Martinmas 1913. In 1893 the defender's mother, who survived her husband, died, and the pursuer was thereafter employed by the defender as his servant at Eildon Villas, Mount Florida, Glasgow, where he resided with his sister for some time after his mother's death. The pursuer believes and avers that the defender acted as executor on his parents' estates and intromitted therewith, and that as a result of his mother's death he succeeded to a considerable portion of the moveable estate left by his parents, including the furniture of their house, which, in so far as not sold by him, he still possesses.… (Cond. 3) When the pursuer entered the service of the defender's parents the terms of service, as is customary, were arrived at by verbal arrangement between her and the defender's mother Mrs Smith. In consideration of her services it was agreed that the pursuer should receive a wage of £14 per year, with a gradual increase when she had served for a reasonable period with the family. The pursuer was also to receive board, lodging, and clothing, and the cost of the latter was to be deducted from her wages. She actually received very little clothing while in the said service, and since Mrs Smith's death has only had two new dresses and some second-hand clothing which belonged to the defender's sister Miss Smith. The total value of the clothing received by the pursuer during her whole period of service with the defender and his family does not amount to more than £5. It was further agreed that the pursuer's wage should be deposited in bank in the pursuer's name when it fell due from term to term by Mrs Smith, and that Mrs Smith should open an account for the pursuer, pay the pursuer's wages into the said account, keep the necessary bank book, and see that the wages were properly entered up therein. Accordingly at the end of the year 1880 Mrs Smith opened an account in the pursuer's name with the National Security Savings Bank of Glasgow, and took out a bank book for the pursuer, which is herewith produced and referred to. Mrs Smith kept the bank book in her own possession, and as appears therefrom deposited in the said bank the sum of £7 to the pursuer's account between

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the years 1880 and 1884. When the pursuer entered Mrs Smith's service in 1880 there were two servants in the family, but shortly after the death of the defender's father in 1882 the second servant left, and since that year the pursuer has been the sole servant to the family. (Cond. 4) When Mrs Smith died in 1893 as aforesaid, the defender became the head of the household and lived with his sister, who managed the household for him. The defender was responsible for the whole of the business arrangements made in connection with the settlement of affairs after his parents' death, and continued to manage the business affairs of the family during the period in which he and his sister resided together. The defender was responsible for the payment of the wages of the servants of the said household. The defender was well aware of the terms upon which the pursuer was engaged by his mother, and upon Mrs Smith's death he took possession of the said bank book, which he retained until the pursuer left his service in 1913 as after mentioned. After her mother's death Miss Smith, acting on behalf of the defender, approached the pursuer and told her that her brother and she were anxious to retain her in their service upon the same terms as she had served with Mrs Smith. These terms, as above narrated, were well known to the defender, his sister, and the pursuer. The pursuer agreed to this, and it was understood and agreed to by all the parties that the pursuer was to be the defender's servant and that he was responsible for seeing that her wages were properly paid into bank. When Miss Smith died in 1910 the pursuer continued in the defender's service under this understanding and agreement.… Explained that the defender never attempted to vary the agreement, as above condescended on, in any way. The pursuer all along understood, and was led to understand by the defender, that he was carrying out his share of the said agreement by depositing her wages in bank, and there was therefore no occasion for her to discuss the terms of her service with him. (Cond. 5) The pursuer was led to believe all along, by Mrs Smith at first, and latterly by the defender and his sister, that her money was all right and was being regularly deposited in bank by them. During all the years of her service with the defender the pursuer was always treated by him as an old and trusted family servant, and as she on her part was much attached to him and trusted him, it never occurred to her to ask any questions as to her wages, which she fully believed had been duly raised from time to time and deposited in bank when they fell due. Shortly after his sister's death the defender moved to his present address, taking with him the pursuer and the furniture which he had inherited from his parents and which he at present has. (Cond. 6) During the whole period of service the pursuer received neither money nor goods of any description, with the exception of the clothing above mentioned, from either the defender's mother, sister, or himself. She did not require money and did not ask for it, believing that a substantial sum was accumulating in the bank at compound interest, as would have been the case had the terms of service been duly implemented, and that the sum thus accumulating would be more than sufficient to maintain her for the rest of her life after she left service. Prior to 1913 the pursuer was frequently advised by certain of her relatives to ask the defender for a little pocket-money, but she refused to do so as she preferred to allow her wages to accumulate, as she understood was being done. (Cond. 7) In 1913 the pursuer was urged by her relatives to request the defender to hand over to her the sums due to her as wages since 1880, but the pursuer was unwilling to take a step which she considered would show a lack of trust in the defender's good faith, and was confident that the defender would at any time pay her the said sums or hand her the bank book containing the note of sums deposited from time to time by him or his family when she required them or was leaving his service. Her relatives were, however, not satisfied, and consulted with Messrs Blackwood & Smith, solicitors, Peebles, who succeeded, after some correspondence with the defender, in obtaining possession from him, with the pursuer's consent, of the bank book produced. It was then discovered for the first time that all that had been paid into the pursuer's account since she entered into the service of the family in 1880 was £8, that beyond that sum no wages had ever been paid to the pursuer at all, and that the interest upon which she had calculated had not been running in her favour...”

The defender pleaded, inter alia—“(6) Alternatively, the pursuer's claim in respect of the period from 1880 until May 1910 having prescribed, the pursuer's averments can only be proved by writ or oath of the defender.”

On 19th October 1915 the Lord Ordinary ( Anderson) pronounced this interlocutor—“… Finds that the pursuer's claim for wages in respect of the period from 1880 until May 1910 having prescribed, her averments thereanent can only be proved by the writ or oath of the defender; quoad ultra allows the parties a proof of their averments and the pursuer a conjunct probation. …”

Opinion.—“This is an unusual case, but it is a case of some interest. The pursuer is a domestic servant, and she has brought an action against the defender, who is an accountant in Glasgow, concluding for sums amounting to £850 as wages which she alleges the defender is due to her. She states on record that when she was eighteen years of age, at Whitsunday 1880, she entered into domestic service with the defender's parents, who were then residing at Carmyle, and that she remained in the service of the family of the defender from that time until Martinmas 1913.

That long period of thirty-three years may be divided into three separate parts. There is first of all the period from 1880 to 1893, when the defender's mother, who according to the pursuer had engaged her

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as a domestic servant, died. Then in the second place there is the period from 1893 until May 1910, when the sister of the defender, who according to his case engaged the pursuer as a domestic servant subsequent to her mother's death, also died. Finally there is the period from 1910 until Martinmas 1913, when the pursuer was admittedly a domestic servant to the defender.

The pursuer endeavours to make the defender responsible for the first of these three periods, on the ground that he was the legal representative of his mother, and was lucratus by estate which he succeeded to from his mother. The defender denies these averments, and accordingly there is a disputed question of fact which might have to be investigated if it were necessary to allow a proof at large regarding that period. With regard to the second of these periods the defender's case is that the pursuer was a servant not of him but of his sister; but the pursuer alleges as to that period that while she was actually engaged by the defender's sister, the defender's sister in engaging the pursuer was acting on the defender's behalf and as his agent. There again there are disputed matters of fact which might in a certain aspect of the case have to be cleared up by inquiry.

With regard to the last period, namely, from 1910 to 1913, the defender admits his liability to pay the pursuer wages in respect that she acted as his domestic servant during that period. He alleges—and here again there is a dispute as to the facts—that the pursuer agreed to take wages for these three years at the rate of £10 a-year, and he offers to pay her wages for that period at that rate, subject to deduction of a small payment of £5, 15s.

The contract which according to the pursuer's averments was originally made between the pursuer and the mother of the defender was an extraordinary one. She says that the rate of wages which was agreed upon was £14 per annum at the outset, but that it was stipulated that as time passed there would be gradual increases on the annual rate of wage. She further alleges that it was no part of the contract that she was to get possession directly of any wages in the shape of money payments, but that it was stipulated that anything that was due to her would be put into the bank quarterly by her mistress—in a bank-book in the pursuer's name—and that she would get from her mistress any clothing which she required, or if she should have to get clothing from outside sources—from shops—the cost of that clothing would be deducted by the mistress, who would pay for it, from the wages of the pursuer.

Her case is that for a period of thirty years, without having once demanded to see the bank-book, without ever having asked for an increase, or ascertained whether her wages were being increased according to the original contract, she remained in the belief that the money was being paid into the bank every quarter, first by the mother and then by the daughter, in respect of her wages, and that during all these years a large sum was accumulating at compound interest in a savings bank of some sort.

That is an extraordinary case, and the question which has been debated at this stage is raised by the sixth plea-in-law for the defender—to wit, whether she is to be limited in the mode of proof which may be allowed to her with reference to that long period of thirty years—from 1880 to 1910. The plea is based upon the provisions of the Triennial Prescription Act, which directly apply to servants' wages—agreed-upon wages—and which provide that those wages for any period beyond the last three years of the claim will be presumed to have been paid, and that any proof regarding them is limited to the writ or oath of the person against whom the claim is made.

The only point which can be taken against the applicability of the provisions of the Act to a contract of this sort and to the period I have referred to is this—that it is said that the pursuer was as it were prevented from putting forward any claim during that period for wages due because she remained in the belief—induced by the conduct of the various parties—that money was duly being paid into her bank account. It is settled by the case to which I was referred— Chisholm v. Caledonian Railway Company, 13 R. 773, 23 S.L.R. 539—that if the creditor has been prevented by conduct on the part of the other party from proponing his claim it is not open to the other party to plead the provisions of the Triennial Prescription Act against the creditor's claim when it is made. But the facts in that case in the opinions of the learned Judges show what sort of conduct is in view when that doctrine has to be given effect to.

Here I am quite clear that there was no conduct on the part of the defender's mother or of his sister or of himself prior to 1910 which was sufficient to induce the pursuer to conclude that her wages were being duly paid into a bank account on her behalf. I think she has herself entirely to blame for her supineness and remissness during that long period of thirty years in failing to make any inquiry as to the state of the payment of her wages. I cannot therefore hold that this is a case which is similar to that of Chisholm, and in which I am debarred by considerations of conduct on the part of the defender from giving effect to the provisions of the Triennial Prescription Act. I accordingly decide, and I must say without any difficulty, that this statute is applicable to the period from 1880 until May 1910, and in allowing proof I do so under the declaration that the pursuer can only prove that part of her claim by writ or oath in terms of the provisions of the statute.

With regard to the other period, 1910 to the present time, it is conceded that the pursuer was in the defender's service as his domestic servant; it is conceded by him that he is responsible for her remuneration for these three years, and he has offered a sum which he says the pursuer agreed to take. That may or may not be. I can only determine that after inquiry, because the

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pursuer says she did not agree to take so small a sum as that. But I would strongly recommend this to Mr Crawford, that undoubtedly this woman has served those people for this long period of thirty years. She only got money, so far as appears, to the amount of £17 from the bank account, and £5, 15s. from Mr Smith, the defender—less than £1 a-year. It may be that she has undertaken to accept this small sum of £30, and it may be the case that the defender will succeed in proving that. Still it certainly would be gracious if he made her a more handsome offer than that for this very long period of service which she spent in this family without practically any remuneration at all.”

The pursuer reclaimed, and argued—The operation of the Act 1579, cap. 83, was excluded where a pursuer's failure to sue timeously was due to the conduct of the defender— Caledonian Railway Company v. Chisholm, (1886) 13 R. 773, 23 S.L.R. 539; Paterson (M'Innes' Trustee) v. Glasgow Corporation, (1908) 46 S.L.R. 10. In the present case the pursuer had relevantly averred an agreement under which her wages were to be deposited for her in bank. The existence of this agreement was shown by the bank book with its entries. But the defender had failed to inform the pursuer that the arrangement was not being carried out, and it was thus owing to the defender's fault that the pursuer had delayed to pursue her claim. Long service on a contract raised a presumption of wages— Shepherd v. Meldrwm & Duncan, (1812) Hume 394; M'Naughton v. M'Naughton, (1813) Hume 396; Alcock v. Easson, (1842) 5 D. 356, per Lord Justice-Clerk (Hope) at 368; Anderson v. Halley, (1847) 9 D. 1222. The case of Cook v. North British Railway Company, (1872) 10 Macph. 513, 9 S.L.R. 315, was distinguishable. The ground of decision was mora, and there was no averment that the pursuer's delay was due to the conduct of the defenders. Even if there had been too implicit trust on the part of the pursuer, a proof would be necessary before it could be shown that it amounted to negligence.

Argued for the respondent—In order to take the case outside the operation of the Act the alleged fault of the defenders' conduct would have to be strictly and clearly averred— Alcock v. Easson ( cit.), per Lord Justice-Clerk (Hope) at 367, but it was not so averred. The Act assumed that a pursuer's delay in suing was due to his own negligence— Caledonian Railway Company v. Chisholm ( cit.), per Lord President (Inglis), at 13 R. 776, 23 S.L.R. 541—and in the present case the cause of the pursuer's delay was her own negligence in not making any inquiry. In any event that was the proximate cause of the delay. Caledonian Railway Company v. Chisholm ( cit.) was distinguishable. According to the pursuers' averments in that case they could not know that they were creditors, and their delay in suing was owing to the conduct of the defender.