Scottish Court of Session Decisions

In 1847 the pursuer was appointed manager of the Edinburgh and Glasgow Railway Company, and in the following year he was also appointed their secretary. His salary was at first £1000; in 1854 it was increased to £1200; and in 1863 it was again increased to £1600.

In 1865 the Edinburgh and Glasgow Railway Company was dissolved, and amalgamated with the North British Railway Company by Act of Parliament. The Board of Directors thereafter recommended to the shareholders that before dividing the assets of the company, they should “provide proper compensation for some of the company's servants who, after long and faithful service, have lost their situations from the extinction of this as a separate company;” and it was recommended that a sum of £5400 should be set apart for the pursuer. The Court, however, interdicted the directors from carrying out this scheme, on the ground that it was ultra vires (Clouston, ante, vol. 1. p. 73).

Thereupon the pursuer raised this action, in which he concludes for payment of £5400. He averred:—

Cond. 9. Throughout the period from the first engagement and appointment in 1847, till the dissolution of the defenders' company on 1st August 1865, the pursuer, besides performing the ordinary, customary, and agreed-on duties of the successive offices to which as aforesaid he was engaged and appointed by the defenders, performed on their employment, and for their behoof, various onerous, laborious, and responsible extra services on their behalf, which were entirely over and above the said ordinary, customary, and agreed-on duties.

Cond. 10. These extra services involved an amount of extra labour, anxiety, responsibility, and skill, not required for the ordinary, customary, and agreed-on duties of the successive offices to which, as aforesaid, the pursuer was engaged and appointed by the defenders.

Cond. 11. Throughout the same period, viz., from 1847 to 1865, the pursuer had various

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more advantageous offers made to him of other employment, all of which he declined, at the urgent solicitation of the defenders. He also during said period frequently resigned his situation in consequence of the very great amount of extra services which he was called upon to perform for the defenders; but he was on every occasion induced by the defenders to withdraw his resignation on the faith and assurances held out by them that he would be duly recompensed for these services.

Cond. 12. Throughout the same period, viz., from 1847 to 1865, the pursuer received only the salary appertaining to the ordinary, customary, and agreed-on duties of the successive offices to which, as aforesaid, he was engaged and appointed by the defenders, but he received no remuneration for the extra services rendered by him as aforesaid on the employment and for behoof of the defenders.

Cond. 13. The defenders recognised these extra services as entitled to extra remuneration, and promised and engaged in respect thereof, and of the pursuer refusing, as aforesaid, other more advantageous offers, to pay the pursuer remuneration for such extra services. This remuneration was to be in the form either of a permanent engagement of long duration as manager of the company at an adequate salary, or should that become impracticable, or should the pursuer prefer it, in the shape of an annuity for life, or for a considerable term of years, or in the form of an adequate slump sum of money.

The defenders pleaded that the action was irrelevant.

The pursuer proposed the following issues:—

“1. Whether, in the year 1865, the defenders, through their directors, resolved and agreed to pay to the pursuer the sum of £5400, as remuneration for extra services rendered by the pursuer to the defenders, over and above the ordinary, customary, and agreed-on duties of the successive offices of manager, manager and secretary, and manager of the defenders' company, held by him between the years 1847 and 1865 inclusive; and whether the defenders are resting-owing to the pursuer the said sum of £5400, or any part thereof, with interest from 1st August 1865?

2. Whether, between the years 1847 and 1865 the pursuer, on the employment and for behoof of the defenders, performed extra services for the defenders over and above the ordinary, customary, and agreed-on duties of the successive offices of manager, manager and secretary, and manager of the defenders' company, held by him during said period; and whether, in respect of such extra services, the defenders are resting-owing to the pursuer the sum of £ 5400, or any part thereof, with interest from 1st August 1865?”

These issues were reported by the Lord Ordinary (Kinloch) with the following

Note.—The present action seeks to enforce an alleged claim by the pursuer for remuneration for extra services rendered to the defenders over and above those falling on him in the salaried office held by him under the defenders. There are two issues proposed, the one laying the claim on the special ground of contract; the other on the general ground of recompense to be wrought out by applying the consideration quantum meruit.

1. The defenders object that no case of contract is relevantly set forth in the record. It appeared to the Lord Ordinary that this was a serious objection. In a matter ike that in question, implying something apart from the ordinary administration of the company, it is difficult to say that a resolution of the directors, laid before a general meeting of shareholders, but as to which the meeting came admittedly to no conclusions, is sufficient to constitute a legal agreement with the company.

2. It was further objected by the defenders, that no statement of extra services was set forth in the record sufficient to raise a case of recompense apart from contract. It was said that the services alleged were just those which a functionary like the pursuer would naturally and reasonably give in connection with his office without extra remuneration. On this branch of it the case is substantially one of degree; and the Lord Ordinary would hesitate to turn the pursuer out of Court without an opportunity of inquiry, whatever results might ultimately ensue on the inquiry.

W. P.