Scottish Court of Session Decisions

George Woulfe Brenan, civil engineer and architect, Oban, raised an action against Richard Watson and others, trustees under a trust-disposition granted by Mr Campbell of Lochnell, concluding, inter alia, for payment of the sum of £225 payable to him at Martinmas 1894 in lieu of warning.

The pursuer averred that in 1882 Mr Campbell employed him as factor on his estate at a salary of £250, afterwards raised to £350, plus engineer's and architect's fees for work done on the estate; that in 1884 Mr Campbell granted a trust-disposition in favour of certain persons which was recalled in 1888; and that these trustees had re-appointed him factor for live years down to Whitsunday 1890 at the same salary as before.

The pursuer further averred that in 1888 Mr Campbell executed a trust conveyance in favour of the defender Watson, and that in virtue of the powers therein contained Mr Watson executed a factory and commission in the pursuer's favour for four years from Martinmas 1890. “It was originally stipulated, and was from time to time referred to between the parties, that the pursuer should be entitled to six months' notice or warning before his factory could be terminated. The defender Mr Watson also repeatedly assured the pursuer that he would continue to be factor as long as the trust should subsist, and the pursuer relied upon that assurance being given effect to.”

The pursuer proceeded to aver that subsequently Mr Campbell's Edinburgh agents in the course of renewing the loans over the Lochnell estate, stipulated that Mr Sutherland, banker, Oban, should be assumed as a trustee, and should be appointed factor, and that the pursuer's factory was consequently terminated at Martinmas 1894 without any warning or prior notice. “The pursuer, by the arrangement under which he originally accepted the factory, and from time to time had it renewed, was entitled to six months' notice. Besides, he was repeatedly informed by the defender Mr Watson that his employment would continue as long as the trust existed. Moreover, it is usual and customary in such agreements that reasonable notice should be given, and a period of six months' notice was reasonable in the present case.

The defenders denied that any such stipulation as that averred as to six months' notice being given had ever been made.

The defenders pleaded, inter alia—“(1) The pursuer's statements are irrelevant. (4) The defenders are not due any sum to the pursuer in lieu of warning, in respect (1st) that the pursuer was not entitled to warning apart from the stipulated term of his engagement in his factory and commission; and (2nd) that, in any event, due warning was given to him.”

A proof was allowed, of which the import was as follows:—The agreement by which in 1890 the pursuer's factory was continued for four years proceeded upon the narrative that Mr Campbell had resolved “to continue the factory of the said George Woulfe Brenan for a period of four years from the term of Martinmas 1890, upon the express condition that the said George Woulfe Brenan should enter into an indenture with Mr Richard M'Clement, step-son of the said Archibald Argyll Lochnell Campbell, for a period of four years from the said term of Martinmas 1890, and also pay the said Mr Richard M'Clement a yearly salary of £50 sterling from and after the said term of Martinmas 1890.” It contained no stipulation as to notice or warning. The pursuer, who was a member of the Institute of Civil Engineers, resided at Oban, was factor for another property besides Lochnell, and “did whatever architect's work he could get” in and about Oban.

On 29th March 1894 Mr Campbell's Edinburgh agents wrote to Mr Macgregor, Oban, the agent for the trustees, requesting him not to enter into an arrangement for the renewal of the pursuer's engagement when it expired. This letter was shown to the pursuer by Mr Macgregor shortly after he received it. The pursuer said nothing to Mr Macgregor either then or at any other time as to six months' notice, and though he lodged claims for money due to him for various work on the Lochnell estate, he lodged none for a sum of money in lieu of notice until the raising of the present action in February 1896.

On 14th May 1897 the Lord Ordinary ( Low) sustained the defences and assoilzied the defender.

Opinion.—“The pursuer claims the first sum, for which the summons concludes, on the ground that he did not receive reasonable notice that his employment as factor upon the Lochnell estate would not be continued after Martinmas 1894.

The pursuer, besides being factor upon the Lochnell estate, carried on business at Oban as an engineer and architect, and so long as he duly performed the duties of factor he was free to engage in any other business he chose. At the time of his dismissal he was engaged under an agreement for a specified period of four years, and it was on the expiry of the four years that his employment was terminated. Further, for more than six months prior to the termination of his employment he was aware that Mr Campbell of Lochnell was trying to have the trust set aside, and that if that attempt was successful he would not be continued as factor. He was also made aware that Mr Campbell's agent had written to the trustee asking him not to make any arrangement with the pursuer for the continuation of his employment after Martinmas 1894.

In these circumstances I am of opinion that the pursuer is not entitled to a money

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payment in lieu of notice of the termination of his employment. There is no case in the books in which the rule as to reasonable notice has been applied to the case of a person employed under agreement for a definite period, or of a person who did not give his whole time to his employer, but who also carried on other business. The principle upon which the rule is founded appears to me not to apply to such a case, that principle being that a servant ought not to be unexpectedly deprived of his sole means of support, but should receive reasonable warning that his employment is to be terminated, so that he may have an opportunity of obtaining other employment. Further, the pursuer cannot say that the non-renewal of his employment was altogether unexpected, because he knew that his continuance as factor depended upon what was the result of Mr Campbell's attempt to set aside the trust.”

The pursuer reclaimed, and argued—The Lord Ordinary was wrong. It was a settled rule with regard to all servants that at the termination of an engagement tacit relocation took place unless previous warning had been given— Baird v. Don, M. 9182; Maclean v. Fyfe, February 4, 1813, F.C.; Morrison v. Allardyce, June 27, 1823, 2 S. 387. The rule applied equally to professional men with ordinary servants. It had been given effect to in the case of a newspaper editor— Campbell v. Fyfe, June 5, 1851, 13 D. 1041, and of a schoolmaster— Morrison v. Abernethy School Board, July 3, 1876, 3 R. 945. The pursuer here received a fixed salary, and that circumstance brought him into the class of servants to whom the ordinary rule applied. The nature of the employment, moreover, involved “an intimacy of relationship and a mutual confidence which would make it very inconvenient that the connection should be terminated without reasonable warning”— Forsyth v. Heathery Knowe Coal Company, June 9, 1880, 7 R. 887.

The defenders argued that the nature of the pursuer's employment put the present case outside the class in which tacit relocation took place, and cited Lennox v. Allan & Son, October 26, 1880, 8 R. 38.