Scottish Court of Session Decisions

Lord President, after narrating the facts of the case, and stating that the contract was between the pursuer and M'Ewan & Auld as a firm, there being no subscription by the individual partners, said-Upon these averments this summons is founded, and it is substantially an action to enforce, under two alternatives, an agreement of service for the full period of its endurance, the first conclusion being for specific implement, and the second, failing implement, for damages. The Lord Ordinary has indicated an opinion that, from the nature of the pursuer's contract, it must be held to have been all along an implied condition that it should expire by the death of either party. In that opinion I substantially concur. The only party contracting with the pursuer, on the face of this agreement, was the firm of M'Ewan & Auld, and that firm being dissolved by the death of M'Ewan, the senior partner, the party who had contracted with him ceased to exist. The death of M'Ewan was the death of one of the parties to the contract. It was the same as if the contract had been between M'Ewan as an individual and Hoey. There is a good deal of delicacy in the principles of law applicable to this case, and some cases in the contract of location are not very far away from the present; and, accordingly, the pursuer's counsel tried to treat the case as one of locatio operis or locatio operis faciendi. If it had been so, the result would probably have been different; for in such a case, as where a wall is to be built, or a drain is to be made, the contract has special reference to a particular physical matter; and, on the death of the party employing the contractor, the property of the subject passes to his heir or executor or legatee, as the case may be, and with the property of the subject passes the obligation of that contract for altering the subject entered into by his predecessor. But I can quite understand, too, that such things may happen in a contract of that kind as may bring it to an end, though parties contemplated that it should be of continuous endurance. If the subject perish by a damnum fatale, that would end the contract, although it was for a term of years, and although the contractor was to be remunerated by a yearly allowance, and there would be no claim of damages on either side. But, looking to the case in hand, we find it is purely a contract of personal service, and the duties of Hoey under the contract could be rendered only to the person with whom he contracted. He contracted to serve personally the firm of M'Ewan & Auld. It is the same as if he had contracted with M'Ewan as an individual. He was to receive, in return for his personal services, a fixed salary and a per centage on the profits of the business. This was purely a personal contract, and cannot subsist after the death of the employer. The difficulties furnished by the terms of the contract itself are not small; for when Hoey demands specific implement, he has this difficulty, that he must call on the Court, or a jury, to estimate what would have been the profits of the firm of M'Ewan & AuId if they had gone on with their business to 1870, under the same circumstances as they stood under when the contract was made— i.e., the Court, or the jury, are to speculate on what would have been the profits if M'Ewan had lived; and the pursuer proposes to avoid that difficulty by asking damages. And he is entitled to damages if there is a breach of contract, but not unless there is such a breach. There is no other legal category, except action for breach of contract, under which this can be put. But does a man, by dying, commit a breach of contract? Death is quite a different case from bankruptcy. That is a breach of contract in many cases with which me are familiar. If a man who undertakes to pay a salary becomes disabled from performing his part of the contract by bankruptcy, that is a personal fault. Although it is sometimes perfectly innocent, it is yet a fault to each creditor who is not paid in full. And so the party can come against the sequestrated estate and rank, according to well established rules, for the value of the contract he thus loses. But a party's death is another matter, and there is no authority that in such a case there is any breach of contract. I therefore agree with the view of the Lord Ordinary. But I am disposed to qualify that to this extent. This is a contract which contemplates an annual payment. The pursuer was entitled to an annual salary of £300. The contract was brought to an end by the death of one of the parties while the annual salary was current. It appears to me that that annual salary was one and indivisible. There is no room for the Apportionment Act here, and no rule of law operating in the same way, and no authority for splitting the £300, and giving merely such portion as was earned up to the time of death. I rather think that Hoey is entitled to £300 down to the 1st October following after M'Ewan's death. His claim of profit is out of the question; but as far as salary is concerned, I think he has a claim, and I am disposed to think that in this action he may have his claim sustained under the first conclusion. But this concession must be qualified, because if, as is alleged, Hoey has been carrying on business of his own, that may prevent him from claiming the balance of his salary.

Lord Curriehill concurred.

Lord Deas thought that the claim in a case of this kind was an equitable claim. It was a jury question, where the nature and endurance of the contract and other circumstances should all be taken into account, and where the Court should make themselves acquainted with the whole circumstances before finding anything as to the claim of the pursuer.

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