William Earl of Mansfield - Knigh - Murray v. Ralph Scott - The Lord Advocate (Jeffrey - Keay [1833] UKHL 6_WS_277

UKHL
William Earl of Mansfield - Knigh - Murray v. Ralph Scott - The Lord Advocate (Jeffrey - Keay
[1833] UKHL 6_WS_277 · 1833-02-18
A hedger and ditcher in the employment of a Scottish nobleman on his estates in England entered into a written agreement to serve him in that capacity on his estates in Scotland, at the same wages as those who were formerly employed in the same capacity on these estates had received; and the nobleman farther stated, “In addition to these, as an encouragement for his greater assiduity, Lord M. is to make him a present of 20 l ;” and the party so hired served for several years. Held, (affirming the judgment of the Court of Session,) that under all the circumstances the addition of 20 l . was not limited to the first year of service.

Subject_ Interest. —

Bank interest allowed on the arrears of the 20 l . for 19 years.The respondent Ralph Scott raised an action against the appellant the Earl of Mansfield before the sheriff of Perthshire, setting forth, that on the 20th of April 1810 Andrew Middlemiss, land steward to the Earl on his estate of Caen Wood, near London, and acting for the Earl, entered into a contract with the respondent (who was then a hedger and ditcher on the estate of Caen Wood), by a document in these terms:—

Page: 278 ↓

“Memorandum.—It is hereby agreed and finally understood, that Ralph Scott, from the 26th May 1810, is to take and fulfil the office of hedger and ditcher on the farm and estate of Scone in a good and workmanlike manner, whereof the same conditions as his predecessors have already been paid are still to become his wages from the superintendent and tenants of the said farms; and, as conscious of his assiduity towards the work, as addition to the above, the Earl of Mansfield is to make him an allowance of 20 l . per annum. Done by us at Caen Wood, 20th April 1810.”
That thereafter, on the 14th May, with the view of determining more particularly the duties which the respondent was to perform at Scone, another document was subscribed by the parties in these terms:—
“It is agreed between Andrew Middlemiss, for Lord Mansfield, and Ralph Scott, that Ralph Scott is to go to Scone, is to superintend the hay harvest, is to bind hay, and instruct others in that process; that he is also to be employed as hedger, to have the care of the ences upon Lord Mansfield's farm, and of the fences of such tenants as do not choose to keep them in order by their own labourers. He is to receive the same wages as were paid to the hedger who was lately employed, and, when at hay harvest or other work, he will receive the wages of the country. But in addition to these, as an encouragement for his greater assiduity, Lord Mansfield is to make him a present of 20 l .; and it is also understood that Scott is to continue in Lord Mansfield's service at all events till Whitsunday 1811, and until this agreement shall be terminated by the demise of either party.”

Page: 279 ↓

The respondent farther stated, that in consequence of this agreement he left London, and on the 26th of May, entered on his duties of hedger and ditcher upon the estate of Scone, and taking charge of the Earl's hay harvest; that he had continued to do so for nineteen years; that he had from time to time been paid by the Earl, and by the tenants on the estate, the price of the work performed by him, according to the extent of the particular work done at the time, and the bargain of parties applicable thereto; but that although he was, over and above this, entitled to the allowance of 20 l . per annum, it had not been paid. He therefore concluded that the Earl ought to be decerned to make payment to him of the sum of 380 l . sterling, being the amount of the yearly allowance for nineteen years, from the 26th of May 1810 to the 26th of May 1829, with the interest that might be due thereon.In defence Lord Mansfield stated, that the 20 l . was promised as a present only to induce the respondent to go to Scotland, and not as an annual allowance in addition to his wages; that it had been so regarded by both parties, and particularly by the respondent himself, for although he had constantly resided at Scone for nineteen years, and had been regularly paid his proper wages, and had granted a receipt at the end of each year, yet he had never made any claim of this nature; and when, on the occasion of a change of the factor, all claims against the Earl were publicly advertised for, the respondent did not come forward with this claim. He therefore pleaded, 1st, that the contract did not imply an annual allowance of 20 l .; and, 2d, that the consecutive receipts implied a discharge.

It was admitted by his Lordship, that in a letter

Page: 280 ↓

The Sheriff found, that the respondent was entitled to the allowance yearly during the time he remained in the Earl's service at Scone; but that, not having demanded payment as it fell due, he was entitled to interest only at the rate current at the bank in Perth, where the Earl's business was transacted.The Earl afterwards removed the cause to the Court of Session by bill of advocation; and Lord Newton, Ordinary, on the 25th of January 1831, adhered to the judgment of the sheriff, remitted simpliciter, and found expenses due. His Lordship at the same time issued the following note:—those of the first. It is not to be given because the pursuer might be put to expense in removing to Scotland, or for any reason exclusively connected with the year to which the missive relates, but as an encouragement for his greater assiduity—as a remuneration for his expected services during the year for which he is engaged. Of consequence it may be not unreasonably inferred, that if the pursuer, without any further bargain, continued his services, which the defender, by suffering him to do, must be presumed to have approved of, he was entitled, under tacit relocation, to the continuance of the same emoluments. appears from the letter of Middlemiss to him of the 9th May 1812, he did not apply to Lord Mansfield for an explanation. But the Lord Ordinary is not satisfied that this is a fair inference. It is not stated whether Lord Mansfield was or was not at Scone in spring 1812; but if he was not it was natural for the pursuer, when his service for the second year drew near a close, to apply for an explanation to Middlemiss, the person who had made the agreement with him on the part of his Lordship, and, having learned from him that he considered the 20 l . to be an annual payment, to conclude that this was the case.
“The case is not without difficulty, but the Lord Ordinary sees nothing sufficient to induce him to alter the judgment of the sheriff. He is of opinion that the question must be regulated by the minute of 14th May 1810, and that its terms, when clear, cannot be controlled by any thing in the previous minute of 20th April. But it does not appear certain, looking at these alone, that the 20 l ., though denominated a present, was not meant as a part of the wages or allowance which the pursuer was to receive for his services during the year for which he was engaged. By the minute it is stated to be in addition to the wages which the pursuer's predecessor had been in use to receive; and, considering the circumstances of the parties, it does not seem unreasonable that an addition to this extent should have been made. Besides, the cause assigned for giving it is no less applicable to the services for subsequent years than to

Page: 281 ↓

Now, if the minute can bear this interpretation, or if its meaning is in so far doubtful, the Lord Ordinary thinks it not incompetent to look to the previous minute for explanation. This document, which does not specify any particular period of service, expressly states the 20 l . to be an annual addition, and assigns the pursuer's expected assiduity as the reason. There seems no ground to presume that Middlemiss, who had no authority from his situation to hire servants for Scotland, would have entered into such a bargain for the noble defender without some communication with him; and the much more ample and distinct specification of the nature of the work to be performed, contained in the second minute, may sufficiently account for its existence, without supposing that Middlemiss had exceeded his instructions in the first. Indeed, had he acted so improperly, it is not likely that he would have been retained as the person to make the second bargain.It was argued, as proving the pursuer's mala fides, that, having doubt as to the amount of his wages, as

Page: 282 ↓

The pursuer's accounts and receipts produced have no relation to his annual wages, and contain no general discharge of what might be due to him. The accounts relate entirely to specific pieces of work, mostly drains and dressing of ground, executed in great measure by labourers employed under the pursuer, and his receipts are just for the sums specified in the accounts. It is, no doubt, somewhat strange that he should have allowed so many years to pass without any settlement of his wages; but 20 l . was undoubtedly due to him, and there is just as little appearance of his having asked for or been paid this sum as there is in regard to any of the subsequent sums sued for.”The Earl reclaimed to the First Division of the Court, who, on the 21st June 1831, pronounced the following interlocutor:—
“The Lords, in respect it appears to be the bonâ fide meaning of the parties that the allowance or present of 20 l . was to be annual, adhere to the interlocutor reclaimed against.” *

Footnote

* Sec 9 S. D, 780.

Page: 283 ↓

The Earl of Mansfield appealed.Appellant .—The nature of the employment which the respondent undertook at Scone was not such as to require a written agreement between the parties; and the missives founded upon by the respondent were neither signed nor authorized by the appellant, nor have they been homologated by him, in so far, at least, as respects the alleged agreement to pay the respondent 20 l . a year in addition to his ordinary wages. But even if they are to be deemed obligatory upon the appellant, still the one which bears the date of 14th May 1810 must be held to have superseded the one dated the 20th of April 1810, and to be the sole evidence of the agreement entered into between the parties. In the agreement of the 14th May there is no ambiguity. The words exclude the notion, as far as the sum of 20 l . is concerned, of a remuneration depending upon contract, and to be enforced in a court of law. The stipulation is, that “he is to receive the same wages as were paid to the hedger who was lately employed, and when at hay harvest or other work he will receive the wages of the country. But in addition to these, as an encouragement for his greater assiduity, Lord Mansfield is to make him a present of 20 l .; and it is also understood that Scott is to continue in Lord Mansfield's service at all events till Whitsunday 1811, and until this agreement shall be terminated by the desire of either party.” The “present of 20 l .,” which was to be made by the appellant, was evidently a sum to prevent loss to the respondent by change of situation, and on the condition that he should remain at Scone at any rate for a year, so that

Page: 284 ↓

Nor does the letter produced by the respondent in the Court below from Middlemiss to himself, bearing to have been dated on the 9th of May 1812, support any other construction. This letter was in answer to one written by the respondent to Middlemiss several months before, the contents or the precise date of which do not appear, but it was clear that it was the respondent's own understanding that the 20 l . was a mere donation, and not an annual payment, and that he had stated this to be his understanding in his letter to Middlemiss. But even if, according to the respondent's averment, a tacit relocation took place at Whitsunday 1811, still that must have proceeded upon the terms of the original agreement; and these directly exclude the construction of an annual addition of 20 l . to the respondent's wages.There is no ground for any claim of interest. That claim can be enforced only when either it forms part of the original stipulation, or when, upon demand being made for payment of a debt, there has been undue delay in complying with it. Neither of these grounds exist here.Respondent .—At the time the agreement was made, the respondent was engaged in the business of a hedger and haymaker at Highgate near London. In this occupation his emoluments were considerable. In a letter written by him to the appellant, with a statement of his gains in England, in the express view of the agreement about to be formed, the average of the respondent's emoluments was stated to be about 4 s . 6 d . per day, or 70 l . per annum.

Page: 285 ↓

It is thus manifest, that a proposal to the respondent to leave his employment at Highgate, and go to a remote district in Scotland, where he was to take his chance of the quantity of employment he might procure, and be paid for his labour the ordinary current wages of the country, was one which he could not accept without a considerable sacrifice, for it is proved that the daily wages which were afterwards received by the respondent at Scone ran from 1 s . to 1 s . 6 d . and 1 s . 8 d . per day.The fact of the respondent going to Scotland renders it highly improbable that he should have done so upon any other agreement than that which the written documents establish, viz., that he should go to Scone, and take the ordinary wages of labour for the employment he might get in the way of his business; but that, over and above, the appellant should make him a certain yearly allowance, as an equivalent for the sacrifice he was making in leaving a more profitable employment.But there was also another reason for the proposed allowance to the respondent. The object of Lord Mansfield was, not merely to procure a labourer in hedging and haymaking, but to employ the respondent as a superintendent and instructor in haymaking. For this superintendence and instruction it was fair that the respondent should receive some allowance beyond the ordinary wages of a common labourer.That this was the agreement is established by the written documents. The two successive missives must be held to constitute component parts of one agreement; there is no ground for maintaining that the latter missive was intended to discharge and annul the former.

The allowance which in the second missive is spoken

Page: 286 ↓

But even on the supposition that the second missive is to be held to comprehend within itself the completed agreement of parties, and to be regarded as for one year only, still, as at the end of the first year nothing was said by either party as to an alteration in the terms of the contract, they must be held to have renewed their contract for another year on the same terms in all respects as for the former. The stipulation as to the allowance thus became renewed, not less than the stipulation as to the ordinary wages. If the respondent was entitled to the one for the second year under an implied renewal of the contract, he was equally entitled to the other, and so on for each succeeding year, when from year to year the same silent renewal of the contract took place.Any argument against the validity of the claim, founded on the circumstance of the allowance not being the subject of demand till the expiry of so long a period, is neutralised by the fact that the allowance of 20 l ., to which the respondent had right under the contract for the first year's service, was not claimed by him, and yet it is admitted to be due.Lord Chancellor .—My Lords, I do not feel it to be necessary to go particularly into the facts of this case, as they are presented to your Lordships. The Court below appears to have applied itself almost exclusively, if not exclusively, to the question arising upon the construction of the two instruments,—the minute of the 20th of April 1810, and the subsequent minute of the 14th of May 1810, as referring to and regulating the relations

Page: 287 ↓

Page: 288 ↓

Page: 289 ↓

Page: 290 ↓

My Lords,whatever difficulty there may be in this first and fundamental question, I think, on the fullest consideration I have been able to give to that which alone the Court appears to have done, that I can have no difficulty whatever in coming to the conclusion at which their

Page: 291 ↓

Page: 292 ↓

I think nothing turns, at least nothing material, upon the circumstance to which suspicion has been attempted to be attached; namely, his not having resorted to Lord Mansfield for an explanation of whether it was one 20 l . or 20 l . per annum. It appears that a doubt had been presented to his mind, and it would have appeared to be suspicious that he had not resorted to Lord Mansfield, if that were not explained by his having received an assurance which ought to have satisfied him, and which did satisfy him, from the very person with whom he had contracted, Middlemiss, that he understood (and that surely was enough to satisfy Scott) that it was a yearly payment, as expressed in the first instrument. It appears to me, that the assurance of Middlemiss was quite sufficient to account for his not resorting to his Lordship.Then, as to the length of time during which he allowed the claim to run on without making a

Page: 293 ↓

Lord Wynford .—My Lords, I will add a very few words, in accordance with the opinion which has been expressed. I have had, from the beginning of this case, some fear lest we should be doing injustice; but if there is any risk that justice may not be done, we have been put into that situation by the course this cause has taken in the Court below. There are three questions,—one as to the interest, in which I entirely concur with my

Page: 294 ↓

Page: 295 ↓

“I admit only that Scott was to go to Scotland, and to have 20 l .;”

and if the noble defender had gone on and said that 20 l . had been paid him at the end of the first year, Scott would have had great difficulty in recovering for the subsequent years; but it appears that

Page: 296 ↓

“The first document produced bears date the 20th April 1810, and in which it is stated that the pursuer is to have an allowance of 20 l . per annum. The other document is dated nearly a month after, namely, on 14th May 1810. It bears no reference to the preceding agreement.”
This is all argument. Then he says, “It does not state that the pursuer is to have 20 l . a year over and above his wages, but only that, as an

Page: 297 ↓

“It is agreed between Andrew Middlemiss, for Lord Mansfield, and “Ralph Scott, that Ralph Scott is to go to Scone, to superintend the hay harvest,”—that he was not bound to do by the first—“to bind hay, and instruct others in that process; that he is also to be employed as hedger, to have the care of the fences upon Lord Mansfield's farm, and of the fences of such tenants as do not

Page: 298 ↓

Page: 299 ↓

Page: 300 ↓

The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed.Solicitors: Spottiswoode & Robertson— Moncreiff, Webster,&Thomson, Solicitors.