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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Portobello Pier Co. v. Clift [1877] ScotLR 14_344 (10 February 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0344.html
Cite as: [1877] SLR 14_344, [1877] ScotLR 14_344

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SCOTTISH_SLR_Court_of_Session

Page: 344↓

Court of Session Inner House First Division.

[Sheriff of Midlothian.

Saturday, February 10.

14 SLR 344

The Portobello Pier Company

v.

Clift.

Subject_1Contract
Subject_2Assignation
Subject_3Certificate and Licence.
Facts:

By contract of service A agreed with a pier company, his employers, to apply for a certificate and licence for the sale of liquors, which he was taken bound to assign to any one whom the directors of the company should require. It was further provided in the contract that either party should be at liberty to put an end to the agreement on giving notice of one month. A was dismissed summarily, and the pier company presented a petition to the Sheriff praying that he should be ordained to assign the certificate and licence to a person named by them.— Held (1) that A could not be called upon by the company to assign the certificate to their nominee, but that they were entitled to have the certificate and licence delivered to them without an assignation; and (2), [ dub. Lord Shand] that the company laving mistaken their remedy were liable in expenses.

Headnote:

On 2d May 1876 a contract was entered into between the Portobello Pier Company and Henry Clift, whereby the latter agreed to act as pier-master and manager of the refreshment rooms at the end of Portobello Pier, the property of the former. The engagement was to date from 17th May 1876, on which date Clift began his duties. In terms of the contract he applied for a certificate and licence for the sale of liquors, which was granted, the cost being paid by the Pier Company. He remained in their service until the 27th June following, when he was summarily dismissed.

This was a petition to the Sheriff of Midlothian by the Pier Company against Clift, setting forth the terms of the contract, and particularly that under it Clift was taken bound to assign to such person or persons as the petitioners, through their directors should require, the certificate and licence which he held. He had refused to do so, whereby the petitioners averred that they had sustained, and were daily sustaining, damage through their inability to carry on the business of restaurateurs at the refreshment-rooms. The petitioners prayed that the respondent should be ordained to assign and deliver the said certificate and licence to and in name of Donald S. Fraser, No. 5 South St Andrew Street, Edinburgh, who has been appointed restaurateur in room of the respondent.

The respondent lodged a minute of defence denying the averments made, and pleading—“(1)

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The petitioners' statements are not relevant or sufficient to support the prayer; (2) the application is incompetent; (3) the respondent having been improperly dismissed, is not bound to assign the licence; and (4) it is contrary to public policy that the prayer of the petition should be granted.”

In the agreement it was provided that either party “shall be at liberty to put an end to the agreement on giving notice of one month.”

The Sheriff-Substitute ( Hallard), inter alia, found—“That on 27th June last the petitioners dismissed the respondent without such notice: Finds that in default of any justification of this step, the same must be held illegal, and a violation of the contract between the parties: Finds that the petitioners, being in breach of one part of their engagement, are not entitled to enforce against the respondent another part thereof: Further, et separatim, finds that the engagement between the parties not having been brought to a close habili modo, the same must be held as subsisting, as also the respondent's right to hold and retain the certificate and licence in question as an incident thereof: Therefore sustains the defences,” &c.

The petitioners appealed to the Sheriff ( Davidson), who “finds that the respondent has been dismissed from the service of the petitioners, and that he is bound to assign the certificate and licence which he obtained as their servant to such person or persons as they may require: Therefore decerns and ordains the respondent forthwith to assign and deliver the said certificate and licence as craved,” &c.

The respondent appealed to the First Division.

At advising—

 Judgment:

Lord President—If after Clift had been dismissed by the Portobello Pier Company they had in simple terms required him to hand over the certificate under which he was entitled to sell drink in their premises, I should have thought they would have been entitled to make that demand. I agree in the contention that when a person in the position of a servant leaves his service, no matter under what circumstances, he is bound to leave behind him whatever is the property of his master. I think this certificate was the property of the Pier Company, in the sense that it was held in Clift's name on their behalf. But they have mistaken their course, and have presented a petition under which they cannot obtain decree. I am of opinion that the Sheriff has committed a mistake in ordaining Clift “to assign the certificate and licence …. to such person or persons as they may require.” Such a certificate is not assignable. The only way in which it can be transferred is by the act of the licensing magistrates, just as some kinds of property may be transferred by the act of this Court when it cannot be assigned. This petition states that the petitioners have an absolute right under the contract to have the certificate assigned. No doubt under the contract there is an obligation to do so. If Clift could be held specially bound to assign, he must have done so if he could. But there was a good deal of weight in the argument that that being a special provision of the contract the master would not be entitled to ask implement of it while at the same time he breaks his part of it. But, in any case, I do not think the respondent could assign the certificate, which was the property of the Company.

But I think the Company are entitled to have delivery of the certificate without getting an assignation of it. I am therefore disposed to advise your Lordships to pronounce an order for the delivery of this certificate. But inasmuch as the Company have mistaken their remedy, I think they must be found liable in expenses.

Lord Deas—I am very much of the opinion expressed by your Lordship. If we were in a position to go into all the arguments and statements which have been made at the bar, the result might perhaps be different. But I hope that the proposed judgment will not have the effect of landing the respondent in an action of damages, where the whole facts would necessarily be brought to light. At present we must confine ourselves strictly to what is brought judicially before us. All that is said is that the Company dismissed Clift without giving him the month's notice to which he was entitled. They say they did so for fault, but there is no allegation of that kind before us. We have no means of ascertaining whether he was dismissed legally or not. Upon the statements before us, he was dismissed illegally. It does not, however, follow that a servant illegally turned out of his employment can be called upon to execute a deed or fulfil an obligation undertaken under a contract of which there has been a breach upon the other side.

I think the Sheriff's interlocutor cannot be supported, and for the reasons stated by your Lordship I agree upon the matter of expenses.

Lord Mure—If the Pier Company had merely asked for delivery of the certificate, they would have been entitled to get it. But I am not prepared to differ from your Lordships in thinking that the prayer of this petition, as framed, cannot be granted. It was not in the power of Clift to assign the certificate. The magistrates might possibly have done so. I agree that the Company must pay expenses.

Lord Shand—I concur in the result at which your Lordships have arrived. When the respondent applied for a certificate it appears to me that he did so practically as the servant of the Company, and accordingly that the certificate became the property of the Company although Clift no doubt incurred responsibilities under it. But if the Company had given him the month's notice stipulated for, it is clear he would have had no right to retain it. It is quite true that no assignation could be effectual and complete without the sanction of the licensing magistrates. But if the parties thought that the transfer of the certificate would be facilitated by the form of an assignation, I think it was a perfectly competent stipulation on the part of the employers that an assignation should be granted. And I think the form was not unreasonable when it is considered that the magistrates do not grant a new certificate in such a case, but a transfer of the old one. The deliverance, however, which your Lordships propose will serve all the purposes of an assignation.

Assuming that the pursuer was entitled to a month's notice of the termination of the contract, I do not think it makes any difference in this question that the agreement was terminated on a day's notice. The contract of service is peculiar in this respect, that although a party may have stipulated for a month's warning, the master may from dislike or some similar reason dismiss the servant

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at once. In that case the servant has his claim for a month's wages, and it may be for board in addition, but he must leave and give up everything which is the property of his master. He is not entitled to remain in the house or office, or other premises of the master, against the master's will. It therefore follows that Clift was bound to leave the defenders' premises, and to give up everything which was their property, including the certificate.

If this petition had been framed so as to ask that the certificate and licence should be delivered up, I should have been inclined to grant the prayer of it. if an assignation had been asked, with the explanation that it would be used forthwith to have the licence transferred, I think the pursuers should have succeeded.

But the defect on the face of the petition as framed appears to be, that there is no statement or indication that Fraser is not to act upon the licence if assigned at once, and without any sanction being got by a transfer from the proper authorities. For aught that we see, Fraser might have used this certificate if assigned so as to have exposed Clift to penalties under the Act.

I am not disposed to differ from your Lordships' unanimous opinion on the question of expenses—although, looking to the defence maintained, substantially to the effect that the certificate was the property of the defender, I think the justice of the case would be met by finding no expenses due to either party.

The following interlocutor was pronounced:—

“Refuse the appeal, and decern; Find the appellants liable to the respondent in expenses, allow an account thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”

 Counsel:

Counsel for Petitioners— Campbell Smith. Agent— Thomas Lawson, S.S.C.

Counsel for Respondent— Kinnear— Young. Agent— W. N. Masterton, Solicitor.

 1877

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URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0344.html