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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v. M'Bain (Thomson's Trustee) [1888] ScotLR 26_217 (12 January 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0217.html Cite as: [1888] ScotLR 26_217, [1888] SLR 26_217 |
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Page: 217↓
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A long period of service raises a presumption that remuneration therefor was intended even although there was no agreement for wages.
A father lodged a claim in his son's sequestration, averring that he had served his son as vanman for seven years without receiving wages. It was admitted that there had been no agreement for wages. The trustee rejected the claim as collusive. On appeal, the Court recalled the trustee's deliverance, and allowed the claimant a proof of his averments as to the circumstances connected with the constitution of his alleged debt.
On 16th January 1888 Donald Thomson, merchant, Fearn, Ross-shire, granted a trust-deed for behoof of his creditors, and on the same day he granted a promissory-note for £160 in favour of his father Donald Thomson senior, and also a holograph acknowledgment that he was indebted to his father in this sum, being the amount of eight years' wages for his services as vanman. Donald Thomson senior lodged no claim under this trust-deed.
The attempted settlement under the trust-deed having fallen through, sequestration of the estates of Donald Thomson junior was obtained on 13th April 1888, and George M'Bain junior, C.A., Aberdeen, was appointed trustee.
Donald Thomson senior claimed in the sequestration. The trustee, on the ground that it was a collusive claim, rejected it.
Against this deliverance Donald Thomson senior appealed, to the Sheriff of the Lothians and Peebles.
In his examination the bankrupt said—“I assisted in maintaining my father since I started business; my sister also contributed. My father lived with me till about three or four months ago. He acted as my vanman, but I gave him no wages, merely his meat and clothing. I never agreed to give my father wages.”
In the minute lodged in the appeal the appellant averred, inter alia, that he was employed for eight years by the bankrupt as his vanman. Had he not so acted the bankrupt would have required to employ another assistant, and to pay him wages. He had rendered the service, but had received no wages, and long prior to February 1888 the present claim had not only been made, but had been admitted and arranged by the bankrupt.
The respondent (the trustee) averred that the claim was not lodged until sequestration proceedings were commenced. The appellant was just in the natural position of being maintained by his son, and partly in return for such maintenance, and partly to occupy his leisure time, he drove the van.
Page: 218↓
The appellant pleaded—(1) That as he had rendered services he was entitled to recompense, and this not having been given him, he was entitled to claim for the same.
The respondent pleaded—“(1) The respondent having already fully examined the documents and circumstances, which very clearly disclose the facts of the case, further proof is unnecessary. (2) The claim of the appellant being a collusive one, the appeal should be dismissed with expenses.”
The Sheriff-Substitute ( Hamilton) on 3rd December 1888 dismissed the appeal, and affirmed the deliverance of the trustee.
Donald Thomson senior appealed to the Court of Session, and argued—That the trustee had throughout acted without due deliberation, and in the absence of any evidence he had decided that the appellant was a conjunct and confident person. Before the present claim was rejected there ought to be inquiry— Anderson v. Halley, June 11, 1847, 9 D. 1222; M'Naughton v. M'Naughton, 1813, Hume's Dec. 396; Fraser on Master and Servant, p. 44; Ritchie v. Balgarnie, January 14, 1875, 2 R. 297; Jones v. Jones, January 25, 1888, 15 R. 328.
Argued for the respondent—There was nothing incompetent in what the trustee had done. A contract of hiring had been averred. Wages were claimed as due, but no effort had been made to prove the contract, and looking to the relationship of the parties, the trustee had done rightly in rejecting this claim as collusive— Ritchie v. Ferguson, November 16, 1849, 12 D. 119. A contract of employment did not necessarily involve a contract of wages. Here food and clothing were given for services rendered, and this was accordingly a case of presumed discharge— Russell's Trustees v. Russell, December 11, 1885, 13 R. 331.
At advising—
The question, however, remains, whether enough has not been averred in this record to entitle the appellant to a proof. The appellant is the father of the bankrupt, and for seven years he alleges that he has acted as vanman to the bankrupt without receiving any wages. Now, the law in such cases is, I think, very correctly laid down by the Lord President in the case of Anderson v. Halley, 9 D. 1222, and following upon that decision it is quite clear that if the averments of the claimant are made out he will be entitled to wages. I am therefore for allowing the appellant a proof of his averments, the proof to take place before the Sheriff.
Under section 126 of the Bankruptcy Act the trustee might in so small a matter have taken the evidence himself. He has not done so, and the case has already been before the Sheriff, and accordingly I agree with your Lordship that any inquiry which is to take place should be taken in the Sheriff Court.
The Court recalled the interlocutor appealed against, and remitted to the Sheriff to allow a proof.
Counsel for the Appellant— Goudy. Agent— T. M'Naught, S.S.C.
Counsel for the Respondent— G. W. Burnet. Agents— Waugh & M'Lachlan, W.S.