ROBERT HARKINS v ROBERT SMITH (Court of Session)

Harkins likewise ‘engaged, and became bound, not to connect himself, directly or indirectly, in any other business whatever, during the foresaid space of five years; but that he shall, during said period, devote his whole time and energies to further and promote the interest and advantage of the said Robert Smith's business aforesaid.’

In virtue of this agreement, Harkins gave up his place of business in favour of Smith; and, of the same date as the agreement, entered into his employment, as manager, in conducting his singeing works. On the 11th of November thereafter, Smith entered into partnership, in regard to the said business, with his sons, Alexander and Robert, and his son-in-law, Mr Rankine; and, on the same day, Harkins left the service. He received payment from Smith of the proportion of his salary which had become due at this period, viz. L.18: 12: 7.

On appeal, the Sheriff adhered to the interlocutor, with this variation, ‘that the sum decerned for is hereby declared not to be for damages, but such an aliquot part of the total sums concluded for, in name of wages, as to the Court appears reasonable in the whole circumstances of the case.’

The respondent pleaded —1. Under the contract libelled on there was a clear dilectus personarum , in virtue of which neither of the parties was entitled to introduce into the business any other party, without mutual consent. 2. The engagement of the respondent being exclusively to serve the advocator, and not any other partner or partners whom he might assume, the respondent was not bound to work under the arrangement which was formed subsequently to the date of said contract.

The Lord Ordinary, (16th December 1840,) sustained the reasons of advocation, advocated the cause, and assoilzied the defender; finding him entitled to expenses, both in this and in the inferior Court .