Scottish Court of Session Decisions

Lord President.—The pursuers here are the Edinburgh and District Tramways Company, and the defender is an advertising contractor. The Edinburgh Tramways Company are the successors of the Edinburgh Northern Tramways Company, and the defender had in the early days of the tramway enterprise a contract for advertising upon the tramway cars. Eventually he entered into a standing contract, which was dated in January and February 1898, under which the parties still are. That contract provided that the defender should have the exclusive right of advertising upon the cars for a fixed yearly rent, and it made particular stipulations as to what portions of the cars the defender was entitled to cover with his advertisements. The advertising was to be done partly on the windows and partly on the railings at the sides and top of the car, and there were minute stipulations as to the sort of advertisement that could be there displayed. I do not mean the character of the advertisements as advertisements, but I mean the method by which the lettering was to be devised, and in particular it was, among other things, stipulated that the advertisements on the top on the outside should be printed on wooden boards or on enamelled iron plates attached to wooden boards affixed to the supports of the hand-rail and to the gate panels and respectively, and were not to be above a certain size. Just previous to this contract there was a transition state in the history of the tramways. The Company were the successors of the Northern tramways company, and were running as such what I may call the original line of cable tramways in Edinburgh; they were also the successors of the other Tramways Company, which had originally been a horse company, and the whole system was in process of being cabled. Accordingly in connection with that a great many new cars were being ordered by the Tramway Company. Now, when these new cars were turned out they were rather different in shape and size from the old cars, and in particular they had round them at the top a board which fulfilled the useful purpose of being what some of the witnesses called a decency board, and also no doubt served purposes of safety, because it would prevent a child slipping through the somewhat wide bars, and would also prevent persons putting out a foot per incuriam and getting it caught by passing tramway cars. These new cars also had what I may call a fillet at the top of the window neatly dividing off precisely the amount of space which was to be dedicated to advertising purposes, and allowing the advertisement in the window—the glass bearing the advertisement—to be affixed by a simple process of nailing a small beading to the fillet.

Now, the present action is raised by the Edinburgh Tramways Company in 1907 for the additional cost of these boards upon the outside and this fillet arrangement upon the window. It was originally rested upon an averred agreement said to have been entered into between Mr Pitcairn, the general manager of the Tramway Company, and the defender, under which agreement as alleged the defender had promised to pay for these outside boards and for the fillets. The Lord Ordinary has found, and I think he is clearly right, that no such agreement was proved. It is not at all likely that there should be such an agreement when, soon after its alleged date, we find the formal agreement containing such minute stipulations and yet making no mention of this matter. There is no writing, and even Mr Pitcairn himself in his evidence really does not face up to anything like a proof of the agreement. Counsel for the pursuers felt that they really could not waste your Lordships' time by trying to maintain that the agreement had been proved. Accordingly, any so-called agreement goes by the board. But then, say the pursuers, and here the Lord Ordinary has been with them, we are entitled to something in the name of recompense. The Lord Ordinary has allowed a certain sum in name of recompense. There is the initial difficulty in the Lord Ordinary's interlocutor, that he has allowed more in the name of recompense than is concluded for in the conclusions of the summons. I merely mention that, because in the view I take it does not matter. But the claim has been allowed upon principle. I have been entirely unable to see that there is room here for a claim under any such head whatsoever. The sort of way in which it is pleaded is this: It is admitted that there was no agreement to this effect, but it is said that there was an honourable understanding. I really do not understand in law what an honourable understanding is. It is either an agreement, or it is not. But of course I can understand that there may have been a mistaken but still bona fide idea upon the pursuers' part as represented by Mr Pitcairn that they had made a bargain which in fact they had not, and upon that, of course, Mr Pitcairn may have taken certain steps. The steps he is said to have taken are that he ordered these boards and fillets. Taking it at that, I still fail to see how there is any claim for recompense.

I do not think it is possible—it certainly would not be easy—but I do not think it is possible, to frame a definition of recompense which shall by itself in terms at once include all classes of cases which fall within the doctrine and at the same time successfully exclude those which do not. A very much greater framer of definitions than any of us can hope to be—Mr George Joseph Bell—tried it, and I am afraid that he failed, because there is no question that the definition of “recompense” in Bell's Principles will not do. I took the trouble to look through the old editions to see where exactly it came in. It is not exactly as it is in the first edition, but it appears under “ameliorations” in the second edition, and I think if one could have got Mr Bell back again to ask him, that he would not have been very pleased with his own definition, because in the second edition and in the later editions he makes a start with what he calls “exceptions,” but these are not proper exceptions—exceptions, in the proper sense of the word, to a general rule—for they do not indicate a certain class of cases, but they are simply individual instances which will not fit the rule. Well, of course, if you have a rule and find so many individual instances which do not fit it, and which do not range themselves into classes, that is just as much as to say that it is a bad rule. That it is a bad rule is quite certain. That does not rest upon my dictum, but it is rested upon the decided cases in this Court. There are at least two or three cases which have been decided that will not square with Mr Bell's rule, which is so widely expressed that if anyone gets a benefit by something that is done by another person without the intention of donation he is at once subject to recompense. I put the illustration in the argument, which I think is apt enough. One man heats his house, and his neighbour gets a great deal of benefit. It is absurd to suppose that the person who has heated his house can go to his neighbour and say,—“Give me so much for my coal bill, because you have been warmed by what I have done, and I did not intend to give you a present of it.” If you take decided cases, there are the case of Stewart v. Stewart the case of Rankin, and the case of Buchanan, all of which are instances which go dead in the teeth of Mr Bell's rule. That being so, the truth is that it is an equitable doctrine, and the basis of the equitable doctrine, I think, lies upon the old brocard nemo debet locupletari ex aliena jactura. I notice that that is the basis of Pothier's definition of it, his definition being really practically no more than a translation of the brocard.

The result is, of course, that each case must be judged of by its own circumstances. But there are certain marks or notes of the situation in which recompense is due, and I think that one mark or note is that the person who claims recompense must have lost something. That is contained in the idea of “jactura.” Now, I find that the case here fails when that test is applied to it, because I do not see that the Tramway Company have lost anything. I put it to Mr Wilson, and he answered with very great frankness that he had not been able to find any case where there was a claim for recompense allowed for something which a person had done upon his own property. When a person does something on somebody else's property, in the mistaken idea, it may be, that it is his own, then the jactura is obvious enough. He has expended money, or something else, which has passed into other persons' property. But here nothing has passed. The boards and the fillets remain just as much portions of the tramway car as they had been all along. The power of dominion over them remains with the pursuers. If they do not like them they may take them away, and therefore there is here a great deal of analogy between the present case and the case of Stewart. The boards and the fillets are quite as much used by the pursuers as they are by the defender. As regards the boards upon the outside, the statement is made, and it is not contradicted, that not only are they useful in themselves in the way I have described, but as a matter of fact the Board of Trade would not allow tramway cars to run if they had not got them. Anyway, so far as one can judge by what is called common knowledge, these boards are always seen on tramway cars. In the same way, in regard to the fillets, they certainly make the windows a great deal neater than if advertisements were put in one window and none in the other, making the two windows apparently of different sizes. So there, again, you have the same element that went to the decision of some of these cases, that the thing done was as much for the benefit of the man who did it as for that of the other person.

But I am bound to say that my whole difficulty, if I had any, was dispelled when I came to see the correspondence which began in 1900. Now, the action was raised in 1907, but the original claim was made in 1900, and the moment the claim was made it was at once repudiated, and the attitude taken up by the defender seems to me to be perfectly correct. He said at once:—“You are bound to have these boards upon the outside, and as they are there I can hang my advertisements to them.” In a subsequent letter he even goes so much by the card, if I may use the expression, that he says:—“Well, if you want particularly that I should follow precisely the term of your contract, which says that I am bound to supply boards as well as plates, if you like I will put a board on your board and then a plate on the board. But,” he says, “if you do not like that, take away your board, and I will put up a board which will cost me very much less money and that will perfectly satisfy me.” In the same way he originally made a more than fair offer with regard to the fillets, to the effect that inasmuch as the fillets gave him something to attach the beading to which he otherwise would not have had, or, in other words, allowed him to use a more slender beading, he made the pursuers an offer of a sum of money. That was not accepted, and I think the result is that the attitude taken by the defender at that time was perfectly right, and once for all puts an end to any idea of recompense.

Upon the whole matter I confess I have no hesitation in coming to the result that here there is no relevant claim for recompense, because the facts do not raise it, and that accordingly, contract also having failed, the defender ought to be assoilzied.

Lord Kinnear.—I am of the same opinion, and have nothing to add.

Lord Mackenzie.—I concur.

LORD M'LAREN and LORD PEARSON were sitting in the Extra Division.