Edinburgh & District Tramways Company Ltd v Courtenay
| Jurisdiction | Scotland |
| Judgment Date | 29 October 1908 |
| Date | 29 October 1908 |
| Docket Number | No. 21. |
| Court | Court of Session |
Ld. Johnston, Lord President, Lord Kinnear, Lord Mackenzie.
RecompenseOperations in Suo.
A tramway company let the right of advertising on their cars to an advertising contractor, under a contract by which the advertising contractor undertook to supply the necessary fittings for holding the advertisements. New cars were, however, constructed for the company, which, as constructed, were already supplied with the fittings required for holding the advertisements, and these fittings were utilised by the contractor for that purpose. The fittings were also of use or ornament to the cars themselves. Held (rev. judgment of the Lord Ordinary, Johnston), that the company were not entitled to recompense from the contractor for the use of the fittings, in addition to the rent under the lease.
Observations on the law as to recompense.
In this action the Edinburgh and District Tramways Company, Limited, pursuers, sought payment from James Watts Courtenay, advertising contractor, defender, of (1) the sum of 279, 7s. 6d., the cost of the beadings or frames fitted to the insides of the windows of the cable cars belonging to the pursuers for the purpose of enclosing advertisements; (2) or, alternatively, of the sum of 130 as recompense for the use of the said headings and frames by the defender; (3) of the sum of 856, 2s. 6d. the cost of wooden boards affixed to the supports of the handrails of the pursuers' cable cars; (4) or, alternatively, of the sum of 390 as recompense for the use of the said boards by the defender.
By a contract, dated 29th January and 1st February 1898, the pursuers (therein called the first party) let to the defender (therein called the second party) the exclusive right of placing advertisements on their cars. By the contract the defender's right of placing advertisements on the cars was limited to (1) the inside of the side windows of the first party's cars and buses on a space 61/2 inches in depth measured from the top of the windows to the upper edge of the beading after mentioned; (2) to the handrails at the sides and ends of the roofs of the cars; (3) to the gate panels; and (4) to one window at opposite ends on each side of the car. It was also provided in the contract: (Second) The advertisements on the inside of the windows, excepting the temporary bill advertisements, shall be on coloured glass or gelatine transparencies, or such other substances as may from time to time be sanctioned by the first party, and shall be enclosed by a beading of such width and design as may be approved by the first party. The space on each pane may also be divided vertically into two equal portions by a similar beading. The glass transparency or other substance on which the advertisements are placed may be attached to the window frames of the cars or buses, but so as not to injure the wood, iron, glass, or paint work of the cars or buses, or to cause noise or vibration, or in any way interfere with the comfort of the passengers: (Third) The advertisements to be placed outside the cars and buses, including those on the gate panels, shall be painted on wooden boards or on enamelled iron plates attached to wooden boards affixed to the supports of the handrail and to the gate panels respectively, which boards duly painted, or boards and plates, shall be supplied by the second party, and shall not extend longitudinally beyond the handrails or downwards beyond the upper edge of the car roofs, and shall be so placed as to leave a clear space of not less than 21/2 inches below the upper handrail. Such boards or plates shall be maintained in proper condition and repair by the second party at the sight and to the satisfaction of the first party's general manager for the time being.
New cars had been constructed by the Company, which already contained fittings that were utilised by the defender for his advertisements, and it was in respect of the fittings on these cars that the present action was brought.
A proof was allowed and led, the main facts established at which will be found narrated in the opinion of the Lord President.
On 18th December 1907 the Lord Ordinary (Johnston) pronounced the following interlocutor:(1) Decerns against the defender for payment to the pursuers of the sum of 169,17s. 6d. sterling, with interest thereon at the rate concluded for from the date of citation till payment, in full of the sum sued for in the first conclusion of the summons; (2) decerns against the defender for payment to the pursuers of the sum of 427, 10s. sterling, with interest thereon at the rate concluded for from the date of citation till payment, in full of the sum sued for in the third conclusion of the summons: Finds the pursuers entitled to expenses.*
The defender reclaimed, and the case was heard in the First Division on 27th and 28th October 1908.
Argued for the defender and reclaimer;The Lord Ordinary's interlocutor was right in so far as it repelled the claim on contract, but was wrong in regard to the claim for recompense. The cars on which the boards and frames were placed were the property to the pursuers, and a claim for recompense would not lie where the operations in respect of which the claim arose were in suo.1 Further, in this case it was proved that the boards and frames were integral parts of the cars, and had been placed on the cars for the pursuers' own convenience.
Argued for the pursuers and respondents;Although the case on contract had not been proved, yet the claim for recompense had rightly been sustained by the Lord Ordinary. The defender had had the benefit of the boards and frames supplied by the pursuers, and this fact
was sufficient to entitle the pursuers to recompense.1 The case of Buchanan v. StewartSC2 was decided on the ground that the heritable creditor against whom the claim was made had not been benefited by the operations, and therefore that decision was not applicable to the present case. [The Lord President referred to Rankin v. WitherSC.3]
At advising on 29th October 1908,
Lord President.The pursuers here are the Edinburgh and District Tramways...
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