Robb v Green
| Jurisdiction | England & Wales |
| Date | 1895 |
| Year | 1895 |
| Court | Queen's Bench Division |
Master and Servant - Implied Obligation of Servant - Improper use of Information obtained during Service - Liability of Servant.
The defendant, being employed by the plaintiff as manager of his business, secretly copied from his master's order-book a list of the names and addresses of the customers with the intention of using it for the purpose of soliciting orders from them after he had left the plaintiff's service and set up a similar business on his own account. Subsequently, his service with the plaintiff having terminated, he did so use the list:—
Held, that it was an implied term of the contract of service that the defendant would not use, to the detriment of the plaintiff, information to which he had access in the course of the service, and therefore that the defendant was liable in damages for any loss caused to the plaintiff by reason of the breach of that term.
ACTION tried before Hawkins J. without a jury.
The following statement of the facts is taken from the judgment of the learned judge:—
This action was brought to recover damages against the defendant, who had been in the service of the plaintiff, a tradesman, but who had left him and set up in a similar business on his own account, for improperly soliciting his late master's customers to transfer their custom to himself, and for taking during his service, in breach of his duty and in violation of his contract of service, copies from his master's order-book to facilitate his own solicitations, and using them for that purpose to his master's detriment.
The facts, as I find them to be, are as follows:—
The plaintiff, Robb, was a dealer in live game and eggs. The chief part of his business consisted in procuring the eggs, and in the hatching, rearing, and sale of game birds. For the carrying on of such business he occupied what were called game farms at Liphook in Hampshire, and at Elstead near Godalming. He had carried on that business since the year 1881. At these farms he had been accustomed to keep a large stock of upwards of 5000 laying pheasants, and had sold in one year as many as nearly 150,000 pheasants' eggs. He supplied also live pheasants, as well for shooting as for stock purposes. His customers were numerous, and for the most part were country gentlemen and their keepers, whose residences and estates were spread over England, Scotland, and Wales; and their names and addresses were collected together in his order-book.
In 1890 the plaintiff was desirous of engaging a manager, and, towards the end of July in that year, he had an interview with the defendant at the St. Stephen's Club, when he explained the nature of the business of a game farm, and the care and responsibility it involved; and having informed the defendant that he had works on the premises where he made all his own plant such as pens, coops, &c., he stated that of course he relied on the defendant not to impart any information about the construction of such plant, and above all not to talk about the business done by the farm, and to treat everything in connection with the farm in strict confidence. Nothing, however, was settled on that day. On July 31 the plaintiff wrote to the defendant as follows:—
“I have not yet signed the lease of the farm, but I think there is no doubt but that I shall continue to hold it as I have done up to now, and for a farther term of twenty-one years. I have not yet spoken to my present manager about the proposed change.
“So that all may be quite clear I propose writing the exact terms as I think you understood them, and shall be glad to hear from you whether you feel inclined to accept the post. I also think I made it clear to you where my present manager has failed, and where it is that I feel a want of confidence in his management. These terms were for the first year, or say from the time you took over the management till December 31, 1890, that your remuneration was at the rate of 100l. per annum with use of cottage free of rent. Should your management be satisfactory and you feel that you wish to continue, I would give you 100l. per annum and a share amounting to 10 per cent. in the profits resulting from your management; i.e., on all profits over and above the profits shewn on the balance-sheet for 1890. The cottage to be then rented at 20l. per annum.
“I will wait before speaking to my present manager till I hear from you, when perhaps you will kindly let me know how soon you can arrange to come.”
To this the defendant replied on August 2 as follows:—
“I thank you for your letter of the 31st July. I beg to say that I have now had time to reflect on it, and also on what you said last Sunday, and that I am now prepared to accept the post upon the terms stated, with one exception, that I shall receive a minimum salary of 100l. per annum irrespective of rent, which I propose for you to deduct out of any commission arising from my share in the business and not from my salary.
“My sister has agreed to come and live with me after a time, and I shall, therefore, be able to get my house furnished.
“I shall be able to come on September 1st, but should you wish me to come at an earlier date, I must arrange to do so.
“I should like to have my money once a month, if not inconvenient to you.
“I assume that the rent of cottage includes all rates and taxes.
“I took good notice of where your present manager had failed, and I feel perfectly sure that I shall not only be able to master his failings, but that you will find me capable of looking after your interests in every way.
“I might add that the gentleman with whom I am now has offered me a very greatly increased prospective salary if I would stay on with him, but I decline to do so for several reasons.
“N.B. — Kindly let me have an answer by return.”
And, on August 6, the plaintiff closed the correspondence, so far as related to the contract, by a letter to defendant of that date:—
“I duly received your letter. I am sorry I did not make it clear in my last that I did not propose deducting the 20l. for the cottage from your salary of 100l. It would, therefore, come off the increase in your salary arising from any increased profits, thus assuring you a minimum of 100l. per annum. I have now told my manager, and am this week advertising for a situation for him; I have told him he can keep the cottage till Michaelmas, if he can't get suited sooner, but I shall be quite ready for you early in September. Would Monday, September 1st, suit you? On hearing from you, I will arrange to get a room for you at the Inn near my place.”
The defendant was accordingly engaged, and in September, 1890, entered the plaintiff's service as his manager.
The defendant in his evidence stated that the only terms agreed on were those contained in the three letters I have referred to, and that nothing was said as to the names of the plaintiff's customers, nor about keeping their names secret or confidential. I accept, however, the plaintiff's version of the conversation, if it be material. Nothing further touching the matters now in question occurred until the month of August, 1893. In the meantime the defendant had acted as manager of the plaintiffs business, and as such had access to his books, and, among them, to the order-book above referred to. That the plaintiff reposed great confidence in him until the discovery of the misconduct complained of is very certain. This the defendant acknowledged in a letter of August 22, 1893.
On November 22, 1893, the defendant gave to the plaintiff notice that, at the end of that year, he should consider the agreement between them at an end, and that notice was duly accepted; and so with the year 1893 terminated the service of the defendant with the plaintiff.
In March, 1894, it came to the knowledge of the plaintiff that the defendant was carrying on a similar business to his own at what the defendant described as “The Game Farm, Henley.” An advertisement of it appeared in the Field of March 3, 1894. When that game farm was first established does not very clearly appear; but, if the defendant's announcement upon a pictorial price list is to be accepted, it was in the year 1893, although according to the defendant's account it was not until February 19, 1894, that he entered into the agreement under which he obtained possession of it. The possession of the farm was speedily followed by two circulars (undated), addressed respectively, one to a great number of the plaintiff's customers whose names and addresses are comprised in the order-book, and the other to gamekeepers whose names and addresses were also in the order-book, but who had sent their orders without giving the names of their masters. The names and addresses in the order-book had been copied from that book into a list by the defendant, whilst in the service of the plaintiff, clandestinely, without his master's knowledge or authority, and for the purpose of using it to solicit his master's customers to give their custom to him.
The circular to the customers was as follows:—
“The Game Farm, Henley.
“Sir, — I have the honour to inform you that after several years' experience as manager of the Liphook Game Farm, I have purchased and taken over this well-established business. I enclose my list of quotations for the coming season in the hope that my terms being so reasonable you will extend the favour of your orders to me. My knowledge of the business being extensive you can rely on my adopting every modern improvement to obtain the best results. I am now using Portable Pens for the Pheasants during the laying season, and by a constant change of pasture I hope to greatly improve the healthy generating power of the eggs.
“Awaiting the favour of your commands,
“I beg to remain,” &c.
To the keepers the circular, giving the same address, ran thus, the language being altered to suit the intelligence of the person to whom it was addressed:—
“The...
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