Scottish Court of Session Decisions

William Douglas Fairbairn, veterinary surgeon, sold to W. Williams & Son, New Veterinary College, Edinburgh, the goodwill of the business of veterinary surgeon and farrier carried on by him in Edinburgh, by disposition and assignation of 27th June 1895, and at the same time bound himself “not to practise or start business in Edinburgh as a veterinary surgeon or farrier for at least the space of five years from and after the 29th June 1895.”

In May 1899 W. Williams & Son presented in the Bill Chamber a note of suspension and interdict against Fairbairn, in which, founding on the obligation quoted above, they averred—“(Stat. 3). In breach of the said obligation the respondent has recently commenced to practise as a veterinary surgeon in Edinburgh in the employment of Messrs Colin C. Baird & Son, veterinary surgeons there. The complainers believe and aver that his remuneration in Messrs Baird & Son's employment consists in whole or in part of a share of the profits of their business of veterinary surgeons in which he is employed by them. The respondent has recently canvassed a number of his old customers who were in the habit of employing him before he sold his business to the complainers, and who thereafter employed the complainers, with a view to inducing, and has thereby induced, them to transfer their employment from the complainers to Messrs Baird & Son.”

The complainers pleaded—“(1) The proceedings complained of being in breach of the respondent's obligation not to practise or start business in Edinburgh as a veterinary surgeon or farrier, the complainers are entitled to suspension and interdict as craved. (2) The complainers are entitled to interim interdict.”

The respondent's answer to Statement 3 was in these terms—“Denied respondent has commenced to practise, and that he gets remuneration by a share of profits. Explained that he is simply a servant in receipt of a weekly wage and board.

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Denied that he has canvassed any of his old customers, or that even one of them has come to Messrs Baird since he entered their employment.”

The respondent pleaded—“(2) On a sound construction of the obligation contained in the disposition and assignation founded on, it prevents the respondent only from practising as a principal on his own account, and does not strike against his acting merely in the position of a servant. (4) In any event, the note should only be passed on caution.”

On 18th May the Lord Ordinary ( Pearson) passed the note and refused to grant interim interdict.

The complainers reclaimed, and argued—The Veterinary Surgeons Act 1881 (44 and 45 Vict. cap. 62), sec. 17, imposed a fine on anyone not duly qualified as adveterinary surgeon, who acted in that capacity, and incapacitated such person from suing for fees. The profession of veterinary surgeon was therefore one requiring special qualification, and the respondent, acting in that profession, though in the service of another, could not be heard to say that he was not carrying on business.— Palmer v. Mallet, July 13, 1887, L.R., 36 Ch. Div. 411.

Counsel for the complainers produced at the hearing two certificates signed by the respondent as a veterinary surgeon with reference to the condition of certain horses professionally examined by him.

Argued for the respondent—Obligations in restraint of trade were to be very strictly construed. The negative obligations of the agreement “not to practise” and not to “start business” were exegetical of one another, and did not strike at earning a living as a servant. Palmer v. Mallet was in the respondent's favour; the question decided in that case was one of the intention of parties in using the words “set up or carry on”—Justice Chitty, p. 415. The agreement in question in this case, when considered with reference to the intention of parties was to be interpreted in favour of freedom.