CHEAPSIDE SYNDICATE LTD. vs. LEWIS [1961]DLSC873

Date	1961-06-01
Suit No.
Citation No.	[1961]DLSC873

LORD TUCKER JSC

LORD JENKINS JSC

LORD MORRIS OF BORTH-Y-GEST JSC

R. MILLNER FOR THE APPELLANT COMPANY

J. G. MONROE FOR THE RESPONDENT.

[1961]DLSC873
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&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]

[1961] GLR 11

DATE: 1ST JUNE, 1960.

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COUNSEL:&nbsp;&nbsp;

R.
MILLNER FOR THE APPELLANT COMPANY.

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LORD TUCKER, LORD JENKINS AND
LORD MORRIS OF BORTH-Y-GEST

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&nbsp;

Lord Tucker delivered the judgment of their Lordships. [His
Lordship. referred to the previous proceedings and continued:] No question
arises on this appeal with regard to the sum awarded for salary, the sole
question at issue is whether the plaintiff is entitled to any further relief in
respect of his claim to a share of profits. The defendants are a limited
company, trading as merchants in Accra. The plaintiff had for many years been
employed by the defendants as a district agent at a salary plus residential
accommodation. The record does not show what, if any, was the agreement as to
salary or how it was fixed.

It seems to have varied from £G400 to £G500 until the last year of
his employment when he was credited with £G700, but his salary is irrelevant to
any issue in this appeal which relates solely to his claim for a share of
profits in addition to salary. In September, 1948, the plaintiff approached Mr.
Francois, the defendants’ managing director, suggesting he should have a share
of profits instead of salary.

Correspondence subsequently passed between the parties and on the
15th October, 1948, the defendants, by their managing director, wrote to the
plaintiff a letter containing the following:

“The Cheapside Syndicate Ltd. offers you the following terms:— 1.
Quarters . . . 2. Passages . . . 3. Conveyance . . . 4. Emoluments. The company
offers you 33 1/3 per cent. of the net profits as shown at the close of each
financial year. Permission is given to draw up to £G500 before the figures for
the year are ascertained.

5. Net Profits. This will be ascertained on the basis of deduction
of all company working expenses and reasonable provision for bad or doubtful
debts from gross profits but will not include personal amount drawn by yourself
towards remuneration.

6. These terms specifically exclude the carving out of spheres of
activity on which to base percentage of profits. We hope you will find the
terms acceptable when an agreement embodying these and other usual terms can be
drawn up.”

No reply to this offer was received and on the 28th March, 1949,
the defendants wrote as follows:—

The company made you an offer
of revised working terms on 15 October, 1948. As there has been no acceptance
of the offer it is hereby withdrawn.”

It is common ground that at this date there was no agreement
between the parties for any alteration in the plaintiff’s remuneration but he
continued in the service of the company until his employment was determined on
the 8th February, 1950. It is therefore plain that in order to establish his
claim the plaintiff had to rely on something which occurred between the 28th
March, 1949, and the 8th February, 1950.

It is clear from the pleadings that the plaintiff did not rely at
the trial on any agreement between these dates. His claim in the writ was
originally based on contract in the following words: “both amounts claimed for
salary and share of profits being due under the said defendants’ agreement of
employment of the said plaintiff.” On the 12th March, 1951, he gave notice of
amendment by which instead of a claim in contract he substituted the
following:—