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QUEEN'S BENCH DIVISION.
[IN THE COURT OF APPEAL.]
ROBB v. GREEN.
Master and Servant-Implied Obligation of Beroant=Improper use of Information obtained during Service-Breach of Oonfidence; The defendant, being employed by the plaintiff as manager of his busi ... ness, surreptitiously 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 (affirming the judgment of Hawkins J.) that it was an implied' term of the contract of service that the defendant would observe good' faith towards his master during tbe existence of the confidential relation between them, and that the defendant's conduct was a breach of that contract in respect of which the plaintiff was entitled to damages and an injunction.
from the judgment of Hawkins J. at the trial of all' action before him without a jury. The' 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 takingduring his service, in breach of his duty and in violation of hiscontract of service, copies of the names and addresses of the' customers from his master's order-book to facilitate those solicitations, and using them for that purpose to his master's detriment. The plaintiff likewise claimed an injunction to restrain thedefendant from using the information so obtained by him by copying such names and addresses. The facts are fully stated' in the report of the case in the Court below. (1) The learned judge gave judgment for the plaintiff for 150l. damages, and' granted an injunction in the terms stated in that report.
It may be that there is· an implied promise in a contract of service that the servant will'
(1) Ante, p. 1.
J. W. McCarthy, for the defendant.
It is submitted that there was no implied stipulation which prevented the defendant. [1895J serve the master with fidelity. by virtue of that implied promise. D. (12)] R. In this case the defendant. The question is whether such conduct was not what any person of ordinary honesty would look upon as dishonest conduct towards his employer and a dereliction from the duty which the defendant owed to his employer to act towards him with good faith. 629. after his service was at an end. (13) [He was stopped by the Court. N. 449.) 661. & G. (8) [1895J 1 Ch. T1'pping v. M. (7) 2 Hare. D.he was in the service of the plaintiff. and Irish v.] LORD ESBER lVI. Pearson v. with him). D. (12) [1892J 2 Ch. W. IR95 --R-O-BB-GR~EN. 732. Helmore v. & N. (Ch. but here the complaint is in respect of the use of such information after the service had come to an end. Strange (11). 383.R. Prince Albert v. ~4) 6 H. (5) 35 Ch. Trego v. v. as soon as he left the plaintiff's service. 518. 145. and using it. Priester (10). bound not to use information which he procured in the course of his service to the detriment of his master. Evans (9). Moore. A. Lamb v. [He also cited Morgan v. Tuck. Reuter's Telegram 00. Smellie. for the plaintiff. a list of the plaintiff's customers. . at a time when.. Nichol v. Irish (3) are authorities in the defendant's favour. Hunt (8). while .O. (11) 1 Mac. v. 25. while the service continued. and that the defendant was. Olarke (7). Merryweather v. but for the . from competing with his former master and soliciting custom from persons whom he knew to have been his customers from information obtained in the course of the service. (13) In C. B. copied from the plaintiff's orderbook. Pearson (6). (6) 2:7 Ch. I think the judge was perfectly justified in t1) 2 Esp. Smith (5). July 9. (10) 19 Q. 218. as he himself admitted.62. (95) 115 (7). Q.A. Martyn (1).. Byron (2). D. (2) 43 L. (3) 40 Ch. 49. Ravey (4). he thought nobody could see him. QUEEN'S BENCB DIVISION. 265.purpose of keeping it unknown to his master. t9) [1893J 1 Ch. not for the purpose of using it for the benefit of his master.316 C. so as to get hold uf the plaintiff's customers and induce them to transfer their custom to himself. Bray (Murphy. J. 4. referred to Louis v.
(1) [1893J 1 Ch. when he entered into that position. Evans (1) that there is such an implication in a contract of service. . 1895 ROBB GR~·EN. holding that such conduct was a breach of the trust reposed in the defendant as the servant of the plaintiff in his business. and without which it would be futile. 317 C. That depends upon the question whether in a contract of service the Court can imply a stipulation that the servant will act with good faith towards his master. I think that in a contract of service the Court must imply such a stipulation as I have mentioned. after stating that there is no distinction between law and equity as regards the law of principal and agent: " The common law. 1895. I think the learned judge in the Court below was quite right in making the: implication he did. in the case of Lamb v.J. Lord EIR sher M. treats the matter from the point of view of an implied contract." Therefore. The question arises whether such conduct is a breach of contract. or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual.B. We have the authority of Bowen L. Then VOL. and holding that there was a breach of that implied contract which entitled him to award damages to the plaintiff. unless he thought that the servant would be bound to use good faith towards him. that the master would rely on his observance of good faith in the confidential relation between them. and assumes that there is a promise to do that which is part of the bargain. that is precisely the case in which it onght to imply a stipulation. 229. In this case it is said that the contract of service was in writing. 218. A. Where the Court sees that there is a matter of this kind which both parties must necessarily have had in their minds when entering into a contract. What is an implied contract or an implied promise in law? It is-that promise which the law implies and authorizes us to infer in order to give the transaction that effect which the parties must have intended it to have. because it is a thing which must necessarily have been in view of both parties when they entered into the contract.2Q. QUEEN'S BENCH DIVISION. or that the servant would not know. it is true. He said in that case. It is impossible to suppose that a master would have put a servant into a confidential position of this kind. Z 2 . but there is nothing in the express terms of the contract that contradicts such an implication. II.
& W. Lord Eldon granted an injunction against him" upon the ground of there having been a breach of trust (1) 1 J. . 1895 ROBD QUEEN'S BENCH DIVISION. and then. when he had left the plaintiff's service. set up in business for himself and sold medicines similar to those sold by the plaintiff. and which he appeared likely to continue in future. that the defendant shall deliver up to the plaintiff to be destroyed the list of the names and addresses of the plaintiff's customers copied or extracted by the defendant from the plaintiff's books. and all copies or extracts of or from such list now in his possession or under his control j and.  GR~EN. The defendant surreptitiously got access to the book of recipes and copied them. For these reasons I think the judgment must be affirmed. KAY L. leaving the plaintiff's service. damages. Conduct of this kind has for a long time back been made a ground for relief against persons in the position of the defendant j and I will refer to one or two of the earlier decisions for the purpose of shewing upon what foundation the right to such relief has been based. while in the employment of the plaintiff as his servant. with the intention of using that list. secondly. in order to set up a rival business and to induce the plaintiff's customers to transfer their custoni to him. but was not to be taught the mode of composing the medicines. 394:. I think it is quite 'clear that in equity the plaintiff was entitled to an injunction against the defendant in respect of the breach of faith which he was committing. In Yovatt v.J. A. The judgment appealed against directs three things: first. Winyard (1). The judge has further found that he did this surreptitiously and in breach of his duty to his master. as an assistant. The judge has found that the defendant. that the defendant shall pay to the plaintiff 1501. the proprietor of certain recipes for veterinary medicines. that the defendant shall be restrained from making use of the information so obtained by him by copying or extracting such names and addresses. under an agreement by which he was to be instructed in the general knowledge of the business. thirdly. with regard to the injunction. the defendant was employed by the plaintiff.318 O. copied from his master's books a list of the plaintiff's customers with their addresses.
upon whatever grounds the jurisdiction is founded." There have been many similar decisions sub1895 sequently to which it is unnecessary to refer. and confidence. distinctly treats the matter as depending at law upon an implied contract arising out of the confidential relation between the master and servant. for a breach of trust. and in others. of contract on the part of Thomas Moat. the Court ought to interpose by injunction. Different grounds have indeed been assigned. it has been treated as founded upon trust or confidence-meaning. ---Moat (1) Turner v. Strange (2).J. admit of any question. he goes on: ".255. (2) 1 Mac. it is clear in this case that an injunction ought to be granted." Then. On whatever ground it is put. would of itself entitle the plaintiff to an injunction. (3)  1 Oh. but. and enforces it against him i~ the same manner as it enforces against a party to whom a benefit is given the obligation of performing a promise on the faith of which the benefit has been conferred. if not a breach of contract.J. that the Court fastens the obligation on the conscience of the party. that the defendant had obtained this secret by breach of faith or Kay L. confidence. the authorities leave no doubt as to the exercise of it. . after mentioning a subsidiary ground on which relief was claimed. after he has left his employment. Evans (3).& G. 241. 319 C. there is a breach of trust.B. I think. In some cases it has been referred to property. Bowen L. where he says: "This case by no means depends solely upon the question of property." Then he refers to the language of Lord Cottenham in Prince Albert v. but in Morison v.The true question is whether.-C. That the Court has exercised jurisdiction in cases of this nature does not.2 Q." In the later case of Lamb v. 218. 25. upon the ground of breach of faith or of contract. where we find a servant using. sums up the law on the subject thus: ROBB '11. The other items (1) 9 Hare. It is enough for that purpose to say that. a document surreptitiously compiled from his master's book to the detriment of his master.A. for the exercise of that jurisdiction. QUEEN'S BENOH DIVISION. as I conceive. again. either on the ground of breach of trust or breach of contract. or contract. under the circumstances of this case. in others to contract. "The plaintiff's case was rested in argument upon the ground GBEEN.
Rendell &: Todd. Sl\UTHL.' [1895J 1895 --R-QIl-B-fl. GREEN. According to the view taken by Bowen L. For these reasons I think that the appeal should be dismissed. As to the damages.J. Appeal dismissed. L. it' seems to me clear that such a document surreptitiously made in breach of the trust reposed in the servant clearly ought to be given up to be destroyed. p. and upon the ground that there has been a breach by the defendant of his contract of service with the plaintiff. and he confessed that he had regarded what he did as unfair and dishonourable. Solicitors for defendant: Ohuroh. 8. Evans (3).218. Solicitors for plaintiff: Boopere &: Whately. and in the result I come to the conclusion that the judgment in that respect must be upheld. (1) [1893J1 Ch. KnyL. that his object was to use the names. it can. There could not well be a worse breach of the implied contract which I have mentioned than the conduct of the defendant in this case. in Lamb v. With regard to the first. A." This last statement by the defendant of what he thought I do not believe. but it is immaterial whether he did so or not. It is my opinion that this judgment should be upheld.J. and I entirely agree with it. as it was not expressly so said.J. I think there is more difficulty. (2) Ante. 'The right to them depends on whether the conduct of the defendant can be regarded as a breach of an implied contract. L. . I think that it is a necessary implication which must be engrafted on such a contract that the servant undertakes to serve his master with good faith and fidelity.320 C. QUEEN'S BENCH DIVISION. E. and that probably his master would have turned him away had he known of his misconduct. I think the appeal should be dismissed. of relief granted are the delivery up of the list made and the damages. but that he did not think his employment was confidential. has the defendant acted with good faith and fidelity? The learned judge says in his judgment (2): "The defendant admitted it" (the list) "was written by him when nobody saw him. or that he was bound to protect his master's interests. That is what was said in the case of Lamb v. That being so.A. Evans (1).