Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Edinburgh at the instance of William Gillespie Gordon, apprentice engineer,

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Leith, against John Cran & Company, engineers, Leith. The pursuer sought to have the defenders ordained to implement their obligations to him under an alleged contract of apprenticeship, or alternatively to pay him £500 damages.

The pursuer averred—“(Cond. 1) The pursuer is an apprentice engineer, and until lately was in the service of the defenders, who are engineers and boilermakers in Leith, under a contract of apprenticeship for five years, dating from 26th March 1900, constituted by ( a) application form signed by the pursuer and accepted by the defenders, and ( b) rei interventus and homologation following thereon as hereinafter set forth. (Cond. 2) Upon the faith of the said contract the pursuer duly entered into the service of the defenders on the 26th day of March 1900, in the fitting department of their works, as an apprentice engineer. On 2nd April 1900 he paid to the defenders a deposit of £5, stipulated by the contract, conform to receipt herewith produced, and he has since continued to discharge his duties in the defenders' service at the wages stated in the contract, with the view of qualifying himself as a journeyman engineer. By the said deposit and service the original informal contract has been duly validated. (Cond. 3) The pursuer's apprenticeship has thus run for over a period of four years, and would have expired on the 25th March 1905. The defenders, however, on the first day of April 1904, without cause, wrongously and unjustly dismissed the pursuer from their employment, and unlawfully terminated his service. The said defenders are thus in breach of the contract entered into with the pursuer, and in breach of their duties towards pursuer as an apprentice. (Cond. 4) Under their contract the defenders are bound to retain the pursuer in their service, and to instruct him in his trade during the whole period of his apprenticeship, but they refuse to do so. The pursuer is willing and anxious to continue his apprenticeship with the defenders, and is prepared to commence work again in their employment. (Cond. 5) Otherwise, and in the event of the defenders refusing to take the pursuer back into their service, they are bound to grant him a certificate to the effect that he has served under them as an apprentice for the time during which he has so served, and to repay to him the deposit of £5 which he made. The certificate of apprenticeship is necessary to enable him to continue his service elsewhere, and the contract expressly provides that the deposit shall be returned on the completion of the apprenticeship. The defenders have, however, declined either to grant a certificate in proper form or to repay the deposit. (Cond. 6) Otherwise, the defenders are liable to the pursuer in damages for breach of contract, and the amount thereof is not less than the sum of £500 concluded for. Unless defenders will consent to allow pursuer to continue his apprenticeship, or will grant a certificate as above condescended on, he will require to commence a new apprenticeship of five years, and the period which he has already served will be lost.”

The application form referred to in condecendence I was produced by the defenders and was in the following terms:—“John Cran & Co.,

Albert Engine Works, Leith.

“ Apprentice Application Form.

Name—William Gillespie Gordon.

Address—42 Dudley Avenue, Leith.

Age last Birthday—15 years.

Recommended by Mr James Gillespie.

To serve five years in Fitting Department.

2/4/1900.—(Intld.) J. A.

“ Note.—If the apprentice serves in fitting department only or in machine department only, the term of apprenticeship is five years. If the apprentice serves in both fitting and machine departments the term of apprenticeship is six years.

“ Rules.

“The apprentices' time will be added up in July each year, and the three who have kept the best time throughout the year will be allowed a fortnight's holiday, drawing their pay for said fortnight in advance.

“Vacancies occurring in the drawing office will be filled up by the most deserving apprentices in the fitting and machine shops.

“Apprentices requiring leave of absence will procure signed permission lines from their respective foremen, and all time lost during the year, unless accounted for by foremen's lines or certificates of sickness, must be made up at the end of each year before their rate of pay is advanced for the next year.

“Apprentices may be discharged at any time during their apprenticeship for bad conduct or bad time-keeping, and they must conform to the General Rules and Regulations of the Works.

“ Weekly Rate of Pay.

1st Year … 4s. 3rd Year … 6s. 5th Year … 8s. 2nd Year. 5s. 4th Year … 7s. 6th Year … 9s.

“A deposit of £5 sterling to be handed by the apprentice to the employers before beginning work. This sum to be returned in full to the apprentice, provided he completes his apprenticeship to the entire satisfaction of the employers, otherwise it is to be forfeited.

“I hereby agree to the foregoing rules and rate of pay. William G. Gordon.

“Date of application, 21st June 1899.

“(Written on back) 128.

“Gordon entered shop, 26/3/00.”

The receipt referred to in condescendence 2 was as follows:—

“Leith, 2nd April 1900.

“Received from William Gillespie Gordon the sum of five pounds sterling (£5) as deposit. The conditions of said deposit being that if the said William Gillespie Gordon serves his apprenticeship with us to our entire satisfaction in every respect the money is to be returned, otherwise it is to be forfeited. Apprenticeship started on 26th March 1900, and to serve five years in one department.

“(Signed)	£5 stg.	John Cran & Co.
on 1d.		p J. Anderson.
Stamp.		2nd April 1900.”

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The pursuer pleaded—“(1) The defenders having entered into a contract of apprenticeship with the pursuer for a period of five years are bound to allow him to complete his apprenticeship with them, or otherwise to grant a certificate for the period of his actual service, and to repay the sum of £5 deposited by him, with expenses. (2) Or otherwise, the defenders having broken their contract with the pursuer are liable to him in damages.”

The defenders pleaded—“(2) The pursuer's statements are irrelevant. (4) There being no contract of apprenticeship existing between pursuer and defenders, and the latter being under no obligation to grant the certificate of service referred to in the first prayer of the petition, said prayer ought to be refused and the defenders ought to be assoilzied, with expenses.”

On 29th June 1904 the Sheriff-Substitute ( Henderson) sustained the second plea-inlaw for the defenders and dismissed the action.

The pursuer appealed to the Sheriff, and on 13th July the Sheriff ( Maconochie) adhered to the interlocutor appealed against.

Note.—“The question is whether the pursuer was an apprentice indentured to the defender. It is said that the relationship of master and apprentice is here constituted by the signature of the pursuer to the application form followed by rei interventus. That document bears date 21st June 1899; it is not signed by the defenders, but it bears a docquet that the pursuer ‘entered shop’ on 26th March 1900, and the pursuer avers (Cond. 2) that ‘upon the faith of said contract’ he entered into the service of the defenders on said 26th March 1900 ‘as an apprentice engineer,’ and that ‘on April 2nd, 1900, he paid to the defenders a deposit of £5, stipulated by the contract, conform to receipt produced.’ The pursuer had been about four years in the shop when he was dismissed. Though the document founded on contains some of the requisites of an indenture of apprenticeship it does not contain what is perhaps the most important of all, namely a stipulation on the part of the master to teach and an undertaking by the apprentice to learn the trade in question, and on the other hand none of its provisions seem to me to be inconsistent with an ordinary contract of service. The document is no doubt headed ‘Apprentice Application Form,’ but as pointed out by the Sheriff-Substitute it has been decided that the insertion of the word apprentice does not constitute the relation of master and apprentice, and a mere graduated scale of wages does not necessarily or prima facie infer apprenticeship. I have no hesitation in holding that this application form signed by the pursuer does not fulfil the requirements of an indenture. If that is so, I cannot see how anything subsequently done can set it up as an indenture through rei interventus. But the facts subsequent to the date of the deed (21st June 1899) seem to me to show very clearly that the parties did not understand that there was any contract between them as at its date, for nothing was done under it until nine months afterwards. If the document was a completed contract of apprenticeship, then the pursuer did not fulfil his part of it by going to learn until nine months after its date; if it was not a completed contract then it seems to me that the acts founded on as showing rei interventvs are not on the pleadings relevantly connected with it, and if that be so there is no written contract, which is an essential of the contract averred. In my view the written document was simply what it bears to be, ‘an application’ for work at some future time, and I cannot hold that both parties at the date it was sent in took, or were bound to take, the view that it formed a binding contract of apprenticeship between them, and that it did form such a contract of apprenticeship between them (as appears from Cond. 2) is the case for the pursuer.”

The pursuer appealed to the Court of Session, and argued—Apart from apprenticeship, as to which the averments were relevant, there was relevant ground of action for breach of the five years' engagement, and the pursuer was entitled to a proof. It was not necessary that the master's obligation to teach, and the apprentice's to learn, should be the subject of express stipulation in a contract of apprenticeship.

Argued for the respondent—The action was based upon a contract of apprenticeship, and there were no relevant averments of such a contract, for the constitution of which it was essential that the obligation of the master to teach and of the apprentice to learn should be expressed—Erskine, i, 7, 62; Juridical Styles, ii, 217— Frame v. Campbell, June 9, 1836, 14 S. 914; Grant v. Ramage & Ferguson, November 3, 1897, 25 R. 35, 35 S.L.R. 48; Rex v. Crediton, 1831, 2 Barnewall & Adolphus, 493; Rex v. Billinghay, 1836, 5 Adolphus & Ellis, 676; Paul v. Barclay & Curle, November 24, 1856, 2 Irv. 537.