Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Lanarkshire of an action at the instance of Stewart & M'Donald, warehousemen in Glasgow, against John L. M'Call, salesman there. The summons concluded as follows:—“Therefore, the defender ought to be decerned to enter and continue in the service of the pursuers, in the capacity of a salesman, for the term of two years from and after the 1st day of February current, 1868, in terms of an engagement entered into by the parties, and embodied in missive letters, upon the 20th day of December 1867; or otherwise the defender ought to be decerned to pay to the pursuers the sum of £200 sterling as damages, and in compensation of the loss and inconvenience sustained by the pursuers through the defender's breach of the said engagement, by failing and refusing to enter and continue in the pursuers' service as a salesman, in terms of the engagement and contract constituted by the said letters, with the interest thereof, at the rate of 5 per cent, per annum, from the date hereof till payment; in either case with expenses.”

The following defence was stated to the action:—(1) A denial that the engagement libelled was ever entered into, or that the pursuers sustained the loss sued for; (2) That the missives founded on were not binding, that they were neither holograph nor tested, and that when subscribed by the defender they were blank in essentialibus, and he never authorised their completion; and (3) That before the missives were signed by the pursuers the defender withdrew from the proposed engagement, and so intimated to the pursuers.

The following writings passed between the parties, and were founded on by the pursuers:—

“(5) Agreement between the Advocators and the Respondent, dated lst February 1868 and 20th December 1867.

“Glasgow, 1 st February 1868.

“Messrs Stewart & M'Donald.

“Gentlemen,—I hereby become bound to serve you in the capacity of salesman to the best of my ability, for the term of two years from the date hereof, at a salary of £160 and £170 per annum, it being understood that in the event of any gross impropriety of conduct occurring on my part, the right will be conferred on you to break this engagement.—I am, gentlemen, yours respectfully,

“ John L. M'Call.

“The services of Mr John M'Call are accepted by us on the terms above expressed.

“ Stewart & M'Donald.

“20 th December 1867.

“(6) Letter, Respondent to Advocators, dated 20th

December 1867.

“102 Brunswick Street, Glasgow, 20 th December 1867.

“Messrs Stewart & M'Donald.

“Gentlemen,—I beg to state I regret having been so hasty in applying and accepting your kindness for giving me the chance and engagement. After reconsidering the matter, and taking all into consideration, changing my position, &c., I have arranged to accept a re-engagement with my present employers. I confess I made a great mistake in accepting so hastily, but hope you will excuse me when you know my position in which I am placed, and will make any apology you may require, if you will please look over this, and oblige, yours very respectfully, “ J. M'Call.”

Some further correspondence took place which is not material.

The Sheriff-substitute ( Galbraith) repelled the second plea in law stated in defence, in respect the missives founded on were writings in re mercatoria, and allowed a proof.

The Sheriff ( Bell), on appeal, altered, and pronounced the following interlocutor and note:—“Having heard parties' procurators on the defender's appeal, and thereafter made avizandum with the cause, recals the interlocutor appealed against: Finds that a contract of hiring for any period exceeding a year, where no rei interventus has taken place, can be proved only by a probative writing, that is a writing which is either holograph of the contracting parties or executed with the statutory solemnities: Finds that the missive letters, No. 5–5, referred to and founded on in the summons, are ex facie and admittedly not holograph, being partly lithographed and partly written, and are not tested or otherwise probative, and bear no intelligible date or dates, the acceptance being apparently anterior to the offer: Finds that said missives are not documents in re mercatoria, and are not privileged as such: Finds that it is admitted by the pursuers that no rei interventus followed on these missives, the defender never having entered into

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said pursuers' service; finds that they afford in themselves no evidence of any valid contract binding on the defender: Therefore sustains the defence set forth in the second article of the minute of defence, and assoilzies the defender from the conclusions of the action. But, in respect it is instructed by the defender's holograph letters, Nos. 5–1 to 5–4, that he entered into some engagement with the pursuers, from which he resiled without their consent, finds no expenses due, and decerns.

“ Note.—Missive letters, mandates, and obligations in mercantile affairs, although not holograph, are valid without being attested by witnesses, or having the writer's name. This is an indulgence granted on account of the necessary rapidity in mercantile transactions, in which the writings almost always take effect before the evidence as to their authenticity is likely to be lost or impaired by lapse of time, and also on account of their often passing between subjects of different states, in which the law regulating the form of writings varies.—See Tait on Evidence, p. 120, and Dickson on Evidence, sect. 784. But these reasons have no applicability to a contract of hiring for a period of years; and it is quite settled, first, that such contract must be in writing, and second, that if the writing be not holograph, and not rendered effectual by rei interventus, it is probative only if duly tested according to law. Thus Mr Dickson says (sect. 564), ‘Writing is essential to the constitution of contracts of service for any longer period than a year, neither parol nor oath of party being admissible to prove them, unless there have been rei interventus;’ and again (sect. 566). ‘Where writing is required to prove a contract of service, it must be probative or holograph, and an informal missive without rei interventus, cannot be set up even by oath of party.’ In Baird's Law of Master and Servant, sect. 49, the writer says—‘In Scotland, when the engagement extends beyond twelve months, the contract for its constitution and proof must be reduced into the shape of a regular and solemn writing, and until this be done, either of the parties may withdraw from the engagement without being liable in damages.’ In Barclay's Digest, vol. ii. p. 586, the law is equally explicitly laid down in these words—‘The writings’ (containing a contract of service for more than one year) ‘must be probative by being severally holograph of the parties thereto, or duly tested according to law. See also to the same effect Tait on Evidence, p. 298; Blair's Justice, p. 299; and Eraser on Domestic Relations, vol. ii, p. 873. The dicta of all these institutional writers are amply supported by the decisions they quote. Of these, reference may be made in particular to Caddell, Mor. 12,416; and Paterson, June 17, 1830, in which latter case the report bears that ‘Lord Gillies delivered a decided opinion that a contract of service for three years required to be attested by a regular instrument, or to be followed by a rei interventus, without which it was not binding, even for a single year,’ and the Court so held.”

The pursuers advocated.

Shand and Asher for them.

Gordon, Q.C., and Lancaster for respondent.

The Court adhered on the grounds stated in the judgment of the Sheriff.