Domestic servants, month's warning or month's wages, wrongfully mine the contract by notice. In such cases. if the contract is determined by a notice, in accordance with the custom, the servant is entitled to recover wages for the fractional portion of the year during which he has served. Thus, in the case of domestic and menial servants, with regard to whom there is a well-known rule, founded solely on custom, that their contract of service may be determined at any time by giving a month's warning or paying a month's wages (k), if their contract of hiring is so determined, they are entitled to a proportionate amount of wages for the time they have served. But it is conceived to be perfectly clear, notwithstanding a quitting for- notion to the contrary, which is believed to be not uncommon, that a domestic or other yearly servant wrongfully quitting his master's service forfeits all claim to wages for that part of the current year during which he has served, and cannot, after having wilfully violated the contract according to which he was hired, claim the sum to which his wages would have amounted had he kept his contract, merely deducting therefrom one month's wages. feit all wages, not merely month. Who are to menial servants. not. This, at first sight, may appear rather harsh to some; but it is believed to be not only the law, but far more consistent with common sense and common honesty than to allow a man, at one and the same moment, to break a contract and claim a benefit under it, especially when, upon merely giving notice to his master, and paying (or agreeing to allow his master to deduct from the amount due to him) a month's wages, he could leave at any time, and the practical effect of adhering to the strict letter of the law is merely to compel the servant to give his master notice when he wants to leave, which can be but little trouble to him, and will, in most cases, save the master a great deal of unnecessary inconvenience and trouble, and sometimes loss. No general rule can be laid down as to who do and who do within rule as not come within the category of domestic or menial servants. Each case must depend upon its own circumstances. But it Gardener is. has been held (1) that a head gardener, at 1007. a year, who resided in a detached house belonging to his master, was a Farm bailiff menial servant, and only entitled to a month's warning. And a jury of the county of Surrey have held (m) that a gentleman was not justified in giving only a month's notice to a farm bailiff, and gave a verdict for a year's wages. And the Court of Exchequer has held (n), so far as the question is to be treated as a matter of law, that a governess, at 601. a year and board and lodging, does not fall within the rule by which a menial or domestic servant may be discharged with a month's notice or a month's wages. The position which she holds, the station she occupies in a family, and the manner in which such a person is Governess not. (k) Fawcett v. Cash, 5 B. & Ad. 908; Beeston v. Collyer, 4 Bing. 313; and see Williams v. Birne, 7 A. & E. 183; Metzner v. Bolton, 9 Exc. 519, 520. (1) Nowlan v. Ablett, 2 Cr. M. & R. 54; see Johnson v. Blen kinsopp, 5 Jur. 870, ante, p. 32. (m) Louth v. Drummond, Kingston Spring Assizes, 1849 (see Times, March 28), coram Parke, B., who left it to the jury. (n) Todd v. Kerrich, 8 Exc. 151; S. C. 22 L. J., Exc. 1. usually treated in society, certainly place her in a very different other cases. three In cases to which the custom applicable to domestic servants Custom apdoes not apply, and in which no specific agreement has been plicable in made as to the notice to be given for the purpose of determining the contract, that question must be determined by the custom applicable to the particular trade or calling with reference to which the service is to be rendered. Thus evidence has been Commercia admitted of a usage of trade enabling a master to dismiss a traveller commercial traveller, at 150l. a year, upon giving three months' months. notice; and the plaintiff having declared upon the contract as an absolute contract for a year's hiring, was defeated upon its appearing, upon his own cross-examination, that the contract was defeasible by custom (0). Evidence has also been admitted Agent in of a custom in the woollen trade to dismiss an agent at a woollen trade month's notice (p). And in Mortimer v. Prowett (q), evi- Newspaper dence was given to show that, where no condition was ex- printer, &c. pressed in the agreement of hiring, it was usual to give a printer (newspaper) one month's, or at least a fortnight's notice, a publisher three months, and a sub-editor to the end of the current year, and the jury gave the plaintiff, who filled all these places, one month's wages. one month. By analogy to the rule which prevents a yearly tenancy from Analogy to being determined before the end of the year, it is sometimes tenancy from contended that particular yearly hirings can only be determined year to year in a similar manner. This point will, in most cases, depend upon the custom of the trade or business in question. But where a schoolmaster was appointed, by trustees of a school, on the following (among other) terms:-"The trustees shall pay you at the rate of 551. per annum, and no more, so long as, by mutual consent, you shall retain the office of master," &c., "the appointment to be subject to termination by three months' notice from either party," it was held that the three months need not terminate with the year (r). And Coleridge, J., in held not holding the analogy of tenants from year to year not to be applicable. applicable to the case, said-"Nothing is said in the resolution Reason. or letter that the notice is to be given to terminate at the end of a year. No doubt there is a rule, with respect to tenants of land from year to year, that a notice to quit must be to quit at the end of a complete year. But no authority has been adduced to show that such a rule is applicable to notices to quit in all cases. In the case of land, there would be great inconvenience, arising from the nature of the property and the course of husbandry, to allow the relation of landlord and tenant to be terminated at any time; but with regard to a school, it must be of (0) Metzner v. Bolton, 9 Exc. 518. (p) Parker v. Ibbetson, 27 L. J., C. P. 236; ante, p. 33. (q) Q. B., Nisi Prius, June 18, 1856. (r) Ryan v. Jenkinson, 25 L. J., Q. B. 11. Contract to find work cannot be great importance that a master, who has done some act not sufficient to justify immediate expulsion, should not be allowed to continue in his office until the expiration of the current year. It seems, therefore, to me, that the trustees are justified in giving a three months' notice to terminate the schoolmaster's holding at any time during the year. HOW FAR THE MASTER IS BOUND TO FIND Where the contract of hiring merely contains an undertaking on the part of the master to pay certain stipulated implied from wages, in proportion to the work done by the servant, there is no implied obligation on the part of the master to find work, so as to enable the servant to earn wages. contract to Williamson But wages Thus, where (s) the defendant, who was the owner of a colliery, entered into an agreement with the colliers and workmen, and amongst others the plaintiff, whereby the said owner retained and hired the said other parties thereto "to hew, work, fill, drive, and put coals and do such other work as may be necessary for carrying on the said colliery as they shall be required or directed to do by the said owners, or their viewers or agents, at the respective rates and prices, and on the terms," &c. following: "First. The said owners agree to pay the said hereby hired parties once a fortnight, upon the usual and accustomed day, the wages by them to be earned, at the following rates, viz.”— (specifying the rates, with regulations as to the manner of working.) "Fifth. The said parties hereby hired shall, during all the times the pit shall be laid off work, continue the servants of the said owners, subject to their orders and directions, and liable to be employed by them at such work as they shall see fit. Sixth. The said hewers hereby hired shall, when required, except when prevented by sickness or other sufficient unavoidable cause, do and perform a full day's work on each and every working day, or such quantity of work as shall be fairly deemed equal to a day's work, not exceeding eight hours, and shall not leave their work until such day's work, or quantity of work, is fully performed or finished to the extent of each man's ability; and in default thereof, each of the said parties hereby hired and so making default shall, for every such default, forfeit and pay to the said owners 2s. 6d. The pit to commence coal work at such times in the morning as shall be required to suit the trade." Then followed other clauses not material here. It was held that the agreement contained no promise on the part of the defendant to employ the plaintiff at reasonable times for a reasonable number of working days during the term, and that no action would lie against the defendant for not doing so, although the plaintiff was thereby unable to earn wages. But where the contract of hiring provides for the payment of must never- certain wages (not in proportion to the work done), although it theless be paid if agreed on. (s) Williamson v. Taylor, 5 Q. B. 175; and see Lees v. Whitcomb, 5 Bing. 34; Sykes v. Dixon, 9 A. & E. 693; and other converse cases, ante, p. 25. is optional on the part of the master to find work, and he may, if he pleases, discontinue his business, yet he must nevertheless pay the wages agreed on, whether he find work for the servant or not, or he will render himself liable to an action for such damages as a jury may think proper to give (†). Austin. Thus, where the plaintiff agreed to manufacture for the de- Aspdin v. fendant, with the materials and machinery to be provided by him, cement of a certain quality, and, on condition of his doing so, the defendant agreed to pay the plaintiff weekly 41. for two years, and 5l. weekly for the following year, and then to receive him as a partner; the plaintiff also further agreed to teach the defendant how to manufacture certain kinds of cement. Each party bound himself in a penal sum to fulfil the agreement, and the defendant afterwards covenanted by deed for the performance of the agreement on his part. It was held that the stipulations in the agreement did not raise an implied covenant that the defendant should employ the plaintiff in the business during three or two years, although the defendant was bound by express words to pay the plaintiff the stipulated wages during those periods respectively, if the plaintiff performed, or was ready to perform, the condition precedent on his part (u). And where (x) a declaration stated, that by deed between the Dunn v. defendant D. and the plaintiff, the plaintiff covenanted that D. Sayles. should, for five years from the date, serve the defendant in the art of a surgeon dentist, and attend for nine hours each day, and the defendant, in consideration of the services to be done by D., covenanted with the plaintiff that he, the defendant, would, during the five years (in case D. should faithfully perform his part of the agreement, particularly as to the nine hours, but not otherwise), pay D. 35s. per week for the first year, 21. per week for the second and third, and 27. 2s. per week for the fourth and fifth; that D. was in the service for some time after the making of the deed till dismissed, and during all that time faithfully performed service, &c., and was willing and tendered to perform, &c. to the end of the five years, but the defendant, during the term, refused to permit D. to remain in his service, and dismissed him. It was held, on motion in arrest of judgment, that the declaration did not show any covenant corresponding to the breach. in Emmens. And where (y) the plaintiff was appointed permanent solicitor Elderton v. to a joint stock company, at a salary of 100l. per annum, lieu of rendering an annual bill of costs for business transacted Solicitor to a Company at by him for the company, for which salary he was to advise and a salary. act for the company on all occasions in all matters connected (t) We shall see hereafter that a servant in such case cannot, if discharged by his master, recover the wages agreed on by offering to serve and remaining idle, but only damages for the wrongful discharge. (u) Aspdin v. Austin, 5 Q. B. 671; see Rust v. Nottidge, 1 E. & B. 99; Burton v. Great North- (a) Dunn v. Sayles, 5 Q. B. (y) Elderton v. Emmens, 6 C. B. 160; In Dom. Proc. 13 C. B. 495. Agreement to find work implied. Scott. with the company, with certain exceptions, it was held by the House of Lords, affirming the judgment of the Exchequer Chamber (z), that the agreement created the relation of attorney and client, and that the company was bound to continue that relation at least for a year, or pay the plaintiff his 1007.; but the company was not bound to supply the plaintiff with business as an attorney and solicitor at all events, or to require his services as attorney or solicitor whenever they had occasion for the advice or services of an attorney or solicitor. However, where the contract of hiring is capable of such a construction, the courts seem disposed to imply an agreement on the part of the master to find work, if that is necessary, to Pilkington v. enable the servant to earn wages. Thus, in Pilkington v. Scott (a), it was held that stipulations in an agreement whereby a workman was to be paid by the piece, that his masters should pay him a moiety of his wages during any depression of trade, and might dismiss him on giving him a month's wages or a month's notice, distinguished the case from that of Aspdin v. Austin, and that, looking at the whole of the agreement, the master was bound to employ the servant in the sense of finding him actual employment, so as to enable him to earn wages, subject to the condition of notice. And a similar decision was made in Hartley v. Cummings (b), where there was an engagement on the part of the master to find the servant other work, in the event of the master not requiring the piece-work stipulated for, so as to enable the servant to earn a certain amount of wages per week. Hartley v. R. v. Welch. And again, in R. v. Welch (c), where the workman, in consideration of a small sum lent in advance of wages, “and of the wages thereinafter agreed to be paid to him" by the masters, agreed to work for and serve the said masters, as a tinplate worker, and not to work for or serve any one else without their leave in writing, for the full term of twelve months then next, and also until the expiration of three calendar months' notice by the workman given to the masters to determine the service, and to perform his work in a workmanlike manner, and not to absent himself during eustomary hours of work. And the masters, in consideration of the good and faithful services of the workman, agreed to pay him "on the Saturday night in every week during the aforesaid term (usual holidays excepted) all such wages as the articles made by him as aforesaid shall amount to, at their usual workmen's prices for similar articles." And the agreement also contained a proviso enabling either party to determine the agreement after twelve months by giving three calendar months' notice. It was held, in accordance with Pilkington v. Scott, that the agreement was not void for want of mutuality, and that the masters were bound to provide work; and Lord Campbell said, "The necessity of giving notice clearly shows that there is some obligation on the employer. (z) Reversing the Judgment of the Court of Common Pleas, 4 C. B. 479. (a) 15 M. & W. 657; see the agreement, ante, p. 26. (b) 5 C. B. 247; see this case, ante, p. 26. (e) 2 E. & B. 357; and see Re Bailey and Re Collier, 3 E. & B. 607, 615. |