both were given, except in a few instances, in the character of CH. XIX. s. 3. apothecaries only (q). Contracts of Employment. (Medical Men.) tract for skill. The law implies an undertaking on the part of a medical man that he will use reasonable care and skill in the treatment of his patient (r); and he is responsible to his patient for the breach of Implied conthis duty, although the patient was not the party who retained, or was to remunerate him (s), or although he may have undertaken to attend the patient gratuitously (t). So, if the patient be injured by the unskilfulness or carelessness of his medical attendant, he cannot maintain an action for his fees (u). But if improper remedies are adopted, or unfit medicines are administered under the advice of a physician, the surgeon or apothecary is, at all events, entitled to be paid (v). It is conceived, though it has never been expressly decided, that Implied contract against if special damage could be proved, an action would lie against a breach of medical man for disclosing his patient's confidential communica- confidence. tions (x), although the disclosure may not subject the medical man to an action for defamation (y). "Every man," it is stated by Dr. Carpenter (x), “should consider that the patient's secret is still his secret when it is necessarily communicated to the doctor, and that the latter should never divulge it to any one unless the laws of his country compel him to do so (2). Medical practitioners of all kinds often make mistakes by talking of their patients' diseases to third persons. The nature of the disease is the patient's secret, and ought never to be talked about. The doctor has no real right to divulge its nature any more than the lawyer has to mention the contents of a will on which he has been engaged" (a). The laws of most, if not all, European countries, it may be observed, make such disclosure a criminal offence (b). (q) Turner v. Reynal (1863), 14 C. B., N. S. 328. (r) Slater v. Baker (1767), 2 Wils. 359; Seare v. Prentice (1807), 8 East, 348; per Tindal, C. J., Lanphier v. Phipos (1838), 8 C. & P. 475; Hancke v. Hooper (1835), 7 C. & P. 81. (8) Gladwell v. Steggall (1839), 8 Scott, 60; Pippin v. Sheppard (1822), 11 Price, 400. (t) Per Lord Loughborough, C. J., and Heath, J., Shiclls v. Blackburne (1789), 1 H. Bl. 159; and see Rex v. Long (1830), 4 C. & P. 398, 423. (u) See per Alderson, J., Hill v. Featherstonhaugh (1831), 7 Bing. 569. (v) Kannen v. M'Mullen (1791), Peake, 59. (x) See "Medical Etiquette" in Glenn's "Law of Medical Men," ed. 1871, App. A. (y) As in Kitson v. Playfair (1896), an action for slander in which the defence of (b) See e.g. the Code Pénal of France, Employment. (Medical Men.) CH. XIX. s. 3. By s. 5 of the Dentists Act, 1878, 41 & 42 Vict. c. 33, a person Contracts of registered under that Act may practise dentistry in any part of the Queen's dominions, and "a person shall not be entitled to recover any fee or charge, in any court, for the performance of any dental operation, or for any dental attendance or advice, unless he is registered (c) under that Act" or is a legally qualified medical practitioner. Dentists. Veterinary surgeons. Chemists and druggists. Similarly, persons acting in any manner as veterinary practitioners, if not registered as veterinary surgeons, are disabled from recovering their fees, by s. 17, sub-s. 2, of the Veterinary Surgeons Act, 1881, 44 & 45 Vict. c. 62 (d). By the Pharmacy Act, 1868, 31 & 32 Vict. c. 121, s. 1, it is made unlawful for any person (e), to assume or use the title of chemist and druggist, or chemist or druggist, or pharmacist, or dispensing chemist or druggist, in any part of Great Britain, unless inter alia, he be registered under that act: but there is no express provision that unregistered chemists may not recover their charges. Chemists and druggists are confined by s. 3 in the due exercise of their business, to the preparing, compounding, dispensing, and vending of drugs and medicines, and medicinal compounds (f). They cannot, therefore, prescribe or administer medicines; and they can only recover for medicines sold, not for advice or attendance (g). Whether action by SECT. 4.-Arbitrators. If there be a prior or subsequent express promise to pay an for fee, with arbitrator for his trouble, it is clear that he may maintain an action. for his fee (h). out express contract. In Viranny v. Warne (i), Lord Kenyon expressly ruled that the appointment of arbitrator was not of a nature to support a demand for payment, and that he was not entitled to recover any reward unless there was an express promise. But Dallas, C. J., in a later case (j), was of a contrary opinion; and so apparently was & 53 Vict. c. 63 (see s. 2 of that Act) not to include a corporation. Pharmaceutical Society v. London and Provincial Supply Association (1880), 5 App. Cas. 857. (f) See also 55 Geo. 3, c. 194, s. 28; and 37 & 38 Vict. c. 34. (g) See Richmond v. Coles (1842), 1 Dowl. N. S. 560; and per Best, C. J., and Park, J., Allison v. Haydon (1828), 4 Bing. 619. (h) Hoggins v. Gordon (1842), 3 Q. B. 466, 474; Harares v. Prowd (1655), Styles, 465. (i) Viranny v. Warne (1801), 4 Esp. 47; 6 R. R. 839; and see Burroughs v. Clarke (1831), 1 Dowl. 41. (j) Swinford v. Burn (1818), 1 Gow, 7, 8, in which Virannyv. Warne was not cited. Parke, B. (i). And in Crampton & Holt v. Ridley & Co. (k) CH. XIX. 8. 4. (where there was an express contract to pay), A. L. Smith, J., after Contracts of Employment. reviewing the above authorities, intimated a decided opinion that (Arbitrators.) in a mercantile or business dispute there is an implied promise by the parties appointing the arbitrator and umpire jointly to pay them for their services (l). under Arbitra By s. 15 (3) of the Arbitration Act, 1889, 52 & 53 Vict. c. 49, Remuneration repeating a repealed part of s. 56 of the Judicature Act, 1878, tion Act. "the remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the Court or a Judge shall be determined by the Court or a Judge." No action lies against an arbitrator for want of skill or negli- No action for gence (m). want of skill, SECT. 5.-Agents. commission. There are some classes of agents, whose right to commission or Their right to reward for their trouble, is regulated by the custom or usage of the particular trade, in which they are in the habit of transacting business (n); and where such a custom exists, it is presumed, in the absence of any express agreement to the contrary, that the parties contracted for the reward due by the custom. But if there be no proof of such custom or agreement, then it is for a jury to estimate the value of the services rendered (o). to earn com From a contract to employ for a time certain on commission may Opportunity be implied a contract to give opportunity for earning the commis- mission. sion throughout the time. Thus where a shirt manufacturer agreed to employ a traveller for five years on the terms that the traveller should do his utmost, for remuneration by commission, to obtain orders for the goods manufactured or sold by the manufacturer as forwarded by sample to the traveller, it was held that the traveller could recover substantial damages from the manufacturer for not forwarding samples at the end of two years; and further that the manufacturer was not excused from fulfilling his agreement by the destruction of his manufactory by fire (p). (i) In re Coombes (1851), 4 Ex. 841. (k) Crampton v. Ridley (1887), 20 Q. B. D. 48. (1) Ibid. (m) Pappa v. Rose (1872), L. R., 7 C. P. 525, Ex. Ch. (n) As a London ship-broker chartering a ship, &c., Brown v. Nairne (1839), 9 C. & P. 204; Cohen v. Paget (1814), 4 Camp. 96. Á broker can charge his principal only the cost price of articles purchased for him, and his commission; Procter v. Brain (1828), 2 M. & P. 284. And where the remuneration of agent manager is fixed by commission on pro- (0) Per Alderson, B., Brown v. Nairne (p) Turner v. Goldsmith, [1891] 1 Q. B. 544, C. A., distinguishing Rhodes v. Forwood (1876), 1 App. Cas. 256, on the ground that in that case there was no express agreement to employ; and see CH. XIX. s. 5. The mere introduction of the contracting parties to each other, Contracts of will not entitle the agent to his commission. But if the relation of Employment. (Agents.) buyer and seller is really brought about by the act of the agent, he Secret commission. Del credere agent. Loss of com. mission by negligence; or illegality of service. is entitled to commission, although the actual sale was not effected by him (q). And it appears to be now settled, that if an agent be employed to procure a loan, his contract is completed when he procures a person who is able and willing to advance the money and that, although the negotiation afterwards goes off, whether by the act or default of the intended borrower, or that of the intended lender, the agent is still entitled to his commission (r). The taking of a secret commission is a fraud which will justify dismissal (s). A del credere agent is one who, for a higher commission, guarantees to his principal the due payment of the price of the goods sold by the agent to third persons (t). Where, by reason of the misconduct, negligence, or unskilfulness of the agent, the principal derives no benefit whatever from the acts of the latter, he is not entitled to claim his commission in respect thereof (u). Therefore, where a broker who had purchased goods for his principal on credit, was induced by the vendor to delay delivery till the credit had expired, when the buyer refused to receive them; it was held that the broker could not claim his commission (x). So, if a factor has been guilty of such misconduct in selling the goods of his principal, as to render the sale useless, or to subject his principal to an actual loss, he is not entitled to his commission (y). And if an auctioneer, employed to sell an estate, be guilty of negligence or unskilfulness, whereby the sale becomes nugatory, he is not entitled to recover from the vendor any compensation for his trouble (z). An agent cannot recover commission upon any transaction which is, in itself, necessarily illegal, e.g., for effecting a sale of shares in an illegal association or undertaking (a); or where the commission is agreed to be paid on a consideration which is corrupt (b). But Roberts v. Barnard (1884), C. & E. 236. (r) Green v. Lucas (1875), 33 L. T. (s) Boston Deep Sea, &c., Co. v. Ansell Employment. he may recover commission for doing an act for his principal, CH. XIX. §. 5. although such act would be illegal if certain requisites were not Contracts of afterwards complied with by the principal,-the agent not being (Agents.) employed to perform them; as for obtaining an insurance on a voyage for which a licence is necessary (c). So, a person who acts as an appraiser cannot recover his Appraiser. commission, if he be not duly licensed under 46 Geo. 3, c. 43, s. 5 (d). SECT. 6.-Builders (e) and other Workmen. &c., must be A contract to build, alter, or repair a house, or the like, and to When a contract to build, provide materials for the purpose, need not be in writing, unless it is not to be performed within a year; for such contracts do not fall in writing. within s. 4 of the Sale of Goods Act, 1893, 56 & 57 Vict. c. 71, re-enacting the repealed s. 17 of the Statute of Frauds, and 9 Geo. 4, c. 14, s. 7, a contract to build, alter, or repair a house, or the like, not being in law a contract for the sale of goods, even as regards the materials; but being an entire contract for work and materials (ƒ). Where additions are ordered to be, and are made, to a building Right to charge for which a workman has contracted to finish for a certain sum, the extras. original contract is held to exist, as far as it can be traced to have been followed; and the excess must be paid for, according to the usual rate of charging. And, if a man contract to work by a certain plan, and, by consent of the parties, that plan be so entirely abandoned that it is impossible to trace the contract, and to say to which part of the work it shall be applied; in such case the workman shall be permitted to charge by measure and value, for the whole work done, as if no such contract had been made (g). But, where a party has agreed to make an article of certain materials, for a stipulated sum, he cannot charge more than that sum, although he use better materials than those agreed upon, provided they were used without authority; nor, where he has delivered the article, can he insist upon its being returned, on the refusal of the other party to pay the advanced price (h). (e) Haines v. Busk (1814), Taunt. 521; Fomin v. Oswell (1813), 3 Camp. 357. (d) Palk v. Force (1848), 12 Q. B. 666. (e) See Hudson on Building Contracts, 2nd ed. in 2 vols., 1895, where ten peculiarities of building contracts are set out at pp. 1-3. (f) See Lee v. Griffin (1861), 1 B. & S. 272; Clay v. Yates (1856), 1 H. & N. (g) Per Lord Kenyon, C. J., Pepper v. Burland (1792), Peake, 139; 3 R. R. 655; Robson v. Godfrey (1816), Holt, N. P. C. 236; 17 R. R. 629. If the original contract be in writing, the plaintiff cannot go into his claim for extras, without producing such written contract, duly stamped; Buxton v. Cornish (1844), 12 M. & W. 426. (h) Wilmot v. Smith (1828), 3 C. & P. 453. |