CH. XIX. s. 8. Clerks. Contract dis- Farrow v. Beeston v. Collyer (m) is usually referred to as an authority that, Contracts of if there be no evidence to the contrary, the general engagement of Employment (Servants). a clerk will be deemed to be a yearly hiring. But in a case in the Court of Exchequer, is was said by Pollock, C.B., that from much experience of juries he had come to the conclusion, that the general hiring of a clerk was not usually a hiring for a year, but rather a hiring determinable by three months' notice (n). And the other members of the Court appear to have agreed in this opinion. In all cases of contracts between master and servant, the death of either party dissolves the contract, unless there be a stipulation, express or implied, to the contrary (o). This was laid down in Farrow v. Wilson (o), where a farm bailiff had been hired at weekly wages with other advantages and a residence in a farmhouse, the service to be determinable by six months' notice or payment of six months' wages, and it was held that the administratrix of the employer need not either continue the employment or pay the wages. A domestic servant, however, is by custom entitled to wages for a broken period of service up to the date of death (p), though where no custom can be imported into the contract, and the service is under an entire contract for a year's service and a year's pay, if the master dies in the middle of the year the servant is not legally entitled to any wages for a broken period of service (q). Preferential claims for wages in bankruptcy, insolvency administration, or winding-up. When the There is not at common law, for the wages of domestic servants or labourers, any preference over other debts of a deceased employer; but the Preferential Payments in Bankruptcy Act, 1888, 51 & 52 Vict. c. 62, has materially altered the law in this respect, in cases where an employer dies insolvent, as well as in cases where he becomes bankrupt, or being a company is being wound up under the Companies Acts, and provides that four months' wages or salary of any clerk or servant not exceeding 50l., and two months' wages of any labourer or workman not exceeding 251., are to be paid on an equality with "twelve months' rates and taxes in priority to any other debts" in such cases; and the Preferential Payments in Bankruptcy Amendment Act, 1897, 60 & 61 Vict. c. 19, has expressly included debentures and debenture stocks in all other debts (r). A contract for the hire and service of an agent, clerk, or servant hiring should need not be in writing, unless by the terms of the bargain the contract of be in writing. (m) Beeston v. Collyer (1827), 4 Bing. 309. (n) Fairman v. Oakford (1860), 5 H. & N. 635. (0) Farrow v. Wilson (1869), L. R., 4 C. P. 744. (p) See Manley Smith's Master and Servant, pp. 219, 227. (g) See id., at p. 218. (7) See Chitty's Statutes, vols. i., xiv., tits. "Bankruptcy" and "Companies. CH. XIX. s. 8. Contracts of Employment employment is to extend beyond a year; in which case a written agreement is necessary, under the 4th section of the Statute of Frauds (s), ante, p. 76. But a contract of hiring for a year, or from which a yearly hiring may be implied, need not Requirement be reduced into writing (t). So where the agreement is in writing, the consideration for the servant's promise to remain in the master's employ should appear on the face thereof. And a written promise by a party, "to remain with the plaintiff for two years, for the purpose of learning his business," was held to be invalid for want of mutuality; it not appearing from the memorandum, that the plaintiff was found to retain or teach the defendant, during any part of that period (u). If a contract of service which ought under the Statute of Frauds to be in writing, is only oral, it cannot be supported by reason of part performance, so as to allow an employé who has performed services under it to sue for wrongful dismissal (x), but for the work actually done he can sue on a quantum meruit (y). But this need not be expressly stated on the face of the memorandum; for if it appear by reasonable intendment therefrom, that will be sufficient (z). (Servants). of writingcontd. notice to leave a servant is Where the contract of hiring does not contain any stipulation as To what to notice, the servant can only be dismissed on having reasonable notice, or the customary notice, if there be a custom applicable to entitled. the particular case, but where the hiring is for a year, and so from year to year so long as the parties respectively please, it can be determined only by reasonable notice, expiring at the end of some year of the service (a). And an engagement "for twelve months certain," and to "continue from time to time, until three months' notice in writing be given by either party, to determine the same," may be put to an end at the expiration of the first year, by giving three months' previous notice (b). But where the agreement was "for twelve months certain, after which time either party should be at liberty to terminate the ment, by giving the other a three months' notice:" it was held (s) Dobson v. Collis (1856), 1 H. & N. 81; Bracegirdle v. Heald (1818), 1 B. & Al. 722; Britain v. Rossiter (1879), 11 Q. B. D. 123, C. A., observing on Carthew v. Cowdrey (1863), 13 C. B., N. S. 406. (t) Beeston v. Collyer (1827), 4 Bing. 309. (u) Pilkington v. Scott (1846), 15 M. & W. 657; Sykes v. Dixon (1839), 9 A. & E. 693; Hartley v. Cummings (1846), 2 C. & K. 433; Lees v. Whitcomb (1828), 5 Bing. 34. agree (x) Britain v. Rossiter (1879), 11 Q. B. D. 123, C. A.; and see Maddison v. Alderson (1883), 8 App. Cas. 467. (y) See Mavor v. Pine (1825), 3 Bing. 285. (z) R. v. Welch (1853), 2 E. & B. 357. (a) Williams v. Byrne (1846), 7 A. & E. 177. (b) Brown v. Symons (1860), 8 C. B., N. S. 208. CH. XIX. s. 8. that the engagement could be determined by either party at the end Employment of twelve months, without giving any notice (c). (Servants). Dismissal without notice. Disobedience. Dismissal of apprentice. Claim for wages after dismissal, &c., If, however, a servant wilfully disobey any lawful order of his master; or if he be guilty of misconduct, as, e.g., immorality (d), or if, being the confidential clerk of a merchant, he speculate to an enormous amount on the Stock Exchange in "differences” (e), or take a concealed commission (ƒ), or absent himself from the service (g); or if he engage to render any particular service (as that of scene painting) and prove to be incompetent (h), or refuse or neglect to render it (i), he may be discharged without notice, before the expiration of the period for which he was hired; and he is not entitled to any wages from the day he is so discharged, if they had not then accrued due (k). The rule of law is that if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him (1), even though the incompatible thing be done outside the service (m). In an ordinary apprenticeship deed the covenants by the master are independent covenants, the performance of which does not depend upon the performance by the apprentice of his own obligations (n); but where an apprentice by his own wilful act prevents a master from teaching him, the master can set this up as a defence to an action on the covenant to keep, teach, and maintain (0); and it is also a good defence that the apprentice was an habitual thief (p). Nor where the payment is to be quarterly, or yearly, or at any other fixed period, and the servant improperly leaves his master (q), or is guilty of such misconduct as to justify his discharge during (c) Per Bramwell and Pigott, BB., Kelly, C.B., diss., Langton v. Carleton (1873), L. R., 9 Ex. 57. (d) R. v. Brampton (1777), Cald. 11, 14; Connors v. Justice (1862), 13 Ir. C. L. R. 451; Atkin v. Acton (1830), 4 C. & P. 208; R. v. Welford (1778), Cald. 57; both of the last two cases being immorality in a male servant. (e) Pearce v. Foster (1886), 17 Q. B. D. 536, C. A. (f) Boston Deep Sca, &c., Co. v. Ansell (1888), 39 Ch. D. 339, C. A. (g) Turner v. Mason (1845), 14 M. & W. 112, 116; Amor v. Fearon (1839), 9 A. & E. 548; Lilley v. Elwin (1848), 11 Q. B. 742; see also Smith v. Thompson (1849), 8 C. B. 44; Turner v. Robinson (1833), 5 B. & Ad. 789; Baillie v. Kell (1838), 6 Scott, 379. Turner v. Mason, which was decided on demurrer, was a case in which an upper housemaid was dismissed for stay ing out all night, after having been refused leave of absence, on a visit to a dying mother. (h) Harmer v. Cornelius (1858), 5 C. B., N. S. 236. (i) See Lomax v. Arding (1855), 10 Ex. 734. (k) Spain v. Arnott (1817), 2 Stark. 25619 R. R. 715; per Lord Tenterden, C.J., Atkin v. Acton (1830), 4 C. & P. 208. (1) Pearce v. Foster, supra (c). (m) Pearce v. Foster, supra (e). (n) Winstone v. Linn (1823), 1 B. & C. 460; Phillips v. Clift (1859), 4 H. & N. 168. (0) Raymond v. Minton (1866), L. R., 1 Ex. 244. (p) Learoyd v. Brooks, [1891] 1 Q. B. 431. (q) Huttman v. Boulnois (1826), 2 C. & P. 510. the currency of such period, is he entitled to wages for any part CH. XIX. s. 8. thereof, even to the day he quits (»). But where, by the contract, the plaintiff was to be paid at a certain rate per month; it was held that this gave a cause of action as each month accrued, which, once vested, was not subsequently lost or divested by the plaintiff's desertion or abandonment of his contract (s). And, in like manner, where, at the time of the death of the master or the servant, any right of action arising out of that relationship was vested in either, such right of action is not divested by his death (t). Contracts of Employment (Servants). wages where contract Where the contract is determined by mutual consent, the servant Claim for may recover wages pro rata (u); and where there is no evidence of any specific contract of hiring, but merely proof of service, the determined by consent. party voluntarily quitting his employment will be entitled to be paid for his services up to the time of his so quitting, so much as they were worth (x). Effect of service being prevented by Where a servant sues for wages, and the defendant pleads that the plaintiff was not, during any part of the time for which such wages were claimed, ready and willing or able to render the agreed sickness. service; this plea will not be proved by evidence that the plaintiff was only prevented from serving during the period in question by visitation of God, e.g., by sickness (y). And, in like manner, where the action was brought on an apprenticeship deed, for the breach of an absolute covenant therein contained, to serve the plaintiff for a certain term: it was held to be a good bar to such action that, during the time of the alleged breach, the service had been prevented by the act of God, viz., by the illness of the apprentice (z). It is quite clear that a master need not, at the time of dismissing a servant, allege any specific act of misconduct on the part of the latter, as the cause of such dismissal; it being sufficient if such a cause existed, in fact, at the time (a). But it appears to be doubtful whether, where a master is sued for the wrongful dismissal of a servant, and by his pleading justifies the dismissal of the latter for a particular cause, he must in all cases show-not (r) Lilley v. Elwin (1848), 11 Q. B. 742; Ridgway v. Hungerford Market Co. (1835), 3 A. & E. 171; Boston Deep Sea &c., Co. v. Ansell (1888), 39 Ch. D. 339, C. A. (s) Taylor v. Laird (1856), 1 H. & N. 266; and see Button v. Thompson (1869), L. R., 4 C. P. 330. As to the effect of a clause in the contract of hiring-that " persons leaving without notice, will forfeit all wages due," see Walsh v. Walley (1874), L. R., 9 Q. B. 367. (t) Stubbs v. Holywell Rail. Co. (1867), L. R., 2 Ex. 311. (u) Lamburn v. Cruden (1841), 2 M. & G. 253; Thomas v. Williams (1834), 1 A. & E. 685. (x) Bayley v. Rimmell (1836), 1 M. & W. 506. (y) Cuckson v. Stones (1859), 1 E. & E. 248; and see K- - v. Raschen (1878), 38 L. T. 38. (2) Boast v. Firth (1868), L. R., 4 C. P. 1. (a) Mercer v. Whall (1845), 5 Q. B. 447, 466; Ridgway v. Hungerford Market Co. (1835), 3 A. & E. 171; Cussons v. Skinner (1843), 11 M. & W. 161. Master need not allege any specific cause of dismissal. (Servants). CH. XIX. s. 8. only that at the time of the dismissal the alleged cause existed, Contracts of but also that he, the master, then knew of it; or whether this is Employment necessary, only where the master has, by his mode of pleading, embodied the fact of such knowledge with the cause of the dismissal (b). In an action against a master for the wrongful dismissal of his servant, the plaintiff must prove that he was "ready and willing to continue in the service (c). Action by servant for wrongful dismissal. Form of, and damages recoverable. Dismissal. Where wages are payable quarterly, or at some other stated period, and the servant is tortiously discharged during the currency of such period, he may recover at once for the time he has actually served (d). But he cannot recover his whole wages, at all events until after the time at which, by the contract, they would And it is very questionable whether he can have accrued due (e). recover them quâ wages, even then (ƒ). Dissolution of A dissolution of partnership of masters operates as a wrongful partnership. dismissal; but if the continuing partners offer a new service on the old terms and the servant refuse it, he is entitled to nominal damages only in an action for such dismissal (g). This was held in a case where the contract was to serve four partners for two years, and two retired before that period had expired, the business, which was that of whiskey merchants, being transferred to and carried on by the other two (g). Where a servant who is dismissed in the middle of a quarter brings an action for wrongful dismissal, the jury ought to be directed, in assessing the damages for such wrongful dismissal, to take into account the plaintiff's wages up to the time of his dismissal; and he cannot, in such a case, maintain a second action to recover compensation for the time he actually served (h). So, if it appear that, after his dismissal, the servant might have obtained other equally eligible employment, the jury may be directed that a small amount will indemnify him for his loss by the master's breach of contract. But if the circumstances be reversed, then his loss from the breach of contract may be such that the damages may exceed the salary (i). And where the claim is for dismissing the servant without giving him a month's warning, or paying a month's wages, (b) See last note; and Spotswood v. Barrow (1850), 5 Exch. 110. (c) See Wallis v. Warren (1849), 4 Exch. 361. (d) See 2 Smith, L. C., in notes to (e) Smith v. Hayward (1837), 7 A. & (f) Per Patteson and Erle, JJ., Goodman v. Pocock (1850), 15 Q. B. 576; and per Crompton, J., Emmens v. Elderton (1853), 13 C. B. 495, 507, H. L. (g) Brace v. Calder, [1895] 2 Q. B. 253, C. A., diss. Lord Esher, M.R. (h) Id. (i) Per Crompton and Erle, JJ., Emmens v. Elderton (1853), 13 C. B. 495, 508, 519, H. L.; and see Reid v. Explo sives Co. (1887), 19 Q. B. D. 264, C. A. |