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(2.) In the alternative, £210 damages from the defendant
N. in respect of the matters of complaint set forth in the 6th and 7th paragraphs.
Claim by an author for work done.
Claim by an Author against a Firm of Publishers. 1. The plaintiff is a writer of fiction. The defendants are general publishers carrying on business at Street, in the city of London.
2. On the 30th of July, 1873, it was agreed by and between the plaintiff and the defendants that the plaintiff should write for the defendants a work of fiction, to be published by them in monthly shilling parts, and that the plaintiff should receive, as remuneration for his literary labour in that behalf, the sum of £150, to be paid, one half upon the publication of the first of the said monthly parts, and the residue upon the publication of the last of the said monthly parts.
3. The plaintiff wrote the said work of fiction, which was duly published by the defendants in monthly shilling parts, and all things have happened and times elapsed necessary to entitle the plaintiff to be paid the sum of £150 above mentioned, yet the defendants have not paid the same.
The plaintiff claims £150.
Wrongful Dismissal (a).
in the alternative Arrears of Wages. Claim for a 1. The defendant is a timber merchant trading as J. A. wrongful dismissal,
& Sons at &c. An in
(a) An indefinite hiring in the case of servants, without mention of definite
time, is presumed as a matter of fact which may be rebutied by other hiring pre- circumstances to be a hiring for one year, and the fact of the wages being sumed to be for a
payable monthly makes no difference. However on a hiring * at two
guineas a week for one year,” Bramwell, B., told the jury they might year.
find a weekly hiring. (Robertson v. Jenner, 15 L. T. X. S. 514.) So a hiring " at £2 a week and a house." (Evans v. Roe, L. R. 7 C. P. 138.)
If during the year, where the service is yearly, the servant is dismissed
2. On the 20th November, 1876, the plaintiff entered into Claim for
wrongful the service of the defendant as a yearly servant at a salary of dismissal. £250 per annum, and the plaintiff subsequently received pay
without cause, he is entitled as damages to his wages to the end of the year. If the servant leave the service without cause or is discharged by the master or by a magistrate's order for good cause during the year, he cannot recover any of the current wages. (See Smith, Master and Servant, 3rd ed., p. 178.)
With regard to menial or domestic servants there is a common under. Menial standing (except where a different custom is shown to prevail) that though servants the contract is for a year, it may be dissolved by either party on giving a may be month's warning, or on the part of the employer by giving a month's discharged wages. (Beeston v. Collyer, 4 Bing. 313, per Gaselee, J.; Furcett v; with a Cash, 5 B. & Ad. 908.) A governess has been held not to be a menial month's servant within the meaning of this rule. (Todd v. Kerrich, 8 Ex. 151; warning. 22 L. J. Ex. 1.) But a head gardener and huntsman have been held to Who are be such servants, though under circumstances distinguishing them from menial ordinary menial or domestic servants. (Roscoe, Ev. Nisi Prius, 13th ed., servants. 488.) The notice may be given at any time, i.e., need not be given at the end of any month from the commencement of the service. In such cases if the master without reasonable cause dismisses the servant without notice, the latter is entitled to recover a month's wages beyond the arrears. (Robinson v. Hindman, 3 Esp. 235.) The same rule applies as in the case of yearly servants with regard to the consequences of the servant being dismissed for reasonable cause or dismissing himself without reasonable cause.
A general engagement of an agent at a specified sum per annum A custom simply, is a hiring for a year ; but a custom to discharge on notice may to disbe engrafted on such hiring if the terms be not inconsistent with the
charge on custom. A stipulation for a gratuity at the end of the year has been notice may held to be not inconsistent with such custom. (Metzner v. Parker, 9 Ex. be en518 ; 23 L. J. Ex. 130; Parker v. Ibbetson, 27 L. J. C. P. 236 ; 4 C. B. grafted on N. S. 346.) It is a question for the judge whether a written contract
a general excludes such a custom. (Parker v. Ibbetson, supra.) But when the hiring. hiring is expressly for a certain fixed time a custom to determine it before without notice is inadmissible. (Peters v. Starely, 15 L. T. N. S. 275.) Semble, clerks in London are entitled to three months' notice. (Per Pollock, C. B., who stated in Fairman v. Oakford, 29 L. J. Ex. 459—60, that juries in London generally find to that effect.) In IIisco. v. Batchellor, 15 L. T. N. S. 543, the jury found that an advertising and canvassing agent was only entitled to one month's notice.
A contract of hiring for one whole year, and so on from year to year as the parties should respectively please,” can only be determined at the end of any current year. Semble, by reasonable notice. (Williams v. Byrne, 7 Ad. & E. 177.) An agreement for “twelve months certain, Hiring for after which time either party should be at liberty to terminate the agree- twelvement," by three months' notice, may be determined by three months' notice months. terminating after the end of the twelve months. (Langton v. Carleton, L. R. 9 Ex. 57, Kelly, C. B., dissentiente.)
As to agreements for service for over twelve months, see Ith section of the Statute of Frauds, ante, p. 644.
A dismissed servant or agent will not necessarily be entitled to his full salary or wages for the unexpired term of the contract, as it is liable to be reduced by the probabilities of his having other employment during such period. (İlartland v. General Exchange Bank, 14 L. T. N. S. 863 ;
ment from the defendant at the rate of £250 until the 31st of March, 1877.
3. On the 3rd of April, 1877, the plaintiff left the office of the defendant at the defendant's request, continuing nevertheless in his employment, and went to Scotland at the request of the defendant, for the purpose of ascertaining in what place in Scotland a branch business could be established for the defendant and the plaintiff jointly.
4. Since the said 3rd of April, the plaintiff has been employed by the defendant in relation to the said projected branch establishment, and in relation to that matter only.
5. The plaintiff has not since the said 31st of March, 1877, been paid any salary whatever, although he has frequently applied to the defendant for payment thereof.
6. As an alternative claim, if the plaintiff, when on the 3rd of April, 1877, he left the defendant's office and proceeded to Scotland as aforesaid, was dismissed from the service of the defendant, and was no longer in his employment, he was so dismissed by the defendant wrongfully, and in breach of his said contract of yearly service.
7. When the plaintiff left the office of the defendant upon
and see Yelland's case, L. R. 4 Eq. 350; Ex parte Clarke, L. R. 7 Eq.
550; and Ex parte Logan, L. R. 9 Eq. 149.) Master not The master is not bound to assign the reason for dismissal at the time bound to thereof, and where a good cause for dismissal existed at such time, it is assign any
immaterial whether or not it was the real cause. (Ridgway v. Hunger. reason for ford Market Co., 3 A. & E. 171.) dismissal. Where the payment of wages was to be at the rate of £50 per month, Misconduct it was held that subsequent misconduct was no answer to an action for
wages which had accrued due at the time of dismissal, because there was to claim
a vested right to each month's wages when the month had elapsed.
(Button v. Thomson, L. R. 4 C. P. 330.) This may be altered by the which are
terms of hiring. due at the
Where a master having a right to discharge his servant for misconduct time.
condones it, and retains the servant, he cannot afterwards discharge him for the same misconduct. (Phillips v. Forall, L. R. 7 Q. B. 680, per
Blackburn, J.) Misconduct Defence-Dismissal for misconduct, disobedience, Sc.]—If a servant for which misconducts himself, the master may dismiss him without notice. A a master refusal to obey a lawful order is a good ground for dismissal. (Lilley r. may in
Elwin, 11 Q. B. 742.) A wrongful claim by a clerk that he is a partner, stantly dis- entitles the employer to dismiss him instantly. (Amor v. Fearon, 9 Ad. charge his & E. 548.) If a traveller sells his employer's wines to a brothel keeper servant.
he may be dismissed without notice." (Blenkarn v. Hodges' Distillery Co., 16 L. T. N. S. 608.) So where a servant embezzles his master's money, even though wages exceeding amount embezzled are due to him. (Bronn r. Croft, 1 Chitty's Prac. of the Law, 82.)
the 3rd of April, 1877, as aforesaid, it was agreed by and be- Claim for
wrongful tween the plaintiff and the defendant that the plaintiff should
dismissal endeavour to establish a branch of the defendant's business as or altertimber merchant in Scotland, and that the plaintiff should natively for become the partner of the defendant in the said branch busi- any engageness, and that the defendant should assist in the establishing thereof.
8. And the plaintiff upon his part has always been ready to perform the said agreement, and has, so far as it depended on him and so far as he was not prevented by the acts and conduct of the defendant, in fact performed his said agreement, but the defendant has refused to carry out or allow the plaintiff to carry out the said agreement, and has prevented the plaintiff from establishing the said branch business, and has not assisted but has absolutely refused to assist in the establishing thereof, and as a further alternative claim the plaintiff claims damages from the defendant for the breach of the said agreement, and for the loss occasioned to the plaintiff by being so prevented by the defendant from establishing the said branch business.
The plaintiff claims :-
Statement of Defence and Counter-claim. 1. The plaintiff entered into the service of the defendant on Defence. the terms that he might be dismissed at any time with a reasonable notice in that behalf, and not as a yearly servant.
2. The defendant was induced to take the plaintiff into his service by the plaintiff representing and warranting to him that he had an intimate commercial knowledge of the pit prop trade carried on by the defendant, and that he was reasonably competent to perform the work for which he was engaged as aforesaid, whereas the plaintiff had not an intimate commercial knowledge of the pit prop trade, nor has he since been reasonably competent to perform the said work.
3. In consequence of the premises the defendant gave the plaintiff a reasonable notice to terminate the agreement of service, which is the alleged breach.
Defence to claim for wrongful (lismissal, &c.
4. If the defendant dismissed the plaintiff without notice, which he denies, he will rely on the matters stated in the 2nd paragraph of the defence as a justification.
5. The defendant says that on or about the 31st of March, 1877, the plaintiff agreed with the defendant to accept the notice of dismissal mentioned in the 3rd paragraph of this defence, and it was thereupon agreed between the plaintiff and the defendant that the said service should be put an end to and finally determined, and the plaintiff thereupon voluntarily quitted the said employment.
6. The plaintiff did not continue in the defendant's employment after the said 31st of March, nor did the defendant request the plaintiff to continue therein, nor did he request the plaintiff to go to Scotland for the purpose mentioned in the 3rd paragraph of the statement of claim, or for any purpose whatever. No salary has become due to the plaintiff since the 31st of March, 1877, nor is any salary now due by the defendant to the plaintiff.
7. The defendant did not dismiss the plaintiff as alleged in the 6th paragraph of the statement of claim, or at all.
8. It was not agreed by and between the plaintiff and defendant as alleged in the 8th paragraph of the statement of claim, nor was any agreement whatever made on the subject therein mentioned.
And by way of counter-claim the defendant says
1. On or about the 3rd day of April, 1877, the defendant lent to the plaintiff £15.
2. On or about the 20th day of May, 1877, the defendant lent to the plaintiff £20.
3. On or about the 28th day of May, 1877, the defendant lent to the plaintiff £85.
4. All conditions have been performed and times elapsed necessary to entitle the defendant to be repaid the said sums of £15, £20, and £85 respectively, yet the plaintiff has not repaid
The defendant claims :
Reply. 1. The plaintiff joins issue upon the statement of defence