Claim for work done

under a contract

and for

66 extras."

Claim for

salary.

Claim for

remuneration for literary work.

in the way of his (the plaintiff's) said business to do certain work, consisting for the most part of painting and decorating in a certain house situate and being No.-, in the county of M., at and for the sum of £80.

3. The plaintiff duly performed the said work, and did all things necessary to entitle him to receive the said sum of £80, but the defendant has not paid the same.

4. The plaintiff was also employed by the defendant to do certain extra painting to the basement, and certain decoration to the drawing-room walls, besides that comprised in the said contract, and the plaintiff did the same accordingly, and there is now due to the plaintiff in respect thereof £20.

5. All the prices and charges are either in accordance with contract, or are fair and reasonable.

The plaintiff claims £100.

Claim by a Commercial Traveller for his Salary.

1. The plaintiff is a commercial traveller. The defendants are wholesale drapers at M.

2. On the 1st of February, 1876, the defendants engaged the plaintiff as their traveller for the M. and Y. district, at a salary of £150 a year, payable half-yearly.

3. The plaintiff, in accordance with this agreement, entered into the service of the defendants, and continued therein until the 6th of August, 1876, and all conditions precedent have been performed to entitle the plaintiff to receive payment of his said salary.

4. On the said 6th of August, 1876, one half year's salary was due and in arrear, yet the defendants have not paid the same or any part thereof.

The plaintiff claims £75.

Claim for Remuneration for Literary Work.

1. The defendant P. is the chairman and treasurer of the Council of the Association for the

objects as are denoted by its title.
gentleman of private means.

an association having

The defendant N. is a

2. By an agreement made in the month of April, 1873, between the plaintiff and the defendant N., who was duly

authorized by the defendant P. to act as his agent in that behalf, it was agreed that the plaintiff should be employed by the defendant P., at an agreed rate of remuneration, to assist the defendant P. by his literary labour in the advocacy of the views and in the accomplishment of the objects of the said Association.

3. Thenceforth until or about the month of December, 1875, the plaintiff, in accordance with the said agreement, composed many speeches to be made use of by, and they in fact were made use of by the defendant P. and other members of the said council, and also wrote many pamphlets which were published by the defendant P., and the plaintiff devoted much time and labour in assisting the defendant P. to further the objects of the said Association.

4. Up to the month of December, 1875, there accrued due to the plaintiff, by virtue of the agreement mentioned in the 2nd paragraph in respect of the said work and labour, the sum of £210. Particulars have been delivered to the defendant P.

5. All things have happened and times have elapsed necessary to entitle the plaintiff to a performance by the defendant of his part of the said agreement, and to payment of the said agreed rate of remuneration, yet the defendant P. has not paid the same, nor any part thereof.

Claim for

remunera

tion for

literary

work.

fendant

alone.

6. In the alternative, the plaintiff says, that in consideration Alternative claim that the plaintiff would enter into the agreement in the 2nd against paragraph above mentioned, the defendant N. promised the second deplaintiff that he was authorized by the defendant P. to act as his agent in that behalf, and the plaintiff, relying upon the promise of the defendant N., did enter into the agreement as above mentioned, and did the work and rendered the services under it, as above stated.

7. The defendant N. was not authorized by the defendant P. to make the said agreement, or to act as his agent in that behalf, by reason whereof the plaintiff has not been able to enforce the performance of the said agreement by the defendant P., or to obtain from him remuneration for the work and services which he has done and rendered.

The plaintiff claims :

(1.) £210 from the defendant P.; or,

Claim by an author for work done.

(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 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.

Claim for a wrongful dismissal, &c.

An indefinite

hiring pre

sumed to be for a

year.

Wrongful Dismissal (a).

Action by yearly Servant for Damages for Dismissal, claiming in the alternative Arrears of Wages.

1. The defendant is a timber merchant trading as J. A. & Sons at

(a) An indefinite hiring in the case of servants, without mention of time, is presumed as a matter of fact which may be rebutted by other circumstances to be a hiring for one year, and the fact of the wages being payable monthly makes no difference. However on a hiring" at two guineas a week for one year," Bramwell, B., told the jury they might find a weekly hiring. (Robertson v. Jenner, 15 L. T. N. S. 514.) So a hiring "at £2 a week and a house." (Erans 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 the service of the defendant as a yearly servant at a salary of dismissal. £250 per annum, and the plaintiff subsequently received pay

wrongful

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.)

warning. Who are menial servants.

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, Bing. 313, per Gaselee, J.; Fawcett 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; 22 L. J. Ex. 1.) But a head gardener and huntsman have been held to be such servants, though under circumstances distinguishing them from ordinary menial or domestic servants. (Roscoe, Ev. Nisi Prius, 13th ed., 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 simply, is a hiring for a year; but a custom to discharge on notice may be engrafted on such hiring if the terms be not inconsistent with the custom. A stipulation for a gratuity at the end of the year has been held to be not inconsistent with such custom. (Metzner v. Parker, 9 Ex. 518; 23 L. J. Ex. 130; Parker v. Ibbetson, 27 L. J. C. P. 236 ; 4 C. B. N. S. 346.) It is a question for the judge whether a written contract excludes such a custom. (Parker v. Ibbetson, supra.) But when the hiring is expressly for a certain fixed time a custom to determine it before without notice is inadmissible. (Peters v. Stavely, 15 L. T. N. S. 275.) Semble, clerks in London are entitled to three months' notice. (P'er 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 Hiscor 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

A custom to discharge on notice may be en

grafted on

a general

hiring.

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 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 4th 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. (Hartland v. General Exchange Bank, 14 L. T. N. S. 863;

months.

Claim for wrongful

dismissal or alter

natively for arrears of

wages.

Master not bound to

assign any reason for dismissal.

Misconduct

no answer

to claim

for wages which are due at the time.

Misconduct

for which a master may in

stantly dis

charge his

servant.

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 Er parte Logan, L. R. 9 Eq. 149.)

The master is not bound to assign the reason for dismissal at the time thereof, and where a good cause for dismissal existed at such time, it is immaterial whether or not it was the real cause. (Ridgway v. Hungerford Market Co., 3 A. & E. 171.)

Where the payment of wages was to be at the rate of £50 per month, 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 a vested right to each month's wages when the mouth had elapsed. (Button v. Thomson, L. R. 4 C. P. 330.) This may be altered by the terms of hiring.

Where a master having a right to discharge his servant for misconduct condones it, and retains the servant, he cannot afterwards discharge him for the same misconduct. (Phillips v. Foxall, L. R. 7 Q. B. 680, per Blackburn, J.)

Defence-Dismissal for misconduct, disobedience, &c.]—If a servant misconducts himself, the master may dismiss him without notice. A refusal to obey a lawful order is a good ground for dismissal. (Lilley v. Elwin, 11 Q. B. 742.) A wrongful claim by a clerk that he is a partner, entitles the employer to dismiss him instantly. (Amor v. Fearon, 9 Ad. & E. 548.) If a traveller sells his employer's wines to a brothel keeper 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. (Brown v. Croft, 1 Chitty's Prac. of the Law, 82.)