CORNELL LAW LIBRARY dlcrn^U Slam ^rlinal Kibratg KFISIS.uTlll'r"'*^'-"'"^ v,1 Commentaries on the law of master and se 3 1924 019 221 856 I Cornell University y Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019221856 COMMENTARIES ON THE LAW OP MASTER AND SERYAIT INCLUDING THE MODERN LAWS ON WOEKMEN'S COMPENSATION, AEBITEATION, EMPLOYERS' LIABILITY, ETC., ETC. BY C. B. LAB ATT, B. A. (cantab.) M. A. (toeonto) OF THE Bab of San Francisco, Gal. IN EIGHT VOLUMES VOLUME I. RELATION AND CONTRACT ROCHESTER, NEW YORK, THE LAWYERS CO-OPERATIVE PUBLISHING CO. 1913. flf/C XCLf Entered according to Act of Congress, in the Tear nineteen hundred four, by THE LAWYERS CO-OPERATIVE PUBLISHING CO., In the Office of the Librarian of Congress, at Washington, D. C. Copyright nineteen hundred thirteen, by THE LAWYERS CO-OPERATIVE PUBLISHING CO. E. R. Andrews Printing Company, Rochester, N. T. SEYMOUR D. THOMPSON, LL. D., FOBMERIiY A MEMBER OF THE ST. lOTTIS COTJET OF APPEAIiS This Treatise is Dedicatkd, as a siiight token op the admiration which the author feels fob the distingtnshbd sebvicbs which hb has rendered to the legal profession, both in his judicial and iiitbbabt capacity. ORIGINAL PREFACE. The two volumes here offered to the profession deal with the nature and extent of a servant's right to maintain an action against his mas- ter for personal injuries, and form the first part of a treatise which, when finished, will be a complete commentary upon the law of mas- ter and servant. It has been the author's aim to cite every decision which has been rendered by a court of review in any of the countries in which the common law is the prevailing system of jurisprudence, and the materials collected represent the result of an exhaustive ex- amination of all the reports, whether official, semiofficial, or nonoffi- cial, which have been published in the following countries: Eng- land, Scotland, Ireland, the United States, Canada, Australia, and New Zealand. A brief summary of the law of employers' liability under the systems which are founded upon the civil law has also been added. The date of each case is always specified. The insertion of this detail has appreciably augmented both the cost and the bulk of the volumes ; but its utility will be readily conceded by every lawyer who has learned to realize the fluctuating and unstable condition of the law of employers' liability, and the vital importance of gauging the significance and weight of each ruling with reference to the precise period of doctrinal evolution by which it was produced. To prevent any risk of a misunderstanding, it is proper to mention that, as a general rule, no cases are cited which are of a later date than those collected in the volumes of the Greneral and American Di- gests which were published in the spring of 1902. The manifest ad- vantage of this arrangement is that it fixes a definite starting point for such researches as it may be desired to make in the later volumes of those digests or elsewhere, and obviates the want of homogeneity which would have resulted from undertaking to utilize all the most recent cases in a treatise which has necessarily required a consider- able time to put through the press. The chapter relating to the Eng- lish workmen's compensation act of 1897 constitutes the one im- portant exception to the scheme thus adopted. The unique and novel vi PREFACE. character of that remarkable statute, and the extraordinary amount of litigation which it has engendered during the few years of its ex- istence, have been deemed to furnish a sufficient justification for stat- ing the effect of all the decisions relating to it which have been re- ported up to the end of 1902. The supplementary citations of reports other than those which be- long to the official or semiofficial class are, it is considered, sufficiently iiseful to compensate for the outlay and consumption of space which their insertion has entailed. Wherever the only citation given is that of a nonofficial series, the case is not found except in a report of that description. To some readers these volumes will, perhaps, appear inordinately prolix. It may be advisable, therefore, to take this opportunity of explaining that the great length to which they have been extended is due to the impossibility of discussing adequately within a narrow compass the enormous mass of authorities bearing upon a subject which may, without any exaggeration, be said to enjoy the unenviable distinction of having been the occasion of a larger number of conflict- ing doctrines and inconsistent decisions than any other branch of law. In order to show with something like reasonable clearness and preci- sion the conclusions at which the various courts have arrived, the author has found himself constrained to enter upon a far more minute and detailed analysis of the cases than is customarily undertaken in a commentary of this general character. Without such an analysis the development of the law even in a single state cannot be satisfactorily elucidated ; and the necessity for an unusually microscopic examina- tion of the authorities is rendered still more imperative by the fact that, as regards many of the more important of the principles dis- cussed, the evolution of doctrines has proceeded in each jurisdiction upon lines which are, in some degree, at least, independent. Under these circumstances, it is clear that the subject cannot be handled with any thoroughness except by adopting a method of treatment which will enable the reader to understand not only the mutations and an- tagonisms of theory which are frequently apparent in the decisions rendered in the same state, but also the manifold points with respect to which the courts of the various countries hold discordant views. The most striking illustration of the difficulties which are entailed by the necessity of considering territorial lines is undoubtedly that which is furnished by the chapters relating to common employment; but many other examples of the confusion, obscurity, and uncertainty which are traceable to the same source may readily be found in these PREFACE. vii volumes. If the anxiety of the author to produce a reasonably clear account both of the past and present condition of the law has some- times occasioned what may seem an excessive diffuseness, he hopes that lawyers who consult these volumes will not be inclined to criti- cize very severely an error of judgment which must, at all events, enure to their advantage. It will scarcely be disputed by anyone who is familiar with the law of employers' liability that the deplorably chaotic condition to which it has been reduced in the United States is due to a cause which is probably more potent for mischief in actions to recover damages for injuries received by servants than in any other class of cases involv- ing the existence or nonexistence of negligence, — viz., the differences of opinion which prevail with respect to the limits of the power of a court to override the verdicts of juries. In some of the states so large a measure of authority in this regard has been arrogated to themselves by appellate judges that the actual, as distinguished from the theoretical, system of procedure may fairly be described as being virtually one which compels a plaintiff to establish his case to the sat- isfaction, not of one jury, but of two. No arguments are needed to demonstrate that such a condition of affairs, instead of tending to produce that stability of doctrine which Blaekstone and other writers have eulogized as being one of the most beneficial results of the de- limitation of the provinces of courts and juries, is certain to beget an infinitude of uncertainties and inconsistencies. In those cases — and they are by no means few — where a finding of facts or an inference from facts is rejected by a divided bench, the situation approaches perilously close to the ridiculous. It might be supposed that consid- erations of courtesy, if not of logic, should be sufficient to dissuade a portion of the members of a court from pronouncing a judgment which, under such circumstances, amounts essentially to a formal dec- laration that their dissenting brethren have, by accepting the conclu- sions of the jury, forfeited ad heme vicem the right to be classed in the category of those typically reasonable and fair-minded men whp are assumed, for the purposes of the decision, to be incapable of ren- dering such a verdict as the one in question. A preface is not an appropriate place for the discussion of the im- portant topic here touched upon. But it is not amiss to point out that, so far as the law of employers' liability is concerned, a large por- tion of the opportunities for the perpetration of this abuse of judicial functions would be eliminated if the doctrine which, on the ground either of an implied assumption of the risk or of contributory negli- viii PREFACE. gence, precludes a servant, as a matter of law, from obtaining dam- ages for an injury resulting from an abnormal risk of which he had knowledge, actual or constructive, before the accident occurred, were abolished by statute. That there is no class of cases in which courts of review have exercised such extensive powers, as regards the over- riding of verdicts, as in those which turn on the question whether the servant appreciated, or should have appreciated, the given hazard, will be abundantly apparent to anyone who collates, with reference to the facts involved, the cases which are collected in chapter xxi. [liv. 2d ed.J. It seems not unreasonable to suppose that, if the question whether the servant was chargeable with notice of the dan- ger from which his injury resulted were no more than one of the elements of an investigation leading up to a mere issue of fact, the courts would not be tempted to scrutinize so minutely as at present the findings of juries with regard to such notice. It is obvious that, if this should be the result of the change in the law which is sug- gested above, one prolific source of disagreement would be to a large extent removed. The consideration just adverted to is, however, not the only one which points to the expediency of abrogating the doctrine in question. Whether that doctrine is or is not sustainable on grounds of abstract logic, there would seem to be no escape from the conclusion that, un- der existing industrial conditions, it cannot be applied in employers' liability cases without frequently producing consequences which are intolerably harsh and severe. The author ventures to hope that the publication of these volumes which, by the simple process of showing in detail the circumstances under which it has prevented the recovery of compensation, have brought into clear relief its inherent unfair- ness, may induce a larger number of legislatures to follow the lead of those which have already enacted remedial legislation upon the subject. Another doctrine which the author considers to be thoroughly in- equitable in its essence is that which precludes a servant from recov- ering damages from his employer in cases where the injury was caused by the negligence of a coservant. It is little short of marvel- ous that a rule of law which rests upon such unsubstantial founda- tions (see §§ 472-475 [§§ 1395-1398, 2d ed.]), and which presses so hardly upon the classes which form the most numerous section of every community, should have survived up to the present time. But, as it has already been abolished in one state, and its domain has been greatly circumscribed in many others, there would seem PREFACE. ix to he good ground for anticipating that the day is not very far dis- tant when it will be excised entirely from Anglo-American juris- prudence, — the only modern system, it should be observed, of which it has ever formed a permanent part. It may readily be conceded that, even if carried out, the reforms here outlined would still leave in the law of employers' liability nu- merous defects which it would be desirable to remedy. But the changes proposed would, at all events, remove its most repulsive ex- crescences; and it would be an immense gain if the courts were re- lieved once for all from the necessity of considering two doctrines which are not only unduly favorable to the employer, but have also engendered such an enormous mass of subtle and refined distinctions — often as unreasonable and paltry as those which have made medi- eval scholasticism a by-word — that they are no longer fitted to be a part of a practical science which is concerned with the elementary af- fairs of every-day life. EocHESTBB, January, 1904. PREFACE TO NEW AND COMPLETE EDITION. When the first instalment of this treatise was published, it was an- ticipated that a single additional volume would suffice for the comple- tion of the work. But the amount of the materials to be handled was greatly underestimated, and the book has consequently grown to a size far beyond anything that was contemplated when it was com- menced. When the necessity for this enlargement had become ap- parent, it was deemed advisable to change the order of the chapters so that those which did not relate to the subject of Employers' Liability might be placed in a more appropriate position than they would have occupied if the original scheme had been carried out. The publishers have thought it expedient, for business reasons, that the treatise should be brought out at a somewhat earlier date than would have been feasible if it had been completed by a single person. It will, therefore, be proper to explain briefly what portions are to be credited to myself and to the collaborators by whom I have been as- sisted. These gentlemen are all members of the editorial stafE of the Lawyers Co-operative Publishing Company. The first two volumes of the series now published have been pre- pared by myself; but the cases decided during the last two or three years have been inserted by Mr. Walter M. Glass. To his efficient assistance I am also indebted for the work done in editing and bring- ing up to date the volumes which deal with Employers' Liability. My own share in this work of revision has been inconsiderable. I am re- sponsible for the outlined plan of the six chapters relating to Specific Statutory Duties which have now replaced the single chapter that was devoted to this subject in the first edition. The prolific industry of the legislatures, and the resulting increase of litigation, in this de- partment of the law, during the period which has elapsed since the publication of the first edition, have rendered this altered arrange- ment desirable, if not necessary. I should mention with regard to these chapters, that my examination of the reports and the statute books had been completed before the materials were handed over to Mr. Glass. If, therefore, any lack of completeness, in respect either xii PREFACE. of the decisions cited or the enactments inserted, should disclose it- self, I must myself bear the blame. In the volumes which relate to Employers' Liability 1 have re- written § 1466, and a few others. I have also made an addition to § 1398, which will doubtless elicit unfavorable criticism from some quarters. The essence of what I have inserted is a contention that the risk of a fellow servant's negligence is not an "ordinary risk," in any proper sense of that expression. It is obvious that, if this view were conceded to be correct, the doctrine of common employment would at once be deprived of its only rational basis. I am sanguine enough to hope that my position will be approved by some of my readers. But by most of them so revolutionary a suggestion will, I fear, be received with feelings akin to those with which an orthodox mathematician re- gards the theories of those heretics who have based a new system of geometry upon the proposition that the interior angles formed by the intersection of a straight line with two parallels are not equal to two right angles. All the chapters subsequent to those which relate to Specific Stat- utory Duties, up to and including that which deals with Apprentices, are entirely my own work. This remark applies also to the greater part of the chapters which cover the subject of a master's liability to third persons for injuries occasioned by the torts of his servants. Those on this subject, and some later chapters which have been com- piled by my collaborators, are indicated by the statements prefixed to each of them. The chapters relating to Wrongful Interference with the Contract by Third Persons have been handled by Mr. Charles C. Moore. Those which deal with Trade Unions and Strikes have been assigned to Mr. E. S. Cakes. Several others, including those on the Criminal Liability of a Servant, on the Criminal Liability of a Master for the Acts of a Servant, and on the Contracts of Servants, have been com- piled by Mr. H. C. Spurr. In order to obviate any possible misapprehension, I ought to men- tion that, except in so far as they illustrate general principles, the cases which are concerned with the hiring of seamen and of persons in public employments have not been reviewed in this treatise. It may be advisable to say a few words concerning the objects which I have kept in view while engaged in the preparation of this book. To the best of my capacity I have attempted to work out the conceptions that a legal treatise should, so far as the exigencies of space and other limitations permit, be so compiled as to serve the PEEFACE. xiii purpose of a code, a critical and exegetical commentary, a digest of facts, and a collection of leading cases. The ideal of thoroughness which is implied by this combination of attributes is doubtless too lofty to be attained even by an author whose abilities far surpass my own. But I may safely assert that whatever utility the book may be found to possess will be due to the circumstance that I have made a conscientious effort to attain it. A text-book compiled on the plan which I have outlined, even though the task of compilation may have been executed with only moderate skill, cannot but be a labor-saving appliance of very great efficiency; for, by enabling an investigator to reach at once the decisions which involve facts most closely resem- bling those with which he has to deal, it shortens — in degrees varying with the nature of the case in hand, but always considerably — the drudgery of the preliminary stages of an inquiry. I regard it as a matter of supreme importance that a commentator should show not merely what the courts have decided concerning cer- tain states of fact, but also the principles to which their decisions have been referred and the reasoning upon which their conclusions have been based. There is only one method by which this object can be attained,^ — that is to say, by keeping the reader constantly in touch with the actual language which they have used. It is on this ground, and on this ground alone, that I should attempt to justify the inser- tion of so many copious extracts from the opinions of the judges. Some advanced thinkers have, I believe, contended that, in order to satisfy really scientific standards, a history should consist of original documents, interspersed with comment and criticism. There is little likelihood that books of this type will ever supersede such narratives as those of G-ibbon or Macaulay. But I am convinced that the plan proposed is eminently suitable for a legal treatise. In this instance it is the "original documents" that are, above all things, wanted by the class of readers for whom the work is composed. What the com- piler has to say about those documents is usually a matter of second- ary consequence. As the authority of decisions and the applicability of the doctrines upon which they were based is to a great degree dependent upon the dates at which they were rendered, much attention has been devoted to the historical phases of the subject. I trust that the practical bene- fit resulting to my readers from this part of my task will be found to be commensurate with the time and labor spent upon it. The evolu- tion of principles is especially noteworthy in relation to the question of a master's liability for the torts of his servant. ISTo more remark- xiv PREFACE. able specimen of judicial legislation can be found in the books than that which abrogated the older theory, that such torts could not be im- puted to the master except upon the ground of a prior command or a subsequent ratification, and substituted the concept of a vicarious lia- bility on his part. Those who understand how largely the develop- ment of our unwritten jurisprudence has been influenced by the "per- sonal equation" of the men by whom its cardinal doctrines have been molded will observe with peculiar interest that this radical change — probably suggested by the alterations which at the close of the seventeenth century were taking place in the social and economic con- ditions of England — was apparently effected by Sir John Holt, a judge not less distinguished by the strength and independence of his character than by the profundity of his learning and the keenness of his intellect. Even if it should be objected that the circumstances at- tending the promulgation of the new rule possess no practical impor- tance at the present day, such a criticism is certainly not applicable to that portion of its subsequent history which is concerned with the nature of the limitations by which its scope, as originally declared, came at one time to be greatly contracted, with the gradual abandon- ment of those limitations during the last half century, and with the constant trend of the law towards an extension of the master's liability in certain directions. All these matters are of vital moment to the modern practitioner. That a treatise written on the lines indicated by the foregoing re- marks is not unacceptable to a large number of lawyers is fairly in- ferable from the unusual measure of success achieved by the two vol- umes originally published. If the treatise, as now completed, meets with a reception not less favorable than that which has been accorded to those volumes, I shall have good reason to be well satisfied. That success is attested by facts of unmistakable import, — a sale as large as that of the most widely circulated text-books, frequent citations (some of which have been accompanied by comment of a very lauda- torn tenor), and the receipt of some extremely flattering letters from individual judges. Since the first two volumes of the book were published, Judge Thompson, the distinguished jurist to whom it was dedicated, has passed away; his death being, as many of my readers are doubtless aware, due to overwork. The dedication now stands as a tribute to his memory. C. B. LABATT. Eochester, March, 1913. COl!^TENTS. CHAPTEE I. GENERAL DISCUSSION OF THE RELATION OF MASTER AND SERVANT. 1. Historical summary 1 a. Babylon 2 &• Egypt 3 c. Palestine 3 d. Greece 3 e. Rome 4 /. Mediaeval Europe, generally 6 g. England 6 2. When the relation of master and servant exists 8 3. Service considered as a status or condition 12 4. Various classes of servants 14 5. Servants for limited purposes 15 6. Applicability of the word "servant" to employees of various grades 16 7. Meaning of the word "servant" as used in statutes- 19 8. Persons entitled to take as servants under testamentary pro- visions 25 9. Slaves 31 a. Generally 31 6. Peonage 33 10. Relation between convicts and persons who hire their services from the state 35 11. Relation between guardians of the poor and paupers 39 12. Relation between members of trade unions and their officers .... 39 13. Relation between pilots and shipowners 39 13a. Relation between municipalities and their ofScers and employees 40 13b. Domicil of servants in relation to that of their masters 42 CHAPTEK II. UNDER WHAT CIRCUMSTANCES THE EXISTENCE OF THE RELATION WILL BE INFERRED AS BETWEEN TWO GIVEN PERSONS. A. Geneeally , 46 14. Classes of cases in which proof of the existence of the relation is material 46 xvi CONTENTS. 15. Employment by two or more persons jointly or in common .... 50 16. Burden of proof 54 17. Provinces of court and jury 54 B. Evidence appropkiate to establish the existence op the relation . . 56 18. Exercise of control over the details of the work 56 19. Payment of compensation 60 20. Power of appointment 64 21. Power of dismissal 67 22. For whose benefit the given work was done 69 23. Evidential significance of two or more of the foregoing elements in combination 74 24. Who was bound to perform the work in question 76 25. Exercise of a limited measure of control 77 26. Personal interference in the work 87 27. Ownership or possession of property 88 28. Course of business 93 29. Length of the period occupied in the performance of the work . . 94 30. Frequency with which the alleged servant performed work for the alleged master 95 31. Plaintiff's ignorance of the actual situation 95 o. Actions in tort by third persons 95 6. Actions in contract by third persons 97 c. Actions by servants for personal injuries received in the course of their employment 98 d. Actions by servant for wages 102 C. Position of various classes of servants engaged in work in which their general employer is directly interested 102 32. Servants hired by a superior employee of the person whom it is sought to charge as their master ; generally 102 33. Servants hired by superior employees of the state or of municipal corporations 108 34. General rule that servants of independent contractors are not servants of the principal employer 108 35. Effect of this rule upon the right of recovery in actions for com- pensation 109 36. — in actions for injuries caused by the wrongful acts of the con- tractor's servants 109 37. Same subject continued ; historical summary 113 38. —in actions based upon the breach of one of the characteristic duties of masters 115 39. — in actions where the defense of common employment is relied upon 117 40. Effect of evidence showing that the servants of the contractor were controlled by the principal employer 123 41. Constructive service, as predicated from the incidence of non-dele- gable obligations upon the principal employer 127 41a. Relation of servants of a bailee to the bailor 127 42. Servants of railway companies using the same premises 127 43. Servants working for connecting carriers 142 COXTENXS. xvil 44. Servants working on chartered ships ; generally 144 45. Servants working on merchant ships under charter 148 46. Same subject discussed in reference to cases where the master of the ship is also the charterer 157" 47. Servants working on ships chartered by the state 150 48. Servants engaged, together with the servants of a third person, in handling goods 159 49. Servants working on trains not operated by their employers . . . 163 50. Statutory modification of the common law in Pennsylvania . . . 164 51. Servants operating railroads for receivers or for trustees of mortgage bondholders 168 Undek what cibcumstances a servant in the general employment or one peeson becomes the spectat, servant of another PERSON 170 52. Introductory 170^ 53. Servant deputed to perform work for third persons by means of instrumentalities belonging to his master presumed prima facie to remain under his control 175- 54. Rule applied in the case of horse-drawn vehicle 176 55. Doctrine of imputed negligence 185 56. Rule applied in the case of instrumentalities other than horse- drawn vehicles 18& 57. Suspension of general employer's control; when inferred.... 192. 58. Position of servants deputed to perform work for third persons, but not placed in charge of any instrumentality hired from their employers; generally 205- 58a. Circumstances showing a continuance of the general employer's control over the servant 207 58b. Circumstances showing a suspension of the general employer's control 208 59. Fact that special skill is required for the work, inference from 216 60. Apparent inconsistencies in the decisions, discussed with refer- ence to the doctrines of respondeat superior and of common employment 217 61. General employer deemed to be for some purposes the master of a servant temporarily transferred to the control of a third per- son 219 62. Hirer of instrumentality deemed to be the master of a person appointed by himself to do work with respect to it 219 CHAPTER III. SERVICE CONSIDERED WITH RELATION TO OTHER CONTRACTUAL RELATIONS. A. Service distinghished from various contracts 222 63. Servant or apprentice 222 nil CONTENTS. 64. Incidents of independent contracts considered with reference to tliose of service and agency 222 ■65. Distinction between servants and agents. Generally 225 €6. Various elements which may serve for the purpose of differentia- tion between servants and agents 229 67. Cases illustrating the distinction between a servant and an agent 233 68. Servant or partner; servant compensated by a share in profits, not necessarily a partner ; general rule 239 69. Application of the rule as between employer and employee .... 241 70. — as between employee and third persons 246 71. — in criminal proceedings 249 72. Specific interest in the profits as profits; significance of 250 73. Participation in losses as well as profits 253 74. Other circumstances tending to show whether the contract was one of service or partnership 254 74a. Doctrine of the French law, as administered in Quebec 255 75. Servant or bailee 256 75a. Relationship between the proprietor and driver of a cab or hackney carriage 259 a. At common law 259 h. Under English and Colonial statutes 260 c. Under the New York ordinance 266 76. Same subject. Other relationships discussed 266 a. Relationship between the owner of an omnibus and the per- son driving it 266 6. Relationship between the owner and the hirer of a traction engine 267 c. Relationship between an employer and an employee engaged to sell goods 267 d. Relationship between a merchant and a master porter .... 26S DlSTINOnON BETWEEN CONTEACTS OF SEBVICE AND TENANCY 268 77. Generally 268 77a. Service or tenancy 269 78. Character of occupation, whether as servant or tenant; generally 274 79. Character of occupation tested with reference to its being ancil- lary or not to the services performed 281 80. Cases illustrating the application of this test 28.3 81. Character of occupation tested with reference to its beneficial or nonbeneficial quality 29.') 82. — to the effect of the arrangement as giving or not giving the servant an estate in the land 299 83. — to the fact that the privilege of occupation represents a certain amount of pecuniary compensation 300 84. Change in the character of the occupation, when inferred 303 85. Occupancy of a dwelling "by virtue of an office, service, or em- ployment" 304 86. Character of occupation viewed as an element determining the correctness of the wording of indictments for burglary .... 30() CONTENTS. xix CHAPTER IV. FOEMATION AND VALIDITY OF THE CONTRACT. 87. Scope of chapter 315 A. Geneeally 316 88. Assent of parties ; proposal and acceptance 316 89. Consideration ; mutuality 323 90. Same subject further discussed 330' 91. Consideration distinct from the mutual promises of the parties, contract sustained by 332 92. Uncertainty and indeflniteness 335 a. As to the date when the service is to begin 335 6. As to duration 335 c. As to the services to be performed 338 d. As to amount of remuneration 339 93. Fraud as an invalidating element 340 93a. Invalid contracts of apprenticeship, relation of master and servant not created by 342 94. Assignment of the rights and obligations of contracts of service by the master 342 95. — ^by the servant. Delegatus non potest delegare 344 96. Competency of evidence regarding the formation and terms of the contract 348 a. Generally 348 b. Admissibility of parol evidence in relation to written contracts 349 96a. Contracts induced by fraud of servant 350 97. Conflict of laws 351 B. Capacity of the pasties to conteact 352 98. Generally 352 98a. Contracts in excess of the powers of a corporation 352 99. Contracts for the services of infants, where the parents contract with the employers 353 a. Contracts made by fathers 353 6. Contracts made by widowed mothers 354 c. Contracts made by mothers of illegitimate children .... 354 100. — where the services are to be rendered to the infant's father. . 355 101. — where the infant contracts in his own behalf with a stranger; general principles 356 102. English doctrine regarding the validity of contracts made by infants in their own behalf 358 a. General statement respecting the classification of the au- thorities 358 5. Contracts made by infants of tender years 358 c. Contracts in consideration of the furnishing of necessaries 359 d. Beneficial contracts 359 c CONTENTS. 103. Same subject. To what extent the contracts of infants are treated as valid 36$ a. In settlement cases 363 6. In special statutory proceedings for the enforcement of the contract 363 c. In actions for wages 364 d. In actions against infants for breach of contract 364 e. In suits to enforce restrictive stipulations 365 104. — American doctrine 366 a. With respect to contracts for necessaries 366 6. With respect to merely beneficial contracts 368 105. Conflict between English and American decisions discussed .... 370 106. Distinction, in respect to the right of avoidance, between execu- tory and executed contracts of service 373 107. Effect of the infant's avoidance of the contract 376 108. Ratification of voidable contract by infant after attaining ma- jority 377 108a. Validity of infants' contracts of service in civil law jurisdictions 377 a. Scotland 377 6. Quebec 378 109. Contracts made by infants as employers 378 110. Contracts made by married women as employees of third persons 380 a. At common law 380' 6. Under the statutes relating to the property of married women 381 0. Under the French law of the Province of Quebec 381 110a. — as employees of their husbands 381 111. — as employers of third persons 382 a. Common-law doctrine 382; 6. Under the rules of equity 383 c. Under statutes relating to the separate property of mar- ried women 384 d. Doctrine of the French law, as administered in Quebec.. 385 112. — as employers of their husbands 385 113. Position of servants entering into a second contract of service before an existing contract has expired 386 AtJTHOEITY op agents in REGAKD to the hieing or SERVANTS 387 114. Generally 387^ 115. Hiring by agent appointed ad hanc vicem 388 116. Hiring by a partner 389 117. — by the directors of a corporation 390 o. Acting as a body 39O 6. Acting individually 39j e. Eatification by directors 393 d. Limitation of powers of president, etc., by by-laws; em- ployee, how far affected by 394 e. Employment to serve a company to be formed in the future 395 118. — by general managers and superintendents 395 o. Under individual employers 395 CONTENTS. xxi 6. Under corporations 395 c. Limitation of powers of general manager of corporation by by-laws, etc. ; employee, how far aflfected by 400 119. — by managers of departments 402 120. — ^by superior employees of the lower grades 404 121. — by subordinate employees 407 122. Ratification of contracts made by employees in excess of their authority 409 D. SUBJECT-MATTEB OF THE COJfTEACT 410 123. Agreements contrary to good morals 410 a. Sexual immorality 410 6. Other immorality 411 124. — to public policy 413 a. Agreements to give or accept employment for long periods 413 6. Agreements between husband and wife 415 c. Agreements directed to the procurement of a monopoly in a given commodity 416 d. Agreements involving a breach of the servant's obliga- tions 416 e. Agreements for the sale of appointments 416 f. Agreements to serve in a hostile army 417 g. Agreements relating to slaves 418 h. Agreements by wjiich the servant is insured against the consequences of his own fault 418 i. Agreements restricting the freedom of a third person .... 418 j. Agreements in restraint of trade 418 fc. Employment for the purpose of procuring contracts and franchises from public officials 418 125. — ^to statutory provisions 419 126. Same subject further discussed. Sunday laws 422 a. Contracts made on Sunday 422 h. Contracts for work to be done on Sunday 423 E. FOEMAl PKEREQUISITES TO THE VALIDITY OF A CONTRACT OF EMPLOYMENT 426 127. Scope of subtitle 426 128. Necessity for affixing a seal, considered with reference to the subject-matter of the contract 426 129. Appointment of servants by corporations; generally 426 a. Public corporations 426 6. Private corporations 427 130. Use of corporate seal, how far necessary for the authentication of contracts 429 131. Same subject discussed in relation to corporations created for special purposes 43.3 131a. Same principles applicable whether unsealed contract was exe- cuted or not 440 131b. Permanent or temporary character of the employment 444 132. Common-law rule, legislative modifications of 444 133. American doctrine as to use of corporate seal 444 xxii CONTENTS. 134. Requirements of the statute of frauds in respect to contracts not to be performed within a year ; generally 445- 135. To what contracts the statutory limitation of time is applicable 448 136. Special circumstances which do not take the contract out of the statute 452' 137. Statute not applicable to contracts which may be completely performed within a year 454 138. Rule as to contracts of hiring for an indefinite period 460 139. When the term of service is deemed to begin 461 140. Substitution of a second contract made at such a, time as to be enforceable, when inferred 462 141. Continuance of service after the expiration of the stipulated period 464 142. Memorandum required by the statute 465 143. Complete or partial performance of the contract; effect of 467 a. Complete performance on both sides 467 6. Partial or complete performance by servant 467 144. Legal consequences of a failure to comply with statute 472'. u.. Under statutes the effect of which is to render the contract nonenforceable 472 6. Under statutes declaring the contract to be void 476 145. Effect of various statutes relating specifically to contracts of service 478 146. Formal requisites of a valid contract of service in Scotland .... 479 147. — in Quebec 482 148. Requirements of the stamp acts 483 F. Alien laboe laws 484 149. United States 484 a. Federal legislation 484 6. State legislation regarding labor contracts made with aliens while still in their own country 489 c. State legislation as to contracts with resident aliens .... 490 150. Canada 490' c. Legislation by Dominion Parliament 490 6. Provincial legislation regarding contracts made with aliens while still in their own country 491 c. State legislation regarding contracts made with resident aliens 491 151. Australia 491 a. Commonwealth legislation 491 6. State legislation 492: CHAPTEE V. DURATION OF THE CONTRACT. A. Generally 49^ 152. Duration determined with reference to the specific terms of the contract 494. CONTENTS. xxiii 153. Understanding of parties as to effect of contract 50O 154. When the term of service begins 501 155. Continuity of the service 503- B. Duration of a hieing without specii'ic mention of time 504 156. English doctrine that a hiring without mention of time is pre- sumptively a hiring for a year 504 157. Nature of presumption discussed 50S 158. Doctrine applied in the British colonies where the common law is administered 512 159. Doctrine in the United States 516 160. Discussion of this doctrine 519 161. Doctrine in civil law jurisdictions 520 o. Louisiana 520 6. Scotland 520 c. Quebec 524 162. Duration of contracts for the performance of piecework 525 163. Duration of contracts providing for payment by commissions . . 525 C. Elements bearing upon the duration of a hiring without men- tion OF time 526 164. Period with reference to which the rate of wages is estimated. English and colonial decisions 526 a. Annual rate of wages specified 526 6. Rate of wages stated with reference to periods shorter than a year 525 165. Same subject. Review of cases decided in the United States . . 527 a. Annual rate of wages specified 527 6. Rate of wages stated with reference to a period shorter than a year 530 0. Statutory provisions 535 166. Same subject. Decisions in civil law jurisdictions 536 a. Scotland 536 6. Louisiana 537 c. Quebec 537 167. Intervals at which the wages are payable. English and colo- nial decisions 537 o. Generally 537 6. EflFect of provisions as to termination of contract by notice 541 168. Same subject. American decisions 542 169. Same subject. Rule in civil law jurisdictions 543 170. Performance of services, without specific evidence of a precedent contract 543 171. Custom and usage 544 a. Hiring expressly for a definite term 544 &. Hiring without mention of time — English decisions 544 c. — American decisions 545 d. — Decisions in civil law jurisdictions 546 172. Terms on which other servants of the same employer are hired 546 173. Character of the work to be performed 547 CONTENTS. 174. Subsidiary stipulations regarding property used for the pur- poses of the work 551 175. Specification of employment as being permanent, steady, for life, etc., 551 176. Statutory provisions 554 177. Provisions of corporate by-laws 555 178. Term of employment measured with reference to the continuance of a, certain state of things 556 179. Contract defeasible at the option of the parties 558 180. Employment defeasible by conditions subsequent expressly re- ferred to 559 CHAPTEK VI. TERMINATION OF THE CONTEACT. A. Teemiitation bt mutual consent 505 181. Generally 565 182. Effect of dissolution by mutual consent 570 B. Termination by act op the mastee 571 183. Right of master to dismiss servant. Generally 571 184. Right of dismissal in the case of employees performing public duties 575 a. Persons engaged directly by the state 575 B. Persons engaged directly by municipal councils 576 c. Persons engaged by officers or official boards discharging public functions 576 185. — in the case of employees of private institutions controlled by governing bodies 578 186. Authority of person exercising right of dismissal 579 a. Generally 579 6. Authority of individual partners 579 c. Authority of superior employees 581 187. What constitutes a dismissal 581 a. Generally 581 6. Dismissal, when inferable from the statements of the master 583 ^ c. Dismissal, when inferable from acts and other circum- stantial evidence 588 188. What constitutes a, valid ground for dismissal 591 189. Right of master to rely on a cause of discharge not assigned at the time of the discharge 594 a. Generally 594 6. Materiality of circumstance that existence of cause ulti- mately assigned was unknown to the master at the time of the servant's dismissal 595 c. When the doctrine will not be applied 597 CONTENTS. XXV 190. Waiver of right of discharge by condoning servant's breach of duty 598 a. Effect of retention of defaulting servant in the employ- ment. Generally 598 6. Doctrine that condonation is presumed from the mere fact of retention 599 c. Doctrine that condonation is a question for the jury, except in clear cases 602 d. Qualifications of the rule as to inference of waiver from fact of retention 605 e. Reliance by master upon one out of several grounds of dismissal 607 191. Waiver of reserved right to terminate the employment, if a specified event should occur 607 192. Consequences of dismissal with regai-d to the primary stipu- lations of the contract 608 a. Wrongful dismissal 608 6. Rightful dismissal 610 193. — ^with regard to special subsidiary stipulations 610 194. — with regard to the person and property of the servant 611 195. — with regard to the master's chattels used for the purposes of the servant's work 612 195a. — with regard to articles purchased from the master for resale 614 196. — ^with regard to third persons 614 C. Tebmination of contract by master. Subject considered with ref- erence TO specific STIPtTLATIONS DEFINING HIS BIGHTS .... 614 197. Stipulations permitting rescission if the work is not satisfactor- ily performed 614 198. Under what circumstances the employer's judgment as to the quality of the work is conclusive 617 199. How far the actual existence of dissatisfaction on the employ- er's part may be inquired into 624 200. Necessity of showing that the dissatisfaction alleged was covered by the contract 631 201. Effect of special stipulations other than those simply relating to the satisfactory quality of the work 633 a. Unqualified right of discharge 633 6. Right to dismiss conditioned upon existence of a cause for dismissal 635 c. Right to dismiss conditioned upon defective performance by the servant 635 d. Right of dismissal reserved in the event of the failure of the given enterprise 636 e. Previous consultation between parties a condition preced- ent to termination of contract 637 /. Continuance of employment dependent upon acts or for- bearances of servant 637 g. Stipulations taking into account the contingency of a ter- mination of the employment 637 xxvi COXTEXTS. D. TEK.MINATION BY THE ACT OP THE SERVANT 638- 202. Generally 638 203. What constitutes an abandonment of the service 630 204. Consequences of abandonment 642 205. Right of abandonment, as afi'ected by special stipulations .... 642 206. Waiver of the right of abandonment 643 207. Marriage of servant 644 a. Common-law jurisdictions 644 6. Quebec 647 E. TEKMINATION of the CONTRACT BY GIVING NOTICE 648' 208. Obligation to give notice under the express terms of the con- tract 648 a. Generally 648 6. Sufficiency of express notice 649 c. Sufficiency of notice implied from circumstances 651 d. Effect of rules prescribing the length of notice to be given by the servant 652 209. Obligation where the contract contains no express provision on the subject 653 210. Obligation as inferred from a specific custom 654 a. Generally 654 6. — in the case of domestic servant : . . . . 655 c. — in the ease of other servants 657 d. Custom overridden by express terms of contract 659 211. Obligation as inferred independently of a specific custom 659 a. The character of the employment 659 6. Period for which the contract was binding 662 c. Period with reference to which the rate of compensation is estimated 662 d. Reasonableness of notice a question of fact 663 212. At what time the notice should be given 664 213. Obligation to give notice under the law of Scotland 666 o. Express agreements as to notice 660 B. Obligation to give notice to prevent tacit relocation of contract for a definite period 666 0. Obligation in respect to contracts for a fixed period, where the question of tacit relocation is not involved 666 d. In cases where the servant was not hired for a fixed term 667 e. Form of notice 668 214. Under French law as administered in Quebec 669 F. Termination by oe on account of the death or physical disability OF ONE OF the PARTIES 669 215. Effect of death. Generally 669 216. Death of individual master 671 217. Death of member of employing firm of partners 676 218. Death of servant 678 219. Bodily or mental incapacity of the master 681 220. Bodily or mental incapacity of the servant, considered as an event operating so as to dissolve the contract 682 CONTENTS. xxvii 220a. — considered as an excuse for nonperformance of the contract 6S5 220b. — considered as a ground for rescinding the contract 688 220c. Right of employer to refuse to allow an employee to perform services while temporarily incapacitated 694 220d. Incapacity supervening after a wrongful dismissal 695 G. Termination by or on account of othek cibcxjmstances beyond the CONTROL or THE PARTIES 695 221. Epidemics and other overpowering natural calamities 695 222. Destruction or deterioration of master's property 696 223. Bankruptcy of master 698 223a. Bankruptcy of servant 699 224. Insolvency of an individual employer 699 224a. Compulsory winding up of employing company 699 225. Appointment of receiver and manager of business of employ- ing company 700 226. Execution sale of employer's property 701 227. Imprisonment of servant 702 a. Where he is guilty of the crime charged 702 h. Where he is not guilty of the crime charged 703 228. Other acts of public authorities 704 a. Authorities of state in which parties reside 704 6. Authorities of foreign state 705 229. Acts of third persons 706 CHAPTER VII. IMPLIED CONDITIONS OF AN EMPLOYMENT CONTINUED AFTER THE EXPIRATION OF THE TERM ORIGINALLY SPECIFIED. A. Doctrines applied in common-law jurisdictions 707 230. General rule enunciated 707 231. Duration of continued employment 710 a. Generally 710 &. Effect of the requirements of the statute of frauds .... 716 c. Pleading 717 232. Rate of remuneration under continued employment 718 a. Generally 718 6. Change in locality or character of service 720 c. Invalidity of original contract, effect of 721 233. Terminability of continued employment 722 234. Resumption of employment under the same master after an interval 723 235. Continuance of same work under a different employer 724 B. Doctrines applied in civil-law jurisdictions 725 236. Scotland 725 a. Generally 725 6. Necessity of giving notice to prevent tacit relocation . . . 726 237. Louisiana 727 238. Quebec 728 CONTENTS. CHAPTEE VIII. RIGHTS AND DUTIES OF MASTERS IN RESPECT TO THEIR SERVANTS DUBING THE CONTINUANCE OF THE RELATIONSHIP. A. Rights and powers of masteb 730 239. Eight of a master to protect his servant's person and interests 730 240. Rights of master with respect to his servant's property 733 241. Possession by servant deemed to be the possession of his master 733 242. Power of master to punish an ordinary hired servant 739 a. Imprisonment 739 b. Corporal chastisement 740 243. Power of shipowner's agents to punish a seaman 742 u,. Generally 742 &. Place where punishment may be inflicted 744 c. Duty of captain to make inquiry before punishing .... 74.5 d. Time at which punishment may be inflicted 746 e. Infliction of punishment by subordinate officers 746 244. Delinquencies for which a seaman may be punished corporally 748 245. What kind of corporal punishment may be inflicted on a seaman 751 a. Generally 751 6. Imprisonment 752 c. Other forms of punishment 755 246. Same subject discussed with reference to statutory modifica- tions of the common law 758 247. Coercion by master not an excuse for commission of a crime by the servant 761 B. Duties op master 761 248. Duty to retain the servant during the stipulated term 761 249. Duty to compensate the servant 761 250. Duty to instruct the servant 763 251. Master's duty with respect to food, lodging, and other person- al accommodations 763 o. Civil liability 763 6. Criminal liability 765 c. Liability of shipowners to seamen 765 252. Duty to deal honorably with the servant 766 253. Duty to indemnify servant for loss resulting from his com- pliance with his master's order to perform an unlawful act 767 a. Extent of duty where the master's liability is a mat- ter of implication 767 J. — where there is an express stipulation as to indemnity 769 c. Circumstances under which the servant is chargeable with knowledge of the illegality of the act directed 770 d. Servant claiming indemnity must prove that he complied with his master's orders 771 CONTENTS. xxix 254. Duty to indemnify the servant for injuries received in the course of his employment 772 255. Duty to abstain from offensive language and behavior 772 256. Duty to abstain from personal violence and cruelty 773 257. Duty to provide the servant with vpork during the stipulated term. Generally 777 258. Same subject. Effect of contract to "retain and employ at wages computed by time." 781 259. Same subject. Effect of other contracts of employment for a specified period at wages computed by time 783 260. Same subject. Eule where the compensation depends upon the quantity of work performed 788 261. Effect of contracts by which the master expressly agrees to provide a certain amount or kind of work 792 262. Breach of duty, when predicable on the ground of a discontin- uance of business 794 a. Generally 794 6. Cessation of master's business 795 c. Cessation of business resulting from sale of master's land or other property 798 d. Effect of specific stipulations in regard to the discontinu- ance of the master's business 799 262a. Contrast between doctrines applicable in cases of service and agency 800 263. Duty to see that the conditions of the service undergo no ma- terial change. Generally 803 264. Same subject. Changes in the personnel of an employing partnership 809 CHAPTEE IX. RIGHTS AND DUTIES OF SERVANTS IN RESPECT TO THEIR MASTERS DURING THE CONTINUANCE OF THE RELATIONSHIP. A. Rights of sbkvant 813 265. Rights corresponding to duties of master. Generally 813 266. Right to protect the person and property of his master 814 267. Rights with regard to property found by him upon his master's premises 814 B. Duties of sebvant. Generally 815 268. Duty to continue in the service until the expiration of the stipulated term 815 269. Duties with respect to the master's property 816 270. Duties arising from special stipulations in the contract 816 271. Burden of proving breach of duty by servant 818 272. Provinces of court and jury in determining whether a breach of duty was committed 818 o. Generally 818 XXX CONTENTS. h. In cases where the material facts have been ascertained 819 c. Submission of case to jury 823 d. Breach of duty, whether real reason for dismissal 823 C. Duty or obedience 824 273. Generally 824 a. Duty considered as one arising from an implied agree- ment 824 6. Duty as based upon an express stipulation in the contract 831 c. Duty in the case of seamen 833 274. Limits in the duty of obedience 833 D. Duties abising out of the servant's fiduciary relation to his MASTER 840 275. Duty of servant to account for money belonging to his master 840 278. Duty with respect to contracts made by him with his master 844 279. Duty to deal honestly with the master 845 a. Infringement of duty by falsehood and fraud 845 6. — by the misappropriation of the master's property .... 849 0. — by a corrupt acceptance of gifts 852 280. Duty to give security for the faithful performance of stipulated work 853 281. Duty not to use improperly information or materials obtained by him in the course of his employment. Generally 853 282. Remedial rights of master for a breach of this duty 857 a. In equity 857 6. At law 861 283. Duty as arising from an express agreement 862 284. Duty not to participate in transactions in which his interest will conflict with his obligations as a servant 866 E. Duties in respect of acts essentially injurious to the master. . . . 869 285. Generally 869 286. Duty of servant to disclose secret processes to his master 876 287. Duty to indemnify the master for loss caused to third persons by misconduct in the course of the employment 876 F. Duties in respect op the character, time, and place of the work . . 879 288. What kind of services a servant is bound to perform 879 289. At what places the servant is bound to work 886 290. At what times the servant is bound to work 889 a. Hours of work 889 b. Days of work 890 c. Obligatory periods of work, when the services are not to be rendered continuously 894 291. Absence from work as a breach of duty 895 a. Generally 895 6. Breach of duty, how far predicable of a, short absence from work 896 u. Absence from work in violation of express orders ad hoc 897 292. When absence from work is not deemed to be wrongful 900 G. Duties in respect of the efticient performance of the work 902 293. Duty of servant to use care and diligence 902 ■CONTENTS. XXXI 294. Duty of servant to perform his work with reasonable skill 910 a. In. general 910 6. Discharge for incompetency 912 c. Indemnification of master for losses caused by servant's incompetence 919 d. Master's knowledge of servant's incompetency. Effect of 919 Duties in kespect op personal behavior 920 295. Breach of duty, as predicated on the ground of immorality . . . 920 a. Generally 920 6. Sexual immorality 921 296. — of the commission of a criminal act 924 297. — of indecorous conduct 926 298. — of the use of intoxicating liquors 926 299. Duty to refrain from insolent, offensive, and threatening words and behavior 930 a. With regard to the master or his family 930 6. With regard to fellow servants 931 c. Provinces of court and jury in determining whether a breach of duty has been committed 932 CHAPTEE X. DUTIES OF THE PARTIES WITH REGARD TO EACH OTHER AFTER THE TERMINATION OF THE RELATIONSHIP. 299a. Duty of employer with regard to documents affecting the interests of himself and his employee 934 300. Duty of employee not to impair value of business purchased from his employer 935 301. Duty of employee as regards competition with the employer, where the relationship is severed before the expiration of the stipu- lated term 937 o. In the absence of a special agreement 937 6. Under special agreements 937 301a. Duty of employee as regards competition with the employer after the expiration of the stipulated term 940 302. Validity and construction of stipulations restraining employees from competition with their employers. Generally 940 303. Requirements of the statute of frauds 94." 304. Infancy of servant 943 305. Restrictive stipulation must be supported by a valuable consideration 943 306. — must not be unreasonable in respect to the protection conferred on the employer 946 a. Generally 946 6. To what extent cases relating to employees are governed by special considerations 949 c. Reasonableness to be determined with reference to the time when the contract is made 951 xxxii CONTENTS. d. Reasonableness a question for the court 951 e. Severability of valid and invalid stipulations 952 307. Illustrative cases involving the question of reasonableness 952 308. Restrictive stipulations in favor of persons composing a business com- bination or "trust" 962 309. Enforcement of restrictive stipulation by assignee of employer's busi- ness 963 310. Remedies for a breach of a restrictive stipulation 965 310a. Duty of employee not to reveal trade secrets of his employer, or infor- mation obtained in the course of his employment 969 CHAPTEE XI. LEGAL REMEDIES FOR A BREACH OF THE CONTRACT. A. Ge>-ebally 971 311. Remedies of master for servant's breach of contract 971 a. Dismissal 971 6. Action for damages 972 c. Deduction from wages 976 d. Recovery of damages by way of set-oflf, recoupment, or counterclaim 976 e. Action of assumpsit 976 /. Rule where the servant is a minor 977 312. Remedies of the servant for the master's breach of contract . . 977 a. Withdrawal from the employment 977 6. Action for wages 977 0. Actions based on the master's refusal to accept the serv- ices of the servant, or retain him in the employment . . 977 d. Action for damages caused by a breach of other specific duties 978 B. SXTMMAET AND COERCIVE REMEDIES APPLICABLE TO CERTAIN DESCRIPTIONS OP EMPLOYMENT 978 313. Common-law lien not available to servants 978 314. English statutes 980 o. Statute of 5 Eliz. chap. 4 980 6. Master and servant act, 20 Geo. II. chap. 19 981 c. Master and servant act, 6 Geo. III. chap. 25 981 d. Master and servant act, 4 Geo. IV. chap. 34 981 e. Master and servant act 1867 981 /. Employers and workmen act 1875 982 315. Statutes in the British colonies 985 a. Ontario 933 6. Quebec ggj c. Manitoba q84 d. British Columbia gg^ e. Newfoundland gg^ f. New South Wales gg4 CONTENTS. xxxiii g. Victoria 986 h. Queensland 986 i. Soutii Australia 980 316. Effect and operation of English and colonial statutes 986 317. United States and American possessions 996 a. Louisiana 996 6. Kentucky 996 c. Hawaii 996 Ceiminal liabilitt of masters and servants for breaches of the contract of hiring 997 318. Master's liability 997 o. Nonperformance of obligations in respect of the payment of wages 997 6. Nonperformance of other obligations 997 0. Defrauding servants 997 319. Servant's liability. Generally 997 a. United Kingdom and British possessions 997 &. United States 998 320. In respect of fraudulent breaches of contract 999 o. Alabama 999 6. Florida 1000 c. Georgia 1000 d. Louisiana 1005 e. Michigan 1005 /. Minnesota 1005 g. North Carolina 1005 h. South Carolina 1005 ». Liability of minors under American statutes 1007 CHAPTER XII. ENFORCEMENT OF CONTRACTS OP SERVICE BY COURTS OF EQUITY. 320a. Scope of chapter 1009 321. Subject considered with reference to the general principles which define the limits of equitable jurisdiction 1010 322. General rule that equity will not specifically enforce contracts of service 1018 323. Rationale of this rule 1025 324. Qualification of the general rule, where the applicant for relief is in the employment of a body of trustees 1029 325. Enforcement of a stipulation not to perform services for any other persons than the employer. English cases reviewed 1032 326. Same subject. American cases reviewed 1036 327. Absence of express negative stipulation, to what extent a bar to exer- cise of equitable jurisdiction. English eases reviewed 1036 328. Same subject. American cases reviewed 1041 xxxiv CONTENTS. 329. Quality of the services, how far a material element. English authori- ties examined 1044 329a. Same subject. American doctrine 1046 330. American doctrine further discussed 1050 CHAPTER XIII. REMEDIES OF THE SERVANT WHERE THE CONTRACT IS REPUDIATED BY THE MASTER BEFORE THE COMMENCEMENT OF THE STIPU- LATED TERM. 331. Action for damages 1054 332. Prerequisites of the action 1059 333. Action on the ground of constructive service 1059 334. Measure of damages in actions for breach of contract 1060 CHAPTEE XIV. REMEDIES OF A SERVANT WHO HAS BEEN WRONGFULLY DISMISSED FROM HIS EMPLOYMENT. -A. Geneballt 1067 335. Action for specific performance 1067 336. Remedial rights of servant in respect to the recovery of re- muneration and compensatory damages 1067 337. To what extent actions upon the contract and upon a quantum meruit are mutually exclusive 1068 338. To what extent a judgment in one action upon the contract is a bar to another such action 1071 ■B. Action to recover unpaid compensation earned before the dismissal 1074 339. Generally 1074 340. Pleading 1077 341. Amount recoverable 1078 •C. Action on a quantum meruit fob the value op the services actd- ALLY PERFORMED 1079 342. Generally 1079 ©. Action for damages for the breach of the contract 1081 343. Generally 1081 344. Juridical quality of the sei-vant's claim for damages 1084 345. Remuneration for services performed before the dismissal, how far recoverable in an action for damages 1086 a. Wages already earned and payable under the contract . . 1086 5. Value of service performed during the period broken by the dismissal 1088 346. Only a single action maintainable, where the stipulated com- pensation is a gross sum for the entire period covered by the contract 1088 CONTENTS. XXXV 347. Doctrine that only a single action is maintainable, where the compensation is payable in instalments 1089 348. Doctrine that successive actions may be brought to recover each instalment of the compensation 1094 349. Evidential prerequisites to the maintenance of an action for wrongful dismissal 1098 350. Obligation of parties to submit disputes to arbitration 1102 a. Obligation as arising out of a provision of the contract. . 1102 6. Obligation as created by a statute 1103 351. Declaration 1104 a. Generally 1104 6. Sufficiency as affected by the inclusion of a demand for a specific amount as wages 1108 o. Matters of defense 1110 d. Amendments allowable 1110 352. Plea 1111 a. Generally 1111 6. Further particulars 1113 353. Variance 1115 354. Burden of proof 1115 355. Admissibility of evidence 1120 356. Defenses 1123 357. Instructions 1127 358. Parties 1128 B. Measure of damages in an action for breach of the conteact. Gen- erally 1128 359. Measure of damages recoverable for the master's breach of contract deemed to be the actual loss suffered by the serv- ant 1128 360. Compensation which the dismissal prevented the servant from earning represents prima facie the extent of his loss 1132 361. Effect of special provisions regarding the retention of a part of the servant's wages, or a deposit of money by him, as a security for fulfilment of his duties 1134 362. Stipulations entitling the employee to a certain amount in the event of the employment's being terminated 1136 363. Period with reference to which damages are assessable in actions brought before expiration of the term 1137 a. Period as dependent upon the terms of the plaintiff's dec- laration 1137 6. Doctrine that damages are recoverable in respect to the period subsequent to the trial 1137 c. Doctrine that damages are recoverable only in respect to the period preceding the trial 1141 d. Doctrine that damages are recoverable only in respect to the period preceding the commencement of the action 1145 364. Prima facie measure of damages in respect of the period pre- ceding the trial, in cases where the servant is hired for a definite period and for a specific amount of money 1146 xxxvi CONTENTS. 365. — in cases where the hiring is without mention of time 1146 366. — in cases where the duration of the contract is defined other- wise tlian with relation to the divisions of the calendar 1147 a. Contracts to employ as long as the services rendered are satisfactory 1147 6. Contracts to employ as long as the services are performed efficiently 1147 0. Contracts to employ as long as the servant wishes to re- main in the service 114& d. Contracts to employ as long as certain business arrange- ments subsist 1149 367. — in cases where the amount of the compensation is not specified in terms of currency or property 114& 368. — in cases where the servant's remuneration consists wholly or partially of the profits or proceeds of his master's business 1149' 369. — in cases where the servant's remuneration consists wholly or partially of commissions 115i 370. Same subject further discussed. Allowance of commissions on transactions not developed into binding contracts at the time of the trial 1154 a. Doctrine that such commissions should not be considered in assessing damages 1154 6. Doctrine that such commissions should be considered in assessing damages 1155 371. Amount recoverable in cases where the servant is paid by the piece 1159 372. Prima facie measure of damages in respect of the period between the trial and the end of the term 1160 373. Provinces of court and jury in determining amount of damages 1163 374. Allowance of interest on servant's claim 1163 F. Special damages apart fbom the loss of the stipulated compensa- tion 1163 375. Scope of subtitle 1163 376. Physical suffering „ 1164 377. Mental annoyance 1165 378. Impairment of personal or business reputation 1165 379. Loss of property or personal freedom 1168 380. Loss of valuable privileges or opportunities incident to the em- ployment 1169 381. Expenses arising out of the acceptance or loss of the employ- ment 1170 a. Expenses incurred in traveling to or from the place where the services are to be rendered 1170 6. Expenses incurred in making preparations for the per- formance of the contract 1172 o. Expenses incurred during periods of enforced idleness . . 1173 d. Expenses incurred in attempting to find other employment 1173 383. Money paid to obtain the employment from which the plaintiff was dismissed 1174 CONTENTS. xxxvii 384. Losses incident to leaving a former employment for that from which the servant was dismissed 1174 385. Value of servant's inventions 1174 386. Value of business connections formed by servant 1175 387. Money invested in, or expended so as to benefit, the defendant's business 1173 388. Vindictive damages 1176 G. Mitigation of damages 1176 389. To what extent the amount prima facie recoverable is subject to diminution in respect of the period preceding the trial. Generally 1176 390. Deduction of actual earnings 1176 a. Wages earned by work done for another employer 1176 B. Profits of an independent business carried on by the serv- ant for his own benefit 1181 c. Money which the servant might legitimately have earned if he had remained in the employment 1183 d. Money earned after the expiration of the stipulated term 1185 391. — of potential earnings in employment obtainable by due dili- gence 1185 392. — of potential earnings in employment actually offered and re- fused 1187 393. Duty of servant to seek for and accept other employment . . 1188 394. What kind of employment the servant is bound to seek for, or accept when it is offered by a person other than the original master 1194 395. Obligation of servant to accept an offer of re-employment by his former master 1198 396. Other elements affecting the question of mitigation of damages 1203 a. Abandonment of position obtained after the dismissal . . 1203 6. Rightful discharge of servant from employment obtained after dismissal 1203 c. Loss suffered by the master as a result of the termina- tion of the employment 1204 d. Incompetency of servant 1204 e. Lessened expenses of servant after the dismissal 1205 /. Temporary inability of servant to perform the stipulated service 1205 397. Pleading in regard to matters in mitigation of damages 1205 a. Declaration 1205 6. Plea 1206 399. Burden of proof in regard to such matters 1206 400. Mitigation of damages in respect of the period subsequent to the trial 1210 401. Deductions in respect of elements other than actual or poten- tial earnings 1212 a. Saving of plaintiff's time and labor 1212 6. Expenses incurred in carrying out the contract 1213 xxxviii CONTKNTS. H. Action fob wages on the gbound of the cwnsteuctive performance OF services after the dismissal 1213; 402. Generally 12ia 403. Effect of English decisions with regard to the doctrine of con- structive service 1215 404. Effect of American decisions 1217 405. Discussion of the doctrine of constructive service 1224 406. Hov? many actions are maintainable on the same contract for the constructive performance of services 1230' a. Where the stipulated compensation is a gross sum 1230 &. Where the compensation is a certain sum payable in in- stalments 1230 407. Prerequisites to recovery on the ground of constructive serv- ice 1232. 408. Pleading 1233 409. Defenses 1233 410. Amount prima facie recoverable 1234 411. Deductions from amount prima facie recoverable in actions based on constructive service 1235 I. Remedial eights of servant under the civil law 1236- 412. Generally 1236 413. — in Louisiana 1237 414. —in Scotland 1237 a. Generally 1237 6. Prima facie measure of recovery 1231?. c. Mitigation of damages 123b 415. —in Quebec 1240 a. Generally 1240 6. Action for damages for the wrongful dismissal 1240- c. Mitigation of damages 1241 d. Actions for wages 1241 416. Remedial rights of wrongfully dismissed seamen in admiralty courts 1242 a. Action for wages 1243 6. Action for damages 1243. c. Mitigation of damages 1245 TITLE OF CHAPTERS IX REMAINING VOLUMES. chapter. XV. Recovery of wages under express agreements. Amount recoveeabxe in cases where incom- pleteness OF performance is not one of the ELEMENTS INVOLVED., p. 124*7. CONTENTS. xxxix; CHAPTEE. XVI. Amount becoveeable wheee a special con- TEACT HAS NOT BEEN" PEEEOEMED FOE THE WHOXE- OF THE PERIOD OEIGINALLY CONTEMPLATED^ p.. 1379. XVII. Recovery of bemuneeation in actions on a QUANTUM MERUIT, p. 1517. XVIII. EeCOVEBY of BEMUNEEATION FOE SERVICES BEND- EEED by EELATIONS OE MEMBEES of the SAME HOUSEHOLD TO ONE ANOTHEB, p. 1651. XIX. PeBSONS entitled to MAINTAIN ACTIONS IN BE- SPECT OF BEMUNEEATION ACCRUING FOB SEEV- ICES, p. 1753. XX. Parties liable fob the bemuneeation of seev- ANTS, p. 1885. XXI. Defenses to actions fob wages, p. 1915. XXII. Statutes accoeding a peioeity to claims foe WAGES, p. 1972. XXIII. Statutes imposing a liability for wages upon THE INDIVIDUAL MEMBERS OF COEPOEATIONS, p.- 2102. XXIV. Statutes enacted specially for the protec- tion OF LABOBEBS EMPLOYED BY INDEPENDENT conteactobs, p. 2123. XXV. Statutes belating to the seizube of wages by JUDICIAL process, p. 2145. XXVI. Truck acts and other statutes designed to secure the payment of the full amount of THE WAGES EARNED, p. 2229. XXVII. Statutes regulating the computation of WAGES, p. 2271. XXVIII. Statutes eegulating the rate of wages, p.. 2283. XXIX. Statutes requiring the payment of wages at certain times, p. 2293. XXX. Statutes regulating the payment of wages iis cases where the employment is TERMINATED BY THE ACT OF ONE OF THE PARTIES, p. 2304. XXXI. Miscellaneous statutes relating to wages, p. 2316. xl CONTENTS. CHAPTER. XXXII. ("Statutes eegulating the woeking houks of & J SERVANTS, p. 2325. XXXIII. [ XXXIV. General principles by which the extent of THE master's liability IS DETERMINED, p. 2383. XXXV. What degree of care a master is bound to exercise for the protection of HIS SERV- ANT, p. 2403. XXXVI. What kind of instrumentalities a master is BOUND to furnish. GeNERAL PRINCIPLES, p. 2435. XXXVII. Obligations of a master, considered with ref- erence TO THE DUTY OF SERVANTS AND THIRD PERSONS TO USE REASONABLE CARE, p. 2485. XXXVIII. Obligatory quality of instrumentalities, con- sidered WITH reference TO THE RIGHT OF A MASTER TO CARRY ON HIS BUSINESS IN HIS OWN WAY, p. 2498. XXXIX. Common usage as a test of the performance OF employer's duties, p. 2527. XL. Theory that the servant's knowledge or IGNORANCE OF THE RISKS INVOLVED IN THE EM- PLOYMENT DETERMINES THE EXISTENCE OR AB- SENCE OF CULPABILITY ON THE MASTEr's PART, p. 2563. XLI. Liability of employees for injuries caused by VARIOUS INSTRUMENTALITIES, p. 2594. XLII. Master's obligations as to the condition of HIS INSTRUMENTALITIES ARE CONTINUOUS, p. 2685. XLIII. Knowledge as an element of a master's lia- bility, p. 2701. XLIV. Duty of inspection, p. 2778. XLV. Employer's liability considered with refer- ence TO THE OWNERSHIP OF THE INSTRUMENTAL- ITY WHICH CAUSED THE INJURY, p. 2826. XLVI. Master's duty with respect to the employ- ment OF SERVANTS, p. 2858. XLVII. Duty of the master with regard to animals USED AS A PORTION OF HIS INSTRUMENTALITIES, p. 2917. CONTENTS. xh CHAPTER. XL VIII. XIAX. L. LI. LII. LIII. LIV. LV. LVI. LVII. LVIII. LIX. LX. LXI. LXII. LXIII. LXIV. DUTT OF THE MASTER TO COH^DTTCT THE BUSUSTESS UPON A SAFE SYSTEM^ p. 2919. Duty to insteuct and waen the servant, p. 3016. Assumption of risks by the servant, p. 3090. Contributory negligence in respect to the acceptance or retention of a given employ- ment, p. 3261. Contributory negligence at the time the in- jury was received, p. 3343. Volenti non fit injuria, p. 3609. When knowledge of a risk is imputed to a servant, p. 3661. Eight of action for injuries caused by danger- ous conditions which the master had PROMISED to guard AGAINST OR REMEDY, p. 3852. KiGHT of action for INJURIES RECEIVED IN OBEY- ING DIRECT ORDERS, p. 3913. Effect of a statement by the master or a co- employee THAT CERTAIN WORK MAY BE DONE SAFELY, p. 3956. Liability for injuries received by the servant IN obeying an order to perform duties out- side THE scope of his ORIGINAL CONTRACT, p. 3975. Common employment as a defense. Intro- ductory CHAPTER, p. 4006. Defense of common employment in cases not involving the question whether the negli- gent servant was a vice principal, p. 4060. Vice principalship as referred to the test of superiority of rank, p. 4141. For what acts of superior servants a master is RESPONSIBLE, p. 4284. Summary of decisions by the various courts WITH regard to the RELATION OF SUPERIOR servants to their SUBORDINATES, p. 4333. Vice principalship as determined with refer- enc'e to the character of the act which CAUSED THE INJURY, p. 4411. xlii CONTENTS. CHAPTEB. LXV. Extent of an employer's liability foe negli- gence IN EEGAED TO THE DETAILS OF THE WOEK, p. 4537. Liability of the mastee consideeed with eefee- ENCE to the question WHETHEE THE INJUEED PEESON WAS A SEEVANT IN EESPECT TO THE WOEK IN HAND, p. 4666. Causation, p. 4733. Evidence, p. 4806. Paeties in actions foe injuries eeceived by seevants, p. 4924. Pleading and peactice, p. 4944. Effect of geneeal statutes upon the extent OF a mastee's liability, p. 5025. Statutes enacted expressly for the benefit OF SEEVANTS. InTEODUCTOEY CHAPTEE, p. 5041. Statutes declaratory of common-law doc- trines, p. 5092. English employers' liability act of 1880 and THE American, Canadian, and Austealian statutes modeled theeeon, p. 5100. Statutes abrogating the defense of common employment in actions for ixjuries caused BY THE negligence OF SUPERIOR SERVANTS OR OF COSEEVANTS IN OTHER DEPAETMENTS : ARKANSAS, California, Mississippi, Montana, Ohio, Ore- gon, South Carolina, Utah, Vieginia. LXXVI. Statutes abrogating the defense of common employment in respect of mastees generally or of certain classes of masters : United States, Arkansas, Colorado, Florida, Geor- gia, Iowa, Kansas, Minnesota, Missouri, Mon- tana, Nebraska, JSToeth Caeolina, IsToeth Da- kota, Ohio, Oklahoma, South Dakota, Texas, Wisconsin, Wyoming, Saskatchewan. LXXVII. Acts imposing an absolute liability upon the master. English woekmbn's compensation act and statutes feamed on similae lines. ■ LXVI. LXVTI. LXVIII. LXIX. LXX. LXXI. LXXII. LXXIII. LXXIV. LXXV. CONTENTS. xliii CHAPTEE. LXXVIII. Statutes relative to the safety and health OF employees in manufactueing and mercan- tile ESTABLISHMENTS. LXXIX. Statutes relative to the safety and health OF employees on railways. LXXX. Statutes relative to the safety and health of employees in mines. LXXXI. Statutes relative to the safety and health OF employees in other occupations. LXXXII. Statutes restricting the employment of women and children. LXXXIIa. Remedies for the violation of specific statu- tory duties. LXXXIII. Special contracts discharging or restricting THE LIABILITY' OF EMPLOYERS FOR INJURIES TO THEIR SERVANTS. LXXXIV. What employees are within the purview of STATUTES REGARDING THE OBLIGATIONS OF MAS- TERS TO THEIR SERVANTS. LXXXV. Employers' liability under the civil law and SYSTEMS FOUNDED THEREON. LXXXVI. Conflict of laws in cases involving employ'- ERS' liability. LXXXVII. Medical attendance on servants. LXXXVIII. Character of the servant. Blacklisting. LXXXIX. Eights of employer in respect of the services of the employee and the things produced THEREBY. XC. Apprentices. XCI. Liability of a master foe the torts of his servants. When the master is chargeable AS A principal TORT FEASOR. XCII. Vicarious or constructive liability of a mas- ter IN respect of the torts of his servants. Introductory chapter. XCIII. Historical development of the principle, Respondeat superior. XCIV. Rational foundations of the principle. Re- spondeat SUPERIOR. XCV. Vicarious or constructive liability of a mas- ter UNDER THE CIVIL LAW xliv CONTENTS. CHAPTEB. 50VI. Vicarious or constructive liability of a mas- ter DISCUSSED with REFERENCE TO STATUTORY PROVISIONS. XCVII. Liability arising from the constructive serv- ice PREDICATED AS AN INCIDENT OF THE DOMES- TIC RELATIONSHIPS. XCVIII. General discussion of the circumstance UNDER WHICH A MASTER IS DEEMED TO BE LIABLE FOR THE TORTS OF HIS SERVANTS. XCIX. Vicarious or constructive liability of a mas- ter FOR injuries inflicted BY THE NEGLI- GENCE OF HIS SERVANTS UPON PERSONS TO WHOM HE OWES NO CONTRACTUAL DUTY. C. Vicarious or constructive liability of a mas- tee OCCASIONED by THE NEGLIGENCE' OF HIS ^~~- SERVANTS TO THIRD PERSONS STANDING IN A CON- TRACTUAL RELATIONSHIP TO HIM. CI. Vicarious or constructive liability of a mas- TERj AP&RT FROM PRIVITY OF CONTRACT^ FOR THE WILFUL tORTS OF HIS SERVANTS, ToRTS IN- JURIOUS TO THE PERSON. CII. Vicarious or constructive liability of a mas- tee^ APART from privity OF CONTRACT^ FOR THE WILFUL TORTS OF HIS SERVANTS. ToRTS IN- JURIOUS TO PROPERTY. cm. Vicarious oe constructive liability of a mas- ter FOR injuries occasioned BY THE WILFUL toets of his servants to third persons stand- ing in a contractual relationship to him. Liability of carriers. CIV. Vicarious or constructive liability of a mas- tee FOR injuries occasioned BY THE WILFUL torts of his SERVANTS TO THIRD PERSONS STAND- ing in a contractual relationship to him. Contracts other than that of carriage. CV. Vicarious oe consteuctive liability of a mas- ter FOR wrongful AEEEST^ FALSE IMPRISON- MENT^ AND MALICIOUS PEOSECUTION. CVI. Civil liability of a master in respect of the CRIMINAL ACTS OF HIS SERVANTS. CONTENTS. xlv CHAPTEB. CVII. ViCAEIOUS OE CONSTEUCTIVE XIABILITT OF A MAS- TEE CONSIDEEED WITH EEFEEEWCE TO THE CHAE- ACTEE OE THE DUTY OWED BY HIM TO THE IN- JUEED PEESON. CVIII. Parties liable eoe toets of seevant. CIX. Eemedies and peoceduee geneeally in actions foe toets of seevants. ex. Ceiminal liability of mastee foe acts of sbev- ANT. CXI. Mastee's liability on conteacts of seevant. CXII. Peesonal liability of seevant. CXIII. Enticement oe haeboeing of seevants. CXIV. Liability to mastee foe injuries to seevant. GXV. Inteefeeence with anothee's business oe em- ployment: GENEEAL PEINCIPLES. CXVI. Inteefeeence with anothee^s employment. CXVII. Inteefeeence with another's labor supply. CXVIII. Inteefeeence with another's business re- lations. CXIX. The eight to oeganize. CXX. Conteacts eequieing employment of union laboe only. CXXI. Effect of steikes on liability for nonpee- FOEMANCE OF DUTY OE CONTEACT OBLIGATION. CXXII. Aebiteation and conciliation. CXXIII. Union labels. CXXIV. Constitutionality of statutes eelating to mas- ter and seevant. TABLE OF PARALLEL SECTIOI^S. Showing where in this edition the corresponding sections of the first edition are to be found. First Present Edition Edition CHAP. CHAP. I. XXXIV. sec. sec. 1 893 2 894 3 895 4 896 5 897 6 898 Y 899 8 900 9 901 10 902 11 903 12 904 13 905 CHAP. CHAP. II. XXXV. sec. sec. 14 906 15 907 16 908 16a 909 16b 910 17 911 18 912 19 913 20 914 21 915 First Present Edition Edition CHAP. CHAP. III. XXXVI. sec. sec. 22 916 22a 917 23 918 24 919 25 920 26 921 27 922 28 923 29 924 CHAP. CHAP. IV. XXXVII. sec, sec. 30 925 30a 926 30b 927 31 928 32 929 CHAP. CHAP. V. XXXVIII. sec. sec. 34 930 35 931 36 932 37 933 38 934 39 935 xlvii First Present Edition Edition sec. sec. 40 936 41 937 42 938 CHAP. CHAP. VI. XXXIX. sec. sec. 43 939 44 940 45 941 45a 942 46 943 47 944 48 945 49 946 50 947 51 948 52 949 53 950 CHAP. CHAP. VII. XL. sec. sec. 54 952 55 953 56 954 57 955 58 956 59 957 60 958 xlviii TABLE OF PARALLEL SECTIONS. First Edition see. 61 ... 62 ... 63 . .. 64 ... 65 ... 66 .., CHAP. VIII. sec. 66a . 67 .. 69 . 70 . 71 . 72 , 73 74 , 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 Present Edition sec. .. 959 . . 960 . . 961 . . 962 .. 963 .. 964 CHAP. XLI. sec. . 965 . 966 . 967 . 968 , . 969 , . 970 , . 971 . . 972 , . 973 . . 974 . . 975 . . 976 . . 977 . . 978 . . 979 . . 980 . . 981 . . 982 . . 983 . . 984 . . 985 . . 986 . . 987 . . 988 . . 989 . . 990 . . 991 . . 992 . . 993 . . 994 First Present Edition Edition sec. sec. 96 995 97 996 98 997 99 998 100 999 100a 1000 101 1001 102 1002 103 1003 104 1004 105 1005 106 1006 107 1007 108 1008 CHAP. CHAP. IX. XLII. sec. sec. 110 .... 1009 Ill 1010 112 .... 1011 113 .... 1012 114 .... 1013 115 1014 116 .... 1015 117 .... 1016 118 .... 1017 CHAP. CHAP. X. XLIII. sec. sec. 119 1018 120 1019 121 1020 122 1021 123 1022 124 1023 125 1024 126 1025 127 1026 128 1027 First Present Edition Edition sec, sec. 129 1028 129a 1029 130 1030 131 1031 132 1032 133 1033 134 1034 135 1035 136 1036 137 1037 138 1038 139 1039 140 1040 141 1041 142 1042 143 1043 144 1044 145 1045 14 6 1046 146a 1047 147 1048 147a 1049 148 1050 149 1051 150 1052 CHAP. XI. sec. 151 . CHAP. XLIV. sec. 1053 152 1054 153 1055 154 1056 155 1057 156 1058 157 1059 158 1060 159 1061 160 1062 161 1063 TABLE OF PARALLEL SECTIONS. xlix First Present Edition Edition sec. sec. 162 1064 163 1065 164 1066 165 1067 CHAP. CHAP. Xn. XLV. sec. sec. 166 1068 167 1069 168 1070 169 1071 170 1072 171 1073 172 1074 173 1075 174 1076 175 1077 176 1078 CHAP. CHAP. XIII. XLVI. sec. sec. 177 1079 178 1080 179 1081 180 1082 181 1083 182 1084 183 1085 184 1086 185 : . . . 1087 186 1088 187 1089 188 1090 189 1091 190 1092 191 1093 192 1094 193 1095 193a 1096 194 1097 First Present Edition Edition sec. see. 195 1098 196 1099 197 1100 198 1101 199 .... 1102 200 1103 201 1104 202 .... 1105 203 1106 204 .... 1107 205 1108 CHAP. CHAP. XIV. XLVII. sec. sec. 206 1109 CHAP. CHAP. XV. XLVIII. sec. sec. 207 1110 208 1111 209 1112 209a 1113 210 in4 211 1115 212 1116 213 1117 213a 1118 213b 1119 214 1120 215 1121 216 1122 217 1123 218 1124 219 1125 220 1126 221 1127 222 1128 223 1129 224 1130 225 1131 First Present Edition Edition sec. sec, 226 1132 227 1133 228 1134 229 1135 230 1136 231 1137 232 1138 233 1139 234 1140 CHAP. CHAP. XVI. XLIX. sec. see. 235 1141 236 1142 237 1143 238 1144 239 1145 240 1146 240a 1147 241 1148 242 1149 243 1150 244 1151 245 1152 246 1153 247 1154 248 1155 249 1156 250 1157 251 1158 252 1159 253 1160 254 1161 CHAP. CHAP. XVII. L. sec. sec. 255 1163 256 1164 257 1165 258 1166 1 TABLE OF PARALLEL SECTIONS. Present Edition sec. 1167 1168 1169 .... 1170 .... 1171 .... 1172 1173 117-J 1175 1176 .... 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 .... 1187 1188 1189 279a 1190 279b 1191 280 1192 281 1193 282 1194 283 1195 284 1196 285 1197 286 1198 287 1199 288 1200 289 1201 290 1202 291 1203 292 1204 First Edition sec. 259 . . 260 .. 261 .. 262 . . 263 . . 264 .. 265 .. 266 .. 267 . . 268 .. 269 .. 270 .. 271 .. 272 .. 273 . . 274 . . 274a . 275 .. 275a . 276 .. 277 .. 278 .. 279 .. First Present Edition Edition CHAP. CHAP. XVIII. LI. sec. sec. 293 1205 294 1206 295 1207 296 1208 297 1209 298 1210 298a 1211 299 1212 300 1213 301 1214 302 1215 302a 1216 303 1217 304 1218 305 1219 306 1220 307 ■. 1221 308 1222 309 1223 310 1224 311 1225 CHAP. CHAP. XIX. LII. sec. sec. 312 1226 313 1227 314 1228 315 1229 316 1230 317 1231 318 1232 319 1233 320 1234 321 1235 322 1236 323 1237 324 1238 325 1239 First Present Edition Edition sec. sec. 326 1240 327 1241 328 1242 329 1243 330 1244 331 1245 332 1246 332a 1247 332b 1248 333 1249 334 1250 335 1251 336 1252 337 1253 338 1254 339 1255 340 1256 341 1257 342 1258 343 1259 344 1260 345 1261 346 1262 347 1263 348 1264 349 1265 350 1266 351 1267 352 1268 353 1269 354 1270 355 1271 356 1272 357 1273 358 1274 359 1275 360 1276 361 1277 362 1278 TABLE OF PAEALLEL SECTIONS. li First Present First Present Edition Edition Edition Edition *ec. 860. sec. sec. 363 .... 1279 394 1313 364 1280 395 1314 365 1281 396 1315 365a 1282 397 1316 366 1283 398 1317 367 1284 399 .... 1318 CHAP. CHAP. 400 .... 1319 XX. LIII. 401 1320 sec. sec. 402 1321 368 1285 402a 1322 369 1286 370 1287 403 1323 403a 1324 371 . . . . 1288 404 1325 372 1289 404a .... . . . . 1326 373 1290 405 1327 374 1291 406 1328 375 . . . . 1292 407 1329 376 1293 408 . . . . 1330 377 1294 409 1331 378 1295 410 1332 378a 1296 410a 1333 379 1297 411 1334 380 1298 412 1335 381 1299 413 1336 381a 1300 413a 1337 382 1301 414 1338 383 1302 415 1339 384 1303 416 1340 385 1304 417 1341 386 1305 CHAP. CHAP. CHAP. CHAP. XXII. LV. XXI. LIV. sec. sec. «ec. sec. 387 .... 1306 418 .... 1342 388 1307 419 . . . . 1343 389 1308 420 1344 390 . . . . 1309 421 1345 391 1310 422 . . . 1346 392 ... 1311 423 1347 393 . . . . 1312 1 424 . . . 1348 First Present Edition Edition sec. sec. 425 1349 426 1350 427 1351 428 1352 429 1353 430 1354 431 1355 432 1356 CHAP. CHAP. XXIII. LVI. see. sec. 433 1357 434 1358 435 1359 436 1360 437 1361 438 1362 439 1363 440 1364 441 1365 442 1366 443 1367 444 1368 CHAP. CHAP. XXIV. LVlI. sec. sec. 446 1369 447 1370 448 1371 449 1372 450 1373 451 1374 452 1375 453 1376 454 1377 CHAP. CHAP. XXV. LVIII. sec. sec. 455 1378 456 1379 457 1380 TABLE OF PARALLEL SECTIONS. First Present Edition Edition sec. sec. 458 1381 4-59 1382 460 1383 461 1384 462 1385 463 1386 464 1387 465 1388 466 1389 467 1390 468 1391 469 1392 CHAP. CHAP. XXVI. LIX. sec. sec. 470 1393 471 1394 472 1395 473 1396 474 1397 475 1398 476 1399 477 1400 478 1401 479 ■ 1402 480 1403 481 1404 482 1405 483 1406 483a 1407 484 1408 485 1409 486 1410 487 1411 488 1412 489 1413 490 1414 491 1415 491a 1416 First Present Edition Edition CHAP. CHAP. XXVII. LX. sec. sec. 492 1417 493 1418 494 1419 495 1420 496 1421 497 1422 498 1423 499 1424 500 1425 501 1426 501a 1427 502 1428 503 1429 504 1430 505 1431 506 1432 CHAP. CHAP. XXVIII. LXI. sec. sec. 507 1433 508 1434 509 1435 510 1436 511 1437 512 1438 513 1439 514 1440 515 1441 516 1442 517 1443 518 1444 519 1445 520 1446 521 1447 521a 1448 522 1449 522a 1450 528 1451 First Present Edition Edition sec. see. 524 1452 525 1453 526 1454 527 1455 528 1456 529 1457 530 1458 531 1459 532 1460 533 1461 534 1462 535 1463 536 1464 CHAP. CHAP. XXIX. LXII. sec. sec. 536a 1465 537 1466 538 1467 539 1468 540 1469 541 1470 542 1471 543 1472 544 1473 545 1474 546 1475 547 1476 CHAP. CHAP. XXX. LXIII. sec. sec. 548 1477 549 1478 CHAP. CHAP, XXXI. LXIV. sec. sec. 550 1479 551 1480 552 1481 553 1482 TABLE OF PARALLEL SECTIONS. liii First Present Edition Edition ■eec. sec. 554: 1483 555 1484 556 1485 557 1486 558 1487 559 1488 560 1489 561 1490 562 1491 563 1492 564 1493 564a 1494 565 1495 566 1496 567 1497 568 1498 569 1499 570 1500 571 1501 572 1502 573 1503 574 1504 575 1505 576 1506 577 1507 578 1508 579 1509 580 1510 581 1511 582 1512 583 1513 584 1514 CHAP. XXXII. tec. 585 586 587 588 CHAP. LXV. sec. 1515 1516 1517 1518 First Present First Present Edition Edition Edition Edition sec. sec. sec. sec. 589 1519 624 1555 590 1520 625 1556 591 1521 625a .... 1557 592 1522 626 1558 593 1523 627 1559 594 1524 628 1560 595 1525 629 630 .... 1561 596 1526 1562 597 1527 631 1563 598 1528 599 1529 600 1530 601 1531 602 1532 603 1533 604 1534 605 1535 606 1536 607 1537 608 1538 609 1539 610 1540 611 1541 612 1542 612a 1543 613 1544 614 1545 615 1546 616 1547 617 1548 618 1549 619 1550 620 1551 621 1552 622 1553 CHAP. XXXIII. sec. 623 . . . CHAP. lxat:. sec. . 1554 632 1564 633 1565 634 1566 635 1567 636 1568 CHAP. CHAP. XXXIV. LXXI. sec. sec. 637 1640 638 1641 CHAP. CHAP. XXXV. LXXII. sec. sec. 639 1641a 640 1642 641 1643 642 1644 643 See 1645 644 See 1645 645 See 1645 646 See 1645 647 See 1645 648 See 1645 649 1646 650 1647 651 1648 652 1649 652a 1650 CHAP. XXXVI. sec. 652b . CHAP. LXXIII. sec. . 1651 liv TABLE OF PARALLEL SECTIONS. First Edition sec. Present Edition sec. 653 1652 653| 1653 653f 1654 CHAP. CHAP. XXXVII. LXXIV. sec. sec. 653a 1655 654 1656 655 1657 656 1658 657 1659 658 1660 659 1661 660 1662 660a 1663 661 1664 662 1665 663 1666 664 1667 665 1668 666 1669 667 1670 668 1671 669 1672 670 1673 671 1674 672 1675 673 1676 674 1677 675 1678 676 1679 677 1680 678 1681 679 1682 680 1683 j 681 1684 682 1685 683 1686 684 1687 First Present Edition Edition sec. sec. 685 1688 686 1689 687 1690 688 1691 689 1692 690 1693 691 1694 692 1695 693 1696 694 1697 695 1698 696 1699 698 1700 699 1701 700 1702 701 1703 702 1704 703 1705 704 1706 705 1707 706 1708 706a 1709 707 1710 708 1711 709 1712 710 1713 711 1714 712 1715 713 1716 714 1717 715 1718 716 1719 717 1720 718 1721 719 1722 720 1723 721 1724 721a 1725 722 1726 First Present Edition Edition sec. sec. 723 1727 724 1728 725 1729 726 1730 727 1731 728 1732 729 1733 730 1734 731 1735 732 173& 733 1737 734 1738 734a 1739 735 1740' 736 1741 737 1742 738 1743 739 1744 740 1745 741 1746 741a 1747 742 1748 CHAP. CHAP. XXXVIII. LXXV. sec. sec. 743 1749 743a 1750 744 1751 744a 1750 745 1751 745a 1753 745b 1754 746 See 1783 746a See 1784 746aa See 1783 746b 1755 747 1755 747a See 1661a 747b See 1661a TABLE OF PARALLEL SECTIONS. Iv F'irst Edition SCO. 747c . 748 .. 748a . 748b . Present Edition sec, . 1757 . 1758 . 1760 . 1761 749 Seel79i 749a See 1795 749b See 1794 750 See 1795 750a See 1794 751 See 1795 751a See 1794 751b 1762 752 1763 CHAP. XXXIX. sec. CHAP. LXXVI. sec. 1765 .... 1770 .... 1771 ....1772 1773 .... 1774 .... 1775 .... 1776 .... 1777 . . . 1778 . . . 1779 ... 1780 . . . 1781 . . . 1782 ... 1788 761aa 1788 762 1789 763 1797 764 1798 764a 1799 765 1800 765a 1802 753 . 753a 754 . 754a 755 . 756 . 757 . 758 . 758a 759 . 759a 760 . 760a 761 . 761a First Edition CHAP. XL. sec. Present Edition CHAP. I^XXVII. sec. 766 1803 766a 1804 767 1805 768 1806 769 1807 770 1808 771 1809 772 1810 773 1811 774 1804 774a 1812 775 1813 775a 181J 776 1815a 776a 1816 777 1817 777a 1818 778 1819 778a 1840 779 1841 780 1842 781 1813 782 18i4 783 1845 783a 1846 784 1847 785 1848 786 1849 787 See 1970 787a 1826 788 1850 788a 1828 1830 1831 1832 1833 1834 (»9 790 791 792 793 First Present Edition Edition sec. sec. 794 1835 795 .... 1837 795a 1838 796 1838a 797 1851a CHAP. CHAPS. XLI. LXXVIII.- LXXXII. sec. sec. 799 1906-1909 800 1905 801 1911 802 See chapters Lxxviii.-Lxxxii. chap. chap, xlii. lxvii. sec. sec. 802a 1569 803 1570 804 1571 805 1572 806 1573 807 1574 808 1575 809 1576 810 1577 811 1578 812 1579 813 1580 814 1581 815 1582 chap. XLIII. sec. 816 . 817 . 818 . 819 . 820 . 821 ., CHAP. LXVIII. sec. . 1583 . 1584 . 1585 . 1586 . 1587 . 1588 Svi TABLE OF PARALLEL SECTIONS. First Present Edition Edition eec. sec. 822 1589 823 1590 824 1591 825 1592 826 1593 827 1594 828 1595 829 1596 830 1597 ■831 1598 832 1599 833 1600 834 1601 835 1602 836 1603 837 1604 838 1605 839 1606 840 1607 841 1608 842 1609 843 1610 CHAP. XLiy. -844 . 845 . S46 . CHAP. LXIX. sec. 1612 1613 1614 First Present Edition Edition sec. see. 847 .... 1615 848 .... 1616 848a . . . . . . . . 1617 849 .... 1618 849a 1619 CHAP. CHAP. XLV. LXX. sec. sec. 850 1620 850a 1621 851 1622 852 1623 853 1624 854 1625 855 1626 855a 1627 856 1628 857 1629 858 1630 859 1631 SCO 1632 861 1633 862 1634 863 1635 864 1636 865 1637 866 1638 867 1639 First Present Edition Edition CHAP. CHAP. XLVI. LXXXVI. sec. sec. 868 1992 869 1993 870 1994 871 1995 872 1996 873 1997 874 1998 CHAP. CHAP. XLVII. LXXXV. sec. sec. 875 .... 1976 876 1977 877 .... 1978 878 1979 879 1980 880 1981 881 1982 882 1983 883 1984 884 1985 885 1986 886 .... 1987 887 1988 888 .... 1989 889 1990 890 .... 1991 MASTER AND SERVANT. a^olu]m:e I. CHAPTER I. GENERAL DISCUSSION OP THE RELATION OF MASTER AND SERVANT. 1. Historical summary. u,. Babylon. 6. Egypt. c. Palestine. d. Greece. e. Rome. /. Medieval Europe, generally. g. England. 2. When the relation of master and servant exists. 3. Service considered as a status or condition. 4. Various classes of servants. 5. Servants for limited purposes. 6. Applicability of the word "servant" to employees of various grades. 7. Meaning of the word "servant" as used in statutes. 8. Persons entitled to take as servants under testamentary provisions. 9. Slaves. a. Generally. 6. Peonage. 10. Relation between convicts and persons who hire their services from the state. 11. Relation between guardians of the poor and paupers. 12. Relation between members of trade unions and their ofBcers. 13. Relation between pilots and shipowners. Via,. Relation between municipalities and their officers and employees. 13b. Domicil of servants in relation to that of their masters. 1. Historical summary. — In a legal treatise a lengthy dissertation on the origin and development of the relationship of master and servant would be out of place ; ^ but possibly a cursory review of 1 Those who have occasion to investi- Charicles and Gallus ; Mahaffy's Social gate the matter will find ample infor- Life in Greece; Levasseur's Histoire des mation in the following works: Classes Ouvrieres; Labor in Europe and Smith's Dictionary of Antiquities, suB America, a report issued in 1875 by Dr. voc AgriouUura, Servus, etc.; Becker's Young, Chief of the United States Bu- M. & S. Vol. I.— 1. MASTER AND SERVANT. [CHAP. L the subject will not be regarded as inappropriate or devoid of prac- tical interest. According to some authorities, free service should be regarded as an institution which, in the process of social development, was preceded by, and evolved from, slavery.^ But to students of juris- prudence the obscure question thus indicated is of no practical in- terest. The circumstance with which they are, from a historical standpoint, mainly concerned is that the class of free wage-earners- constituted a more or less considerable proportion of all the ancient civilized communities of which we possess any definite knowledge. o. Babylon. — The oldest body of laws extant is that which was promulgated by Hammurabi, King of Babylon, who reigned about 2250 B. c. In this very remarkable Code, which has recently been brought to light and translated into various modern languages, there are several provisions prescribing the rate of wages, daily or other- wise, to be paid to various classes of employees.' reau of Statistics; Erman's Life in An- cient Egypt; Francotte's Industrie dans la Grfece Ancienne; Marquardt's Das Privatleben der Romei'; Dureau de la Mallfe Economie Politique des Ro- mains; Du Meanil Marigny's Histoire (le I'Economie Politique; J. P. Waltz- ing's Corporations Professionelles chez les Romains; Lieberman's Romische Vereinwesen; Mommsen's De Collegiis et Sodaliciis Romanorum. The authori- ties specified at the conclusion of the article on Slavery in the EncyclopsEdia Britannica may also be consulted. The history of the relationship in England is summarized in the intro- ductions to the treatises of Mr. Smith and Mr. Macdonell. 2 Mr. Taylor (Anthropolopy, p. 434) remarks that "the master at first let out his slaves to work for his profit, and then freemen found it to their ad- vantage to work for their own profit, so that there grew up the great wage- earning class." In the opinion of Dr. Young, also, there is no lack of historical evidence that slavery preceded wage labor in the process of social evolution, and that hired laborers, who have appeareii to any considerable extent only in com- munities which have made some prog- ress in civilization and in the diversifi- cation of industry, were chiefly drawn at first from a class which had previ- ously been enslaved. Labor in Europe- and America, p. 2. That free labor antedated slavery in> China is asserted by Simcox. Primitive Civilization, vol. 1, p. 114. Various opinions as to the manner in which the, relationship of master and servant may be deemed to have originated are discussed in Puffen- dorf's De Jure Nat., lib. 6, chap. 3. He himself expresses the opinion that "the first rise of servitude is owing to the voluntary consent of the poorer and more helpless persons, and is founded upon that common form of contract, — Do ut facias." 8 For example, to the driver of a hired ox wagon (§ 271); to a man building a house by piecework ( § 228 ) ; to certain kinds of artisans (§ 274) ; to boatmen or navigators (§ 239); to la- borers (§§ 257, 273); to herdsmen (§§^ 258, 261). The section numbers are § 1] GENERAL DISCUSSION OF THE RELATION. 3 h. Egypt. — Artisans and laborers constituted one of the three classes into which the ancient Egyptians were divided by Diodorns Sicnlus. These were distinct from the servile classes.* c. Palestine. — It is stated in a work of high authority that the normal condition of subordinate workers in the Hebrew polity was that of a slave, but that there were free as well as servile laborers. ° In proof of this assertion, numerous passages may be cited from the Bible itself and from other writings.* d. Greece. — That free labor was a familiar institution in Greece during the heroic age is unquestionable.'' At a later date, in Attica, and presumably in other parts of the Hellenic world, many of the poorer classes — especially among the /asroaoe or f evo: — were engaged in doing for wages work of the same kind as that which was com- monly performed by slaves. Such employees were termed fitadcoroc, and they hired themselves out, not only as artisans and farm serv- ants, but also as domestics.' j those used in the translation of Pro- some interesting facts respecting the fesaor Harper. payment of wages, board as wages, the As to the concurrent existence of right of the laborer to but a portion of slavery and free labor in Babylonia, see the crop which he gathered, and the also the work of Mr. Simcox on Primi- remedies of either party against the tive Civilizations, vol. 1, p. 338. other for a breach of the contract. 4 See Dr. Young's Labor in Europe "> Part of the agricultural work was and America, pp. 11, 12. That slavery done by poor hired freemen ( errrec; ) , and free labor existed concurrently in who are alluded to as a wretched class ancient Egypt is also stated by Simcox ("Rather would I live as the hireling of (Primitive Civilizations, vol. 1, pp. 70- another, with a landless man who had 93, where the reader will find many in- no great livelihood, than bear sway teresting details with respect to the re- among all the dead that be departed:" lation between employers and their serv- Homer, Odyssey, xi. 490). Having ants ) . "o powerful protector to whom they 8 Smith's Dictionary of the Bible, could look, and depending on casual sui voo. Slave and Servant. work, they were probably in a less de- 6 Hired servants and bond servants sirable position than the average slave, are contrasted in Lev. xxv. 39, 40; furnishing in this respect a somewhat 1 Kings, ix. 22. Two classes of servants remarkable parallel to the white labor- those '"born in the house" and those ers in the southern states of America "bought with money of the stranger" before the Civil War. The word Btzt are mentioned in Gen. xvii. 12, 27. is used by Hesiod (Op. 600) to denote Provision was made for the payment of what would now be called a farm bail- hired servants every evening before sun- iff. That hired nurses were employed set Deut. xxiv. 15. The existence of i.s evidenced by the Hymn to Demeter, classes of artisans who sold their serv- paraphrased by Mahaffy m his Social ice is shown by 2 Chron. xxiv. 12. The Life in Greece, p. 59. In early Greek word translated in the English version writers the word 6ep&.fi undertake to separate that class into subdivisions which do not repre- sent any corresponding difference in the rights and liabilities of the parties concerned.* greater or less extent their legal per- Bentham classes the condition of sonality, instead of the subordinate master and servant among those which individual being covered and extin- he designates "domestic or private." guished by the persona of a paterfw- Works, vol. I. p. 343. milias. A servant can sue his master Austin includes that condition among; for breach of contract, as well as his those which he terms "domestic or master can recover from a stranger quasi domestic." Jur. p. 72. for a tort per quod servitium amisit ; * In a. work of some authority it is- and even a wife has her separate stat- laid down that there are five kinds of us." Holmes, J., in 7 Am. L. Rev. 61. servants; viz., slaves, apprentices, me- 3 Bentham remarks that the condi- nial servants, day laborers, agents of tion of master and its correlative condi- any kind. — Reeve, Dom. Rel. p. 339. tions are the effects of contract, which The first edition was published in 1816. the parties may arrange to suit them- No modern text writer would think it selves. Works, vol. 1, p. 343. worth while to distinguish "menial 1 In Hale's Analysis, p. 33, the tela- servants" from "day laborers." Apart tionship of master and servant is from this, of course, the statement i» placed among "relationships econom- erroneous in classing "agents" among ical." servants. See § 65 post. Blaokstone treats service as a "do- In La. Civ. Code, art. 64 (157), the mestic condition." 1 Com. chap. 14. first two of the three classes of free' § 5] GENERAL DISCUSSION OF THE RELATION. 15 5. Servants for limited purposes.— The law recognizes the existence of certain relations which constitute what may, for want of a better term, be denominated quasi service. One example of such service is indicated by the remark of Black- stone (1 Com. 430) that "a wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants." * But in this connection a modern jurist would doubtless employ the term "agents," rather than "servants." Another example is supplied by a class of cases which procede upon the theory that an independent contractor is in law the serv- ant of his employer, where he undertakes to perform work which is intrinsically dangerous, or which involves the performance of some absolute duty which the employer is bound at his peril to ful- fil. See § 41, post. Another situation in which the contract, though not, it would seem, one of service, may yet be subject to some incidents of service, is indicated by the well-known case in which it was held that an operatic prima donna was to be deemed so far a servant of her manager that he was entitled to maintain an action against a per- son who had enticed her to leave her employment.^ In this connection, reference may be made to the doctrine by which the legal position of a guest in a house is in some respects assimilated to that of a servant of his host.' It should also be observed that, in some of the older cases, the servants are described as follows: 1. engen (1875) 6 S. G. 297j 24 Am. Eep. Those who only hire out their services 471. by the day, week, month, or year, in 1 In 1 Rolle, Abr. 2, pi. 7, a wife was consideration of certain wages. The said to be in the nature of a servant, rules which fix the extent and limits of ^ Lumlcy v. Gye (1853) 2 El. & Bl. those contracts are established in the 216, 1 Eng. Rul. Gas. 706. Under such title, Of Letting and Hiring. 2. Those circumstances it would be difficult to who engage to serve for a fixed time, maintain that it was the understand- for a certain consideration, and who are ing of the parties to the contract therefore considered, not as having that the prima donna was to comply hired out, but as having sold their serv- with the directions of her mana- ices. It is difficult to see what prac- ger as to the manner in which she was tical value there is in this distinction, to sing. As a matter of theatrical his- It is not a little remarkable that a tory, however, it is interesting to note court should, within the last thirty that the theater managed by the plain- years, have found it necessary to make tiff in the case cited was one of the two a formal ruling to the effect that a, "Royal" theaters in London, and that farm laborer is a servant in such a the regular members, at least, of the sense as to enable his employer to main- companies performing in them had in tain an action against a person who earlier times been commonly termed entices him away. The contention was "His Majesty's Servants." that this remedy is available only in sin Southcote v. Stanley (1856) 1 cases where the employee is a farm Hurlst. & N. 247, it was held that a laborer was rejected. Daniel v. Swear- complaint was demurrable, where n 16 MASTER AND SERVANT. [chap. i. word "servant" bears certain meanings which are entirely incon- sistent with the theory of modern judges regarding its scope.* 6. Applicability of the word "servant" to employees of various grades. — The word "servant" is applied, by jurists, as well as in common parlance, to employees of all ranks and grades, from the highest to the lowest.^ But it will scarcely be disputed that, in view guest sought to recover on an allegation the other to act as but his servant.'' that he had been invited to come as a Birkmyr v. Darnell (1705) 1 Salic. 27, visitor into the defendant's hotel, and 1 Smith Lead. Gas. 11th ed. 299. was injured by the "carelessness, negli- * In § 75, note 2, post, some cases are gence, default, and improper conduct" cited in which carriers are referred to of the defendant in allowing the door as "servants" of the shippers of goods, by which the plaintiff left the hotel to l Persons discharging the high and be in an unsecure condition. During responsible duties of commissioners of the argument of counsel, Pollock, C. B., woods and forests in Great Britain interjected these two remarks: "A ser- were in one case spoken of as "servants vant is lawfully in his master's house, of the Crown." Canterbury v. Atty. and yet if the baluster fell, whereby Oen. (1842) 1 Phill. Ch. 306, 4 St. Tr. he was injured, he could not maintain N. S. 767. an action against the master. ... In Nicholson v. Moimsey (1812) 15 Where a person enters a house by invi- East, 384, Lord Ellenborough speaks of tation the same rule prevails as in the the captain and the lieutenants of a case of a servant. A visitor would have warship as "common servants of one no right of action for being put in a master." damp bed, or near a broken pane of The same phraseology is used by glass, whereby he caught cold." In his Blackburn, J., in Mersey Docks & Ear- opinion the learned judge laid it down hour Board v. Gibbs (1864) 11 H. L. that the principle of Priestley v. Foic^ Cas. 686, 712, in referring to the rule ler (1837) 3 Mees.& W. 1, 19 Eng. Rul. that "servants" of the government hav- Cas. 102 (see chapter Lix., post), ing, as such, "the management of some applies to the case of a visitor at a branch" of the government business, house; while he remains there he is in are "not responsible for the negligence the same position as any other member or default of those in the same employ- of the establishment, so far as regards ment" as themselves. In support of the negligence of the master or his serv- the rule he cites the case last men- ants, and he must take his chance with tioned, and Lane v. Cotton (1701) 1 the rest. Ld. Raym. 646, and Whitfield v. Le Des- See also the remarks of the same pencer (1778) 2 Cowp. 754, in which judge in Abraham v. Reynolds (1860) the defendants were both Postmasters- 5 Hurlst. & N. 143, as quoted in § 1396, general, note 5, post. In one case already cited (§ 2, note 2, The inability of a servant to recover ante) Thesiger, L. J., remarked that under the particular circumstances as- in one sense any clerk or manager is sumed by him in Souihcote v. Stanley called the "servant" of his employer, (1856) 1 Hurlst. & N. 247, 19 Eng. and judges are called the "servants" of Rul. Cas. 60, would certainly not be the Crown. Yewens v. Noakes (1880) conceded in all courts ; but the fact does L. R. 6 Q. B. Div. 530, 538. not affect the general principle itself On the ground that the manager of which was relied upon. a company was merely its servant, it Another lax use of the word is no- was held in Mackie v. Glough (1891) ticeable in the following passage: "If 17 Vict. L. R. (L.) 493, that he was not two come to a shop and one buys, and liable to be made a party defendant the other . . . says, 'Let him have in an action by the creditors of the the goods, I will be your paymaster,' company to receive a part of the assets or 'I will see you paid,' this is an un- which had been distributed as divi- dertaking as for himself, and he shall dends. be intended to be the very buyer and S 6] GENERAL DISCUSSION OP THE RELATION. 17 of the conditions which attend the performance of their functions by some, at least, of the employees mentioned in the footnote the theory that they are subject to the control of their superiors with regard .to the manner in which the details of their work are to he executed cannot be entertained without relying upon what is for all practical purposes a purely fictitious hypothesis. Circumstances might conceivably arise in which it would be essential to determine whether such employees were servants in the strict and proper sense of the word, or agents with large discretionary powers; biit, on the authorities as they stand, it seems to be a matter of pure specula- tion how far the courts would, in cases of this description, shape their decisions with reference to actual conditions, or to an assump- tion which clashes with those conditions. It will be useful to ad- vert briefly from this point of view to the various classes of cases In Fort V. VrUon P. R. Co. (1871) 2 Dill. 259, Fed. Cas. No. 4,952, Judge Dillon, arguendo, placed in the cate- gory of servants "all the officers of the corporation, in the long line of grada- tion from the president to the lowest." ■See also Sleeper v. Goodwin (1886) 67 Wis. 577, 31 N. W. 335, cited in note 5, infra. The superintendent of a manufactur- ing company was described as a "serv- ant" in Jerome v. Queen City Cycle Co. (1900) 163 N. Y. 351, 57 N. E. 485. A member of a corporation employed as honorary editor of a newspaper pub- lished by it was termed a "servant" in Breay v. Royal British Nurses Asso. [1897] 2 Ch. (C. A.) 272. The treasurer of a society may be a servant of the society, and as such guil- ty of embezzlement of its funds. Fag- gard v. State (1909) 3 Okla. Crim. Rep. 159, 104 Pac. 930. The secretary of a company is re- garded as a mere "servant," and in the absence of express authority he has no power to make representations with re- gard to the financial situation and re- lations of the company. Bo/mett v. .South London Tramways Co. (1887) L. R. 18 Q. B. Div. 815; Nmolands v. National Employers' Acci. Asso. (1885) S4 L. J. Q. B. N. S. 428, 53 L. T. N. S. 242. A secretary of a company is a mere servant. Tendring Hundred Water- works Co. V. Jo7i.es [1903] 2 Ch. 615, 52 Week. Rep. 61, 19 Times L. R. 720, 73 M. & S. Vol. I.— 2. L. J. Ch. N. S. 41, citing Bamett v. South London Tramways Co. supra. The confidential secretary of a large landed proprietor was held to be en- titled to take under a will bequeathing legacies to "servants." Armstrong v. Clavering (1859) 27 Beav. 226. (See § 8, post.) Attorneys are described in one of the older reports as "servants." Anony- mous, 1 Mod. 209. According to the present view the or- dinary relation of an attorney to his employer is that of an agent to his principal; and it is in treatises on agency, that his rights and liabilities are discussed. See Evans, Agency, p. 152; Bowstead, Agency, pp. 86-93; Me- chem. Agency, §§ 800 et seq. Yet an attorney receiving a specified annual salary from an insurance company for such legal work as he might be called upon to perform was spoken of as a "servant" by Cockburn, J., in Whittle V. Frankland (1862) 2 Best & S. 49. In an old case the master of a ship was declared to be no more than a servant. Eyres, J., in Boson v. Sand- ford (1691) 1 Shower, 101. In another very recent case the cap- tain of a ship was held to be the fel- low servant of his crew, within the meaning of the doctrine of common em- ployment. Hedley v. Pinkney & Sons S. 'S. Co. [1894] A. C. 222, affirming [1892] 1 Q. B. 58. For other illustrative cases, see notes 4, 5, infra. 18 MASTER AND SERVANT. [chap. i. in wliicli employers and employees, as such, are made parties de- fendant, and to consider generally the extent to which the precise character of the relation, whether agency or service, would be ma- terial. So far as the remedial rights of third persons against employers- are concerned, it would seem that the distinction between agents and servants can never be of any importance. Whichever of these categories the person employed may belong to, the responsibility of the employer will always be the same both in kind and in degree.^ The precise character of the relation may also be regarded as un- important in actions against the employee; for apparently it has. never been intimated that the scope of the rule which imposes lia- bility for misfeasance, but not for nonfeasance, is different in the case of agents and of servants. In an action in which a claim is made for compensation for per- sonal injuries received in the course of the plaintiff's employment, it appears to be quite probable that the claimant would be viewed as a servant, whatever might be his rank, and that he would be held entitled to the rights and subject to the disabilities which will be discussed at length in subsequent volumes of this treatise.' That employees of every grade are within the purview of the statutes as to embezzlement and larceny by "servants" may perhaps be assumed.* Whether other statutes relating specifically to "serv- 2 "A man may be held for another garded as being in law a "servant." But where the relation was of such a tran- since such enabling statutes as have been sitory nature as to exclude the con- passed are quite general in their terms, ception of status, — as for the negli- there seems to be no reason why even gence of another person's servant mo- a cabinet minister should not be held mentarily acting for the defendant, or to be within their purview. of a neighbor helping him as a volun- As regards the managers of private- teer; and, so far as known, no princi- concerns, their right of action can scarce- pal has ever escaped on the ground of ly be different from that possessed by the dignity of his agent's employment, employees of lower grades who are indis- The courts habitually speak as if the putably "servants." Cases bearing upon same rules applied to brokers and other this point are extremely rare; but it has agents as to servants properly so been held that a superintendent of a called." Holmes, Common Law, p. 230. railway company is entitled to sue un- 3 Except in so far as the common law der a statute modeled on the English may have been modified by a legislative employers' liability act of 1880. Pear- enactment, an injured servant of the son v. Canadian P. B. Go. (1898) 12 government cannot sue the state to re- Manitoba L. Rep. 112. cover damages. See § 1614, post. This *To procure a definite and complete' doctrine at once excludes the possibil- settlement of this question it is neces- ity of its ever becoming a practical sary not only that some civil servant question in a common-law action, of the rank of a cabinet minister should whether a high official would, for the have been guilty of misappropriation purpose of determining the nature and of public money or other property, — extent of his remedial rights, be re- which unfortunately is not a, wholly § 7] GENERAL DISCUSSION OF THE RELATION. 19 ants" are applicable to the higher as well as the lower grades of em- ployees will depend upon the language used, which may or may not indicate an intention on the part of the legislature to attach a re- stricted signification to the word.* 7. Meaning of the word "servant" as used in statutes.— When the word "servant" is used as a descriptive term in a statutory provision, the prima facie presumption is that it bears its ordinary meaning, and that it embraces only such employees as are under the control of their employers with respect to the manner in which their work is to be done. It is upon this footing that the original statute of labor, 25 Edw. III.,^ and the embezzlement acts, have been construed by the courts.** Indeed, it may be said that the modern definition of the word "servant" is principally the product of the attempts of the English judges to meet the necessity for a precise differentiation of the persons who are liable to prosecution under the last mentioned acts. Some of the cases, viz., those in which the issue presented for unknown occurrence in some of the countries in which the common law pre- vails, — ^but also that he should be brought to justice by the ordinary course of legal procedure; and this is a very improbable event. With regard to employees of a less exalted grade there can be no reason- able doubt but that they are within the purview of those statutes, whatever may be the rank of the offender. Thus the secretary of a friendly so- ciety is subject to prosecution as its "servant." Reg. v. Hastie (1863) 9 Cox, C. C. 264; Beg. v. Murphy (1850) 4 Cox, C. C. 101. So also is the treas- urer of a public lodge. So also was the treasurer of certain public bodies. Reg. V. Welch (1846) 2 Car. & K. 296, 1 Den. C. C. 199; Reg. v. 8quire (1818) Russ. & R. C. C. 349, 2 Starkie, 349. See further § 7, note 5, post. 6 In Sleeper v. Qoodwin (1887) 67 Wis. 577, 31 N. W. 335 (see § 7, post), a superintendent of a manufacturing corporation was held to be a "serv- ant" within a statute which made stockholders personally liable for debts due to "clerks, servants, or laborers." Wis. Rev. Stat. § 1769. Tlie Missouri statute awarding a pen- alty whenever any person shall die from an injury occasioned by the neg- ligence of any officer, agent, servant, or employee, while running or managing any locomotive, car, or train of cars, includes the negligence of any and all servants, and is not limited to that of a superior in command. Rine v. Chi- cago & A. R. Co. (1889) 100 Mo. 228, 12 S. W. 640. In Reg. v. Merewether (1862) 1 New South Wales Sup. Ct. Rep. 260, and Ex parte Sperring (1890) 11 New South Wales L. R. (L.) 407, it was held that a coal miner was within the description of the generic term "la- borers" as used in the interpretation clause of the New South Wales masters and servants act of 3857. The same provision is found in § 3 of the act of 1902. 1 It was held that an embroiderer was a "servant" within this act (Year Book, 47 Edw. III. § 220) ; but that a collec- tor of rents was not (Year Book, 19 Hen. VI. § 53). For these decisions .the author is indebted to Mr. Macdon- ell's treatise on Master and Servant. See p. 36. 2 "Generally speaking, . . . the question whether a person is a 'clerk or servant' depends on so many con- siderations that it is one to be left to the jury. . . . Much depends on the nature of the occupation in which the individual is engaged, and the kind of employment." Bovill, Ch. J., in Reg. V. Negus (1873) L. R. 2 C. C. 34. 20 MASTER AND SER\'ANT. [chap. i. determination was whether the defendant was an independent con- tractor, an agent, a partner, or a bailee, have been dealt with else- where.' In others the applicability of the acts was denied or af- firmed for the reason that he was or was not an independent officer.* In others the ratio decidendi was that these acts are intended to com- prehend masters and servants of all possible kinds ; ' that female serv- ants are within their purview, although phraseology indicative of only the masculine gender is used; * that a prisoner cannot be con- victed if his appointment was invalid ; ' that the amenability of a public officer to prosecution does not depend on the legal right of 3 See §§ 64 to 75 inclusive, post. habit of receiving money on his mas- 4 A chamberlain of certain common- ter'a account, was held to come within able lands, whose duties were to collect the embezzlement act, 39 Geo. III. chap, moneys from the commoners and other 85, in spite of the words of the pre- persons using the lands, to employ the amble of that act, referring to "bank- moneys so received in keeping the lands ers, merchants, and others." Rex. v. in order, to account at the end of the Barker (1822) Dowl. & R. N. P. 19. year to two aldermen of the corpora- Compare the decision that a person tion, and to pay over any balance in hired to manage a farm as bailiff is his hands, was held not to be a clerk a "laborer" within the meaning of the or servant who could be convicted of exemption clause in the stamp act of embezzlement. Williams v. Stott (1833) 55 Geo. III. chap. 184. Reg. v. Wort- 1 Cromp. & M. 675, 689, 3 Tyrw. 688 ley (1851) 5 Cox, C. C. 382. (action for slander in accusing the See also cases cited in § 6, note 4, plaintiff of embezzlement ) . During the write. argument of counsel Bolland, B., re- SiJeaj v. Smith (1814) Euss. & R. ferred to an anonymous case in which C. C. 267, where the clause relied on by an accountant of Greenwich hospital, the prisoner's counsel was "receive and who was swoi:n into that office, was in- take into his possession." dieted under the statute of 39 Geo. III. 7 where the prisoner had been nomi- chap. 85 (now repealed), which was nated by the inhabitants of a township expressly applicable to servants of bod- as an assistant overseer, and the nom- ies corporate. Burroughs, J., held that ination did not specify as one of the the prisoner did not fall within the duties which he was to perform the statute, as it had been proved that he duty of collecting or receiving money, was a sworn officer, and not an ordi- it was held that, as under 59 Geo. III. nary servant. chap. 12, § 7, an assistant overseer can A collector of rates appointed under be appointed only by justices for such an order of the poor law board was purposes as were specified in the noni- held not to be indictable for misap- ination, the prisoner could not be con- propriating the money which he re- victed of embezzling rates collected b}' ceived, the ground of the decision be- him as a "clerk or servant." Reg. v. ing that he was an independent officer, Coley (1887) 16 Cox, C. C. 226. The between whom and his superiors none learned editors of Cox's Criminal Re- of the ordinary attributes of service ports and of Russell on Crimes are of existed. Reg. v. Truman (1847) 2 Cox, opinion that this decision is not easy C. C. 306. to reconcile with Rex v. Hall (1836) 1 A person appointed collector of poor Moody, C. C. 474, and Reg. v. Carpen- rates, under 10 Geo. IV. chap. 68, was ter (1866) L. R. 1 C. C. 29, neither of held to be a servant, not an officer, which was brought to the attention of Reg. V. Callahan (1837) 8 Car. & P. the court. But the validity of the ap- 154; Rex v. Wwrd (1819) Gow, 168. pointment was not directly discussed 5 A person employed as a journey- in either of these two cases, man in the trade of a miller, and in the § 7] GENERAL DISCUSSION OF THE RELATION. 21 the appointing power to receive the money converted, nor on the legal right of the servant to collect it, the essential elements being the relation of trust and confidence between the alleged master and servant, and a colorable right to appoint or employ the agent or serv- ant, with the acceptance by the latter of the relation ; * that a prisoner may be convicted although the business carried on by his employer is in some particulars illegal ; ® that persons who are shown to have acted as servants are liable to prosecution, although no proof of their appointment is forthcoming; ^'' that evidence of merely casual, oc- casional, or temporary service is sometimes sufficient to sustain a conviction. ^^ Whether apprentices are, for the purposes of such stat- ^ state V. Heath (1879) 8 Mo. App. body corporate or politic^ shall embez- 99 (construing Wagner's Stat. 459, zle, etc.," a person may be convicted § 41, Mo. Laws 1870, p. 29). of the crime if he is actually "em- 9 The fact that some of the rules of ployed" by a corporation, though he is a friendly society are in restraint of not duly appointed their servant, nor trade, and therefore illegal, does not even appointed at all under the com- prevent it from proceeding criminally mon seal. Rex v. Beacall (1824) 1 Car. against one of its servants vpho has em- & P. 457. bezzled its money. Reg. v. Stainer A person who has been acting as the (1870) L. R. 1 C. C. 230, 39 L. J. Mag. treasurer of a friendly society, the rules Cas. N. S. 54 (decision regarding an of which provide that the treasurer employee of a trade union at a time shall be "paid in accordance with a when such bodies were still illegal), resolution" of the society, may be con- This case was recently followed in an- victed as a clerk or servant of the so- other, in which a member of a trading ciety, although no resolution for pay- club was convicted of embezzlement, al- ing him has been passed. Reg. v. Cant- though the club had not been registered Ion (Victoria; 1861) 5 W. W. & A'B. as a company, as was obligatory under (L. ) 24. The court was inclined to the companies act. Reg. v. Tankard think that he would have been liable [1894] 1 Q. B. 550. to be found guilty of embezzlement, 10 On an indictment for embezzlement even if he was to receive no remuner- against a letter carrier, charged, under ation. 2 Wm. IV. chap. 4, as a person em- ll A person hired by a market garden- ployed in the public service of his Ma- er to take some vegetables to market, jesty, it was held not to be necessary to and sell them, and bring back the pro- prove his appointment as a letter car- duce, was held to be a servant to his rier, and that evidence of his having employer in respect to that employment, acted as such was sufficient. Rex v. Reg. v. Winnall (1851) 5 Cox, C. C. Barrett (1833) 6 Car. & P. 124. 326. On the trial of a person, under the A similar decision has been rendered statute of 52 Geo. III. chap. 143, § 2, with respect to a person who was em- for embezzling a letter containing a bill ployed to carry out parcels and go on of exchange, he being at the time em- messages, when he had nothing else to ployed under the postoffice, it is suffi- do. Rex v. Spencer (1815) Russ. & R. cient to prove that such person acted in C. C. 299. the service of the postoffice, and it is The statute is applicable, even though Tiot necessary to go into proof of his tlie employment be only occasional, or appointment. Rex v. Rees (1834) 6 in a single instance, provided that at Car. & P. 606, per Parke, B. the time of the misappropriation the Under the statute 39 Geo. III. chap, prisoner was actually engaged as a 85, which enacts that, if any person servant. Reg. v. Negus (1873) L. R. 2 "employed in the capacity of a servant C. C. 34, per Bovill, Ch. J. or a clerk to any person or persons. Compare also the decision that one 22 MASTER AND SERVANT. [CHAP. I. utes, included under the generic term "servants" in these statutes would seem to be a still unsettled point. ^^ In some of the cases where the statute under which the defendant is prosecuted is applicable only to a specific class of servants, the question whether a conviction is proper may turn upon the construc- tion of the actual word employed by the legislature.** In others that may be an agent, within a, statute, who is not engaged in a general or continu- ous agency or serviqe, but is authorized on a single occasion by the maimer of certain notes to exchange them in re- newal of others. State v. Barter (1879) 58 N. H. 604 (construing N. H. Gen. Stat. chap. 257, § 8, applicable to " clerk, servants, or agents") . But the following decisions are to a contrary effect: — On the trial of an indictment for larceny as a servant, it appeared that the prisoner lived in the house of the prosecutor, and acted as nurse to his sick daughter, having board and lodg- ing and occasional presents for her services, but no wages. While she was so residing, the prosecutor's wife gave her money to pay a coal bill, which money she kept, and brought back a ■forged receipt to the coal bill. Held, that the prisoner was not the "serv- ant" of the prosecutor, but that this was a larceny of the money. Reg. v. Smdth (1844) 1 Car. & K. 423. The precise ground of the decision is not stated in the report. ' The prisoner had sometimes been em- ployed by the prosecutor as a regular laborer, and sometimes for single days -as a roundsman, but at the time in question was not working for him in either of these capacities. He was sent by the prosecutor to get a check cashed at a bank for doing which he was to be paid sixpence. He got the cash, and made off. Held, no embezzlement, as the prisoner was not a "servant" of the prosecutor within the meaning of the statute. 7 & 8 Geo. IV. chap. 29, § 47. Bex V. Freeman (1833) 5 Car. & P. 534. A person who has been appointed to take charge of a charity school by the committee in control of the funds of the charity, but has never been em- ployed or requested to receive any of the contributions to the charity, does not become the "servant" of the treas- urer of the committee by complying in a single instance with such treasurer's request to go to a certain place and receive a sum of money which has been contributed to the charity. Bex v. Nettleton (1830) 1 Moody, C. C. 259. Construing Tenn. Code, § 4708 ("clerk or agent"), the court said: "A mere casual employment in such a case does not fall within the meaning of the statute. It was intended to protect employers against the frauds and pecu- lations of persons in their regular em- ployment who, by virtue of such em- ployment, might come into the posses- sion of money or property, and fraud- ulently appropriate the same to their own use, and not to a casual messenger who might be intrusted with the tem- porary possession thereof." Johnson v. State (1878) 9 Baxt. 279. 12 An apprentice, though under eigh- teen years of age, was thought to be within the statute 39 Geo. III. chap. 85, such persons not being specially excepted therein, as they had been in the earlier statute, 21 Hen. VIII. § 7. But this point was not expressly de- cided. Rex V. Mellish (1805) Russ. & R. C. C. 80. Whether an express exception in favor of apprentices is applicable to a de- fendant must be determined by a con- sideration of the words of the statute in question. It has been held that the exceptions as to apprentices and minors under eighteen years of age, in Neb. Crim. Code, § 121, providing that "if any clerk, agent, attorney at law, or servant of any private person or copartnership, except apprentices and persons within the age of eighteen years; or, if any officer, attorney at law, agent, clerk, or servant of any incorporated company, shall embezzle, etc.," do not apply to officers, etc., of a corporation. McAleer v. State (1895) 46 Neb. 116, 64 N. W. 358. 13 The relation between the keeper of a county poorhouse and the superin- tendent who employs him is of a pub- § 7] GENERAL DISCUSSION OF THE RELATION. 23 question is resolved by considering the significance of the facts proved, regard being had to the general principles which determine whether the relation of master and servant exists between two given persons.^* See the two following chapters. Whether a person who is both a member and an employee of a joint-stock company or of an unincorporated association can be con- victed of embezzling its property is a question with regard to which there is a conflict of authority.^* But on general principles it is lie nature; and the former cannot be 59, Leigh & C. C. C. 346 (see infra), deemed the "cleric or servant" of a Erie, Ch. J., laid stress upon the fact ^'private person" within the New York that the property of the society was statute of embezzlement. 2 Rev. Stat, vested in trustees. But the first two 678, § 59. Nor is such keeper the decisions seem to show that the eon- "officer, agent, clerk, or servant of an viction was sustainable apart from this Incorporated company" within the same consideration. A similar decision as statute. Though the superintendents to a member of a friendly society who of the poor, or the sole superintendent, was also its salaried treasurer was be a corporation, neither they nor he rendered in Reg. v. Williams, Q. B. & can be an incorporated company. The t\ (New Zealand, 0. H.) 113. statute, it seems, means by the words It has also been held that where an "incorporated companies" those only agent and cashier of an unincorporated which are composed of individuals as- banking association whose capital is sociated together for private purposes, divided into shares evidenced by cer- €oats V. People (1860) 22 N. Y. 245. tificates thereof has, by virtue of his 1* S. was employed by a, postmistress employment by a board of directors pur- to carry letters from Drusley to Berk- suant to articles of association, the «ley, at a weekly salary paid him by exclusive custody of its assets, and the postmistress, but which was repaid fraudulently converts its property to to her by the postofSee. Held, that S. his own use, he may be convicted of was a person employed by the postoffice embezzlement, although he is one of within the statute 52 Geo. III. chap, its shareholders. State v. Kusnick 343, § 2. Rex v. Salisbury (1831) 5 (1888) 45 Ohio St. 535, 4 Am. St. Rep. Car. & P. 155. 564, 15 N. E. 481. A person who had been employed to On the other hand, it has been held clean boots and shoes, etc., by a law that a member of a friendly society who stationer, at a receiving house ' of one belonged to a committee formed of its of the branch postoffices in London, members for the purpose of selling rail- and who used to assist in tying up and way excursion tickets, the proceeds of sealing the postoffice bag, was not a which were to be handed over to a "public servant" within the meaning trustee for the benefit of the society, of 52 Geo. III. chap. 143. Rex v. Pear- and who misappropriated the money re- sow (1831) 4 Car. & P. 572, per Little- ceived for the tickets sold by him, was dale & Bosanquet, JJ. not liable on an indictment for em- 15 The propriety of a conviction under bezzlement, in which he was charged such circumstances has been asserted as the servant of the other members in Reg. v. Stuart [1894] 1 Q. B. 310 of the committee. Reg. v. Bren (1863) (director of company employed to col- 33 L. J. Mag. Cas. N. S. 59, Leigh & leot money for it) ; Reg. v. Atkinson G. C. C. 346. (1842) Car. & M. 525 (clerk who was So it has been held that a member also a shareholder in the companv for of two unenrolled benefit clubs, paid which he worked) : Reg.r.Proitd (W^l) as secretary, and intrusted with the Leigh & C. C. C. 97, 31 L. J. Mag. Cas. fund to be deposited in a bank in the N. S. 71 (member of friendly society joint names of himself and the treas- was also its secretary). In comment- urer, cannot be found guilty of em- ing on the last-cited case in Reg. v. bezzlement as a servant. Reg. v. Marsh Brev. (1863) 33 L. J. Mag. Cas. N. S. (1862) 3 Fost. & F. 523. 24 MASTER AND SERVANT. [chap. I. not easy to see why a person who stands in two relations to another should not be subject to such penalties as he may incur by commit- ting a crime which appertains to only one of those relations. Although the word "servant" may be used in a statute without any qualifying phraseology, it will be construed in a restricted sense if the subject-matter and purpose of the enactment indicate that only one particular class of servants is within the contemplation of the legislature.^" On the other hand, the scope of an exception will not be enlarged beyond reasonable limits." A member of a friendly society who was also its clerk was held to have acted, not as its servant, but as a part- ner, in regard to a sum of money which, with the consent of the other members, was drawn out of the bank where the funds were deposited, for the purpose of being invested by him. Reg. v. Waite (1847) 2 Cox, C. C. 245. A treasurer of a duly enrolled friend- ly society who received no salary, and whose duty it was to receive moneys paid into the society and hold them to the order of the secretary, and to ac- count whenever called upon, was denied to be a "clerk or servant," in Reg. v. Tyree (1869) L. R. 1 C. C. 177. 16 By 32 & 33 Viet. chap. 14, § 11, any tenement occupied as a house for the purpose of trade only, or as a ware- house for the sole purpose of lodging goods, wares, or merchandise therein, or as a shop or countinghouse, was exempted from the inhabited house duties, "although a servant or other person might dwell in such house or tenement for the protection thereof." Construing this act Thesiger and Bag- gallay, L.JJ., held that, where a mer- chant was possessed of a certain house having internal communication through- out, and used for the purposes of his trade, and one K. lived in the house to take care of it, but was a clerk draw- ing a salary of £150 a year, and resided in the house with his wife, children, and servant, K. was not a "servant or other person" within the meaning of the act. It was considered that, in view of the circumstances to be pro- vided for, the word "servant" was used in the sense of an ordinary menial or domestic servant. Yewens v. Noakes (1880) L. R. 6 Q. B. Div. (C. A.) 530. In the later statute, 41 Vict. chap. 15, § 13, subsee. 2, similar words were inserted; and in Weguelin v. WayaU (1885) L. R. 14 Q. B. Div. 338, the court was called upon to determine the effect of this provision when considered! with relation to another in 44 Vict, chap. 12, § 24, to the effect that, "with reference to the exemption from the duties on inhabited houses given by subsee. 2 of § 13 of the customs ancf inland revenue act 1878, the term 'servant' shall be deemed to mean and' include only a menial or domestic serv- ant employed by the occupier, and the expression 'other person' shall be deemed to mean any person of a similar grade or description, not otherwise employed by the occupier, who shall be engaged by him to dwell in the house or tene- ment solely for the protection thereof." The conclusion arrived at was that, where a female caretaker resided on the premises, and stipulated, as a condition of her employment, that her son, who was a clerk employed elsewhere, should sleep on the premises for her better protection, the premises were not ex- empt from inhabited house duty under the act. In Rolfe v. Hyde (1881) L. R. 6 Q. B. Div. 673, where respondents, wholesale clothiers, were possessed of premises, the whole of which were used as warehouses and countinghouses, ex- cept a sitting room and bedroom on the top story occupied by their cashier, who had a. salary of £200 year, and who slept on the premises solely as care- taker and for their protection, this be- ing considered as part of his duty, it was held that the income tax commis- sioners were warranted in finding that the cashier was "a servant or other person" within 40 Vict. chap. 15, § 13, part 2, and that the premises were ac- cordingly exempt from house duty. § 8] GENERAL DISCUSSION OF THE RELATION. 25 For a statement of the effect of other decisions which bear upon the meaning of the word "servant," or of other words which imply the status of a servant, see chapter lxxxiv.^ post. A question which may be regarded as the converse of that involved in the cases so far cited in this section may sometimes arise, viz.^ whether a servant falls within a descriptive term which is not specific- ally indicative of the fact of employment.^* 8. Persons entitled to take as servants under testamentary pro- visions. — Some of the decisions involving the right of a claimant to take under a clause in a will by which legacies are bequeathed to the testator's "servants" as a class may perhaps be said to embody simply the conception that unless a contrary intention is indicated by the context, a testator will be presumed to have used this word in its ordinary signification, and that the persons designated are to be determined with reference to the diagnostic elements which serve to indicate, first, whether the relation between the testator and the claimant of the legacy was that of master and servant, and, secondly, whether he was the servant of the party alleged to be his master.* The remark of Thesiger, L. J., in By 39 & 40 Vict. § 5, the term "male Yeioens v. Noakes (1880) L. R. 6 Q. servant" is declared not to include per- B. Div. (C. A.) 530, to the effect that sons occasionally or partially employed the legislature in using the term "serv- in any of the capacities enumerated in ant" intended that it should be taken the earlier act. in its ordinary and popular sense, — as 18 In Eoderick v. Jones ( 1887 ) 3 W. a "menial or domestic" servant, — was N. (New South Wales) 116, it was held declared by Lindley, J., to be extra- that a woman employed as a cook by judicial. "Extrajudicial" the remark an innkeeper was not a "lodger" within may have been; but as Baggallay, L. the meaning of § 57 of the New South J., expressed his agreement with what Wales licensing act 1882, providing that Thesiger, L. J., had said on this part no licensee should maintain any action of the subject, it may fairly be said for a debt contracted for liquor dis- to carry more weight than is ordinarily posed of in any less quantity than the attributable to such remarks. specified amount at one and the same 17 Every person employed by a hotel time, unless such liquor should have keeper as a waiter in his hotel, if only been sold to "bona fide lodgers or travel- for two or three weeks together, in ad- ers." Her employer, therefore, could dition to his ordinary permanent num- not, in an action for her wages, set up ber of licensed servants, is a "male as a defense the fact that she had re- servant" within §§ 18 and 19 of 32 ceived in the value of drinks supplied & 33 Vict. chap. 14, for whom the hotel to her the entire amount of the wages keeper is bound to pay the duty and due to her. The section here construed take out the license prescribed by the has been inserted as § 56 in the liquor provisions of that act, and is not an act of 1898. "occasional waiter" and exempt, as such, '>■ In Bulling \. Ellice (1845) 9 Jur. within the meaning of the printed notice 936 (bequest of one year's wages in or direction given to taxpayers by the advance to each of the testator's sery- commissioners of inland revenue. So ants who shall be in his service at hi? held by the court of exchequer (Kelly, death, and who shall have lived with C.B. and Martin and Pigott, BB.). him five years or upwards), it was un- Spencer v. Sheerman (1871) 23 L. T. successfully argued that a farm bailiff N. S. 873. who had lived in the home farm, rent 26 MASTER AND SERVANT. [CHAP. I. But in two cases in which, as it would seem, the will might have been construed upon this footing, the actual considerations upon which the courts mainly relied were, in one of the cases, the im- probability, and, in the other, the probability, that the testator in- tended to include the claimant among his beneficiaries.^ free, all rates and taxes being paid for liim by the testator, and whose sole remuneration consisted of his wages or salary, was an agent rather than a servant. One special contention reject- ed by the court was that the claimant should be excluded from the benefits of the will merely for the reason that the amount of the bequests was expressly fixed with relation to the "wages" of the designated employees, and the posi- tion occupied by him was of such a grade that in common parlance his re- muneration would usually be described as a "salary." In another case a clause by which the testator bequeathed to "all my servants and day laborers who shall be in my service at the time of my death, one full year's wages above what may be then due to them respectively," was held to inure to the benefit of a man who had at first been appointed land agent of the testator, the owner of an extensive estate at a salary of £300 a year, and had afterwards been intrusted with the duties of house steward. The plaintifi^ showed that, although it was customary for him to dine at the testa- tor's table when he went to the latter's house, he had, on such occasions, been treated as a person in a dependent posi- tion, occupying the position of a con- fidential servant or secretary. Arm- strong V. Clavering (1859) 27 Beav. 226. 2 In Ghilcot v. Bromley (1806) 12 Ves. Jr. 114 (bequest to "all my other servants who shall be living with me at the time of my decease" ) , the testator had been hiring a carriage and horses by the year from a job master, who also supplied a coachman. The coachman did not board or lodge in the testator's house, but received from the testator 12s. ii Aveek as board wages, and a livery with the other male servants; the job master also paying him 9s. a week. The plaintiff lived with the testator in that capacity and upon those terms about ten months previous to his death, hav- ing been procured for that purpose by the job master, and was returned by the testator as his coachman under the act imposing a duty on male servants; and during that period he served no other person. Sir William Grant, M.R., after remarking that the question to be determined was simply whether the plaintiff was a servant of the testator within the intent of the will, proceeded thus : "My opinion is that there was no contract between them, out of which the relation of master and servant could grow. The contract was between the testator and the job master. The lat- ter engages to furnish the former witli horses, and a man to drive them. The job m.-ister has persons whose duty it is to perform that service. The particu- lar person serves the job master by driving my carriage, and is so far in my service; but in consequence of a retainer by the other, and a contract with him. That contract would be fully satisfied if he changed the coachman every week. Can the testator be sup- posed to include a person whom he had not selected, and chosen to bring into his service for any definite period, and with reference to the continuance of his service utterly uncertain? For, as has been observed, the very week before the testator's death, a, different man, for whom the testator had no predilection, might have been furnished by the coach master. . . . It is not probable that a testator in such a situation as this testator, with the experience he had of the manner in which these servants were changed, could have intended to put this person upon a footing with servants brought into his house by a contract of his own, from preference arising out of previous inquiry into their characters, and satisfaction with their services. From his own experience he knew a stranger might be introduced without any previous consent, or any- thing but merely bringing him, in order to show that he was not a person dis- agreeable to the testator. From the instant the testator expressed no dis- approbation the contract goes on, not S 8] GENERAL DISCUSSION OF THE RELATION. 27 If, as is usually the ease, the testator expressly restricts his bounty to such servants as shall be in his service at the time of his death, the success of a claimant is manifestly dependent upon proof that this condition was duly satisfied by him,' parol evidence being ad- missible for the purpose of establishing that fact.* A clause of this tenor is strictly interpreted, and is held to contemplate actual service. with him, but with the job master ; and it is stated, I believe, by some witnesses, tliat the amount of the board wages is contracted for between the job master and the employer. All the terms of the contract are between them. The coachman is merely the subject of the contract, not a party to it. This plaintiff therefore is not a servant within the intendment of this will." This decision, it may be remarked, was cited as an authority for the doctrine adopted by two of the judges in Laugher v. Pointer (1826) 5 Barn. & C. 547, that a man sent by a, liveryman to drive a carriage was not the special servant of the person to whom he was sent, — a doctrine ulti- mately established by the unanimous decision of the court of exchequer, in <)uarman v. Burnett (1840) 6 Mees. & W. 499. See § 54, note 1, post. In Bovxird v. Wilson (1832) 4 Hagg. Eccl. Rep. 107, where it appeared that the claimant, a coachman, was a mar- ried man, who had been originally hired by, and had lived five years with, the testatrix; that he resided over her stables in town; that he occasionally accompanied her into the country, and, when there, lived in the house, though, like her servants, on board wages; that he sometimes waited at table, and re- mained with her though she changed her job man. Held, that, although the several job masters paid him his wages and board wages, except 3s. per week ^xtra in the country, and found him in liveries, he was entitled under u bequest "to each of my servants living with me at the time of my death £10." Chilcot V. Bromley (1806) 12 Ves. Jr. 114, was distinguished on the ground that the facts and probabilities of the cases were as remote as possible; since in the case before the court the only circumstance to show that there was no intention to include the coachman ■was that the job man was the party who was to pay him his wages out ol the lump yearly sum which the testa- tor paid for the hire of her horses. 3 By a will dated November, 1876, a testator who died in July, 1883, be- queathed " 'to each of my servants who shall at my death have been in my serv- ice twelve calendar months or longer, one year's wages in addition to anything owing by me, and to my gardener, P. G., £300 in addition.' In August, 1880, P. G., who had been in testator's serv- ice thirty-three years, left the service, and, on leaving, the testator made him a present of £100. It was held by Kay, J., that, as P. G. was not in the service at the death of the testator, he had not fulfilled the condition, and was not entitled to the £300." Benyon v. Grieve (1884) Smith, Mast. & S. p. 573. Where a legacy was bequeathed to the two servants "that might live with the testatrix at the time of her death," and she had three at that time, all of them were held entitled to take. Sleech V. Thorington (1754) 2 Ves. Sr. 560. In Re Klein (1907) 35 Mont. 185, 88 Pac. 798, it was held that where a testator left a certain sum to each of his employees who should have been in his employ for one "year or more previous to my decease," employees who were not in the service at his decease were not included, although they had previously been in such service for one year or more. 4 In Herlert v. Keid (1810) 16 Ves. Jr. 481, where the claimant was no longer residing in the testator's house at the time of the latter's decease, the legacy was established upon evidence that the testator had referred to it, after the claimant's departure, in lan- guage which showed that he regarded it as being still due. What he said was deemed to be competent evidence to show that in spite of appearances the claimant had continued to be in his 28 MASTER AND SERVANT. [CHAP. I.. Proof of what might be termed constructive service will not suffice.^ Moreover, it may be inferable from the wording of such a provision that it was intended to embrace only a particular portion of the servants who should be in the testator's employment at the time of his decease. Thus it has been held in some cases that, where a tes- tator specifically gives a "year's wages," he should be understood to mean that he gives to those whom he has hired at yearly wages.* S A master bequeathed an annuity to his servant Sarah, — "provided she shall be in my service at the time of my de- cease;" and a few days before his de- cease he, without any good cause, dis- missed her from his service, and at his death she was not in his service. Held, that she was not entitled to the legacy. Darlow v. Edwards (1862) 1 Hurlst. & C. (Exch. Ch.) 547, 9 Jur. N. S. 336, 32 L. J. Exch. N. S. 51, 10 Week. Rep. 700, 6 L. T. N. S. 905. Blackburn, J., remarked during the argument: "The contract may continue so as to enable the servant to bring an action for the breach of it, but the service does not continue." He also compared the case to one in which a person commits a breach of a stipulation not to revoke the authority of an arbitrator, the rev- ocation under such circumstances be- ing valid. A testator bequeathed a legacy to M. V. in case she should be in his service at his decease. The testator was short- ly afterwards removed to a lunatic asy- lum, and M. V., who was a yearly serv- ant, voluntarily quitted the house, re- ceiving from the family her wages up to the end of the year, which did not expire until after the death of the tes- tator. Held, that she was not entitled to the legacy. Venes v. Marriott (1862) 31 L. J. Ch. N. S. 519, following the case last cited. The testatrix bequeathed to her serv- ant M. B. a legacy of £300, to be paid within twelve months after her death, providing the said M. B. remained in her service until her death. Subse- quently, the testatrix was removed to a lunatic asylum, and M. B. was dis- missed by a relative who was managing the affairs of the testatrix. A month later an order was made in lunacy that the effects of the testatrix should be sold, and the proceeds paid into court. It vras held that after the date of the order the service of M. B. was at an end, subject to such rights as she had in respect to notice, and that she was^ not entitled to the legacy, lie Hartley (1878) 47 L. J. Ch. N. S. 610, 26 Week. Rep. 590. 6 In Booth V. Dean (1833) 1 Myl. & K. 560, it was held that a man wha had worked for several years as under- gardener at weekly wages, and another man who had served the testator as cowboy, also at weekly wages, were not entitled to take as legatees under a clause of this tenor. This case was followed in one where a gardener employed at weekly wages, although paid at irregular intervals, was declared not to be entitled to the benefit of the bequest. Blaokwell v. Pennant (1852) 9 Hare, 551, 16 Jur. 420. Here the words of the bequest were "each of the servants living with me at the time of my decease;" but it was considered by the vice chancellor that, although the evidence showed that there were servants who lived in the house, and also servants who lived in the cottages and lodges about the grounds, as was the case with the plain- tiff, no certain conclusion could be drawn from that fact as to whether the testator intended this disposition to extend to one only, or to both, of those classes. After examining the con- flicting evidence as to the duration of the hiring, he came to the conclusion that it was not yearly, and on that as- sumption stated his opinion as follows: "When a testator gives a year's wages, he must, I think, be understood to mean that he gives to those whom he has hired at yearly wages. The nature of the gift explains the persons for whom it was intended. To impute to the testator that he intended by a year's wages the aggregate of the wages for fifty-two weeks, would, I think, be ■a, most unreasonable and strained con- struction of the words which he has used." « 8] GENERAL DISCUSSION OF THE RELATION. 29 In other cases claims have been disallowed on the ground that the servant v^as not "continuously and exclusively employed" by the testator.' But the mere fact that a servant's yearly salary vyas pay- -able vireekly will not exclude him from the scope of such a bequest.* There is some apparent authority for the doctrine that, where there are no express words restricting the benefit of the legacies to such servants as shall be in the testator's employment at the time ■of his death, a limitation of this character should be read into the will.® But it is quite probable that there was something more in the case cited than is shown by the report, and that this broad doc- trine was not actually applied ; " and, speaking generally, the effect Where the testator bequeathed "unto «ach and every of the servants, male and female, who shall respectively liave been living in my service for the space of six calendar months immediately previ- ■ous to my decease, the amount of one year's standing wages, over and above any yearly salary or wages I may owe -them respectively at my decease," it was held that only servants engaged ■on a yearly hiring and wages could •claim the legacy, and that the petitioner was not entitled to any relief under an allegation that he was hired at certain wages and allowances which were equiva- lent to £52 a year. The peculiar force of the epithet in the phrase "standing wages" was not very clear, and man- ifestly it did not relax or widen the meaning of a year's wages. Breslin v. Waldron (1855) 4 Ir. Ch. Rep. 333 (relying on the case last cited). In another case, where testator be- Kjueathed one year's wages to all serv- ants who should be in his employment At his death, and should have been in his employment for five years previously thereto, it was held that servants hired at a weekly wage paid monthly or fort- nightly were not included in the be- quest. Re Ravensworth [1905] 2 Ch. (C. A.) 1, 74 L. J. Ch. N. S. 353, 92 L. T. N. S. 490, 21 Times L. R. 357. In the lower court, Joyce, J., al- though he considered himself to be "bound by Blackwell v. Pennant (1852) 9 Hare, 551, 16 Jur. 420, said that he was not satisfied with the decision. Similar views were expressed by Sterl- ing, L. J. iThrupp V. Gollett (1858) 26 Beav. 147, 5 Jur. N. S. Ill (boy employed a few months in the year, whilst the testator was at his country residence. at weekly wages, to carry letters to the post). Stewards of courts, and such as are not obliged to spend their whole time with their master, but may also serve any other master, are not "servants" within the intention of a bequest to persons so described. Tcncnshend v. Windham (1706) 2 Vern. 546. In Metoalf v. Sweeney (1891) 17 R. L 213, 33 Am. St. Rep. 864, 21 Atl. 364, it was held that a woman who had been employed intermittently at irregu- lar intervals to assist the testator's regular household servants was not a "servant" within the purview of the phrase, "in my employ at my death," although she was actually rendering services when he died. A clause applicable to all employees "who shall have been in the employ of the firm one year or more previous to" the testator's death was held not to embrace a person who had within the specified period transacted odd matters of business. Re Klein (1907) 35 Mont. 185, 88 Pac. 798. »Ogle v. Morgan (1852) 1 DeG. M. & G. 359; Thrupp v. Gollett (1858) 26 Beav. 147, 5 Jur. N. S. 111. See last note. 9 In construing a clause by which the testator gave £100 apiece to all his servants, the court declared that none but such as were his menial servants before the making of the will and con- tinued to serve him as such until his death "could have any pretense" to the legacy. Jones v. Eenley (1685) 2 Rep. in Ch. 361. 10 See the remarks of North, J., in Re Marcm (1887) 56 L. J. Ch. N. S. 830. 30 MASTER AND SERVANT. [chap, i.. of tte more recent decisions is that no presumptions can be enter- tained in such eases with regard to the testator's intention, and that the servants to take must be determined by a consideration of the- entire clause which relates to them." In other cases the allowance or rejection of the claim has been made to turn upon the answer to the question whether it was or was. not the intention of the testator to benefit only those servants who. may properly be described as "domestic" or "indoor." " 11 Where the descriptive words of the have been in my employ over ten year.?- will were: "My office and warehouse the sum of £10 for each year's service- employees, such as clerks and workmen, beyond the ten years," it was held that, shall have to receive six months' full a man who had been in the testator's salary," the servants held to be en- employment for fifteen years, but had titled to take were those in the tes- left his employment before the date of tator's service at the time of his death, the will, and was not in his employment The specific ground chiefly relied upon at the time of his death, was entitled by North, J., was that the words "full to a legacy of £50. Re Sharland [3 896 J salary" could not by any other con- 1 Ch. 517. North, J., declined to read struction be made to bear a reasonable into the clause a condition as to the con- meaning. In his opinion the most obvi- tinuance of the employment till the ous import of these words was that death of the testator, — especially as. the legacies were to be measured by the such a condition was expre&sly included salaries which the servants should be in the clause of the will. receiving at the time of the testator's On the other hand it has been held death, and except upon the assumption that a will which bequeathed a speci- that only those servants were to take fied sum to each of the employees of who should then be in his employment a firm, of which the testator was a there would be no standard by which member, "who shall have been in the to measure their legacies. Re Mareus employ of said firm one year or more (1887) 56 L. J. Ch. N. S. 830. previous to" testator's death, was ap- Where a testator by a codicil gave plicable only to such persons as were- legacies to several persons by tiame who in the employ of the firm at the time had "lived many years in his family," of the death of the testator and had and added, "to the other servants £500 been continuously for one year im- each," it was held that a. servant who mediately prior thereto so employed, was living with the testator at the and did not comprehend all employees date of the codicil, but not at his who at any time had served the firm death, was entitled to a legacy of £500. for one year. Re Klein (1907) 35 Parker v. Marchant (1842) 1 Younge Mont. 185, 88 Pac. 798. & C. Ch. Cas. 290, 6 Jur. 292, affirmed lain Jones v. Henley (1685) 2 Rep. in 7 Jur. 457. The decision was put in Ch. 361, it was held that only the by Bruce, V. C, on the ground that menial servants of the testator were the codicil did not, in express terms, entitled to take under a will by which annex to the gift tht condition of con- he bequeathed in general terms a legacy tinning service, and that the circum- of £100 apiece to all his servants. See stance of the testator's having described note 9, supra. But it is by no means the legatees by their employments, and certain that this case can be regarded not by name, did not import that the as an authority for the broad doctrine employment and character must con- which is required to sustain such a tinue. On appeal the lord chancellor ruling. The probability is that, in view expressed his approval of this conclu- of the terms in which such clauses are sion, and said that the case of Jones usually drawn, there were words which V. Henley (1685) 2 Rep. in Ch. 361 clearly showed that only menial serv- (note 9, supra), did not apply. ants were to be benefited. Compare Where a testator directed his trus- note 10, supra, as to the supposed im- tees "to pay to each man who shall perfection of the report. § 9] GENERAL DISCUSSION OF THE RELATION. 31 One decision may perhaps be said to embody a general doctrine to the eilect that, when the testator had employees in more than one establishment conducted nnder the same business name, it will be presumed that he intended that both classes of employees should take as legatees.^* 9. Slaves. — a. Generally. — The distinction between slavery and service, and the juridical relation between the two conditions, have been thus explained by a distinguished writer: "When the habit of serving forms a condition, and the obligation of continuing in this condition with respect to a certain individual, or to others who derive their titles from him, embraces the whole life of the servant, this condition is called slavery. Slavery is susceptible of many modi- fications and alleviations, according to the greater or less certainty of the services which it is permitted to exact, and according to the means of coercion which it is permitted to employ. There was a great difference between the condition of a slave at Athens and In ^oumshend v. Windham (1706) 2 Vern. 546, the lord keeper refused to narrow the meaning of the general word "servants," so as to make it comprise such servants only, as lived in the tes- tator's house or had diet from him. In Blachwell v. Pennant (1852) 9 Hare, 551, 16 Jur. 420, where the be- quest was to each of mj' servants living with me at the time of my decease, it was argued that the words italicized imported "living in my house," and that no servant who was not living in the house could be entitled under the bequest. The vice chancellor declined to adopt this construction, saying : "The words 'living with me,' as applied to servants, may, I think, well be under- stood to mean living in my service, and this, I am much disposed to think, is the ordinary import of the words: but it is not necessary to go as far in the present case, for here the plaintiff [a gardener] was actually living in a cottage belonging to the testator, on the grounds adjoining to the testator's mansion ; and it cannot, I think, reason- ably be held that he was not living with the testator in the sense in which serv- ants live with their masters, because he was not actually living in the same house with his master." A testator gave to each person as a servant in his "domestic establishment" at the time of his decease, a year's wages beyond what should be due to- him or her for wages. Held, that a head gardener who lived in one of the- testator's cottages, and was not dieted by the testator, was not entitled to a legacy. Ogle v. Morgan (1852) 1 DeG.. M. & G. 359, 16 Jur. 277. The court remarked: "For the purpose of ascer- taining in what sense the testator used the expression 'domestic establishment,' it appears to me to be important to- distinguish between a servant in the establishment and one out of the estab- lishment, between what is called an in- door and an outdoor servant; and I cannot but think that the testator had this very distinction in view." A similar decision was rendered as to a gardener, where the bequest was one of two years' wages to "each of my domestic servants." Yaughan v. Booth (]852) 16 Jur. 808, following the case last cited. 13 A testator gave a specified sum to each of the employees of the firm of G. & K., of which he was a member. At the time of the execution of the will the testator was a member of two firms of the name of G. & K., and at the time of his death he was a member of a firm and of a corporation of that name. Held, that the testator intended to reward employees both of the firm and of the corporation. Re Klein (1907) 35 Mont. 185, 88 Pac. 798. 32 MASTER AND SERVANT. [ciiAr. i. Lacedsemon; there is still more between that of a Russian serf and a negro in the southern states of America. But whatever may be the limits as to the modes of exercising authority, if the obligation of service be unlimited in point of duration, I always call it slavery. In drawing the line of separation between slavery and freedom it is necessary to stop at some point, and this appears the most prominent and the most easily proved." ^ It will be observed that, unless peonage (see this section, infra,) is to be regarded as one of those forms of servitude which do not fall within the scope of the generic term "slavery," this explanation must be somewhat modified in order to be applicable to that condi- tion. But in other respects the passage furnishes a definition which is perhaps as exact as the nature of the subject-matter admits. In § 1, ante, some historical facts regarding the institution of slavery in the ancient world and in mediaeval Europe have been in- •cidentally mentioned, and for further information the reader is re- ferred to the authorities cited in the first note to that section. Soon after the discovery of America, at a time when the older types of slavery or quasi slavery had almost died out in all civilized •countries, a new system made its appearance, viz., what may be termed colonial slavery. This system, which, as has been well ob- served by the author of the article on Slavery in the Encyclopaedia Britanniea (p. 137), was not "the spontaneous outgrowth of social necessities and subserving a temporary need of human development," but was, "politically as well as morally, a monstrous aberration, and never produced anything but evil," is the only one with which the ■common law has in its mature period been concerned. To practi- tioners in countries where that law is administered, most of the juridical aspects of this form of slavery have ceased to be of any practical importance since the abolition of involuntary servitude by the 13th Amendment to the Constitution of the United States.* But 1 Bentham, Collected Works, Principles 244, 45 L. ed. 1088, 21 Sup. Ct. Eep ■of the Civil Code, part 3, pp. .343, 344. 770. 2 It is clear from the language used In construing U. S. Rev. Stat. §§ by the Supreme Court in a recent case 4598, 4599, relating to the apprehension -that, although the point vras not direct- and confinement of seamen absenting ly involved, it was assumed that places themselves from their ships without subject to the jurisdiction of the United permission, the Supreme Court of the States, but not incorporated into it, United States has held that a com- and hence not "within the United pulsory service of deserting seamen in States" in the completest sense of those fulfilment of their contracts is not in words, are covered by the words "or violation of this provision. Robertson any place subject to their jurisdiction," v. Baldwin (1896) 165 U. S. 275, 41 Tk-hich are found in the 13th Amendment. L. ed. 715, 17 Sup. Ct. Eep. 326 Dovmes v. Bidwell (IPOl) 182 U. S. 9] GENEEAL DISCUSSION OF THE RELATION. 33 both in England and in the United States it seems to be still an open question, so far as the actual decisions are concerned, -whether a contract which presupposes the existence of a right of property in a slave, and which is valid in the place where it is made, should or should not be deemed nonenforceable on the ground of its being repugnant to the fundamental principles of natural justice and the declared policy of the legislatures.' i. Peonage. — In the United States there has recently been a sin- gular recrudescence of that modiiied form of slavery known as peon- age. Peonage has been defined as "a status or condition of compul- 3 In England it has been held that an action might be maintained for the non- delivery of slaves under a contract made between a citizen of a country where such a contract was valid and an Eng- lish firm doing business there. Santos V. Illidge (1860) 8 C. B. N. S. 861, 29 L. J. C. P. N. S. 348, reversing (1859) 6 C. B. N. S. 841, 28 L. J. C. P. N. S. 317. Sir Frederick Pollock (Contracts, pp. 342, 343) draws attention to the fact that the only point actually de- cided was that the contract of sale was not made illegal by the operation of the ■ statutes against slave trading; and that there was no discussion of the larger question, "whether such a con- tract was so repugnant to English principles of justice that, wherever made, it could not be enforced in Eng- land." The conclusion of the learned author is that on the authorities as they stand it is "impossible to say that purely municipal views of right and wrong can prevail against the recogni- tion of a foreign law." Several American decisions rendered since the abolition of slavery proceed upon the theory that contracts relating to the sale, hire, etc., of slaves are immoral and contrary to the law of nature, possess no validity except such as they derive from positive law, and are capable of enforcement only so long as that law exists; the consequence de- duced, being the repeal of that law, which resulted from the enactment of the 13th Amendment of the United States Constitution, has made it im- possible to maintain an action upon such contracts. BucJcner v. Street (1871) 1 Dill. 248, Fed. Cas. No. 2,098; Osbom V. Nicholson (1871) 1 Dill. 219, Fed. Cas. No. 10,595; Wainwright v. M. & S. Vol. I.— 3. Bridges (1867) 19 La. Ann. 234 (two judges dissented) ; Rodriquez v. Bien- venu (1870) 22 La. Ann. 300, 2 Am. Rep. 728 (one judge dissented) ; Shor- ter V. Gohh (1869) 39 Ga. 285 (one judge dissented) ; White v. Eart (1869) 39 Ga. 306 (one judge dissented), re- versed by the Supreme Court of the United States in (1872) 13 Wall. 646, 20 L. ed. 685. See infra. In Palmer v. Marston {Wortley v. Marston) (1871) 14 Wall. 10, 20 L. ed. 826, the Supreme Court of the Unit- ed States refused to interfere with- a decision of the supreme court of Louis- iana which embodied this view; the reason assigned for the refusal being that the decision was not based upon a constitutional provision of the state, but on grounds of public policy and morality. On the other hand in Delmas v. Merchants' Mut. Ins. Co. (1871) 14 Wall. 661, 20 L. ed. 757, and Hart v. White (1872) 13 Wall. &46, 20 L. ed. 685, judgments declaring contracts as to slaves to be nonenforceable were re- versed on the ground that they were founded on provisions in the constitu- tions of Louisiana and of Georgia which impaired the obligation of contracts. A custom or rite prevailing among the uncivilized tribes of Indians in Alaska, whereby slaves are bought, sold, and held in servitude against their free will, and subjected to ill treatment at the pleasure of the owner, is contrary to the 13th Amendment to the Con- stitution of the United States, and the civil rights bill of 1866; and a person so held in slavery will be released by order of the court upon writ of habeas corpus. Be Bah Quah (1886) 31 Fed. 327. 34 MASTER AND SERVANT. [CHAP. I. sory service based upon the indebtedness of the peon. to his master." * It is manifest that the "involuntary servitude" vs^hich is prohibited by the 13th Amendment of the United States Constitution includes not only slavery in the strict sense of the term, but also serfage, vas- salage, villeinage, peonage, and all other forms of compulsory serv- ice for the mere benefit and pleasure of others. ° In order to effectu- ate this prohibition so far as it relates to peonage, a statute has been enacted by which it is declared to be "an offense to hold, arrest, or return, or to cause or aid in the arrest or return of, any person to a condition of peonage." ® This statute is valid legislation under iClyatt V. United States (1904) 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429. The court added the follow- ing explanatory remarks : "The basal fact is indebtedness. As said by Judge Benedict, delivering the opinion in JarenviUo v. Romero (1857) 1 N. M. 190, 194: 'One fact existed universal- ly; all were indebted to their masters. This was the cord by which they seemed bound to their masters' service.' Upon this is based a condition of compulsory service. Peonage is sometimes classi- fied as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the charac- ter of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, liowever created, is compulsory service, involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear dis- tinction exists between peonage and the . . . payment of a debt." "A peon is one who is compelled to work for his creditor until his debt is paid." Bailey v. Alabama (1911) 219 U. S. 219, 55 L. ed. 191, 31 Sup. Ct. Rep. 145. In Jaremillo v. Romero (1857) 1 N. M. 190, 194, Benedict, J., reversed a decree of a lower court to the effect that securities of the servant should pay a specified sum, and, in default of payment, that the servant should be held to serve her master as a peon until the said sum was paid. The opinion of the learned judge contains much interesting information about the institution of peonage. The Century Dictionary defines a peon as "a species of serf, compelled to work for his creditor until his debts are paid." This definition was adopted in Re Lewis (1902) 114 Fed. 963. In United States v. McClellan (1904) 127 Fed. 971, "a condition of peonage" within the denunciation of the pro- hibitory act mentioned below is said tO' be "the illegal holding of a person to involuntary servitude, to v?ork out a debt or contract claimed to be due by the person so held to the person sO' holding;" and in Peonage Gases (1903) 123 Fed. 671, it is construed as "the- situation or status in which a person is placed, including the physical and moral results of returning or holding such person to perform labor or service, by force either of law or custom, or by force of lawless acts of individuals- unsupported by local law, 'in liquida- tion of any debt, obligation, or other- wise.' " It is interesting to note that in the very ancient Code of Hammurabi, to> which some reference has been made in § 1, ante, we find a provision respect- ing arrangements for the sale of debtors to creditors for the purpose of ex- tinguishing debts by means of labor performed for a definite period. 6 This doctrine was laid down, a/r- guendo, in the dissenting opinion of Field, J., in Slaughter-House Cases^ (1872) 16 Wall. 36, 21 L. ed. 394. But there is nothing inconsistent with it in the opinion delivered for the ma- jority of the court, and it has been fully indorsed by the recent decisions regard- ing peonage. 6U. S. Rev. Stat. §§ 1990, 1991, 5526, 5527, U. S. Comp. Stat. 1901, pp. 1266, 1267, 3715, 3716. § 10] GENERAL DISCUSSION OF THE RELATION. 35 that provision of the 13th Amendment to the Federal Constitution by which power is granted to Congress to enforce the prohibition against involuntary servitude.' It operates directly on every person violating its provisions, whether they reside in a state or a territory, aoid whether there be or not any municipal ordinance or state law sanctioning the prohibited form of servitude.* 10. Relation between convicts and persons who hire their services from the state. — There is some authority for the doctrine that under certain circumstances a convict is to be deemed the servant of the person to whom his labor has been farmed out by the state oiEcials, under the provisions of an act empowering them to make such ar- T Glyatt V. XJnited States (1904) 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Eep. 429; United States v. McClellan (1904) 127 Fed. 971. In the latter case, Jones, D. J., in his Answers to the Grand Jury, speci- fied some of the circumstances under which an infringement of the statute is predicable. Amongst other points de- cided it was held that a system of peon- age in this sense is established by the Alabama act of March 1, 1901 (Acts 1900-01, p. 1208, § 1), making it a penal offense, where any person who has contracted in writing to labor for or serve another for any given time, or who has by written contract leased or rented land from another for any speci- fied time, or who has contracted in writing with the party furnishing the land, or the land and teams to culti- vate it, either to furnish the labor, or labor and teams, to cultivate the lands, shall afterwards, without the consent of the other party, and without suffi- cient excuse, to be adjudged by the court, leave such other party, or abnn- don the contract, or leave or abandon the leased premises or land, and take employment of a similar nature from another person, without first giving him notice of the prior contract. So far as the refusal, without just cause, to perform the labor called for in a written contract of emploj-ment under which the employee has obtained money which was not refunded, or property which was not paid for, is made prima facie evidence of an intent to defraud by Ala. Code 1896, § 4730, as amended by Gen. Acts 1903, p. 345, and Gen. Acts 1907, p. 636, and there- fore punishable as a criminal offense. such legislation ofiFends against the pro- hibition of tlie 13th Amendment to the Federal Constitution against involun- tary servitude, except as punishment for crime, and against the provisions forbidding peonage, found in V. S. Rev. Stat. §§ 1990, 5526, U. S. Comp. Stat. 1901, pp. 1266, 3715, enacted to secure the enforcement of such Amendment. Bailey v. Alabama (1911) 219 U. S. 219, 55 L. ed. 191, 31 Sup. Ct. Eep. 145. See Re Peonage Charge ( 1905 ) 138 Fed. 686; Peonage Cases (1905) 136 Fed. 707; Peonage Cases (1903) 123 Fed. 671. These cases, in which the reader will find a considerable amount of information regarding this form of "involuntary servitude," are discussed in the Columbia Law Review, vol. 4, p. 279. In Re Lewis (1902) 114 Fed. 963, where three persons were indicted for a conspiracy, in pursuance of which Lewis assaulted, beat, and wounded one W., to force him to return to his cred- itor's place of business, and "work out a debt claimed to be due" to the de- fendants, the Federal circuit court re- fused to issue a writ of habeas corpus for the release of the defendants, hold- ing that the case was one of which the court had jurisdiction, for the reason that the offense charged was one con- sisting in the infraction of a Federal statute. sciyatt V. United States (1904) 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429. This decision is a direct au- thority for the doctrine that the statute is not applicable to New Mexico only, as was held in United States v. Eler- hart (1899) 127 Fed. 252. 36 MASTER AND SERVANT. [chap. i. rangemeuts. This doctrine has been applied both in an action by the convict himself to recover for injuries caused by a defective instrumentality/ and in an action by a third person to recover for a tort committed by the convict.^ But the more generally received view is that the relationship constitued by such a hiring is not that of master and servant. The courts which have adopted this theory have held : — (1)' That the person by whom the labor of a convict is hired is not liable for injuries resulting from a negligent act committed by him while engaged upon the stipulated work.* 1 In Dalheim v. Lemon (1891) 45 and that the working of convicts, con- Fed. 225, where a convict was injured sidered either as a mode of punishment, by a defective scaffold, tlie jury were or as a means of defraying the expenses instructed that, if they were satisfied of imprisonment, is an oflBcial act of from the testimony that the defendant, the state government. The answer of a contractor engaged in the work of the court to this argument was that, erecting an addition to the prison in though the relation of master and serv- which the plaintiff was confined, pro- ant springs out of a contract, yet as cured his labor and services for that to third persons it can make no dif- work, and the work was done by him ference that the keeper hired the serv- with the knowledge of the defendant ices of the convict from the state; that or his agent, they would be warranted the master's liability, if any, arises in finding that the relation of master from the relation itself, and does not and servant existed between the de- depend on the stipulations in his con- fendant and the plaintiff. The judge tract; that the right to direct and con- also ruled against the special point trol the conduct of the convict was the made by defendant's counsel, that the important circumstance; and that the action was not maintainable, for the particulars of the arrangement by which reason that the legislature of Min- he obtained that right were wholly im- nesota had enacted a statute which pro- material. hibited the letting out of prison labor 8 In Cunningham v. Bay State Shoe to private persons; the object being to d Leather Go. (1881) 25 Hun, 210, the prevent such persons from obtaining grounds of the decision were stated cheap labor, and thus competing on thus: "Personal control of the convicts unequal terms with employers who had by the keeper of the penitentiary was to pay the full market price for services preserved by the contract. Indeed such rendered. control could not be lawfully transferred 2 In Arkansas it has been laid down or delegated to any person. The statute that a lessee of a penitentiary who which authorized the making of the con- places a convict in charge of the prem- tract conferred no such power. Clearly ises, with orders to protect them from the relation of master and servant be- trespassers, stands in the relation of tween the defendant and the convict master to servant, and is liable for could not arise out of such a, contract, an injury infiieted by the latter in While it is not necessary to constitute ejecting a person with unnecessary vio- that relation that there should be a lence. Ward v. Young (1884) 42 Ark. formal hiring by the defendant of the 542. Counsel's contention that the con- convict, yet such relation cannot exist vict in question could not be a servant unless the person who performs the serv- was based on these reasons: That the ice is subject to the control and direc- defendant stood in the place of the state tion of the person for whom the service while the convict was undergoing his is performed. In the instance before us punishment; that the legislature had such is not the case. On the contrary, authorized the keeper to work convicts the county of Kings, acting under legis- in the manner in which the convict was lative authority, made the contract re- engaged when he inflicted the injury; ferred to for the twofold object of en- § 10] GENERAL DISCUSSION OF THE RELATION. 37 (2) That in an action brought by a convict to recover damages for an injury alleged to be due to the negligence of the person who hired him, the claim cannot be based upon the ground of the viola- tion of a duty arising out of contract and owed to the plaintiff as a servant.* Compare § 1201, note 3, and § 1410, note 3, post. forcing the salutary discipline of the convicts, and obtaining recompense for their maintenance. The defendant merely assisted the public authorities in the accomplishment of those objects. It became entitled to the use of the build- ing in which the convicts worked, and to their labor only by virtue of that con- tract. That building was a part of the penitentiary. The defendant neither employed nor selected the convict, nor had it power to enforce obedience from him or to discharge him." In St. Loms, I. M. & S. B. Co. v.' Boyle (1907) 83 Ark. 302, 12 L.R.A. (N.S.) 317, 103 S. W. 744, 13 Ann. Cas. 167, the nonliability of the hirer was put upon the specific ground that, under the express terms of the statute regulating the letting of convict labor, the management and discipline of the convicts should always remain under the control of the state. Upon this ground the court distinguishes the case from Ward V. Young, supra, which had been decided before the enactment of this statute. In Henderson v. Dade Goal Co. (1897) 100 Ga. 568, 40 L.R.A. 95, 28 S. E. 251, those employing convict labor could not be held liable in damages for the act of a convict in outraging a wom- an, unless it was shown that they had some connection with the perpetration of the tort, or that they had reasonable grounds to believe that such convict was a dangerous person, and for apprehend- ing that such an act would be commit- ted. * In Hartmg v. Bay State Shoe & Leather Co. (1887) 43 Hun, 425, the plaintiff, a convict, was farmed out by the county authorities to the defendant to assist in the manufacture of boots and shoes. The prison authorities were, by the terms of the contract, to enforce the performance of the day's work, and the defendant was to furnish "all the tools, machinery, and stock necessary" for the employment. The action was brought to recover for injuries caused by a machine alleged to be defective to the knowledge of the defendant. It was held (1) that, while the usual relation of master and servant did not exist, be- cause the labor furnished was compul- sory, yet the defendant owed a duty to the convict which required him to fur- nish machinery fitted to, and sufiBcient for, the work, and to keep the same in constant repair; and (2) that the plain- tiff was the defendant's workman, though his wages went to the county of Kings. In Baltimore Boot & Shoe Mfg. Co. v. Jamar (1901) 93 Md. 404, 86 Am. St. Rep. 428, 49 Atl. 847, where manufac- turers had contracted with prison di- rectors for the use of a certain build- ing and for the labor of convicts, who were to remain in the custody of the guard while engaged in the work, and one of the convicts was injured while operating an elevator, — it was conceded that, inasmuch as "the employment did not rest upon a mutual contract be- tween the appellant and the convicts whose labor is used, and the former had not control over the selection or conduct of the latter, the relation of master and servant did not exist in its strict sense, or to its full extent." In the opinion of the court "the legal principles applica- ble to such cases require that the con- tractor should be held to a master's lia- bility to the convict whose labor he uses, in respect to those incidents of the employment over which he has the same measure of control that a master ordi- narily has, but not as to those features of the employment over which he is es- sentially deprived of such control. "The conclusion arrived at was that "the re- lation which existed between the ap- ' pellant and the appellee in respect to the transaction involved in this suit was in so far analogous to that of master and servant that the appellant, who had full control over the construction and maintenance of the elevator, and used that structure for its own benefit, should be held liable to the appellee for any injury which he suffered by reason, of the want of the exercise of reasonable 38 MASTER AND SERVANT. [CHAP. I. (3) That the defense of coservice is not available to the hirer of the convict in an action in which a convict claims damages for an injury caused by the negligence of the foreman appointed by such hirer to supervise the work.^ care on its part in providing and main- taining the elevator in a safe and sound condition." A convict liired out to a railroad com- pany, but in the custody and under the orders of a state officer, was held to be entitled to recover damages for injuries resulting from his being struck by a brake rod negligently allowed to project beyond the side of a moving car. San Antonio & A.. P. R. Co. v. Gonzales (1903) 31 Tex. Civ. App. 321, 72 S. W. 213. The court said that the company owed the plaintiff, although a convict, "at least as much duty as it did mem- bers of the public liable to be where they would, in all probability, be in- jured under similar circumstances." In Alabama also, it has been express- ly laid down that the right of action which the convict has for injuries re- ceived while engaged in work for the hirer is not dependent upon the rules governing the liability of employer to employee. BucJcalew v. Tennessee Coal, Iron & R. Go. (1895) 112 Ala. 146, 20 So. 606. See subd. (3), infra. In Chattahoochee Bride Co. v. Bras- well (1893) 92 Ga. 634, 18 S. E. 1015, the gang of convicts to which the plain- tiff belonged were under the general charge of a "captain," appointed by the governor of the penitentiary; but it also appeared that these convicts, including the plaintiff, were put to work under the immediate control of another per- son, who was employed and paid by the brick company, and that all the convicts were peremptorily required to obey the orders of this person. Upon this state of facts the court commented as fol- lows: We can conceive of no reason in law or justice why this corporation should not be held liable to the plain- tiff for injuries resulting directly from the unlawful conduct of its own em- ployee in forcing the plaintiff to expose himself to mutilation from the danger- ous explosive which was being used in the company's service. The mere pres- ence of the 'captain' at or near the scene of the calamity, even though he may, in a sense, have been a state official, certainly cannot relieve the brick com- pany of responsibility for the tortious and wrongful conduct of its own serv- ant. It is entirely immaterial whether it was, or was not, lawful for these con- victs to be thus placed under the con- trol and management of the brick com- pany and its bosses. The company sure- ly will not be heard to say that, al- though it injured the plaintiff through the grossly improper conduct of its own employee, it is not liable because it was unlawful to put the plaintiff under this employee's control. To do this would be to allow the company to avail itself of its own misconduct, in doing one wrong, in order to shield itself from the consequences of another wrong still more grievous and unlawful." Lessees of a penitentiary are not re- sponsible for an injury to a convict by the defective construction of a bunk made by a servant of the penitentiary commissioners who had charge of the convicts, and was invested with the sole power of controlling the movements of the convicts after they had finished the day's work and returned to their sleep- ing place. Cunningham v. Moore (1881) 55 Tex. 373, 40 Am. Rep. 812. B In BucJcalew v. Tennessee Coal, Iron & R. Co. (1895) 112 Ala. 146, 20 So. 606, the court thus dealt with the theory of counsel that some of the counts of the complaint in an action brought by a convict against a contractor who had hired him were under the employer's liability act, or were governed by the rules regulating the liability of a mas- ter for the acts or omission of fellow servants: "This, we think, is a miscon- ception of the law. There was under neither count a relation of master and servant between the defendant and the intestate. That relation always grows out of a contract between the parties, express or implied. Here, under the last three counts, the intestate was a. prisoner in the custody of the defendant, as his keeper. By law, and the de- fendant's contract with the proper law officers, it was authorized to put him to labor in the mine, and owed him the duty of doing him no wilful harm, and of exercising reasonable care for his «§ i:-i3] GENERAL DISCUSSION OF THE RELATION. 39 11. Relation between guardians of the poor and paupers. — The ef- fect of a recent English case is thus stated in the headnote : "The employment of a pauper set to work hj the guardians of the poor under the powers given to them by the poor law acts and orders is not contractual, but statutory, and therefore the defense of commoa employment is no answer to an action by a pauper so employed against the guardians to recover damages for injury suffered in such employment through the negligence of an oiBcer of the guardians. But setting the paupers to work is part of the administrative duties imposed on the guardians by statute; and an action by the pauper against the guardians for negligence of their officer in discharge of these duties will not lie." ^ 12. Relation between members of trade unions and their officers. — By two English judges the opinion has been expressed that a dis- trict delegate of a trade union, elected by the members to be their protector, is not the servant or agent, either of the union or of its individual members, in such a sense as to render them liable for his tortious acts.^ 13. Relation between pilots and shipowners. — On going on board a ship, a pilot takes upon himself the duty of navigating the ship, and personal safety. The intestate had made no contract with anyone. His servitude was involuntary. It was en- forced. He had no right or power to re- fuse to enter upon the service, or to quit it at any time until his sentence expired. Whatever may have been the dangers of the service, howsoever in- competent, careless, or vicious may have been the defendant's agents or servants put to work with or over him, the con- vict had no voice, volition, or freedom of action in the matter whatever. He had entered into no contract, express or implied, to take the risks of the wrong- ful acts and omissions of the defend- ant's servants. He was fellow servant with no one." On the same general ground, vis:., that the compulsory character of the service in such cases negatives the existence of coservice, it has been held that a chain- gang boss is not the fellow servant of the prisoners under his charge. Boswell V. Ba/mhart (1895) 96 Ga. 521, 23 S. E. 414. The hiring out of convicts is treated from a general standpoint in the note to Topeka v. Boutwell (1894) 27 L.R.A. €04 et eeq. In some states the legislature has enacted that the control of convicts shall not be given to private individuals. See, for example, the Penal Code of Georgia, § 1039, and the construction put upon it in Russell v. Tatum (1898) 104 Ga. 332, 30 S. E. 812; Simmons v. Georgia Iron & Coal Co. (1902) 117 Ga. 305, 61 L.R.A. 739, 43 S. E. 780. 1 Tozeland v. West Ham Union [1907] 1 K. B. (C. A.) 929, 96 L. T. N. S. 519, 23 Times L. R. 325, affirming [1906] 1 K. B. 538, 4 Ann. Cas. 475. 1 Flood V. Jackson [1895] 2 Q. B. 21, per Kennedy, J., in the Queen's bench division, and Lord Esher, M. R., in the court of appeal. The former judge con- sidered the position of the delegate to be more nearly akin to that of a master or principal. Nothing was said regard- ing this point when the case was before the House of Lords. Allen v. Flood [1898] A. C. 1, 17 Eng. Rul. Cas. 285. The fact that a barge was the defend- ants' property was ruled by Lord Den- man to be prima facie evidence that the bargeman was their servant. Joyce v. Cajiel (1838) 8 Car. & P. 370. 40 MASTER AND SERVANT. [CII IP. 1. he is considered her commander as far as the navigation is con- cerned.' If his employment is compulsory, the shipov\Taer is not responsible for damages caused by his negligence.* But a pilot voluntarily employed is deemed to be the servant of the shipowner, who consequently is liable for the negligent acts of the pilot.' The extent of the liability of a shipowner for the negligence of a pilot will be further discussed in a subsequent chapter.* 13a. Relation between municipalities and their officers and em- ployees. — To discuss this subject fully would carry us outside the scope of the present treatise; but it may be well to mention in this place that municipalities are not regarded as the masters, either of those persons who are appointed by them, in pursuance of a duty imposed by law and for the purpose of discharging functions of a public or governmental nature; ' or of the subordinates whom the iThe Christiana (1850) 7 Moore, P. C. C. 160, and cases cited in Abbott, Shipping, 14th ed. pp. 301 et seq. See also Snell v. Rich (1806) 1 Johns. 305, cited in Yates v. Broion (1829) 8 Pick. 23, note 3, infra. iThe lona (1867) L. E. 1 P. C. 426; Start V. Clements (1792) Peake, N. P. Cas. 107; The Octavia Stella (1867) 6 Asp. Mar. L. Cas. 182; The Ealley (1868) L. R. 2 P. C. 193; Abbott, Ship- ping, 14th ed. pp. 322 et seq. The mer- chant shipping act, 57 & 58 Vict. (1894) chap. 60, § 633, merely defines in this respect what had previously been recog- nized as the common law of England. 3 The Maria (1839) 1 W. Rob. 95, 21 Eng. Rul. Cas. 222; The Eden (1846) 2 W. Rob. 442; Yates v. Brown (1829) 8 Pick. 23. In the last-cited case the court said: "We think that the owners of a vessel which, by collision with an- other vessel, has caused damage through fault or negligence of anyone on board, is answerable to the injured party, in respect of their property, notwithstand- ing there may be a pilot on board, who has the entire control and management of the vessel. It is more convenient that such owner should seek his remedy against the pilot whom he has selected for this service, than that the injured party should; and it is more conform- able to the general spirit of the law; for, although the pilot holds his com- mission under the executive authority of the commonwealth, yet in many re- spects he is the servant of the owner who employs him, and in regard to the time of sailing is undoubtedly under the direction of the owner." As to the rights, and duties of pilots generally, see AblDott, Shipping, 14th ed. chap. 7. * See InrJex of Subjects. 1 Negligent acts committed by the members of a fire department are not imputed to the city by which that de- partment was organized. Wilcox v. Chi- cago (1883) 107 111. 334, 47 Am. Rep. 434; Eafford v. ffew Bedford (1860) 16 Gray, 297; Dill. Mun. Corp. § 774; Shearm. & Redf. Neg. § 265, notes, 5-8. Nor does the fact that a defect in a highway, by which they were injured was obvious, render them chargeable with assumption of the resulting risk. Coots V. Detroit (1889) 75 Mich. 628, 5 L.R.A. 315, 43 N. W. 17; Palmer v. Portsmouth (1861) 43 N. H. 285; Turner v. Indianapolis (1884) 96 Ind. 51; Farley v. 'New York (1897) 152 N. Y. 222, 57 Am. St. Rep. 511, 46 N. E. 506. As to the rule that a city is not liable for the unlawful or negligent acts of its police officers, see Buttriok v. Loioell (1863) 1 Allen, 172, 79 Am. Dec. 721; Mitchell V. Rockland (1860) 52 Me. 118; Shearm. & Redf. Neg. § 241, note 3. That the doctrine of assumption of risk is not a bar to an action by a police officer for an injury caused by a de- fective highway was held in Kimtall v. Boston (1861) 1 Allen, 417; Galveston § 13a] GENERAL DISCUSSION OF THE RELATION. 41 officers themselves appoint ; * or of subordinates appointed and con- trolled exclusively by a department charged with the performance of duties relating to an administrative branch of the state govern- ment.' V. Hemmis (1889) 72 Tex. 558, 13 Am. St. Rep. 828, 11 S. W. 29. On the ground that a surveyor of highways was not the mere servant or agent of the town, but an officer created by statute, and chosen by the town, with other town officers, it was held that he was not an agent or servant of the town in such a sense as to be incompetent to testify in a civil action against the town for a defect in that part of the highway which was within his district. White v. Phillipston (1845) 10 Met. 108. The relation of master and servant does not exist between a county and the officer appointed by the county commis- sioners to superintend the construction or repair of a bridge, and therefore the maxim respondeat superior does not ap- ply. Abbett V. Johnson County (1887) 114 Ind. 61, 16 N. E. 127, citing numer- ous cases and referring to Wharton, Neg. § 192; Cooley, Torts, 620, 621; 2 Dill. Mun. Corp. §§ 974, 980, and notes. An action against the city of Boston, under the employers' liability act, Stat. 1887, chap. 270, and acts in amendment thereof (see chapter Lxxiv., post), for personal injuries occasioned to a person at work on the subway, authorized by Stat. 1894, chap. 548, was held not to be maintainable, for the reason that the work was a public one, over which the defendant had no control, but which was in charge of the transit commissioners, who were public officers engaged in the performance of public duties, and inde- pendent of the defendant, who were not its servants or agents, Mahoney v. Bos- ton (1898) 171 Mass. 427, 50 N. E. 939. In McGuire v. Grant (1856) 25 N. J. L. 357, 67 Am. Dec. 49, it was held that the chairman of a municipal com- mittee under whose direction all street work was done, was not liable for the infringement of a landowner's right of lateral support, consequent upon the re- moval of gravel purchased by him, where the laborers who made the exca- vations were selected, employed, paid, and controlled by the street commission- er, whose duty it was, as an independent municipal officer, to carry out in detail the instructions of the committee. A poundkeeper appointed by a local board under the New Zealand impound- ing act 1884 was held to be an inde- pendent public officer, and not the serv- ant of the board, which was declared not to be liable for his misfeasance in selling an impounded animal on an un- lawful day. Barne v. Halcombe Toimt, Board (1890) 9 New Zealand L. R. 223. 8 A town is not liable for an injury sustained by reason of the negligence of a laborer employed by one of ita highway surveyors, to aid him in per- forming the duties of his office, al- though such surveyor is appointed by the town. Walcott v. Swampscott (1861) 1 Allen, 101. "They are, strict- ly spealfing, public officers, clothed with certain powers and duties which are pre- scribed and regulated by statute. Towns, cannot direct or control them in. the performance of these duties; they cannot remove them from office during the term for which they are chosen; they are not amenable to towns for the manner in which they discharge the trust reposed in them by law; nor can towns exercise any right of selecting the servants or agents by whom they per- form the work of repairing the high- ways. In the discharge of these general duties they are wholly independent of towns, and can in no sense be considered their servants or agents. It is only in certain specified cases, and under care- fully guarded limitations, that they can bind towns by their acts." On the ground that, under the stat- ute by which his office was created, a road supervisor, while engaged in the repairing of roads and bridges, was per- forming a duty imposed upon him by law, it was held the county commis- sioners, although they appointed him, were not liable in damages for an in- jury sustained by a person traveling on a county road, by reason of a col- lateral act of negligence committed by a laborer employed by him to assist in repairing the road. Anne Arundel County V. Durall (1880) 54 Md. 350, 39 Am. Rep. 393. Sffajn V. A' etc York (1877) 70 N. Y. 459, where the city was held not to be 42 MASTER AND SERVANT. [chap. i. 13b. Domicil of servants in relation to that of their masters. — A learned English author inclines to the opinion that the domicil of a domestic servant should, in the absence of rebutting circumstances, be presumed to be that which he possessed before entering into the service of a master whose domicil is different from his.^ He con- cedes, however, that according to one of the most distinguished writers on the civil law the presumption founded in experience is that the domestic servant has abandoned his native domicil without any intention of returning to it; and therefore has acquired an- other domicil, which must be the domicil of the master with whom he is living.'' More recently the following views have been ex- pressed by another English jurist: "There is not, however, any authority in English law, or anything in the circumstances of mod- ern life, establishing a definite rule, or even a presumption, as to the domicil of the servant. Whether he has or has not a 'perma- nent home' in the same country as his master must, as in other cases, depend upon the combination of fact and intention. The nature of the service may, under some circumstances, tell in favor of, and in others against, a presumption that the servant adopts his employer's domicil." ^ It is manifest, however, that a case can seldom be so devoid of specific facts bearing upon the intention of the servant that a court will find it necessary to rely upon a pre- sumption of any description. Ordinarily that intention will be a matter to be determined by a consideration of all the evidence. Thus it may well be that, if a servant, after quitting his domicil of origin, should remain for a long period of time at one particular place in the employment of several masters, and collect his earnings in that place, the legal inference would be the abandonment of the original, and the acquisition of a new, domicil; while, if he should return several times to the place of his birth in the interval of his servitude to several masters, and deposit his savings and property there, the intention of preserving his original domicil would be fairly de- ducible.* So also it would seem reasonable to say that, where a serv- liable for the negligence of servants em- 8 Kan. App. 671, 57 Pac. 131. But some ployed by the commissioners of the de- further authority for this doctrine partment of public instruction. seems to be required before it can be In one case it has been held that the regarded as definitely settled, relation of employer and employee exists 1 Phillimore, Domicil, § 105. between a city and a person working out 2 Voet I. 1, t. v. § 96. his poll tax, and the liability of the 3 Dicey, Confl. L. p. 151. city for personal injuries sustained by 4 These alternative conclusions are him must be determined by reference stated in Phillimore's Law of Domicil, to the principles applicable to master § 107, where he cites several iTrench and servant. Winfield v. Peeden ( 1899 ) decisions, and also notes that, in his *§ 13b] GENERAL DISCUSSION OF THE RELATION. 43 ant has lived with a series of masters, traveling with them from place CO place, as the exigencies of the service require, no domicil is acqiiired through any of those masters.' The following provision, which is found in the Code JSTapoleon (art. 109), the Code of Lower Canada (art. 84), and the Code of Louisiana (art. 49), furnishes a definite rule for the particular class of cases to which it applies: "Persons of full age who serve ■or work habitually at the houses of others are deemed to have the same domicil as the person whom they serve, or with whom they work, provided they reside in the same house." ® Under the Prussian law, the domicil of house servants and day laborers who remain upon a particular estate is the place where they work,' and the domicil of an apprentice is that of his master.' In the United States it would seem that the domicil of an ap- prentice is deemed to be that of his master.® A slave has no domicil but that of his master ; but a manumitted person was held by the Roman law to have acquired the domicil of the manumittor.^" argument in Dalhousie v. M'Douall also summarized by Phillimore on Dom- (1840) 7 Clark & F. 831, the Attorney icil, § 109. General remarked that a servant who s See Merlin, Rep. suh voc. Domicil, followed his master for a particular § 4, No. 1; 2 Paud. Franc. 227; 1 Bour- ■service did not thereby lose his domicil jon, p. 90, for comments on this pro- of origin. Wharton (Parmele's Whar- vision. ton, Conii. L. § 47 ) is also of opinion T See Parmele'a Wharton, Confl. L. that the place where a servant keeps § 47. his savings, and expects ultimately to 8 See Parmele's Wharton, Confl. L. settle, is his domicil, though he works § 47. in various places and with various mas- 9 See Maddox v. State (1869) 32 Ind. ters, and returns "home" very rarely. 111. This case, however, is not a di- 6 Parmele'a Wharton, Confl. L. § ' 47, rect decision upon the question, referring to the French case of Nich- 10 Phillimore, Domicil, § 111. •olas Sauterau, the facts of which are CHAPTER II. UNDER WHAT CIRCUMSTANCES THE EXISTENCE OF THE RELATION WILL BE INFERRED AS BETWEEN TWO GIVEN PERSONS. A. Generally. 14. Classes of cases in which proof of the existence of the relation is material. 15. Employment by two or more persons jointly or in common. 16. Burden of proof. 17. Provinces of court and jury. B. Evidence appkopkiate to establish the existence of the belation. 18. Exercise of control over the details of the work. 19. Payment of compensation. 20. Power of appointment. 21. Power of dismissal. 22. For whose benefit the given work was done. 23. Evidential significance of two or more of the foregoing elements in combination. 24. Who was bound to perform the work in question. 25. Exercise of a, limited measure of control. 26. Personal interference in the work. 27. Ownership or possession of property. 28. Course of business. 29. Length of the period occupied in the performance of the work. 30. Frequency with which the alleged servant performed work for the alleged master. 31. Plaintifl's ignorance of the actual situation. u.. Actions in tort by third persons. 6. Actions in contract by third persons. c. Actions by servants for personal injuries received in the course of their employment. d. Actions by servant for wages. 0. Position op various classes of servants engaged in work in which theie- general employee is directly interested. 32. Servants hired by a superior employee of the person whom it is sought to charge as their master; generally. 33. Servants hired by superior employees of the state or of municipal' corporations. 34. General rule that servants of independent contractors are not servants of the principal employer. 35. Eifect of this rule upon the right of recovery in actions for compen- sation. 44 EXISTENCE OF RELATION— WHEN INFERRED. 45 36. — in actions for injuries caused by the wrongful acts of the con- tractor's servants. 37. Same subject continued; historical summary. 58. — in actions based upon the breach of one of the characteristic duties of masters. 39. — in actions where the defense of common employment is relied upon. 40. Effect of evidence showing that the servants of the contractor were controlled by the principal employer. 41. Constructive service, as predicated from the incidence of non-delegable obligations upon the principal employer. 41a. Relation of servants of a bailee to the bailor. 42. Servants of railway companies using the same premises. 43. Servants working for connecting carriers. 44. Servants working on chartered ships; generally. 45. Servants working on merchant ships under charter. 46. Same subject discussed in reference to cases where the master of the ship is also the charterer. 47. Servants working on ships chartered by the state. 48. Servants engaged, together with the servants of a, third person, in handling goods. 49. Servants working on trains not operated by their employers. 60. Statutory modification of the common law in Pennsylvania. 51. Servants operating railroads for receivers or for trustees of mortgage bondholders. D. Undeb what circumstances a sebvant in the genebal employment of ONE PERSON BECOMES THE SPECIAL SEBVANT OF ANOTHEB PERSON. 52. Introductory. 53. Servant deputed to perform work for third persons by means of in- strumentalities belonging to his master presumed prima facie to remain under his control. 54. Rule applied in the case of horse-drawn vehicle. 55. Doctrine of imputed negligence. 56. Rule applied in the case of instrumentalities other than horse-drawn vehicles. 57. Suspension of general employer's control; when inferred. 58. Position of servants deputed to perform work for third persons, but not placed in charge of any instrumentality hired from their em- ployers; generally. 58a. Circumstances showing a, continuance of the general employer's con- trol over the servant. 58b. Circumstances showing a suspension of the general employer's control. 59. Fact that special skill is required for the work, inference from. 60. Apparent inconsistencies in the decisions, discussed with reference to the doctrines of respondeat superior and of common employment. 61. General employer deemed to be for some purposes the master of a servant temporarily transferred to the control of a third person. 62. Hirer of instrumentality deemed to be the master of a person ap- pointed by himself to do work with respect to it. 46 MASTER AND SERVANT, 'A. Genebaxlt. [CHAP. a. 14. Classes of cases in whicli proof of the existence of the relatioa is material. — The question embodied in the heading of this chap- ter usually presents itself in cases where the actual issue to be de- termined is, Which of two persons was the master of a third who is conceded to have been the servant of one or other of them ? The necessity for deciding that issue may arise with reference to the applicability of any of the following fundamental rules of law: — (1) In order to sustain an action founded on one of those special duties which masters and servants owe to each other, it is necessary to show that, at the time when the alleged breach of duty occurred, there was a subsisting contract of service between the plaintiff and defendant.^ (2) "The law does not recognize a several liability in two prin- cipals who are unconnected." ^ 1 This point has been specifically af- firmed in Western Wheel Works v. Staohnick (1902) 102 111. App. 420; and it is taken for granted in many of the cases cited in the ensuing sections. A petition alleging that the plaintiff was an employee of the defendant com- pany, and, as such, sustained personal injuries through the defendant's negli- gence, while engaged in the work he was employed to do, is not sustained by evidence showing that the relation of master and servant did not exist be- tween these parties, and that the plain- tiff was really the servant of another company using the same yard, and was doing the work in question under his employment by that company. Under such circumstances the plaintiff should have sued in the character of a licensee, and not in that of a servant. Postell V. BrimsvAch & W. B. Co. (1901) 112 Ga. 602, 37 S. E. 8G9. A general verdict for plaintiff in an action for negligent injuries, under a complaint based on the theory that a brakeman was employed by defendant, is inconsistent with special answers to interrogatories to the effect that plain- tiff was not in defendant's emTiloy, but in the employ of another railroad com- pany, which owned, controlled, and oper- ated the train which injured him. Baltimore & 0. & C. R. Go. v. Paul (1895) 143 Ind. 23, 28 L.R.A. 216, 40 N. E. 519. In Moest v. Buffalo (1906) 116 App. Div. 657, 101 N. Y. Supp. 99G, affirmed in (1908) 193 N. Y. 615, 86 N. E. 1128, it was held that the rule respondeat superior is never applied where the power to select the servants, to dis- charge them if incompetent, and to di- rect and control them while in the em- ployment, does not exist. In PacTc v. S^eic York (1853) 8 N. Y. 225, Jewett, J., said: "JThe party em- ploying has the selection of the party employed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders should be responsible for an injury re- sulting from the want of skill or want of care of the person employed; but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the relation of master or principal to the party by whose neg- ligent act the injury has been occa- sioned." ^Laugher v. Pointer (1826) 5 Barn. & C. 547, per Littledale, J. Other cases which recognize the rule are Blake v. Ferris (1851) 5 N. Y. 48, 55 Am. Dec. 304; Atwood v. Chicago, R. 1. & P. R. Co.- (1896) 72 Fed. 447; Currier v. Henderson (1895) 85 Hun, 300, 32 N. Y. Supp. 608 ; Bibb v. Norfolk & W. B. Go. (1891) 87 Va. 711, 14 S. E. 163; Painter v. Pittsburgh (1863) 46 Pa. 213 ; Wray v. Evams ( 1875 ) 80 Pa, 102. EXISTENCE OP RELATION— WHEN INFERRED. 47 (3) In order to let in the operation of the doctrine of coservice there must be not only a common employment, but a common mas- ter.* In Laugher v. Pointer ( 1820 ) 5 Barn. & C. 547, Holroyd, J., took the ground that "a person may stand in the relation of servant to two different persons as his masters, in two different respects with regard to the same thing, and tliis even though the service done, or to be done, be special and limited to a single act;" the authority cited for this doc- trine being Wheteley v. Store (1653) 2 Rolle, Abr. 556, pi. 14, to the effect that "if a . . . bailiff . . . take a man upon a capias in process at my suit, and J. S. rescue him out of his possession, I may have a general writ of trespass against him, because the . . . [bailiff] is as well my servant to this purpose as the servant of the King." But the general principle which the learned judge here deduces from the specific instance mentioned is quite at variance with the current of later au- thorities. See especially the cases cited in subtitle D, in the present chap- ter. * Stoainson v. North^Eastern B. Co. (1878) L. R. 3 Exch. Div. (C. A.) 349, 47 L. J. Exch. N. S. 372, 38 L. T. N. S. 201, 26 Week. Rep. 413, reversing (1877) 37 L. T. N. S. 102, 25 Week. Rep. 676. In the judgment of Brett, L. J., the rationale of the doctrine was thus explained: "Dicta are to be found . . . in some of the cases, which tend to suggest that the principle ought to be applied to cases in which the element of common service may be wanting. There is great difficulty in so holding, because, when it is said that the servant undertakes the risk of the negligent acts of his fellow servant, the question arises, 'Undertakes to whom?' and the proposition must, we think, be limited by confining the undertaking to the master of the servant vrho is supposed to give it, and that it cannot be reason- ably extended to strangers, or those who, having some interest in a joint operation, are not in some sort the master of the person injured." ■ The following passage from a judg- ment of Pollock, C. B., is also instruc- tive in this connection : "The case of master and servant is only one of a class. The question has hitherto arisen in cases between master and servant, but it appears to me that the learning on this subject has not been exhausted. When two persons serve the same mas- ter, one cannot sue the master for the negligence of his fellow servant. The rule applies to every establishment. No member of an establishment can main- tain an action against the master for an injury done to him by another mem- ber of that establishment, in respect of which, if he had been a stranger, he might have had a right of action. A friend of the servant, a son, a, relation, living in the same house, not in the character of a servant, but as a mem- ber of the same family, are probably in the same position; and such persons cannot maintain actions any more than a servant could. But that is when they form one family, in one establishment, for one common purpose. Here it is said that there was common work. If it was agreed that this work should be done by all, the rule might apply; but it does not apply merely because the par- ties had a common object, if they had separate ends, and for some purposes antagonistic interests." Abraham v. Reynolds (1860) 5 Hurlst. & N. 143, 6 Jur. N. S. 53, 8 Week. Rep. 181. "Mere co-operation or community of labor and ultimate purpose" is not enough to make men fellow servants, but they must all be "under the control and direction of a common master." Union P. R. Co. v. Billeter (1890) 28 Neb. 422, 44 N. W. 483, quoting Shearm. & Redf. Neg. § 225. The engineer of a locomotive belong- ing to a transportation company which operates both steamers and trains is not a coservant of a person who rents a part of one of those steamers for the purpose of keeping a bar. Yeomans v. Contra Costa Steam Nav. Co. (1872) 44 Cal. 71. In sustaining the right of the plaintiff to recover for injuries caused by the negligence of the engineer, the court said: "As messenger for Wells Fargo & Company merely, it is not con- tended that the plaintiff would not have occupied the position of an ordinary passenger. As barkeeper he was in no sense an employee of the defendants. 48 MASTER AND SERVANT. [chap. II. (4) The conviction of a person indicted under the statutes con- cerning larceny and embezzlement by "servants" cannot be sustained, unless the evidence shows that, at the time -when the alleged crime He was a lessee for a monthly rent of an apartment upon their boat which he occupied for purposes of trade. His transportation over the route was a part of the consideration for the month- ly payment. The defendants had no interest in the receipts of his business, and could not hold him accountable for its proper conduct. The parties were in no sense members of the same estab- lishment for one common purpose. The vending of liquors and cigars to passen- gers was no part of the business in which the transportation company were engaged. The case would have been the same if the plaintiff had leased an apartment upon the boat for any other species of trade. If a cigar vendor should rent and occupy for the purposes of his trade a corner of a merchant's store, and an explosion should occur through the negligence of the merchant's clerk, it would not be contended that the merchant would not be responsible in damages to the cigar vendor for per- sonal injuries resulting from the acci- dent. The fact that the place of trade was upon a, steamboat can make no difference in the application of the prin- ciple." See also the cases cited, and the doc- trinal discussion, in §§ 1414 and 14] 5, post. In note 3 to the latter of these sections are collected several dioia and rulings which constitute a respectable body of authority for a doctrine differ- ent from that which has finally pre- vailed. As additional illustrations of the discarded doctrine, a few other de- cisions may also be referred to in this place: — In a Scotch case which belongs to the period when that doctrine was held to be correct, it was held that the servant of a, carting contractor could not re- cover for injuries caused by the negli- gence of a servant of a grain merchant to whose premises the contractor was engaged to convey certain sacks of grain. Congleton v. Angus (1887) 14 So. Sess. Cas. 4th Series, 309 (sack fell on contractor's servant). In an early Michigan case it was held explicitly, though by a divided court, that the servant of a contractor is a co- servant of a servant of the contractor's employer, where both are engaged on a common enterprise. Campbell, J., speak- ing for the majority, said: "Whatever possible restriction may exist as to strangers, under circumstances where work is done on the principal's premises, — a point not now before us, — no ques- tion could arise in favor of an employee of the contractor, who looks immediate- ly to him as a principal. He knows, or is bound to know, the necessity of care and prudence in all parts of the under- taking, and knows, therefore, that his employer and his colaborers are and must be relied upon to do their work, without endangering or interfering with others. This is a duty wnich attends every such undertaking, and forms a part of every contract, whether of hir- ing laborers or of bargaining with an- other who must hire them. If the con- tract of labor be lawful, and due care is had — as must be presumed — not to select incompetent or reckless men, the ultimate employer or owner of the en- terprise has done all in his power to in- sure the safety of those who may en- gage in any capacity in furthering it. Each one has a right to expect from the rest the same degree of care, whether hired by the owner or contractor; and if any failure occurs in this regard, and there results an injury to any of them, the reasons which apply among fellow servants, to restrain them from an ac- tion against the master, apply with in- creased force where the ultimate em- ployer has no control over the contract- or or his subordinate employees in the process of their work, and where, there- fore, as a matter of fact, their negli- gence is in no way to be traced to him. We regard the whole subject as resting upon the same foundation, and as re- quiring recourse to be had against the persons guilty of actual negligence, where they and the party injured are employed in a common enterprise for the same purpose, and where, in pursu- ing their several duties, any risk would naturally arise to the one from the neg- ligence of the other." Michigan C. R. Co. V. Leahey (1862) 10 Mich. 193. In Illinois the position has been taken § 14] EXISTENCE OF RELATION— WHEN INFERRED. 49 was committed, the defendant stood in the relation of servant to the owner of the stolen property.* A defendant may be convicted as that a servant of a railroad company is bound to anticipate, as one of the ordi- nary perils of his employment, that the servants of another company who use the same road vi^ill occasionaly be neg- ligent. Clark v. Chicago, B. & Q. R. Co. (1879) 92 111. 43. See also the cases cited under § 32, note 2, post. *A person who was nominated and elected assistant overseer under 59 Geo. III. chap. 12, § 7, by the inhabitants of a parish in vestry, and who was afterwards appointed assistant over- seer by the warrant of two justices, was held to have been properly described in an indictment as the servant of the inhabitants of the parish. Reg. v. Car- penter (1866) 35 L. J. Mag. Gas. N. S. 169, L. R. 1 C. C. 29. As to the alter- ation of the law by statute, see Smith, Mast. & S. p. 506. It was held that a man appointed as assistant overseer by the vestry of a parish under the same statutory provi- sion, the appointment specifying that he should discharge all the duties of over- seer, was not a "clerk or servant" to the overseer, and therefore could not be convicted on a count charging him with embezzling certain money, the property of the overseer. Reg. v. Sampson (1846) 1 Cox, G. C. 355. The treasurer of the guardians of the poor at a certain city was held to be indictable as their servant. Reg. v. Welch (1846) 2 Car. & K. 296, 1 Den. C. C. 199. A salaried clerk in the oflSce of an insurance company was held to be a servant of the directors, who had the right of appointing and dismissing the employees of the company, and paid their salaries and prescribed their du- ties. Reg. V. Watts (1850) 2 Den. C. C. 14. Prior to the passage of the friendly societies act, 18 & 19 Vict. chap. 63, it was held that the salaried secretary of an unincorporated society was properly described in an indictment as the serv- ant of the trustees of the society in whose names the bank account of the society stood. Rex v. Hall (1836) 1 Moody, C. C. 474. But the treasurer of a friendly so- ciety appointed under that act, although an officer accountable to the trustees, is M. & S. Vol. I.— 4. not their servant. Reg. v. Tj/ree ( 1869 ) L. R. 1 C. C. 177, 38 L. J. Mag. Gas. N. S. 58. The secretary of such a society is properly described in an indictment as the servant of the trustees, and cannot be described as the servant of the treas- urer. Reg. V. Woolley (1850) 4 Cox, C. C. 255. A member of a benefit society who acted as its secretary, and received as his remuneration a certain sum per head every three months upon every member of the society, including him- self, was held to have been wrongly indicted as the servant of "A. (one of the members) and others." He was deemed to be, rather, in the nature of a partner, having an advantage over the other partners by reason of the allow- ance which he received for doing more of the work of the society than the oth- ers. Reg. V. Toffs (1850) 4 Cox, C. C. 169. Where a secretary of a friendly socie- ty under 18 & 19 Vict. chap. 63, in which no trustees had ever been ap- pointed, was convicted on an indictment for embezzlement, prior to the coming into operation of the act of 31 & 32 Vict. chap. 116, and the indictment de- scribed him as the servant of the treas- urer, and also as the servant of C, a member, and others, it was held that the conviction was wrong. Reg. v. Di- prose (1868) 19 L. T. N. S. 292. In delivering the judgment of the court, Bovill, Ch. J., said: "We are of opinion that this objection ought to prevail. Such an objection is now removed by the act of 31 & 32 Vict. chap. 116. It cannot be said that the secretary of such a society is a servant of the treas- urer's, as alleged in the first count. They are both servants of the society. Then upon the second count, the moment you make the allegation that he was the servant of Crowson and others, the indictment is bad; for it is, as Maule, J., said in Reg. v. Toffs (1850) 4 Cox, C. C. 169, the same as if you had set out the names of all the members, and among them would have been the pris- oner's own, and that would have been to have described him as the servant of himself." A superintendent of a division of 50 MASTER AND SERVANT. [chap. II. the servant of that particular employer whose property be misap- propriated while he was discharging his duties.^ 15. Employment by two or more persons jointly or in common. — Questions arising out of employment by two or more persons jointly or in common may present themselves with relation to any of the following situations : (1) Where the joint masters were partners in the strict technical sense of the term. In this instance the relationship of master and servant exists between the person employed and each of his em- ployers.^ county police was held to be properly described as the servant of the chief constable, by whom he was appointed, and not of the county treasurer, to whom the chief constable transmitted all sums received by him from the superintendent. Reg. v. Bawter (1851) 5 Cox, C. C. 302. A mail rider in the employment of the United States, who steals the mon- ey in a registered letter from a mall bag, is not the agent or servant of the person who sent the letter, within the terms of the Alabama statute (Code of 1876, § 4377; Code of 1886, § 3795) against embezzlement. Brewer v. State (1887) 83 Ala. 113, 6 Am. St. Kep. 693, 3 So. 816. SRex V. Carr (1811) Russ. & R. C. C. 198; Reg. v. Batty (1842) 2 Moody, C. C. 257 (expressly approved in Reg. v. Tite (1861) Leigh & C. C. C. 29, after some doubt had been cast upon its cor- rectness in Reg. v. Goodhody (1838) 8 Car. & P. 665) ; Rex v. Leech (1821) 3 Starkie, 70. On the ground that the moneys ap- propriated were, as between the prison- er and the prosecutor, received to the use of the latter, it was held, in an in- dictment for embezzlement, the prisoner was rightly described as a servant of the prosecutor, for whom he drove a coach, and to whom he was bound to de- liver the fares received by him, although his employer was one of several proprie- tors of the coach and ultimately ac- countable to them for the receipts. Reg. V. White (1839) 8 Car. & P. 742. 1 As to the doctrine that partners are jointly and severally liable to third persons for the torts of a servant em- ployed to do the work of the partner- ship, see, generally, Lindley, Partn. *283; Bates, Partn. § 1030; Collyer, Partn. Wood's ed. § 689. Where it is sought to charge two own- ers of a joint business with liability for the negligence of their servants, the actual presence of one of such owners at the moment of the accident is not necessary to render him responsible, if the other facts and circumstances are sufficient to show liability. Baker v. Eagey (1896) 177 Pa. 129, 55 Am. St. Rep. 712, 35 Atl. 705; Ashicorth v. Stanwio! (1860) 3 El. & El. 701, 30 L. J. Q. B. N. S. 183, 7 Jur. N. S. 467, 4 L. T. N. S. 85. The operation of the general rule as to the joint and several liability of the partners is also illustrated by the cases in which a servant sues a firm as his em- ployers, under circumstances which pre- clude the operation of the doctrine as to common employment; that is, where his injury was caused by the breach of some personal duty which the law im- poses on employers in respect to their servants. TJius, the members of the firm are liable for injuries caused to its servant by the negligence of any one of them. Mellors v. Shaw (1861) 1 Best & S. 437, 30 L. J. Q. B. N. S. 333, 7 Jur. N. S. 845 (where the negligent partner was the superintendent of the business). This rule holds, even though one of the proprietors was himself a fel- low workman of the plaintiff, and it was to his act that the injui'y was due. Ashworth v. Stanimx (1860) 3 El. & El. 701, 30 L. J. Q. B. N. S. 183, 7 Jur. N. S. 467, 4 L. T. N. S. 85. There Cromp- ton, J., referring to the decisions illus- trating the more usual phases of the doctrine of common employment, pro- ceeded as follows: "But the present case is distinguishable from the class of cases which have been referred to, in the § 15] EXISTENCE OF RELATION— WHEN INFERRED. 51 (2) Where two or more persons who were not partners in the technical sense of the word had jointly engaged the services of the person whose position is in question, for the performance of work which was being done by them upon the same premises or in rela- tion to the same subject-matter. The juridical consequences of this important particular that the defendant Walker, although in fact engaged joint- ly with the plaintiff in the work of the mine, was also a coproprietor, and, as such, one of the plaintiff's masters; and the question is whether this circum- stance takes the case out of the before- mentioned rule, and calls for the ap- plication of a different principle. We are of opinion that it does, and that the plaintiff is entitled to hold the defend- ant Stanwix responsible for the negli- gence of his coproprietor and partner." The learned judge cited the case of Moreton v. Hardern (1825) 4 Barn. & C. 223, where two proprietors of a stage coach were held liable with a third for the negligence of the latter, by whom the coach had been driven. An agreement to "pool" the earnings of two boats, which was explained as meaning that, if at the end of the sea- son the earnings of either of these l}oats, Less running expenses, exceeded those of the other, less running expenses, the excess was to be divided, does not make the owners of the boats partners in such a sense as to render them both jointly liable for the negligence of the crew of one of the boats. Fay v. David- son (1868) 13 Minn. 523, Gil. 491. A servant of a firm of partners is the servant of each of its members; and if he embezzles the private property of one of them, he may be charged as the servant of that individual partner. Bex V. Leech (1821) 3 Starkie, 70. Where one W. and the other trustees of a, benefit building society borrowed money for the purposes of the society on their individual responsibility (there being no rule of the society authorizing them to borrow money), it was held that the secretary of the society who had appropriated a portion of the mon- ey might be indicted as the servant of "W. and others." Reg v. Bedford (1869) 11 Cox, C. C. 367, 21 L. T. N. S. 508. Lush, J., remarked that, if the money was the money of the society, the prisoner was properly charged as the servant of W. and others, as mem- bers of the society; while, if the money was the money of the trustees, by rea- son of their having acted as the repre- sentatives of the society, it remained their individual property until it was actually applied to the purposes of the society, and the prisoner might there- fore be charged as their servant. "If," said Kelly, C. B., "the prisoner was the servant of the society, he is properly described as the servant of the persons of whom the society is composed, though it may consist of a great number of persons." "When once it is ascertained that the society is not a corporation, every difficulty is solved. The members of the society may call themselves a society; but they are in reality nothing more than a number of persons formed into a partnership." Martin, B. On an indictment against the prison- er, as servant to A and others, for em- bezzlement, proof was given that the prisoner was servant to a trading com- pany calling itself the R. Coal Company, "Limited;" that this name was over the office door of the company; that there were eighty shareholders, of whom A was one; that its affairs were managed by directors ; that its shares were trans- ferable by certificate, without the con- sent of the other shareholders; and that a minute book of resolutions was kept. No certificate of incorporation was put in evidence. Held (Blackburn, J., duM- tante) , that there was no evidence for the jury that the company was incor- porated, and that on the evidence the prisoner was properly alleged in the indictment to be the servant of A and others. Reg. v. Franhland (1863) 32 L. J. Mag. Cas. N. S. 69. The servant of one of the partners in his individual capacity is, of course, not a servant of the other, except under such circumstances as would justify the inference of a transfer of services from one of two disconnected persons to the other. Muse v. Stern (1886) 82 Va. 33, 3 Am. St. Rep. 77. 52 MASTER AND SERVANT. [chap. II. situation are virtually the same as those resulting from that which was last mentioned.^ (3) Where the person whose position is in question was perform- ing distinct and independent kinds of work for two or more employ- ers who were not directly associated in interest, but whose affairs were conducted on such a footing that they each found it convenient to use his services. In an action by a stranger to recover for an in- 8 For railway cases exemplifying tliis situation, see § 42, note 2, post. In Murray v. Currie (1870) L. R. 6 C. P. 24, Willes, J., refers to the possi- bility that the laborer in question, who was engaged in unloading a ship, might have been the servant of both the ship- owner and the stevedore, and rejects the hypothesis merely because it is in- consistent with the facts. Evidence that plaintiff's labor was performed upon a farm, part of which was owned by one and part by the other of the defendants, and was done for the benefit of both defendants, in the expectation that both were to pay there- for, is sufficient to show that they were jointly liable for the plaintiff's wages. Snyder v. Neal (1902) 129 Mich. 692, 89 N. W. 588. A jury is warranted in finding that there was a joint employment, where it appeared that both defendants were cor- porations furnishing electric light and power; that they occupied the same premises and employed the same serv- ants; that they were more or less joint- ly associated, though they were separate corporations, and kept distinct ac- counts ; and that the servant in question was in the employ of both defendants, and paid by each for the time devoted to each separately. Dieters v. St. Paul Gaslight Co. (1902) 86 Minn. 474, 91 N. W. 15 (both companies held liable for injuries caused by defective plant ) . Two waterworks companies having joint or concurrent possession of a wa- terworks plant under an executory con- tract of sale, the purchaser being obliged, besides making the payments stipulated in the contract, to operate and assist the vendor in carrying on the plant, are both liable for injuries to an employee if either is liable. San An- tonio Waterworks Co. v. White (1898) — Tex. Civ. App. — , 44 S. W. 181. In San Antonio & A. P. R. Co. v. Tay- lor (1896) — Tex. Civ. App. — , 35 S. W. 855, a complaint was held demurra- ble which showed that, although the plaintiff, a porter at a railway station, and an express messenger through whose negligence he was injured, were employed and paid by the railway and the express companies respectively, the plaintiff had been engaged, under a joint arrangement between the compa- nies, to help in unloading express matter and baggage from the railway cars, and that the accident occurred while he was performing this work. Under such cir- cumstances, it was said the servants of each of the companies, while engaged in the joint business, were deemed to be the servants of both for that business, although separately employed and paid. But it is submitted that it was im- proper to declare this conclusion as a matter of law. A case involving somewhat peculiar features is HiU v. Warren (1818) 2 Starkie, 377, where it was held that, in an action against the defendant for the negligence of his agent in pulling down the party wall between the houses of the plaintiff and defendant, it is a good defense to show that the plaintiff ap- pointed an agent to superintend the work, jointly with the defendant's agent, and that both agents were to blame. See also Brom v. Boston & A. B. Co. (1892) 157 Mass. 399, 32 N. E. 362, cited in § 22, note 3, post. A delivery clerk at a joint railway station maintained by four companies, who has been appointed by the commit- tee of directors representing those com- panies, to deliver parcels arriving by the trains of any of the four companies, may be charged in an indictment for embezzlement, either as the servant of the four companies or as the servant of the committee. Reg. v. Bayley (1856) 26 L. J. Mag. Cas. N. S. 4, 1 Dears. & B. C. C. 121. § 15] EXISTENCE OF RELATION— WHEN INFERRED. 53 jury caused by the tortious act of a person so employed, the particu- lar employer who is answerable is obviously the one who was con- trolling him and receiving the benefit of his work on the occasion when the tortious act was committed.^ The criterion thus indicated is appropriate in cases where the employers were common carriers using the same premises for the purpose of carrying on their business.* (4) Where the person whose position is in question was a special police officer deputed to protect the property of the party whom it is sought to affect with liability for the given tort. In this in- stance the determinative test is whether the officer was, in respect of the given matter, acting within the scope of his duties as a pub- lic employee, or in the capacity of a servant of the defendant.* 3 The fact that one person is em- pany, to switch and couple and un- ployed by two others, and has a claim couple the cars in the yard of defend- against them jointly for compensation, ant and on its tracks, over which the is not decisive so far as their liability latter had exclusive control, and that to third persons is concerned. The at the time of performing these services right to hold both for compensation is for defendant he was injured, — shows not inconsistent with the theory that that he was defendant's servant. Mis- be may be in their several employment sov,ri P. R. Go. v. Jones (1889) 75 Tex. at different times. Cohb v. AUot 151, 16 Am. St. Rep. 879, 12 S. W. 972. (1833) 14 Pick. 289. See also the cases cited under § 42, *A railroad ticket agent who also post. sells tickets for a sleeping car company s For the purposes of the present dis- which merely provides lodging for the cussion it will be sufficient to cite the passengers of the railroad company, the following cases. The circumstances in- latter having the right to determine volved in them will be reviewed in the who shall occupy the sleeping car as subsequent chapters which deal with part of its train, in determining wheth- the liability of a master for the torts er a person has such a railroad ticket of a servant. Milton v. Missouri P. as entitles him to ride in the sleeping R. Co. (1906) 193 Mo. 46, 4 L.R.A. car, acts as the agent of the railroad, (N.S.) 282, 91 S. W. 949; St. Louis, and not of the sleeping car company; I. M. & 8. R. Co. v. Eackett (1894) and no recovery can be had from the 58 Ark. 381, 41 Am. St. Rep. 105, 24 latter for his wrongful refusal of a S. W. 881; Wells v. Washington Mar- berth. Lemon v. Pullman Palace Car ket Co. (1890) 8 Mackey, 385; Dick- Co. (1887) 52 Fed. 262. son v. Waldron (1893) 135 Ind. 524, The yard master of a company over 24 L.R.A. 483, 41 Am. St. Rep. 440, 34 whose road another company has ac- N. E. 506, 35 N. E. 1; Tolchester Beach quired the right to run its trains, under Invprov. Co. v. Steinmeier (1890) 72 a contract placing the trains under the Md. 313, 8 L.R.A. 846, 20 Atl. 188; control of the lessor company while Deck v. Baltimore & 0. R. Co. (1905) they are on its lines, is a servant of 100 Md. 168, 108 Am. St. Rep. 399, 59 the lessee company so far as regards Atl. 650; second appeal (1906) 102 the performance of his functions in Md. 669, 62 Atl. 958; Tolchester Beach directing the movements of its trains. Improv. Co. v. Scharnagl (1907) 105 Wabash, St. L. & P. R. Co. v. Peyton Md. 199, 65 Atl. 916; Baltimore, C. & (1883) 106 111. 534, 46 Am. Rep. 705. A. R. Co. v. Twilley (1907) 106 Md. In an action by an employee of a 445, 67 Atl. 265; Baltimore, C. £ A. railroad company for personal injuries, R. Co. v. Ennalls (1908) 108 Md. 75, evidence that by arrangement between 16 L.R.A. (N.S.) 1100, 69 Atl. 638; the employer and another railroad com- Hirst v. Fitchhurg & L. Street R. Co. pany it was the duty of plaintiff, who (1907) 196 Mass. 353, 82 N. E. 10; received his pay from the other com- Brill v. Eddy (1893) 115 Mo. 605, 22 54 MASTER AND SERVANT. [chap. ii. 16. Burden of proof.— The burden of proving tliat the relation of master and servant existed between two given persons at the time in question rests upon the party whose success in the proceedings, either as plaintiff or defendant, is conditional upon his being able to establish that fact.^ 17. Provinces of court and jury.— The question whether the rela- tion of master and servant existed between two persons is one for the court alone, in any case where the answer depends upon the mean- ing of a written contract.* Otherwise that question is one of fact for the jury, or such tribunal as may be, in the given instance, in- trusted with the function of deciding such issues,^ whenever the evi- S. W. 488; Texas <& N. 0. R. Co. v. them to do so; in either event he is Parsons (3908) — Tex. — , 113 S. W. not the servant of the vendee, and the 914, affirming (1908) — Tex. Civ. App. vendee is not responsible for his acts. — , 109 S. W. 240; Xorfolk & W. B. Co. Olive v. WMtnetj Marble Co. (1886) V. GalUher (1893) 89 Va. 639, 16 S. 103 N. Y. 292, 8 N. E. 552. E. 935. Where plaintiff, an employee of an Contrast the cases regarding special independent contractor, was injured by policemen which are cited in § 18, note the falling of an arch under which he 2, post. was excavating, the evidence of one 1 A horse belonging to the plaintiffs witness to the effect that he had seen was injured by another horse which "a colored man belonging" to defend- became restive owing to the noise of ant, the owner of the building, at work the music played by a detachment of under the arch a short time before the Salvation Army in a public street, plaintiff was injured, was insufficient In an action brought by the plaintiffs to create a presumption that such col- against the defendant as head of the ored man was in the employ of defend- Salvation Army, to recover damages for ant, and to impute negligence to de- such injury, it was held that, in the fendant therefrom. For aught that ap- absence of evidence to show what the peared the colored man might have relationship was between the particular been an independent contractor or tht members of the army and the defend- servant of such a contractor. Callan v. ant, it could not be inferred that such Pugh (1900) 54 App. Div. 545, 66 N. members were the servants of the de- Y. Supp. 1118. fendant, or were acting under his au- Where the servant in question was thority. London General Omnibus Co. hired by an agent of the person alleged V. Booth (1893) 63 L. J. Q. B. N. S. to be the master, the burden of proving 244. "It appears to me quite clear," that the agent had authority to hire said Charles, J., "that this appeal ought the servant rests upon the party whose to be allowed. There is really no evi- success depends upon his ability to es- dence at all that these persons were the tablish the existence of the relation, servants of the defendant. It is, no Hunt v. Pennsylvania, R. Co. (1866) 51 doubt, common knowledge that a. body Pa. 475. styling itself the Salvation Army exists. For other decisions bearing upon the But the relationship between the par- incidence of the burden of proof, see ticular members and the defendant must § 27, § 44, notes 2 and 3 ; and §§ 53 to be made the subject of contract." 58 inclusive, post. Where a servant of the vendor of a 1 As to the general rule, see 2 Par- boiler was killed by the negligence of sons, Contr. *492. a servant of the vendee, who was assist- For numerous examples of cases in ing in testing the repairs thereon, it which the rule was taken for granted, must be presumed, in the absence of see §§ 42, 44-46, post. proof to the contrary, that the vendee's 2 In one ease it was categorically laid servant either volunteered to aid the down that where there is any real ques- vendor's servants, or was requested by tion, under the testimony, as to whether S 17] EXISTENCE OF RELATION— WHEN INFERRED. 55 dence is adequate to support the inference that the relation existed as alleged/ or where the evidence as to the material circumstances is- conflicting.* But the conclusion reached will be set aside by a court of review, if it is manifestly improper upon any reasonable view of the evidence.® the relation of master and servant 94; Bernstein v. Roth (1893) 145 111. exists between a negligent servant and 189, 34 N. E. 37; Morgan v. Smith the person whom it is sought to charge (1893) 159 Mass. 570, 35 N. E. 101; as to the particular service in which Kimball v. Cushman (1869) 103 Mass. the injury was sustained, it should be 194, 4 Am. Rep. 528; Reagan v. Casey submitted to the jury. Backer v. Wad- (1894) 160 Mass. 374, 36 N. E. 58; dell (1903) 98 Md. 43, 103 Am. St. Uardy v. Delaware, L. d W. R. Co. Rep. 374, 56 Atl. 399. (1895) 57 N. J. L. 505, 31 Atl. 281 This doctrine was taken for granted (1896) 59 N. J. L. 35, 34 Atl. 980; in all the cases cited in subtitle D of Svenson v. Atlantic Mail 8. 8. Go. this chapter. Manifestly it is also per- (1874) 57 N. Y. 108; Goldman v. Mason tinent, mutatis mutandis, in cases in (1888) 18 N. Y. S. R. 376, 2 X. Y. which the question of special service is Supp. 337. not involved. The facts involved in the above cases In one case the question whether S., are stated in subsequent sections of a, driver, was to be considered a servant this chapter. of his general employer, or of the per- * Daley v. Boston & A. R. Co. (1888) son for whom he was hauling a load, 147 Mass. 101, 16 N. E. 690 (proper was held to be a material question of answer depended on "numerous circum- fact, which should have been decided stances more or less complicated and by an arbitrator, inasmuch as ques- disputed"); Brophy v. Bartlett (1888) tions of law were the only ones which 1 Silv. Ct. App. (Ct. of App. ) 575, he was entitled to refer to the court. 13 N. Y. S. R. 490; Howard v. Ludwig I'reston v. Knight (1876) 120 Mass. 5. (1902) 171 N. Y. 507, 64 N. E. 172, 3 As, where the contention is that affirming ( 1901 ) 57 App. Div. 94, 67 there was a temporary transfer of the N. Y. Supp. 1095; Consolidated Fire- servant (subtitle D, of this chapter), works Co. v. Koehl (1901) 190 111. and the testimony tends to prove that 145, 60 N. E. 87, reversing 92 111. App. the employee, when injured, was do- 8; Larkin.v. Burlington, C. R. & N. ing work under the sole direction of a R. Co. (1892) 85 Iowa, 492, 52 N. W. person other than his regular employer; 480; Lima R. Co. v. Little (1902) 67 that such person might have discharged Ohio St. 91, 65 N. E. 861 ; Sherman v. him at any time; that he looked to such Delaware & H. Canal Co. (1899) 71 person for his pay and was paid by Vt. 325, 45 Atl. 227; Biirwell Irrig. Co. him; and that during the time he was v. Lashmett (1900) 59 Neb. 605, 81 employed on the work his regular em- N. W. 617; Oulighan v. Butler (1905) ployer exercised no control over him 189 Mass. 287, 75 N. E. 726; Robinson or his work, and did not recognize its v. Hill (1910) 60 Wash. 615, 111 Pac. liability to him for his wages. Shults 871 ; Greenlaw Lumber & Timber Co. V. CUcago, M. & St. P. R. Co. (1876) v. Chambers (1909) 46 Colo. 587, 105 40 Wis. 589. Pac. 1091 ; United States ex rel. Collins For cases illustrating the doctrine v. United States Fidelity <& G. Co. that a verdict based upon evidence of (1910) 139 App. Div. 262, 123 N. Y. the quality stated in the text will not Supp. 938; Rogers v. Fowler (1908) be disturbed, see Ruth v. Surrexi Com- 151 Mich. 485, 115 N. W. 469; Green- meroial Dock Co. (1891) 8 Times L. R. berg v. Western Turf Asso. (1905) 148 (C. A.) 116; Moore v. Palmer (1886) Cal. 126, 113 Am. St. Rep. 216, 82 Pac. 2 Times L. R. (C. A.) 781, 51 J. P. 196; 684. Hatfield v. St. John Gaslight Co. ( 1893 ) 5 See cases cited passim in the f ol- 32 N. B. 100, affirmed in (1894) 23 lowing sections. Can. S. C. 164; Rome d D. R. Co. v. Defendant took possession as pur- Chasteen (1889) 88 Ala. 591, 7 So. chaser of the mine where the accident 56 PIASTER AND SERVANT. [chap. II. B. Evidence appeopeiate to establish the existence of the EELATION. 18. Exercise of control over the details of the work. — The doc- trine that a servant is a person who is subject to the control of his employer with respect to the manner in which the details of the work are to be performed (§2, ante) involves the corollary that the exercise or nonexercise of control of this character by the person al- leged to be a master is the element which must, in the last analysis, always determine what was the essential nature of the relationship between the person who performed the given work, and the person for whom it was performed.^ In the following sections of the pres- occurred, on August 20, the day of the accident. The mine boss, W., was paid for August 20 by the former owner, defendant paying him from August 21. An adjoining mine owned by defendant tooli fire, and defendant company sealed up the surface openings to smother the fire. The gases generated by the fire foxind their way into the other mine by means of openings negligently left by the mine boss of the mine where the accident occurred. Held, that it was error to submit to the jury the ques- tion whether or not W. was mine boss, as he had been paid for all of his time, and was acting as mine boss, and the negligence of which he was guilty was committed by him prior to the transfer, when there was no dispute as to his being mine boss. Baley v. Eeim (1892) 151 Pa. 117, 25 Atl. 98. 1 The conclusiveness and sufiicieney of the test supplied by this element are illustrated by a large number of the eases which deal with the differentia- tion of servants from that class of em- ployees from which it is often extreme- ly difiicult to distinguish them, viz., independent contractors. See § 64, post. Under the English poor law formerly in force, a pauper was held to have be- come entitled to a, settlement by any contract for a year or more which sub- jected him to the control of an em- ployer, although it did not give the employer a right to his exclusive serv- ices. Rex V. Chertsey (1787) 2 T. R. 37. It has been held that the mistress of a voluntary school, regulated by the provisions of the English education act of 1870, is not the servant, either of the committee of management as a whole, or of its individual members, as neither the committee nor its mem- bers could direct her what to do and what not to do in the daily management of the school and its members, as in- dividuals could neither appoint nor dis- miss nor interfere with her in any way at all. Crisp v. Thomas (1890) 62 L. T. N. S. 810, 63 L. T. N. S. 756. The writer ventures to think that, in view of the authorities, both English and American, which are reviewed in this chapter, the following passage in a treatise . of high reputation under- states the value of this test: "The power of controlling the servant's ac- tions is undoubtedly the most importamt element for consideration in determin- ing whether the relationship of master and servant exists between any two persons, and it is -the only one which by itself can be at all depended upon; the chief value of the three tests above mentioned [i. e., those considered in the next three sections] consisting in the assistance they afford in discover- ing the person who has this power." Roberts & W. Liability of Employers, 3d ed. p. 68. The same criticism is applicable to a Scotch case in which it was remarked that the question of liability for the ■negligence of a servant does not depend solely upon whether the person who is alleged to be answerable selected, en- gaged and paid, and is legally entitled to dismiss, the wrongdoer, but is some- times determinable by the consideration whether that person had a control over § 18] EXISTENCE OF RELATION— WHEN INFERRED. 57 ent chapter a large number of cases will be examined in which this test has been applied for the purpose of solving a question which, under the complex industrial conditions of modern times, frequently arises, viz., which of two or more persons is the master of one who is conceded to have been the servant of one or other of them.^ All the work. Connelly v. Clyde Uav. Go. (1902) 5 Sc. Sess. Gas. 5th. series, 8. In another Scotch ease Lord Trayner asked: "What other material element is there in the relation of a master to his servant beyond the appointment, payment of wages, and termination of the service at pleasure?" Cairns v. Clyde Navigation Trustees (1898) 25 Sc. Sess. Gas. 4th series, 1021. This remark is, to say the least, wanting in precision, as it ignores the essential element of control. 2 "The true test in such cases is to ascertain who directs the movements of the person committing the injury." Higgins v. Western U. Teleg. Co. (1898) 156 N. Y. 75, 66 Am. St. Rep. 537, 50 N. E. 500. "The master is the person in whose business he is engaged at the time, and who has the right to direct and control his conduct." Wyllie v. Palmer ( 1893 ) 137 N. y. 248, 19 L.R.A. 285, 33 N. E. 381. "We think it is quite apparent, there- fore, that the real test of relationship is, first, employment; and, second, pow- er and control over the person em- ployed. Or, as it has been tersely stated by a text writer of recognized ability: 'In all such cases the question is wheth- er, at the time of the injury, the serv- ant was subject to the master's control.' Wood, Mast. & S. 424." Cunningham V. Syracuse Improv. Co. ( 1897 ) 20 App. Div. 171, 46 N. Y. Supp. 954. "In order to hold the master respon- sible for the negligence of a servant, he must have the power of supervision of the servant's conduct. Indeed, the words 'master and servant' imply such power." Cotter V. Lindgren (1895) 106 Gal. 602, 46 Am. St. Rep. 255, 39 Pac. 950. "The power of control is the test of liability, under the maxim respondeat superior. If the master cannot com- mand the alleged servant, then the acts of the latter are not his, and he is not responsible for them. If the prin- cipal cannot control and direct the alleged agent, then he is not his agent, and the principal is not liable for his acts or his omissions." Brady v. Chi- cago & G. W. R. Co. (1902) 57 L.R.A. 712, 52 G. C. A. 48, 114 Fed. 100. In Alaimo v. E. & J. Marrin Co. (1910) 121 N. Y. Supp. 563, in an ac- tion for injuries sustained by the al- leged negligence of a driver having in charge certain horses and a truck al- leged to be the property of the defend- ant, where it was sliown that the driver and team had left the defendant's prem- ises and were on their way to do work for a third person, the court said that in applying the absolute test, which was not the exercise of the power of control, but the right to exercise the power of control, the goal of inquiry must be the exact time when the de- fendant lost its power to control the conduct of the driver and when the con- tractors assumed the right to exercise such control. A third person to whom servants of a general master have been temporarily loaned, with their consent, is for the time being their master, he having for the time being the control of the serv- ants. Wolfe V. Hosier Safe Go. (1910) 139 App. Div. 848, 124 N. Y. Supp. 541. Where the testimony shows that the defendant owner reserved general con- trol over the work in its mine, with power to direct what should be done and the manner of doing it, it is error to refuse an instruction that the de- fendant owner was the master of a miner. Merriioeather v. Sayre Min. & Mfg. Co. (1909) 161 Ala. 441, 49 So. 916. An instruction is erroneous which ignores the rule that the question of control is always an ingredient in con- sidering who is responsible for a wrong done in the course of work. Connolly v. Clyde 'Navigation Trustees (1902) 5 Sc. Sess. Gas. 5th series, 8. The responsibility of a railroad com- pany for wrongfully placing a snow fence upon abutting property is estab- 58 IVIASTER AND SERVANT. [chap. ii. the other elements which are discussed hereafter, even those which ■are normal and customary incidents of contracts of service, are, in lished by the fact that the work was independent contract, where he retains done under the orders of its foreman the right to exercise a certain control in charge of that section of tlie road, over the method or manner in wliich Waaler v. Great Northern R. Co. (1908) the work should be done. Nelson v. 22 S. D. 256, 18 L.R.A. (N.S.) 297, 117 American Cement Plaster Co. (1911) N. W. 140. 84 Kan. 797, 115 Pac. 578. "Who has the right to control the "To establish the liability of one conduct of an employee is perhaps the person for the negligence of another, it most important circumstance in decid- is not necessary that he [the latter] ing the question as to whose servant should be shown to have been in the he is." Chicago, It. I. d F. It. Co. v. general employment of the Stepp (1908) 22 L.R.A. (N.S.) 350, [former]; nor that he should be under 90 C. C. A. 431, 164 Fed. 785. any special engagement of service to Ihe relation of master and servant him, or entitled to receive compensation does not necessarily depend on payment from him directly. It is enough that of wages, but on whether at the time at the time of the accident the guilty of injury complained of the alleged party was in charge of the defendant's servant is engaged in the business of property by his assent and authority, the alleged master, and is subject to engaged in his business, and, in respect his direction and control as of right, to tiiat property or business, under his Koenitsky v. Matthews (1909) 64 Misc. control." Kimball v. Cushman (1869) 167, 118 N. Y. Supp. 366. 103 Mass. 194, 4 Am. Rep. 528. The relation of master may be as- The application for a building per- sunied by one who employs another, mit by the supervising architect which though he is an agent merely for the states that he was the duly authorized purpose of supervising the work. Wj/- agent for the defendant iron company, -ckoff V. Wunder (1909) 107 Minn. 119, and the permit issued to the defendant 119 N. W. 655. iron company, are admissible in evi- A "servant" is one employed by an- dence to determine whether or not an other and subject to the control of his employee at work upon the building employer. Messmer v. Bell & G. Go. being erected in pursuance of the per- (1909) 133 Ky. 19, 117 S. W. 346, 19 mit was an employee of the defendant Ann. Cas. 1. company, or of a realty company which The relation of master and servant was organized by the same persons, exists where the employer has power to Kirn v. E. E. Southern, Iron Go. (1910) direct the nature of the work and the 146 Mo. App. 451, 124 S. W. 45. manner of doing it, with power to em- The by-laws of a corporation placed ploy and discharge. Yeates v. Illinois the title to its property generally in C. B. Co. (1909) 241 111. 205, 89 N. E. the board of government, but it was pro- 338. vided that the title to any real estate The word "servant" in a legal sense "which might be acquired might be embraces all persons of whatever rank taken and held by trustees appointed or position, who are in the employ and for the purpose by the association." subject to direction or control of an- The corporation leased a building for other in any department of labor or fifteen years, and then assigned the business. Texas L. Ins. Co. v. Roberts lease to the trustees; giving them full (1909) 55 Tex. Civ. App. 217, 119 S. power to control the property, manage W. 926. the same, etc. In an action against Where a servant has two masters, the corporation for the negligence of one general and one special, and the a person employed as janitor by the latter has direction and control, the trustees, the trustees, and not the cor- latter is liable for damages resulting poration, were held liable for the neg- from his negligence. Western U. Teleg. ligence. Falardeau v. Boston Art Stu- Co. V. Rust (1909) 55 Tex. Civ. App. dents' Asso. (1903) 182 Mass. 405, 65 359, 120 S. W. 249. N. E. 797. The courts will not hesitate to hold In Ward v. Young (1884) 42 Ark. the master liable, notwithstanding an 542, where the keeper of the peniten- -§ 18] EXISTENCE OF EELATIOX— WHEN INFERRED. 59 an evidential point of view, material only in so far as they may tend more or less strongly, under the given circumstances, to show tiary had placed a trusted convict in in his employment," is not a servant, cliarge of his premises, to protect them and that the applicant for his ap- from trespassers, it was held that the pointment is not liable for his mis- relation of master and servant existed conduct as though he were a aerv- between them so as to render the keeper ant, was laid down in Eealey v. Loth- liable for the tortious acts of the con- rop (1898) 171 Mass. 263, 50 N. E. viut. The argument of defendant's coun- 540. The court said : "If the statute -sel was that the tort feasor was a con- had meant to make the officer the serv- vict, undergoing his punishment for a ant of the person who applies for his ^■rime; that the defendant, as keeper of appointment and gives bond for his the penitentiary, stood in the place of conduct, presumably it would have said the state; that the legislature had au- so. But if it had said so, it would thorized him to work convicts at the have insisted upon a fiction being treat- place where the tort feasor was, and in ed as a fact. It is true that the de- the manner in which he was engaged, at fendant asked to have an officer ap- the time of the injury; and that the pointed, perhaps asked to have Mead working of convicts, whether considered appointed, and that paid him. But he as a mode of punishment or as a means did not appoint him, could not remove of bearing the expense of imprisonment, him, and could not control his official was an official act of the state govern- conduct, which was governed by the ment. Upon these grounds it was regulations of the police commissioners urged that the convict could not be a and his own sense of duty as a public servant. But the court said that as to officer. The statute does not call the third persons it could make no differ- relation that of master and servant, cnce that the keeper hired the services and goes no further than to make the of this convict from the state. The defendant liable upon his bond "to the master's liability, if any, arose from same extent as for a servant. The the relation itself, and did not depend words quoted imply that the officer is on the nature of the stipulations in his not one. They mean to the same ex- contract. The keeper's right to direct tent as in another case which does not and control the actions of the convict exist." On a subsequent appeal, it Mas was the important circumstance. The declared that the plaintiff's remedy for particulars of the arrangement whereby an assault committed by such a police- he obtained that right were wholly un- man is an action on defendant's bond, important. Where a person sworn in and not an action of tort for the mis- by the police department of the city to conduct of defendant's servant. Healey act as special policeman to protect the v. Lothrop (1901) 178 Mass. 151, 86 property of a corporation, and eject Am. St. Rep. 471, 59 N. E. 653. trespassers, reports for duty and in- In Fitzpatrick v. New York £ M, B. structions to the foreman of the cor- R. Go. ( 1882 ) 15 N. Y. Week. Dig. 506 ; poration, and acts in pursuance of in- 2 Silv. Sup. Ct. 192 (1889) 24 N. Y. structions received from him, he is in S. R. 636, 5 N. Y. Supp. 685, the plain- law the servant of the corporation, and tiff was wrongfully arrested without it is responsible for whatever exces- express authority of the defendant on sive force he uses in the performance the defendant's premises for a sup- of his duties. Illinois Steel Co. v. posed theft committed elsewhere, by a Novak (1900) 184 111. 501, 56 N. E. public policeman, who was not employed 966, affirming (1889) 84 111. App. 641. by the defendant, although having his That a special police officer appointed headquarters and a lockup furnished by in pursuance of Mass. Stat. 1878, chap, defendant on its premises. It was held 244, § 6, upon the application of the that the defendant was not liable, proprietor of a place of amusement. In Union Depot & R. Co. v. Smith who gave a bond to the city treasurer, (1891) 16 Colo. 361, 27 Pac. 329, the conditioned that he would be "liable court refused to disturb a verdict hold- to parties aggrieved by any official mis- ing a depot company to be liable for conduct of such officer, to the same ex- a false arrest by a special policeman, tent as for torts of agents or servants as the evidence tended to show that 60 MASTER AND SERVANT. [chap, il that the alleged master exercised control over the alleged serv- ant.' 19. Payment of compensation. — One person may stand in the rela- tion of master to another, although the former does not compensate the latter for his services.^ But the fact that the person who per- formed the work in question was or was not paid for his labor by another person tends more or less strongly to prove that the latter he was in the employ of the company, which had hired him, was paying him his wages, and controlled him entirely, except that in some minor particulars he took orders from the chief of police with reference to the disposition of the prisoners arrested, and the time and way in which they should be turned over to the regular officers. In the cases above cited it will be observed that the policeman was viewed as a party wholly under the control, either of his oflBcial superiors or of the person whose premises he was de- puted to protect. In this regard they are distinguishable from those cited in § 15, note 5, ante, in which he is treated as a party controlled by two employers concurrently, but in respect of different classes of acts. In Titus V. Tangeman (1906) 116 App. Div. 487, 10 N. Y. Supp. 1000, where the plaintiff sued for injuries resulting from his being tripped up by the sudden tautening of a rope which extended between two automobiles, one of which was being towed by the other, it was held that the chauffeur of the forward one was not the servant of the owner of the rear one, as the evi- dence showed that such owner was mere- ly assisting the process of towing by steering his own vehicle. 3 At first sight the language of the text may seem to be inconsistent with statements like the following, in which one or more of the subsidiary elements are mentioned in conjunction with, and apparently placed upon the same level as, the power of control: — "The tests are. Who had the power of selecting, controlling, and dismiss- ing?" Moore y. Palmer (1885) 2 Times L. R. (C. A.) 781, per Bowen, L. J. "Upon the principle that qui faoit per alium facit per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable who stood in the relation of master to the wrongdoer, — he who had selected him as his servant from the knowledge or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey." Quarman v. Bu/rnett (1840) 6 Mees. & W. 499. "The question is. Were the defend- ant and the persons employed by him master and servants? . . . The tests leave no doubt that they were. First, the men were selected by the defendant; secondly, they were paid by him; thirdly, they were doing his work; fourthly, they were under his control, — that is, in doing the work in the ordinary way." Martim v. Temperley (1843) 4 Q. B. 298, 3 Gale & D. 497, 12 L. J. Q. B. N. S. 129, 7 Jur. 150, per Coleridge, J. In Byrne v. Kansas City, Ft. 8. & M. R. Co. (1894) 24 L.R.A. 693, 9 C. C. A. 666, 22 U. S. App. 220, 61 Fed. 605, it was declared that the essential questions are, "Whose work was the servant doing? and, Under whose con- trol was the servant doing it!" But, clearly, there was no intention on the part of the courts which made these statements, to treat that element as being merely one of several which have an equivalent value. iThis was one of the points touched upon in the "carriage case," — Laugher v. Pointer (1826) 5 Barn. & C. 547, — where Littledale, J., thus disposed of the contention that the fact of the coach- man's looking to the hirer of the horses for his compensation was inconsistent with the theory that he remained the servant of the livery-stable keeper dur- ing the continuance of the bailment: "It is true the master paid him no wages, and the whole which he got was from the person who hired the horses, but that was only gratuity. It is the case with servants at inns and hotels. When there is a great deal of business they frequently receive no wages from the owner of the inn or hotel, and trust entirely to what they § 19] EXISTENCE OP RELATION— WHEN INFERRED. 61 receive from the persons who resort to the inn or hotel, and yet they are not the less the servants of the inn- keeper; they are not servants upon wages, but servants upon expectation of gratuities." Upon the authority of this case it has been held that attendants kept by the proprietor of a bath house to serve patrons, whose duties include the clean- ing and care of the place, and who are under the control of the proprietor, are his servants sufficiently to render him liable for injuries to patrons under their charge through their negligence, al- though their fees come entirely from the patrons, who have the privilege of choosing which shall serve them. Gaines V. Bard (1893) 57 Ark. 615, 38 Am. St. Rep. 266, 22 S. W. 570. A person may be convicted of embez- zlement as a "servant," although he receives no remuneration. Reg. v. Foulkes (1875) L. R. 2 C. C. 150. In cases arising under the English poor law formerly in force, the accept- ed doctrine was that hiring and service for a year without wages would gain a settlement. Rex v. Hitcham (1760) Burrow, Sett. Cas. 489 (hiring to learn a trade, under an express agreement that the servant was to have no wages) . In one such case it was remarked: "Whether a servant is to have any wages or none, what those wages are to be, and how computed, is perfectly immaterial on the question of a hiring for a year." Rex v. Birmingham (1780) Cald. 77. The doctrine that a person is liable for the negligence of an employee to whom no compensation is paid was ap- plied in Haluptzolc v. Ch-eat 'Northern R. Co. (1893) 55 Minn. 446, 26 L.R.A. 739, 57 N. W. 144; Andrews v. Boe- decker (1888) 27 111. App. 30. In cases where the compensation due for the services of a minor is paid to his father, whom he is assisting, the payment is regarded as being made in- directly to him, the money being appro- priated by the father in the exercise of his parental right to his son's earn- ings. The immateriality of the fact that no compensation was received, there- fore, rests in this instance upon a spe- cial ground having no relation to the general rule stated in the text. For an example of such a case see Tennessee Goal, Iron & R. Go. v. Eayes (1892) 97 Ala. 201, 12 So. 98. Where defendant railroad employed plaintiff's husband as manager for its outfit cars, required him to cook or else furnish a cook, and permitted plaintiff to accompany him and cook for the out- fit employees, it was held that the rela- tion of master and servant existed be- tween plaintiff and defendant within the meaning of the rule requiring a master to exercise ordinary care to prevent in- jury to his employees, though plaintiff was not entitled to pay for his services. Pugm,ire v. Oregon Short Line R. Go. (1907) 33 Utah, 27, 13 L.R.A.(N.S.) 565, 126 Am. St. Rep. 805, 92 Pac. 762, 14 Ann. Cas. 384. Several cases proceed upon the ground that a person who undertakes to per- form services, either gratuitously or for small wages, in order to gain such ex- perience and technical skill as will ren- der him competent to take a regular position on the normal footing, and, while engaged in the performance of those services, is entirely subject to the orders of his employer, is a servant, and not a mere licensee. One consequence deduced from this doctrine is that- the employee is en- titled to recover damages for an injury caused by his employer's breach of any of the characteristic duties which the law imposes upon a master for the bene- fit of his servants. Alabama G. 8. R. Go. V. Burks (1906) 148 Ala. 113, 41 So. 638; Norfolk & W. R. Go. v. Bond- urant (1907) 107 Va. 515, 15 L.R.A. (N.S.) 443, 122 Am. St. Rep. 867, 59 S. E. 1091; Atchison, T. & S. F. R. Go. V. Frank (1906) 74 Kan. 519, 87 Pac. 698, 11 Ann. Cas. 174 ("student" brake- man, entitled to sue under Kansas stat- ute enabling railway servants to recover for the negligence of fellow servants) ; Hewett V. Woman's Hospital Aid Asso. (1906) 73 N. H. 556, 7 L.R.A.(N.S.) 496, 64 Atl. 190 (pupil nurse employed in a hospital maintained by a chari- table corporation, under a contract whereby she was to receive professional training and be paid a small remunera- tion, held to be entitled to recover dam- ages for the negligence of the hospital authorities in putting her in charge of a case of diphtheria without disclosing to her the nature of the malady, and so causing her to contract the disease). 62 MASTER AND SERVANT. [CHAP. II. In the Virginia case above cited, re- covery was denied on the ground that the plaintiff vpas, under the circum- stances, a trespasser, or at most a mere licensee, since he had obtained his posi- tion by falsely stating himself to be of full age, knowing that the rules of the company prohibited the acceptance of minors for train service. The court observed that "it would be a hard meas- ure of justice to hold a company re- sponsible on the one hand, for failure to prescribe rules, and on the other to refuse to protect it from the conse- quence of the violation of reasonable and proper rules adopted and promul- gated in the discharge of the duty im- posd by law." Norfolk & W. R. Co. v. Bondurant (1907) 107 Va. 515, 15 L.R.A.(N.S.) 443, 122 Am. St. Rep. 867, 59 S. E. 1091. Another consequence of the doctrine is that the defense of common employ- ment is a bar to an action by him to recover for injuries resulting from the negligence of another employee. Bar- stow V. Old Colony R. Co. (1887) 143 Mass. 535, 10 N. E. 255; Millsaps v. Louisville, N. 0. & T. R. Go. (1891) 69 Miss. 423, 13 So. 696 (fireman of locomotive working without compensa- tion) ; Weisser v. Southern P. R. Co. (1906) 148 Cal. 426, 83 Pac. 439, 7 Ann. Cas. 636 ("student brakeman") ; Hunt- sicker V. Illinois C. R. Co. (1904) 64 C. C. A. 78, 129 Fed. 548 (flagman). In the Weisser Case, supra, the court said that, as "student brakeman," the plaintiff "was entirely subject to the orders of defendant, and was required to perform such ordinary duties of brakeman as were allotted to him, just as fully as if he had been assigned reg- ular employment for a pecuniary com- pensation by defendant. It is difficult to conceive of any reason why one sit- uated as these circumstances show plaintiff to have been shoul4 be held to be other than an employee of the de- fendant, subject to all the obligations imposed by that relation. He was cer- tainly in the service of defendant, reg- ularly engaged in the doing of the de- fendant's business. The simple fact that he was not to be paid any money for his services cannot affect the ques- tion. It was perfectly competent for him to agree to serve an apprenticeship without pecuniary consideration. The important thing is that he voluntarily entered and was engaged in the service- of the defendant upon such terms as he- had seen fit to agree to. While so en- gaged in such service, there was no dis- tinction, material to the question under discussion, between his situation and! that of the other employees on the- train." In the Huntzicker Case, supra, the- court said: "The agreement between the parties, reduced to its elements, was that the defendant was to furnish the plaintiff the facilities for qualifying himself for the duties of a flagman ;; that is to say, it was to give him in- struction and transportation over its road; not such transportation as is due to a passenger, but such as is ordinarily incident to the operation of freight trains by men in that service. In con- sideration of this, Fereday was to per- form such elementary and simple serv- ice as he was capable of, under the di- rection of the conductors of trains. If this were doubtful, the subsequent con- duct of the parties confirms the con- struction of the contract above stated'.. As there was no contract for his ulti- mate employment as a flagman, the de- fendant would receive, and did receive, no other consideration for the privileges granted to Fereday than such services as he would render while in the enjoy- ment of them. It is quite true that he was not obliged to continue his relation- to the company for any definite length of time, or continuously during the time- for which the privileges were granted; but while he did avail himself of them, and was receiving the benefit, he was under a duty to perform the service ex- pected of him. Probably the service was not of much value, but, such as it was, it necessarily brought him into asso- ciation and co-operation with the other servants employed in moving trains. Applying the controlling principles which we have indicated to the present case, it seems clear that Fereday, at the time of his death, was a servant of the defendant. He was enjoying the privilege for which he served. He was under the control of the defendant, and the company would undoubtedly have been responsible for the manner .in which he performed his service; and, what is more important, under the test above stated he had no interest what- ever, other than that which any servant has in the result of his service, in the- § 19] EXISTENCE OF RELATION— WHEN INFERRED. 63; was or was not the master of the former.^ Elements of a less am- biguous quality, however, are commonly supplied by the testimony in cases of the type here under /jonsideration ; and it will be found that the payment of wages by one person or by another has usually been viewed either as a merely corroborative circumstance ^ or as. a circumstance to be disregarded, supposing the remainder of the testimony to point to a conclusion different from that indicated by it.* consequences of the discharge of his du- ties." It may be advisable to remind the reader that, where it is a question of the availability of the defense of com- mon employment, the mere fact that the plaintiff is shown to have been a mere licensee will not improve his posi- tion. See § 1563, post. ^ In Burke v. Normch & W. B. Co. (1867) 34 Conn. 474, a railroad com- pany, having some diflSculty with a gang of coal shovelers hired to unload a ves- sel, made an arrangement with its weighmaster to allow him a certain sum per ton for shoveling and dumping the coal. It was stipulated that he should employ the shovelers, and if he could employ them for less than the sum allowed him, the difference should be his perquisite, over and above his reg- ular wages as weighmaster. The weigh- master then hired a, gang of shovelers, made his returns weekly to the company of the number of tons shoveled, received the amount allowed him, and paid the shovelers. The regular pay rolls of the employees of the company, including the weighmaster, did not embrace the shov- elers. It was held that a verdict find- ing that the shovelers were not the servants of the company was proper. In rendering this decision, however, the court seems to have failed to accord proper weight to the doctrine stated in § 32, post. In Reg. v. Dvcon (1868) 11 Cox, C. C. 178, the property embezzled by the prisoner had been in the hands of an as- signee for the benefit of the creditors of his master, until fifteen days before it was misappropriated. A composition deed reconveying the property was then executed, but it was not registered until after the embezzlement. The prisoner had all the time received his weekly wages from the original owner. It was held that he was the servant of the orig- inal owner. Where the defendant in a suit for money loaned by a corporation pleaded that it had been advanced to him for services, it was held that evidence that, his name was not on the pay roll tended to prove that he was not in the em- ployment of the corporation, and that it owed him nothing. Corning v. Walker (1885) 100 N. Y. 547, 3 N. E. 290. 3 See § 23, post. * The mere fact that an employer con- tinued to pay the wages of an employee whom he had sent to perform a certain piece of work for another person will not warrant the inference that the re- lation of master and servant still sub- sisted between them while the stipu- lated work was in progress, if it is. clearly shown that the person for whom the work was done controlled the em- ployee in respect to the manner in which the work was to be performed. Rourke v. White Mass Colliery Co.. (1877) L. R. 2 C. P. Div. 205, 46 L. J. C. P. N. S. 283, 36 L. T. N. S. 49, 25 Week. Rep. 263, affirming (1876) L. R. 1 C. P. Div. 556, 35 L. T. N. S. 160; The Harold (1884) 21 Fed. 428; Ditherner v. Rogers (1883) 66 How. Pr. 35, 13 Abb. N. C. 436, affirmed in (1885) 100 N. Y. 636; Missouri P. R. Co. V. Jones (1889) 75 Tex. 151, 16 Am. St. Rep. 879, 12 S. W. 972. While the mode of payment is a cir- cumstance entitled to some weight in a case of doubt as to whether the relation of master and servant exists, it is not. the test by which such relation is to be determined. Taoker v. Yeager (1909) 151 111. App. 144. Whether a coachman sent with a hired vehicle is the servant of his general employer does not depend on whether his wages are paid by that employer. Laugher v. Pointer (1826) 5 Barn. & C. 547; Quarman v. Burnett (1840) ft 64 MASTER AND SERVANT. [chap. u. 20. Power of appointment.— The fact that an employee was ap- pointed by one of two persons having an interest in the work to Mees. & W. 499, 4 Jur. 969; Brown v. Smith (1890) 86 Ga. 274, 22 Am. St. Eep. 456, 12 S. E. 411. In Oorney v. New York (1905) 102 App. Div. 259, 92 N. Y. Supp. 451, where the defendant was sued for in- juries caused by the negligence of the driver of a team hired from a certain firm, it was held not to be error to refuse to charge the jury that they must render a verdict for the defendant if they found "that the driver and team and truck belonged to a third party." The whole outfit might have been hired from a third party, who paid the driv- er's wages, and yet the city might be liable. That persons properly employed to guard a station serve without pay will not absolve the railroad company from liability for injuries resulting from their negligence, was laid down in Lips- comb V. Houston & T. G. R. Go. ( 1901 ) 95 Tex. 5, 55 L.R.A. 869, 93 Am. St. Rep. 804, 64 S. W. 923. In Willett V. Boote (1860) 6 Hurlst. & N^, 26, 30 L. J. Mag. Cas. N. S. 6, 3 L. T. N. S. 276, by a written contract A agreed to serve B and C, potters, as a biscuit-oven placer, at daily wages, for twelve months. By another con- tract of the same date R agreed to serve the respondents for the same peri- od as biscuit-oven fireman, to be paid by piece work, he paying A wages out of what he earned. Held, that A stood in the relation of servant to B and C, notwithstanding his wages were paid by R, and consequently he was proper- ly convicted under the 4 Geo. IV., chap. 34, for absenting himself from the re- spondents' service. The effect of the sec- ond agreement was to place A under R, as under a foreman, and thus secure for B and C "that benefit which is got from careful supervision and the partial application of the principle of piece work." The mere fact that a man working at a joint railway station signs a pay sheet headed "Joint Station Staff" is insufiicient to make him a servant of another company using the station, as well as of his own employer. Swainson V. North-Eastern R. Go. (1878) L. R. 3 Exch. Div. (0. A.) 341, 47 L. J. Exch. N. S. 372, 38 L. T. N. S. 201, 26 Week. Rep. 413, reversing (1877) 37 L. T. N. S. 102, 25 Week. Eep. 676. The actual arrangement, as shown, was that one company paid the whole of the wages, and half of them was repaid by the other company. See the judgment of Cotton, L. J., p. 351 of Law Reports. On the other hand, joint service is not negatived by the mere fact that the servant receives his wages from one of the two railway companies for whom he performs work. Vary v. Burlington, C. R. & M. R. Go. (1875) 42 Iowa, 246. The trainmen of a railroad company, who operate its trains under the con- trol of another company over whose road their own employer has running powers, are the servants of the company owning the road, although their wages are not paid by it. Smith v. St. Louis & 8. F. R. Go. (1885) 85 Mo. 418, 55 Am. Rep. 380. For other eases in which the same principle was taken for grant- ed, see § 42, post. The servants of a contractor will be treated as the servants of the principal employer where the evidence is that, although they were paid by such con- tractor, and could only be dismissed by him, the foreman of the principal em- ployer had the right to control the manner in which they were doing their work. Ruth v. Surrey Gommeroial Dock Go. (1892) 8 Times L. R. (C. A.) 116. The fact that the crew of a construc- tion train are on the pay roll of the railroad company is not conclusive evi- dence that they are not the servants of the contractor. Hitte v. Republican Valley R. Go. (1886) 19 Neb. 620; Mis- souri, K. d T. R. Go. V. Ferch (1896) — Tex. Civ. App. — , 36 S. W. 487; Powell V. Virginia Gonstr. Co. (1890) 88 Tenn. 692, 17 Am. St. Rep. 925, 13 S. W. 691. The fact that a railway company con- tinues to pay the wages of the crew of a train furnished for construction work does not tend to show that the railway company retained any control over the movements of the train. The furnishing of the train and the payment of the trainmen are regarded as part of the consideration paid by the company to the contractor for performing the stipu- lated work. Miller v. Minnesota & N. § 20] EXISTENCE OP RELATION— WHEN INFERRED. 65 be performed does not show him to have been the servant of that person, if it is established that he was to be under the control of W. R. Co. (1888) 76 Iowa, 658, 14 Am. St. Rep. 258, 39 N. W. 188. In one case it was treated as an im- material factor that the contractee paid the workmen upon orders signed by the contractor. Deford v. State (1868) 30 Md. 179. A receiver of a railway company cannot escape from liability for inju- ries caused by hig negligence, by show- ing that during the month in which the accident occurred the employee was paid for his services by another rail- way company, under an arrangement between it and the receiver. South- western Teleg. & Teleph. Co. v. Cranh (1894) — Tex. Civ. App. — , 27 S. W. 38. The fact that the owner of a ship or the charterer may pay the wages of the crew is not conclusive evidence that one or other of them is in control of the ship. Blaikie v. Stembridge (1859) 6 C. B. N. S. 894, 28 L. J. 0. P. N. S. 330, 5 Jur. N. S. 1128; Manchester Trust V. Furness [1895] 2 Q. B. (C. A.) 539; Fraser v. Bee (1901) 49 Week. Rep. (Q. B. D.) 336. The fact that the lessees of a dock are paid by a merchant for discharging his ship is not sufficient evidence to es- tablish the relation of master and serv- ant between them and the laborers actu- ally engaged in the work. An equally possible inference from such a fact is that the work was being done by the men under some subcontractor. Wood- ward V. Peto (1862) 3 Fost. & F. 389. Upon this ruling being made, further testimony was given by the stevedore, from which it appeared that there was actually a subcontract; and the plain- tiff was nonsuited. An employee of a "boss scooper," in- trusted with the entire charge of elevat- ing grain out of vessels into an eleva- tor, and who employs, discharges, and pays his assistants, is not a. fellow serv- vant with one of the crew of a vessel over whom his employer has no control, although, as a matter of convenience, the money for the wages of the men en- gaged in elevating the grain is paid over to the secretary of the elevator association, and by him distributed pro- portionallv to the "boss scoopers." Kane v. Mitchell Transp. Co. (1895)' 90 M. & S. Vol. I.— 5. Hun, 65, 35 N. Y. Supp. 581. Compare Rozelle v. Rose (1896) 3 App. Div. 132, 39 N. Y. Supp. 363 (coservice held to exist, as between men engaged solely on the defendant's work, and wholly sub- ject to his control, although he paid a third person, and not the servants them- selves, for their services ) . A minor assisting his father in load- ing cars under the control of a railway company's superintendent or foreman is a servant of the company, although he was not on the company's pay roll and the payment for his services was made to his father, where the superintendent knew that he was so employed, and treated him as being rightfully so en- gaged, and directed and controlled him as to the manner of doing the work. Tennessee Coal, Iron & R. Go. v. Hayes (1892) 97 Ala. 201, 12 So. 98. The mere fact that a company pays the salary of a, constable appointed to discharge the ordinary functions of such an officer in the company's premises, does not make him the company's serv- ant in such a sense that it will be lia- ble for his acts in executing his func- tions as a constable. Tolchester Beach Improv. Co. v. Steinmeier (1890) 72 Md. 313, 8 L.R.A. 846, 20 Atl. 188. A person employed by a landowner to work on a highway, in payment of the highway tax, but superintended and di- rected, while so working, by the sur- veyor of highways, is the servant of the surveyor as to any work done by his orders. Elder v. Bemis (1841) 2 Met. 599. Where a person, pursuant to a requi- sition of the department of public works, furnishes labor and material to take up and relay water mains for building a sewer, the workmen being in charge of an officer of the department called an inspector, who assumed con- trol of the men, and directed theip as to the time, place, and manner of doing the work, but which workmen were paid by the person furnishing them, who was reimbursed by the city, the relation of master and servant does not exist between the workmen and the per- son who furnished them. Beatty v. TUlemann (1890) 29 N. Y. S. R. (C. P.) 498, 8 N. Y. Supp. 645. The fact that certain miners were 06 MASTER AND SERVANT. [chap. II. the other person while the work was in progress.^ But in view of the circumstances under which contracts of employment are ordi- narily entered into, it seems not unreasonable to say that a jury must always be warranted in finding that the person by whom the servant was in the given ease appointed was his master, unless there is specific and conclusive testimony to the effect that he was to be under the control of some other person in respect to his work. And this is, broadly speaking, the rule embodied in the decisions.^ On the other hand, it is clear that the nonpossession of this power by the alleged master is a fact which strongly tends to negative the conclusion that he stood in that relation to the alleged servant.* paid their wages at the defendant's store, where they had been paid prior to the execution of a contract by which the defendant's mine was leased to an- other party, is insufficient of itself to charge the defendant with liability for the compensation earned by them after the contract was in force. Smith v. Belshaw (1891) 89 Cal. 427, 26 Pac. 834. Joint masters are jointly and several- ly liable for the acts of their servant, though his wages are paid by one of them. Weyland v. ElJcins (1816) Holt, N. P. 227, 1 Starkie, 272; Vary v. Bur- lington, C. R. & M. R. Co. (1875) 42 Iowa, 246 ; Missouri P. R. Go. v. Jones (1889) 75 Tex. 151. In Osgood v. Paragon Silk Co. ( 1897 ) 19 Misc. 186, 43 N". Y. Supp. 271, it was held that a finding that plaintiff was employed by defendant, and not by a firm occupying part of defendant's place of business, should not be set aside as against the weight of evidence, where it was proved that plaintiff had applied for employment to defendant's secretary, who was also an employee of the firm ; that the secretary employed plaintiff as salesman, instructing him to report sales to the firm, as they were the sell- ing agents; that plaintiff was paid by checks of the firm ; but at no time was told that he was employed by them. Under such circumstances plaintiff was justified in assuming that he was em- ployed by defendant, and the mistake, if any, was chargeable to the negligence of defendant's secretary. For other cases in which the doctrine stated in the text was recognized, see Dewar v. Taslcer (1906) 95 L. T. N. S. 87, 22 Times L. R. 303, reversed (1907) 23 Times L. R. (C. A.) 259, but not as to this point; Sexton v. New York C. 6 H. R. R. Co. (1906) 114 App. Div. 678, 99 N. Y. Supp. 1111, affirmed in (1907) 189 N. Y. 518, 81 N. E. 1175; Dillingham v. Crank (1894) 87 Tex. 104, 27 S. W. 93; Taylor v. Western P. R. Co. (1873) 45 Cal. 323; Missouri P. R. Co. V. Jones (1889)- 75 Tex. 151, 16 Am. St. Rep. 879, 12 S. W. 972; Brow V. Boston & A. R. Go. (1892) 157 Mass. 399, 32 N. E. 362 ; Denver & R. Q. R. Co. V. Gustafson (1895) 21 Colo. 393, 41 Pac. 505; Powell v. VirginAa Constr. Co. (1890) 88 Tenn. 692, 17 Am. St. Rep. 925, 13 S. W. 691; Tol- chester Beach Improv. Co. v. Steinmeier (1890) 72 Md. 313, 8 L.R.A. 846, 20 Atl. 188; Kimball v. Gushman (1869) 103 Mass. 194, 4 Am. Rep. 528; In- gram V. Hilton & D. Lumber Co. (1899) 108 Ga. 194, 33 S. E. 961 (instruction that the test of fellow service is that the employees are paid by the same general master, held erroneous ) . ^Sack V. Ford (1862) 13 C. B. N. S. 90, 32 L. J. C. P. N. S. 12, 5 Jur. N. S. 1128 (stevedore appointed by charterer, but controlled by owner of ship) ; The Boskenna Bay (1884) 22 Fed. 662 (similar facts). In one case the power of "appoint- ment" expressly reserved by contract was treated as being merely one of "nomination." Harris v. Best (1892) 7 Asp. Mar. L. Cas. (C. A.) 274. 2 See more especially the cases relat- ing to the effect of charter parties, S 45, note 2, post, and those involving the dele- gation of servants to take charge of hired instrumentalities, §§ 53 et seq., post. 3 The fact that the hirer of an instru- mentality managed by the servant of § 21] EXISTENCE OF KELATION— WHEN INFEERKD. 67 Indeed, it is worth noting that the evidential significance of this fact with reference to one class of cases, viz., those in which a third person is the party plaintiff, may be put still higher if we adopt the doctrine frequently enounced, that the liability of a master for the tortious acts of his servants is based on the fact of his having selected them.* But that doctrine is far from being universally accepted; and in the present connection it obviously tends to land us in a serious inconsistency, since there is no reason why the power of control should not be vested in one person, and the power of se- lection in another; and under such circumstances the former would undoubtedly be the one to whom responsibility for the acts of the employee would be imputed. 21. Power of dismissal.— The fact of a certain person's having possessed the power to discharge the employee in question has a strong tendency to show that the relation of master and servant ex- isted between them.^ But the conclusion which proof of this fact would otherwise warrant cannot be drawn if it is apparent from the remainder of the evidence that, in respect to the details of his work, the employee was under the control of some person other than the one in whom the power of discharge was vested.* On the other hand, although it is perhaps possible to form a theo- the owner has not normally the power 104, it was remarked that the decisions of selecting the servant has been said in Kelly v. Neio York (1854) 11 N. Y. to be one of the circumstances on which 432, and Pack v. New York (1853) 8 is based the presumption that the hiring N. Y. 222, were placed distinctly on the does not make him the dominus pro ground that the corporation had no tempore of such servant. Murray v. right to select the workmen, and there- Dwight (1897) 15 App. Div. 241, 44 fore was not chargeable as principal N. Y. Supp. 234. for their careless acts in doing the work. A municipal corporation is not liable l The power of discharge is not in- fer the negligence of persons hired by frequently mentioned as one of the ma- property owners to make certain im- terial elements in the case. See, for provements, the corporation having the example, Donovan v. Laing, W. & D. right, under a statute, to order the im- Gonstr. Syndicate [1893] 1 Q. B. 629; provements, but not the right to choose Goughlan v. Cambridge (1896) 166 agents or servants to do the ministerial Mass. 268, 44 N. E. 218; Southern Exp. work. Dooley v. Sullivam (1887) 112 Co. v. Brown, (1889) 67 Miss. 260, 19 Ind. 451, 2 Am. St. Rep. 209, 14 N. E. Am. St. Rep. 306, 7 So. 318, 8 So. 425; 566 The Gladestry (1904) 63 C. C. A. 198, 4 In £:e% V. Zfero Yorfc (1854) 11 N. 128 Fed. 591; The Elton (1906) 73 Y. 432, Judge Selden denied the re- C. C. A. 467, 142 Fed. 367; Lewis v. sponsibility of the defendant munici- Detroit Vitrified Brick Go. (1911) 164 pality for the acts of a contractor's Mich. 489, 129 N. W. 726. servant, on the ground that it had no 2 That the possession of a power of power to control the contractor in the discharge is not a conclusive element is choice of his servants; saying that the shown by the well-settled rule that the right of selection lay at the foundation reservation of a power to remove any of^the liability of a master or principal of a contractor's servants for careless- for the acts of his servant or a^ent. ness or incompetency does not make In Storrs v. Vtioa (1858) 17 N. Y. them the servants of the contractor's 68 MASTER AND SERVANT. [CHAP. II. retic conception of cases in which the relation of master and servant would be predicable between two persons, in spite of the fact tliat the power of dismissal was not vested in the master, it is apparent that the situation thus supposed is so entirely incompatible with the due exercise of that authority and control which is the very employer. See Reedie v. London & N. W. li. Co. (1849) 4 Exch. 244, 19 Eng. Rul. Cas. 168. In Anderson v. Glasgow Tramway Omnibus Co. (1893) 21 Sc. Sess. Cas. 4th series, 318, it was held that a stip- ulation in a contract between the post- office officials and the owner of certain vehicles used for conveying the mail bags to a railway station, to the effect that the drivers of the vehicles are to be dismissed if those officials desire it, was held not to show such an assump- tion of control over the drivers as to constitute them the servants of the post- office. The fact that a company which hires engines and men to operate its trains reserves a power to dismiss from work on its own line the trainmen of the company from which the engine and men are hired, will not make the lat- ter's servants the servants of the for- mer. A provision of this sort came un- der review in Zeigler v. Danbv/ry & N. B. Co. (1885) 52 Conn. 555, landthe court said it was evidently "intended to avoid the inconvenience and peril that would result from having different trains on its road operated by different rules. It was reasonable that the defendant should retain the absolute control over all trains on its road; its own safety required it. To that end the power to ■discharge the trainmen on the Litchfield train for neglect or improper conduct ■ivas essential. But their power must be construed with reference to the sub- ject-matter and the end which the con- tracting parties manifestly had in view. If the defendant could discharge them so far as to prohibit their services on its road, it would accomplish all it de- sired to, and all that the parties con- templated, and hence all that it had a right to require. To interpret this arrangement as giving the power to discharge them absolutely from the em- ploy of the Shepaug company would be going far beyond the obvious scope and purpose of the contract. The de- fendant's authority, therefore, over the plaintiff, was a limited one. The con- tract may be fulfilled and its object ac- complished without regarding the plain- tiff as the defendant's servant. The plaintiff cannot be so regarded without involving this consequence, which is well-nigh an absurdity, that the plain- tiff's employer changed every time he passed from one road to the other, which was usually twice each day. It is by far the better view to consider the Shepaug company as doing certain work for the defendant, but doing it by means of its own instrumentalities and servants, and not by means of the in- strumentalities and servants of the de- fendant." That the exercise by a licensor rail- way company of a reserved power of discharging the licensee's servants does not make them the servants of the li- censor was also held in Tierney v. Syra- cuse, B. & N. Y. R. Co. (1895) 85 Hun, 146, 32 N. Y. Supp. 627; Ca4n v. Syra- cuse, B. & N. Y. R. Co. (1898) 27 App. Div. 376, 50 N. Y. Supp. 1. In Bosworth v. Rogers (1897) 27 C. C. A. 385, 53 U. S. App. 620, 82 Fed. 975, the fact that each of two railway companies which were using the same line had agreed to discharge, upon a demand made by the other com- pany, any of its employees who were engaged in the joint operation of the road, was treated as an element which did not show that the relation of mas- ter and servant existed between the company making such a demand and the servant discharged in compliance therewith. See ,ilso Petzolt v. Thiess (1899) 25 Misc. (Sup. Ct.) 707, 55 N. Y. Supp. 740, § 35, note 1, post. The broad statement in Michael v. Stanton (1875) 3 Hun, 462, that the only test by which to determine which of two persons is the master of a third, so as to be responsible for his negli- gence, is to ascertain which of those persons has the power to discharge him, is manifestly erroneous. § 22] EXISTENCE OF RELATION— WHEN INFERRED. essence of the relation, that such cases are very unlikely to occur in practice. Ordinarily, therefore, the nonexistence of the relation of master and servant will he inferred whenever it appears that the alleged master had no power to dismiss the alleged servant.' 22. For whose benefit the given work was done. — Evidence which tends to show that the work which was done by the person whose position is in question was done for the benefit of another person, and was performed under the conditions which are normally in- cident to service, is sufficient to establish the existence of the rela- tion of master and servant between them. This criterion has some- times been applied in cases where the issue to be determined was whether the person performing the work was or was not a servant.^ But the effect of such evidence has been much more frequently illus- trated in cases where it was conceded that the person doing the work was a servant, and the point to be settled was which of two 3 The want of a power to dismiss a driver hired from a job man was one of the circumstances relied on by Ab- bott, Ch. J., and Littledale, J., in Laugher v. Pointer (1826) 5 Barn. & C. 547, to show that he was not the servant of the hirer. The want of power in the principal employer to dismiss the servants of an independent contractor is one of the reasons why they are not regarded as the servants of such employer. Turner V. Great Eastern B. Co. (1875) 33 L. T. N. S. 431. In one case a contractor was held not to be liable for the negligence of a subcontractor's servants, on the specific ground that he had no authority in re- spect to hiring or discharging them. Orudiip V. Schreiner (1901) 98 111. App. 337. With regard to the cases cited in the preceding note, it may be observed that the possession of the power of discharge by a person other than the general em- ployer of the servant in question does not, under normal circumstances, de- prive that employer of his right to ex- ercise that power. lA person who undertakes to per- form for his father the same class of work as a clerk performs for his mas- ter may be convicted as a "clerk or servant," although there was no actual agreement on his part to continue the performance of that work. Re(f. v. Foulkes (1875) L. R. 2 C. C. 150 (pris- oner lived with his father, the clerk of a local board, and assisted him in the office and the business of the board). On the ground that a young man standing behind the counter of his father, a liquor seller, and dealing with his customers, might be considered as a clerk or agent, his father was held liable for his violation of a statute for- bidding the sale of liquors on Sunday. Eisner v. State (1867) 30 Tex. 524. In a case where the plaintiff was a woman employed by the foreman of a bridge crew of a railroad company to board the men in cars furnished by the company, under an agreement providing that each man should pay a specified sum per day for board, and, in case any of the men failed to pay, the company would deduct the same from their wages, the conclusion that she was in a sense in the service of the com- pany, was deduced from the considera- tion that what she was employed to do and was doing was for the convenience of the employees of the company. Tin- Ue V. St. Louis & 8. F. R. Co. (1908) 212 Mo. 445, 110 S. W. 1086. It has been held that, where a tele- graph message is given for delivery to the addressee's son, passing by on his wheel, he becomes the company's mes- senger, and any negligence by him in delaying delivery is the negligence of the company. Mott v. Western U. Teleg. Co. (1906) 142 N. C. 532, 55 S. E. 363. 70 MASTER AND SERVANT. [chap. ii. other persons was his master.* But it is well settled that the con- clusion which is indicated by this fact is always subject to rebuttal * In a leading case Willes, J., thus servant, or who pays him, is not always stated the grounds upon which the de- a conclusive test as to who was his fendant, a shipowner, was held not to master in and about a particular work be liable for the negligence of a sailor upon which he was engaged. The bet- who was assisting a stevedore in un- ter test would seem to be, Was he, in loading the ship: "The question here is regard to the particular matter in whether Davis, who caused the accident, which he was employed, doing the work was employed at the time m doing Ken- of a general master, or was he engaged nedy's worK or the shipowner's. It is in doing the work of another, over possible that he might have been the whom the general-master had no con- servant of both; but the facts here trol?" seem to me to negative that. The rule In order to affect an employer with out of which this case forms an excep- responsibility for a tortious act commit- tion, that a servant or workman has ted by a person employed for a partic- no remedy against his employer for an ular purpose. It is not necessary that injury sustained in his employ through the latter should be shown to have been the negligence of a fellow servant or under a special engagement to the for- workman, is subordinate to another mer, or entitled to receive compensation rule, and does not come into operation from him directly. Such responsibility until a preliminary condition is ful- is established if it appears that, at the filled: It must be shown that, if the time when the injury was inflicted, the injury had been done to a stranger, he employee was in charge of the em- would have had a remedy against the ployer's property with his consent, en- person who employed the wrongdoer, gaged in his business, and, in respect Here, I apprehend, the defendant would to that property and business, under his not have been liable to the charterer, if control. Kimball v. Cushman (18G9) the wrongful act of Davis had caused 103 Mass. 194, 4 Am. Rep. 528. damage to any part of the cargo; and The agent of a railroad company at for this simple reason, — that the person a station at which there was a tele- doing the work in the performance of graph office equipped by a, telegraph which the damage was done was not company, who is also the telegraph doing it as his servant. He was acting operator, is the agent of the telegraph altogether independent of his control, company so as to render it liable to The defendant could not have taken him one who is injured by his forging a away from the work. It was Kennedy's telegram, where he frequently accepted Avork that he was employed upon, and messages from the public and turned under Kennedy's control. The liability the charges therefor over to the tele- of a master for the acts of his servant graph company, although the agent was extends only to such acts of the servant paid by the railroad company and the as are done by him in the course of the office was used chiefly for railroad buai- master's service. The master is not ness. Usher v. Western U. Teleg. Co. liable for acts done by the servant out (1906) 122 Mo. App. 98, 98 S. W. 84. of the scope of his duty, even though The servant of a carter engaged the master may have entered into a to remove certain heavy articles acts hargain that his servant should be em- within the scope of his own employ- ployed by another, and is paid for such ment, and not as a fellow servant of service, as was done here. It seems to the men co-operating in the work on me to be quite plain that the defendant behalf of the principal employer, when incurred no liability for the act of he undertakes to secure one of the arti- Davis." Murray v. Currie (1870) L. cles on the cart, and carelessly lets it R. 6 C. P. 24, 40 L. .1. C. P. N. S. 26, fall upon one of those men. Smyth v. 23 L. T. N. S. 557, 19 Week. Rep. 104. Twnhull (1890) 17 Sc. Seas. Cas. 4th Compare also the following remarks series, 877. of the court in Powell v. Virginia Con- In Denver & B. G. R. Co. v. Chistaf- str. Co. (1890) 88 Tenn. 692, 17 Am. son (1895) 21 Colo. 393, 41 Pac. 505, St. Rep. 925, 13 S. W. 691 : "The ques- a railroad company which had knowing- tion as to who originally employed the ly availed itself of the service of a flag- § 22] EXISTENCE OF RELATION— WHEN INFERRED. 71 man employed and paid by another tion, although he is paid by the latter company, for a long series of years, was only. Taylor v. Western P. R. Co. held to be chargeable with his negli- (1873) 45 Cal. 323. gence in failing to flag one of its trains. A servant who, while transporting The court said: "Employment and pay- goods to a prescribed place, interrupts ment of a person are not indispensable the journey for the purpose of convey- elements to charge one as a master for ing goods for another party to a place the negligence of such a one who ren- not on the route laid down by his own ders him service. When one knowingly employer, is treated in respect to an and without objection receives the bene- act of negligence committed by him fits of labor, or holds out to the public during the deviation, as a servant of one as engaged in his service, he is lia- tlie second party, and not Oi uis regular ble, as a master, for the negligence of employer. Stone v. Eills ( 1877 ) 45 such servant, when the act or failure Conn. 44, 29 Am. Rep. 635. "The serv- constituting the negligence comes with- ant," said the court, "left the employers' in the apparent scope of the servant's premises under precise instructions as employment, even though the person for to the place to which their team was whom the service is rendered has not to be driven, and as to the merchandise employed or paid the servant." to be transported, and under instruc- In Boucher v. 'Neio York, N. E. <(■■ H. tions equally precise as to the route to B. Go. (1907) 196 Mass. 355, 13 L.R.A. be taken in returning, and as to what (N.S.) 1177, 82 N. E. 15, the inference he should bring home. These, therefore, that the defendant company was the covered the entire period of his contem- master of a gateman at a crossing where plated absence ; nothing was left to his its own tracks ran alongside those of option or discretion; nothing to chance; two other companies, and was therefore and in fact the deviation was not occa- liable to third persons for his negli- sioned or even suggested by any unfore- gence, was held to have been warrant- seen event in connection with the em- ably drawn from testimony to the eflfect ployers' business; the record shows no that there were compelling motives of obligation, express or implied, upon pecuniary self-interest to induce it to them to deliver the paper elsewhere make provision for the operation of the than in North Glastonbury, nor that gates at the crossing in question, and the journey thence to Hartford, even that they were operated in pursuance if successfully accomplished, would have of some undisclosed arrangement be- been for their advantage or profit; it tween it and another company owning was not connected with, did not grow adjacent tracks at the crossing. The out of, did not contribute to, the suc- fact that the gateman was hired and cessful completion of their business, paid by the second company was not When, therefore, the servant accepted inconsistent with this inference, as he instructions from Taylor, and became might be regarded as a servant lent to a carrier of merchandise for him to and the defendant, to act in his business, from a railroad station in an adjoining subject to his control. town, he temporarily threw off his em- A company using the tracks of an- ployers' authority, abandoned their bus- other company under an agreement to iness, and left their service." pay it a specified sum yearly, and ac- The superintendent of a petroleum cepting the services of its gatemen, is company, who is left by a railroad com- liable for their negligence. If it does pany in exclusive control of a car for not accept such services, or place com- the purpose of filling it with oil, be- petent gatemen at crossings, it is liable comes the agent of the railroad company for omission to do so. Cleveland, C. C. pro hoc vice, and the company is liable S. R. 916, 10 N. Y. Supp. 927 (crew maintain an action against the licensor of vessel, not coservants of stevedore's company, on the ground that, at the employees) ; Anderson v. Boyer (1897) time of the accident, he was acting un- 13 App. Div. 258, 43 N. Y. Supp. 87 der the directions of his own employ- (mere fact that the servant of the char- er alone. Caiaivissa R. Co. v. Arm- terers of a ship takes part in the un- strong (1865) 49 Pa. 180. § 39] EXISTENCE OF RELATION— WHEN INPEEEED. 121 Quite recently it has been laid down from the various levels of the mine, for that, where a person emi^loyed by an lessees of the levels, and an employee of independent contractor is working upon a lessee, allowing ore to fall and in- a building, and is Injured by the neg- jure the former. Union Gold Min. Co. ligence of an employee of the owner v. Crawford (1902) 29 Colo. 511, 69 of the building; and it does not ap- Pae. 600. pear that the work was not in the line The servant of a person mining coal of his duty to his own employer, or by contract, and the servants of per- that it was not done in aid and for sons operating the tram cars which the convenience of his own employer's hauled the coal from the mine. Lool- business, — he cannot be considered a oui Mountain Iron Co. v. Lea (1906) fellow servant of the person whose neg- 144 Ala. 169, 39 So. 1017. ligence caused the accident. Connelly v. A servant of one who had contracted Faith (1899) 190 Pa. 553, 42 Atl. 1024 to make repairs in a, mill, and a serv- (ooservice held not to be predicable un- ant of the mill owner. Hoadlcy v. In- der such circumstances, as a matter ternational Paper Co. (1899) 72 Vt. 79, of law). In another case it was held 47 Atl. 109. that a carpenter employed by the own- The crew of a vessel which is being er and builder of a house to construct loaded or unloaded by a stevedore who the bay windows was not a fellow serv- ig paid a lump sum for the work, and ant of the employees of a contractor tue stevedore's employees. McGough v. for 'the brickwork. Coates v. Chapman Ropner (1898) 87 Fed. 534; The Lisna- (1900) 195 Pa. 109, 45 Atl. 676. crieve (1898) 87 Fed. 570; The Tic- The existence of coservice has also toria (1895) 69 Fed. 160; The Caro- been denied as between the following Una (1886) 30 Fed. 199. See also some classes of servants, in the jurisdic- of the cases cited in the earlier para- tions indicated by the citations: — graphs of this note. ' The servants of a railway company The employees of different stevedores and of an independent contractor em- engaged in loading the same vessel, ployed by the company. Torpy v. Grand Brown v. Leclerc ( 1893 ) 22 Can. S. C. Trunk R. Co. (1861) 20 U. C. Q. B. 53. 446; Corneilson v. Eastern R. Co. The servants of a grain trimmer, and (1892) 50 Minn. 23, 52 N. W. 224; the crew on the ship on which the grain Sherman v. Del-aware d> H. Canal Co. was being loaded. Crawford v. The (1899) 71 Vt. 325, 45 Atl. 227; IIU- ^\'ells City .(1880) 38 Fed. 47. nois C. It. Co. V. MeCowan (1877) 70 The servant of a lighterage company 111. App. 345; 'Norman v. Middlesex & engaged in stowing cargo on a lighter, 8. Traction Co. (1904) 71 N. J. L. 652, and the servants of a stevedore engaged 60 Atl. 936; Galveston, H. & B. A. R. in unloading the cargo from a ship. Co. V. Garteiser ( ] 895 ) 9 Tex. Civ. Thornton v. Bogan ( 1903 ) 82 App. Div. App. 456, 29 S. W. 939. 500, 81 N. Y. Supp. 544. The servant of a contractor for the The servants of a steamship company ballasting of a railway track, and the engaged in unloading a cargo onto a men managing a, train supplied by the lighter, and the servants of the owner railway company for the transportation of the lighter. Svenson v. Atlantic Mail of -the materials, the proof being that 8. 8. Co. (1874) 57 N. Y. 108. those men remained subject to the con- The yard hands employed by a lum- trol of the company. Slieerman v. To- ber company, and the servants of a ronto, O. & B. li. Co. (1874) 34 U. C. person who had contracted to unload Q. B.' 451. lumber from a boat. John Spry Lum- " Persons who, under a license from the ler Co. v. Duggan (1898) 80 111. App. owner, put in new burners in a brick 394, affirmed in (1899) 182 111. 218, kiln for the purpose of testing their ad- 54 N. E. 1002. vantages, and the regular employees of The servant of a contractor engaged the owne'r of the kiln. Pullman Palace to haul goods, and the servants of the Car Co V. Laack (1892) 143 111. 242, vendor, while engaged in loading them. 18 L.R.A. 215, 32 N. E. 285. Otis Steel Co. v. Wingle (1907) 82 C. A servant of a mining company, C. A. 62, 152 Fed. 914. working at the bottom of a shaft which The servant of a boss scooper en- is operated by the company to hoist ore gaged in unloading gram from a vessel. 122 MASTER AND SERVANT. [chap. ii. and a deck hand engaged in sweeping or had not the power of remonstrating up the decks. Kane v. Mitchell Tiansp. in reference to anything which he did Co. (1895) 90 Hun, 65, 35 N. Y. Supp. not like; or whether he miglit, by giv- 581, affirmed in (1897) 153 N. Y. 680, ing notice, have left the service. Tur- 48 N. E. 1105; Fisher v. Mincgaux ner v. Great Eastern R. Co. (1875) 33 (1906) 73 N. J. L. 424, 63 Atl. 902. L. T. N. S. 431, per Grove, J. But this A servant employed by a subcontrac- suggestion does not seem to be of much tor engaged on a building, and the serv- value. The power of remonstrance can- ants of the principal contractor. Jan- not e.xist unless the relation exists from srn V. Jersey City (1897) 61 N. J. L. which it can be inferred. It seems very 243, 39 Atl. 1025; Kelly y. Tyra (1908) improbable that any case can occur in 103 Minn. 176, 17 L.E.A. (N.S.) 334, which the existence of the power is es- 114 N. W. 750, 115 N. W. 636; Dale tablished while the existence of the re- V. Hill-0'Meara Gonstr. Co. (1904) 108 lation remains duobtful; and except in Mo. App. 90, 82 S. W. 1092; Driscoll such a case, the existence of the power v. Humes, C. & 8. Co. (1908) — R. I. can be nothing but a consequence de- — , 69 Atl. 766. ducible from a previously ascertained The servants of two subcontractors on fact, the same work. Sheridan v. Foley The fact that a vi'orkman in the em- (1895) 58 N. J. L. 230, iZ Atl. 484; ploy of a contractor was engaged, at Eckman v. Lauer (1897) 67 Minn. 221, the time he was injured, in doing ex- 69 N". W. 893; Reilly v. Atlas Iron tra work not comprehended in the con- Vonstr. Go. (1894) 83 Hun, 196, 31 N. tract, will not make him a fellow serv- Y. Supp. 618. ant of the servants of the principal The servant of a contractor for lay- employer. Morgan v. Smith (1893) 159 ing pipes on a street, and servants of a Mass. 570, 35 N. E. 101. subcontractor for excavating and filling The direction of the principal em- the trenches. Belong v. Burrell-John- ployer's representative to perform cer- son Iron Go. (1885) 25 N. Br. 140. tain extra work has nothing to do with For other cases in which the doc- the manner of the performance, and trine enounced in the text has been rec- does not involve any interference with ognized, see Louisville, N. 0. & T. R. Co. the workmen engaged under the con- T. Gonroy (1886) 63 Miss. 562, 56 Am. tractor in the detail work. Charlock Rep. 835; Cook v. Hannibal & St. J. R. v. Freel (1891) 125 N. Y. 357, 26 N. Co. (1876) 63 Mo. 397 ;. Monahan v. E. 262. Eidlitz (1901) 59 App. Div. 224, 69 In Donaldson v. Mississippi & M. R. N. y. Supp. 335. Co. (1865) 18 Iowa, 280, 87 Am. Dec. A woman cooking on a car connect- 391, it was laid down that a subcon- ed with a construction train, for her tractor engaged in building bridges husband, who was boarding the rail- was not a fellow servant of persons road men under an agreement that the operating the road; since, while he was company would pay him and retain the "indirectly in the employment of the amount from their wages, was' held not defendant, yet his duties were entirely to be a fellow servant with the engineer in another department." The reason of the train. Brown y . Sullivan (1888) thus assigned is clearly misapplied. 71 Tex. 470, 10 S. W. 288. The correct ground for the decision In Holmes v. Birmingham Southern would have been that the subcontractor /;•. Co. (1903) 140 Ala. 208, 37 So. 338, was not a servant at all, and therefore a servant of an iron company which could not be prejudiced by a defense was under agreement with a, railroad which is only available against serv- company engaged in hauling coke for it, ants. to have the cars swept out after hav- In view of the authorities cited ing been unloaded, was held to be a above, it seems clear that, upon the passenger, and not a fellow servant of facts as reported, the decision in Illi- the men operating a train which con- nois C. R. Co. v. Coac (1858) 21 111. veyed him to the place where the cars 20, 71 Am. Dec. 298, was erroneous, were to be unloaded. There it was held that a laborer in It has been said that one element the employ of a contractor engaged in bearing on the position of a servant hauling wood for delivery at various in this class of cases is whether he had stations was a fellow servant of the § 40] EXISTENCE OF RELATIOX— WHEN IXFEEEED. 123 40. Effect of evidence showing that the servants of the contractor were controlled by the principal employer. — From evidence which shows that the servant of a contractor was, in the given instance, con- trolled as to the details of his work by the principal employer, one or other of two inferences may be drawn, viz. : (1) That, although the servant was in the general employment of the contractor, he had, as a result of some arrangement between his master and the principal employer, become the special servant of the latter for the purpose of the work in hand, at the time when the injury in suit was received. The cases involving this situation are reviewed under subtitle D, post. (2) That by virtue of the original agreement between the prin- cipal employer and the contractor the former acquired the right of giving directions to the servants of the latter vrith regard to the man- ner in which the work was to be done.* Manifestly, under such circum- stances, the contractor is not, in the proper sense of the term, an "in- dependent contractor," * and according to the decided preponderance of authority, both he and such persons as he may engage for the work in hand are in law the servants of the principal employer for all pur- poses. Thus, the principal employer is responsible to a stranger for injuries caused by the negligence of a servant of the contractor ; ^ and to a servant of the contractor, who grounds his claim upon the prin- men operating a train which the com- his wagon as a result of a collision pany furnished under the agreement, between it and a telegraph pole pro-' The court said that, for the purposes jecting from the end of a car in a con- of the case, it would consider that struction train operated by servants all parties, the contractors as well as who were nominally in the employ of their hired hands, were employees of the W. & W. R. Co., it was held that the company. But there is nothing \°Y\f .I'-f^L^'^'f, ^^^'^^t •*° /''! in the statement to show upon what effect that if the defendant m fact grounds the contractors were regard- percised the actual control of the men ^, „,„• +>,„ „„„;+:„„ nf oorv in the management and operation of ed as °'='="Py;"g *^/^ Pf;*^°" °^^f"- the train, it would be liable for the ants, bo lar as appears, it was an ,. c i.i. ■ j.i. ,. £ ^^- !„' „„j„„f „„„ negligence of the men m the opera- ordinary case of an independent con- ^.^^^ "^^ ^^^ notwithstanding^ the tract. A comparison o dates sug- ^^^ ^^^^^ ^^ ^^^ ^.^^ ^^^ ^J^^^^^ gests that the court may have followed ^^^ engaged in the business of an- the English case, Wiggett v. tox ot^er company," was relevant and (1856) 11 Exch. 832, 25 L. J. Exch. proper, inasmuch as there was satis- N. S. 188, 2 Jur. N. S. 955, supra, factory proof of the exercise of con- which had been decied two years trol by the defendant company; viz., previously. (1) certain resolutions of that com- 1 See the remarks of Lord Esher, in pany's board of directors, from which note 6, infra. it was clear that the W. & W. rail- 2 See § 64, post. way was constructed by it, that the 3 In Atchison, T. d S. P. R. Co. v. road was owned by it, and that in the Davis (1885) 34 Kan. 202, 8 Pac. 146, preceding year it had resisted the where the plaintiff was thrown 0|Ut of claim of a third company to a joint 124 MASTER AND SERVANT. [chap. ii. cipal employer's nonperformance of one of those non-delegable duties which the law imposes on a master for the protection of his servants. See chapters xxxiv., xlix., and lsiv., post} Again, the principal em- ployer, if he is sued in a common-law action by a servant of the con- tractor, for injuries caused by the negligence of one of his own serv- ants, is entitled to rely upon the defense of common employment. See chapters lix. and lxii., 'post.^ On the other hand, where damages interest therein; (2) evidence that the Where the evidence is audi as to track upon which the collision oc- warrant the inference that, althougli curred had been used and operated by a contractor engaged in the building- the defendant company for many years, of a railway was in possession of and and was generally known as its line; using the cars, one of which was being that the engine and cars used in tlie handled by the plaintiff when he was construction of the W. & W. railway injured by the negligence of the engi- belonged to the defendant company; neer, the company retained the right that the pay checks and pay rolls of to direct what should be done and how, the employees engaged in the con- it is a question for the jury whether struction of the W. & W. railway were the engineer was the servant of the indorsed and countersigned by the contractor or the company. Rome & general officials of the defendant com- D. It. Co. v. Chasteen (1889) 88 Ala. pany; and that the defendant com- 591, 7 So. 94. pany operated the W. & W. railway In an action against a railway corn- after it was completed. pany for personal injuries to one -of a * Where a contractor lays a railroad gang of laborers engaged in discharg- track under an agreement that those ing coal from a vessel into the de- in charge of the construction train fendant's cars, there was evidence that shall be employed and paid by the it was the duty of the vessel to place company, and not by himself, and that the coal upon the defendant's wharf, he shall have no control of the train and that of the defendant to load it in any manner, the company is liable upon its cars, both operations being- for injuries to a person employed by performed at the same time; that the him, resulting from negligence of those engine and apparatus belonged to the in charge of the construction train, defendant; that the defendant's dock Chicago, B. d Q. R. Go. v. Clark (1889) master -took general control of the 26 Neb. 645, 42 N. W. 703. wharf; that this dock master em- That the plaintiff was the servant ployed other men besides the foreman of defendant is the fair import of aver- or stage man; that he discharged the ments that the defendant was engaged whole gang of shovelers on a previous ' in the erection of a certain building, occasion, and afterward took them ttie property of the defendant; that in back; that he refused employment to the erection of the building the defend- some men; that he had control of the ant employed one Coxen, a contractor, run or platform, and that he directed with his workmen, to do the carpentry men when to go on and when to stop work on the building, the defendant work. Held, that the jury were war- paying C. for the men so employed ; ranted in finding that the railway that in the erection of said building company was the master of the shovel- the defendant had the management ers, and therefore liable to one of them and control of the same, he employing for an injury caused by a defective the said C. and his force of men to do rope. Daley v. Boston & A. R. Go. the work, the said C. and his men be- (1888) 347 Mass. 101, 10 N. E. 690. ing under the supervision and control 5 In Stamp v. Williams (1896) 12 of the defendant, and the defendant Times L. E. (C. A.) 516, a new trial paying a certain amount per day for was ordered, where the verdict implied each workman so engaged thereon, a finding that the men hired by one Dehority v. Whitcomi (1895) 13 Ind. of the "gangers" who, according to the App. 558, 41 N. E. 1059. usage of the port of Liverpool, make S 40] EXISTENCE OF RELATION— WHEX INFERRED. 125 are claimed from him by one of his own servants for an injury caused by a servant of a contractor, that defense is not open to him, where the action is brought under a statute of svich a tenor that it would not have been available if he had been the immediate employer of the negligent person.^ So far as the writer knows, the only decision which is inconsistent with the general rule exemplified in the cases already cited in this section is one in which the supreme 'court of Massachusetts has laid it down that, although a contractor may be subject to the control of his employer in respect to the details of the stipulated work, a man engaged by the contractor to assist him in do- ing that work is not an "employee" of the contractor's employer, in such a sense as to enable him to bring an action against that employer imder the act of 1887.'' But it is submitted that the doctrine em- contracts with master stevedores to un- of a contractor were not improperly load a cargo, were not in a common found by the jury to he the servants employment with the workmen hired of the principal employer, in such a directly by the master stevedores sense that an action could be main- themselves. The lords justices were tained against him by one of his own strongly of opinion that the men hired servants, under the English employers' by the "gangers" should, while doing liability act (see chapter Lxxrv., post), tne work, be considered as being under to recover damages for an injury the control and direction of the master caused by the negligence of the con- stevedores, tractor's servants; the evidence being A carpenter employed in fitting cas- that, although their wages were paid ings about a patch upon a tank in the by the contractor and they could be hold of a ship is a fellow servant with dismissed by him alone, the foreman a boiler maker engaged in putting a of the principal employer had the patch upon such tank, who at times right to control the manner in which voluntarily assisted such carpenter, al- they did their work. Ruth v. Surrey though such boiler maker is in the Commercial Dock Go. (1891) 8 Times employ of a third person, who charges L. R. (C. A.) 116. Lord Esher said: for his time by the day's work, and "Although the work was done through the carpenter is paid by the month, contractors, and although the accident as both are substantially in the em- was caused by the negligence of a man ploy of the shipowners and subject to employed by those contractors, yet the their control. The Coleridge (1896) 72 [principal employer is] re- Fed. 676. sponsible, because the contractors were The testimony of one of the con- not independent contractors, and their tractors working on a building, that servant through whose negligence the he took all his orders from the archi- accident happened was also the serv- tect of the owner, who made some ant of Jhe . . [principal em- changes from the original plans which ployer]." were carried out by himself, is sus- 7 Dane v. Cochrane Chemical Co. ceptible of the construction that the (1895) 164 Mass. 453, 41 N. E. 678, architect told him what was to be the effect of which is thus stated in done, but did not exercise any control the headnote: A was employed by B over the men while doing the work, under a continuing contract, to do, In spite of such testimony, therefore, from time to time, such carpentry as a jury would be warranted in inferring was necessary to be done on the build- that the relation of" the contractor to ings occupied by B for manufacturing the workmen was that of master and purposes, usually receiving his orders servant. Morgan v. Smith (1893) 159 from B's superintendent. A furnished Mass. 570, 35 N. E. 101. the tools and B tlie materials required 8 It has 'been held that the servants to do the work. A hired the men to ]26 MASTER AND SERVANT. [chap. it. bodied in this decision, viz., that a servant hired by a contractor who is himself the servant of a superior employer does not stand in the relation of servant to that employer for the purposes of the statute under construction, is wholly untenable. A provision in an agreement which confers upon the superior employer the right of controlling the contractor himself in respect to the details of the work must neces- sarily imply that he is to retain the right of controlling, to the same extent, the servants who are the instruments through whom the con- tractor performs the work. Otherwise such a provision would be be employed in doing the work, super- intended, paid, and discharged them. B paid A a certain sum a day for his woric, and a further sum a day for each man employed by A, in addition to the amount of wages which A agreed to pay the men. A and B set- tled the accounts between them month- ly, and A paid his workmen weekly, but their names never appeared on B's pay roll. C, while employed by A on B's premises, was injured by the act of another of A's workmen, and brought an action against B under the employ- ers' liability act, Stat. 1887, chap. 270. Held, that the relation of employer and employee did not exist between B and C; and that the action could not be maintained. The court said: "We think that it was competent for the jury to infer, from all the testimony, that the defendant determined what repairs and alterations requiring car- pentry work should be made from time to time, and when and how they should be made, although, when it decided upon what repairs and alterations were to be made, it usually left the man- ner of making them to the discretion of Johnson. When there are no speci- fications in advance of what is to be done, and no round price agreed upon, and a carpenter is employed to make repairs and alterations to the satisfac- tion of his employer, to be paid ac- cording to the amount of the work done by the carpenter and the men he employs, it would seem to be a, rea- sonable inference tliat the employer re- tains the right to direct the manner in which the carpenter should do the work. . . . But the fundamental question in the present case seems to us not precisely that considered in Linnehcm v. Rollins (1884) 137 Mass. 123, 50 Am. Rep. 287, nor whether Johnson was independent of the de- fendant in the manner of doing the work, but whether the relation between the plaintiff and defendant, as shown by the evidence, was that of employer and employee. Could the plaintiff have recovered his wages of the defendant if they had not been paid by Johnson ? Did Johnson hire the plaintiff on hi9 own account, or as an agent for the defendant? . . We are of opinion that the only reasonable inference to be drawn from the evidence in the exceptions is that the plaintiff was an employee of Johnson, and not of the defendant, within the meaning of Stat. 1887, chap. 270, and of the amendments to that statute. It does not appear that Johnson was authorized to hire workmen on account of the defendant, or that the workmen hired by John- son ever understood that they were to be paid by the defendant, or that the defendant or Johnson so understood. The fact that the defendant retained the right to decide how work should he dons on its premises does not of itself make the workmen employed hy Johnson employees of the defendant. Apparently Johnson employed whom he pleased, and directed the men em- ployed by him in the performance of their work, whether upon the premises of the defendant or upon other prem- ises where he might be doing work. On the evidence, we do not think that thfr jury could properly find that the rela- tion of employee and employer existed between the parties." If the word "employees" in the passage which we have italicized is equivalent to "serv- ants," — and, having regard to the pur- pose of the statute, this is indubitably its meaning, — the doctrine here enun- ciated is contrary both to principle and. to the weight of authority. §§ 41,42] EXISTENCE OF RELATION— WHEN INFERRED. 127 meaningless and ineffectual. And if the principal possesses this right as regards the contractor's servants, the legal relationship between him and them is manifestly that of master and servant, and is there- fore one which comes within the purview of the statute in question, which is iildisputably applicable to that relationship. 41. Constructive service, as predicated from the incidence of non- delegable obligations upon the principal employer. — The general rule that the employer of an independent contractor is not liable for an injury resulting to a third person from a tortious act committed by himself or his servants is subject to three exceptions, viz., (1) where the injury was the direct result of the stipulated work; (2) where that work was intrinsically dangerous, and the injury was a conse- quence of the failure of the contractor to take appropriate precau- tions; (3) where the injury was caused by the nonperformance of an absolute duty owed by the employer to the complainant, individu- ally or to the class of persons to which he belongs.^ It follows that, in any of these situations, the servants of the in- dependent contractor are in effect the servants of the principal em- ployer. 41a. Relation of servants of a bailee to the bailor. — The servants of a bailee are not servants of a bailor in such a sense that the bailor is liable for injury caused to a third person by their negligence.^ 42. Servants of railway companies nsing the same premises. — The cases which have turned upon the position of servants engaged in per- forming work upon premises iised by two or more companies in the operation of their trains are divisible into the following classes : (1) Those in which it was held that the effect of the arrangements between the companies was such as to render them joint masters of the person whose position was in question.^ 1 The decisions relating to these sit- operating a system of lines, and they nations are very numerous; but, as all contribute towards the payment of they do not properly fall within the his wages, such wages constitute a part scope of a treatise which deals merely of tne running expenses, and the asso- with the relation of master and serv- ciation owes to each of its employees ant, it will he sufficient to refer the the duty of seeing that the track which reader to §§ 43-68 of a monograph pub- is used by him in their joint service is lished by the author in vol. 41 of the safe and in good repair; and for a Canada Law Journal, pp. 51 et seq., breach of that duty the companies are and in 65 L R A. 621. jointlv and severally liable. Wisconsin I yew York, L. E. d W. R. Co. v. 'Ct. R. Co. v. Ross (1892) 142, 111. 9, 34 New Jersey Electric R. Co. (1897) 60 Am. St. Rep. 49, 31 N. L. 412. N. J. L. 338, 43 L.R.A. 849, 38 Atl. Two railway companies jointly oper- 828, affirmed in (1897) 61 N. J. L. ating a road under one superintendent 287, 43 L.R.A. 854, 41 Atl. 1116. are jointly and severally liable for in- 1 Where a railway employee is em- juries to a fireman employed by one ployed by an association of companies of them, caused by the negligence of 128 MASTER AND SERVANT. [CHAP. II. (2) Those in wliidi tlie conclusion that the person whose position was in question was in the separate service of one of the companies such superintendent in not maintaining a safety switch on a side track on a steep down grade, and of an engineer of the company not employing the fire- man, in running liis engine against cars on such side traclc, and causing them to run on to the main track, and, after proceeding down a mountain grade for some distance, to run against the train on which such fireman was employed. Galveston, H. t£- S. A. R. Co, v. Cros- hell (1804) 6 Tex. Civ. App. 160, 25 S. W. 486. A contract between the L. R. Co. and the 0. R. Co., for the use by the C. Co., in common with the L. Co., of a part of the L. Co.'s track, provid- ed that the L. Co. should maintain that part of its road in good condition, but that the cost of maintenance should be charged to joint account. It was fur- ther provided that all persons em- ployed in the maintenance or care or operation of the property jointly used should, "in respect of the liability of the parties using said line, to each other or to third persons, growing out of the fault or neglect of such serv- ants or employees, be deemed and held to be the sole servants of the party to or upon or in connection with whose train or property any loss or damage may have occurred." Held, that tlie words "train or property" did not refer to any property in the joint use of both parties, or any property not used in the operation of trains and locomo tives; and therefore workmen employed on a hand car owned by the L. Co., but at the time being used in the work of maintaining and repairing the road- bed, were the joint servants of the two companies. Louisville & 'S . R. Co. v. Chesapeake & O. R. Co. (1899) 107 Ky. 191, 53 S. VV. 277. The court said: "Practically everything con- nected with the line, from one end of it to the other, was regarded as held, owned, and managed in common, ex- cept the trains and property of either party, used in running and operating the road. . . . If a crew in charge of a hand car, whilst engaged in re- pairing the road, and therefore in the joint service of both parties, negligent- ly cause damages and loss in connec- tion with a train of the first party, the loss is that of the first party; but, if in connection with a train of the sec- ond party, the loss is that of the second party. But, if the crew, the joint servants of both, while engaged in the maintenance and repair, derail the hand car, and cause loss or damage to per- son or property, the loss is chargeable to the cost of maintenance." In an action to recover damages for the death of a section foreman, who \vR3 run over by a train on a track used by two companies, an instruction is correct which declares that, "if the jury are satisfied that the employees of both roads were engaged and co- operating in running the cars, and jointly controlling them, the companies are both liable." Nashville & C- R. Co. V. Curroll (1871) 6 Heisk. 347 (train was run by engineer and brake- man in employ of one company, and conductor in employ of the other ) . A was employed as a delivery clerk at a railway station belonging to four diiferent companies, and maintained out of a joint fund. He was appointed and liable to be dismissed by a manag- ing committee composed of directors of the several companies. His duty was to deliver parcels which arrived at the station by the trains of the dif- ferent companies, and to pay over the money which he received to the chief clerk of the parcels office, by whom it was paid over to the cashier, who kept a separate account for each company, and paid over to each company the amount received for parcels carried by each. The chief clerk and cashier were apoointed by the committee. Loss by negligence or embezzlement of a sta- tion servant was usually made good to the particular company out of the gen- eral station funds. An indictment for embezzlement charged him, in one count as the servant of the one com- pany whose money he had embezzled; in another, as the servant of the four companies; in a third, as the servant of the committee; and in a fourth, as the servant of the station manager. Held, that at all events he was rightly charged as the servant of the four com- panies. Reg. V. Bailey (1886) 7 Cox, C. C. 179. One who is employed as switchman. S 42] EXISTEXCE OF RELATION— WHEN INFERRED. 129 in a yard used by two companies, for contract. That relation between him both of which he performs services, and the other companies arises by in- a,nd each of which pays him wages, ferenee from the service and the con- is in the joint service of both, and has nection of the companies inter se. his election to hold one or both of them . . . But it is insisted that the ap- responsible for the negligence of either, pellant was not the plaintiff's master The mere fact that he actually receives at the time of the injury. The plain- his wages from one of the companies is tiflf was doing what the appellant em- immaterial. Vary v. Burlington, C. R. ployed him to do. The master cannot c6 M. R. Co. (1875) 42 Iowa, 246. escape his liability by fixing liability Proof that a railway track or yard upon another. Both are charged. But, is used indiscriminately by several under the facts presented in this record, ■companies, and that the employees have the plaintiff was the servant of all the at different times within a few weeks companies interested in the union yard. -of the accident in question been paid Each of them owed him the duty of a by each of the companies, raises a fair master. The duty and liability would inference, where the contract between be delusive, if at one moment the em- the companies is not put in evidence ployee was the servant of one, at an- and there is no proof of its particular other the servant of another; here, in nature, that they all contribute joint- the care of one, and there, of another; ly to keeping it in repair, so as to as to the track, dependent upon one render one company liable for the death company, as to the cars, upon another, •of a switchman in the employ of an- as to the movement of the engine, upon other company, caused by the negli- a third. The policy which requires of gence of the track foreman in failing the master ordinary care would be to keep the track in repair. Missouri practically without sanction, if the P. R. Co. V. Bond (1893) 2 Tex. Civ. servant's remedy was hidden in such App. 104, 20 S. W. 930. a labyrinth." Where a servant is injured while In Crwij/ v. Erie R. Go. (1874) 3 performing his duty in a union yard Thomp. & C. 244, it was laid down that kept and used by three companies in where an employee of a railway corn- common, if the injuries resulted from pany is engaged in inspecting the cars the negligence of either company, all of a connecting railway company, upon are liable jointly and severally. Gulf, its premises, he acts either as the em- ■G. & 8. F. R. Go. V. Dorsey (1886) 66 ployee of his own or the common em- Tex. 148, 18 S. W. 444. "Each de- ployee of both companies. In either fendant,"'said the court, "was a party ease he assumes all risks incident to to the negligence of the other. If his employment, and cannot recover cither could relieve itself of the duty for an injury caused by the negligent by a contract that the other should operation of one of the connecting put and keep in proper condition the company's trains. This is certainly far track where plaintiff was injured, no too broad a position, as it takes into such contract was proved. Under the account neither the possibility that the evidence, the track was the track of duty of the companies to see that his appellant as well as the track of the place of work was safe was not fulfilled, other defendant. It was defective, and "or the possibility that the two com- at least partly caused the plaintiff's panics were entirely disconnected, and injury. But if the track was safe, and that each owed to the servants of the the injury was caused solely by defects other the same duty of care that it in the cars of the other defendant, then owed to strangers. (See the cases cited . . . both defendants were liable, in the next subdivision of this note.) . . . The appellant is the last of Where a switching crew employed to -the three masters that could escape do yard work for one railroad, and liability. It hired the plaintiff; its paid by it, performed similar services yard master directed his labors. Be- at a connecting point for defendant, twixt it and him the relation of mas- who paid the other company one half ter and servant was created by express the cost, and there was no evidence of M. & S. Vol. I.— 9. 130 MASTER AND SERVANT. [CHAP. II. was drawn for tlie reason that there was no evidence to show that he was subject to the control of any other employer.' the terms of the contract between the two companies, concerning their joint business at that point, the crew were lield to be equally the servants of both companies, so as to render the defend- ant liable for their acts to the same lixtent as if it had employed them. Gulf, G. & S. F. R. Co. V. Shelton (1003) 96 Tex. 301, 72 S. W. 165, af- firming (1902) — Tex. Civ. App. — , 70 S. W. 359, following the Dorsey Case, supra. Where there is proof in an action against two railway companies, that an agent, guilty of negligence, was em- ployed and paid by both companies, and operated a semaphore or signal in the interest or service of both com- panies, it is proper to refuse an in- struction that such agent was not the agent of one of the companies, but of the other company. Chi-oaffo & N. W. R. Co. V. Snyder (1889) 128 111. 655, 21 N. E. 520. In Louisville, E. & St. L. R. Co. v. Illinois G. R. Go. (1906) 29 Ky. L. Rep. "265, 93 S. W. 4, a contract be- tween plaintiff and defendant gave plaintiff the right to use defendant's tracks in a city for a certain compen- sation, and provided that each party should alone be responsible for all loss or damage caused by the fault of any employees or servants acting in its be- half. _ It was further provided that certain employees, including flagmen, should be selected, hired, and dis- charged by defendant; but plaintiff was required to pay a certain portion of their compensation. Held, that the flagmen were acting not only for de- fendant, but "in behalf of plaintiff," within the meaning of the contract, and consequently that plaintiff was not entitled to recover from defendant for damages caused by the negligence of a flagman. Where the question was as to the right of removing the case to a Fed- eral court, it was held that a receiver of a railroad company, and another company operating jointly with him certain tracks, were properly joined in an action for injuries caused by the negligence of an employee of both of them, in charge of an engine upon such tracks. Landers v. Felton (1896) 73 Fed. 311. Jn Kain v. Smith (1880) 80 N. Y. 458, it was held that the liability of the receiver and the other railway com- pany, under such circumstances, is joint, as well as several, as respects a serv- ant injured by defective machine. For several cases in which a joint employment was predicated on the ground that one of the companies had accepted the benefit of certain work performed by a person hired by^ an- other company, see § 22, note 1, ante^ 2 The mere fact that a railway com- pany has running powers over another company's line does not make the men on a train which is being operated in pursuance of such powers the fellow servants of a station master in the employ of the company owning the line. AdoMis v. Glasgow <& S. W. R.. Co. (1875) 3 Sc. Sess. Cas. 4th series, 215. In Phillips v. Chicago, M. & St. P. R. Co. (1885) 64 Wis. 475, 25 N. W. 544, it was held that coservice as be- tween the servants of the licensor and licensee companies could not be predi- cated from the fact that the servants of the latter company were bound to obey the rules of the former with regard to the operation of the road. That a railroad company operating its trains over the tracks of another, in accordance with the orders of the superintendent or train despatcher of the latter, is responsible for the conduct of its employees in the management of its trains, was held in Chicago, R. I. &. P. R. Co. V. Posten (1898) 59 Kan. 449, 53 Pac. 465. A complaint averring that the defend- ant railroad company ran its cars and locomotives over the track of another company for a long time does not raise a presumption that the owner of the road had the right to direct the defend- ant's train operatives, although there is no allegation of a contract between the companies. Cleveland, G. G. & St. L. R. Co. V. Berry (1899) 152 Ind. 607, 46 L.R.A. 33, 53 N. E. 415. § 42] EXISTENCE OF EELATIOX— WHEN INFERRED. 131 (3) Those in which the ratio decidendi was that, at the time when the event upon which the alleged cause of action was founded, the Under a contract providing that the a fellow servant of u switchman in the conductors of coal trains running over employ of the licensor. Grover, ,!.. another company's line shall be under said: "The presumption from the facts the control and subject to the orders of this case is that the defendant, for of the superintendent of the licensor, a compensation therefor, gave the N. Y. and that the coal trains are to be on & N. H. Co. the right of running trains the time-tables of the licensor, the °^'^.^ ^^^ tracks, and agreed to provide business of each remains entirely sepa- switchmen and flagmen to attend upon rate, and the men on the coal trains such trains, the switchmen and flag- are not in defendant's employ or in its ™''" furnished by the defendant for tin. business. This situation is not affected TZ^VT Tm^^h'T r ^V'^'l^" 1 J.V, i i. ii- J. i.1, .01 the jN. Y. & N. H. R. Co. Ihe de- by the fact that the same person is fena^^t would be liable to that corn- general manager of both roads, and pany for their negligence. This case one person is superintendent of both does not, therefore, come within anv on the division on which the injury of the adjudged cases establishing the was received; nor by the fact that the . . . rule [as to coservice]. I think superintendent sometimes discharged it is not embraced by any of the reasons delinquent employees on coal trains, and upon which it is founded. One is to put others in their places, where it also secure vigilance and care by each serv- appears that this was only done when ant in the discharge of his duty to his the men had violated the rules of the employer. Whatever importance may road, and the occasion had arisen while *"= attached to this is inapplicable to the train was on his division. Tierney t'"^ case. Another is to protect the V. Syracuse, B. d N. Y. R. Co. (1895) empWer from the great hazards to 85 Hun, 146, 32 N. Y. Supp. 627. T i f ■ i' ^°f^ °ll^?\T ^^P°^^'i = „' ' _ ^, , i „ n ^ ^"'i still another, that the servant may In 8aimjer v. Rutland & B. R. Co. provide against risks of this character (1855) 27 Vt. 370, where the evidence by his contract. This case does not was inconsistent with the theory that fall within either. The deceased was as the servants of the licensor and licensee much a stranger to the defendant as companies were fellow servants, either any passenger in the train run by him, normally or pro hac vice, the licensor and, I think, entitled equally with them was held to be liable for injuries which to protection against the negligence of the negligence of one of its switchmen the defendant or its servants." Selden. had caused to a servant on one of the J., gave his opinion as follows: "It is trains of the licensee. The decision obvious that this doctrine has no ap- proceeded upon the ground that, under plication whatever to the case. The such circumstances, the servants oper- rule applies only where the action is ating the licensee's trains are in the brought for an injurv to a servant or position of members of the community agent against the principal by whom generally. "It was the duty of the such servant was himself employed, defendants ... to keep their road There is no pretense that the deceased in a safe and proper condition for use, v!a.a in the employment of the N. 1'. and to exercise that care in the manag?- & H. R. Co., against whom this action ment of the switch that was necessary is brought. If the defendants are right, to prevent any injury arising from that then both he and the switch tender source. That duty is imposed upon the whose negligence caused the injury were defendants at common law, and it arises, servants of the N. Y. & N. H. R. Co., not from the contract of the parties, and not of the defendants. Had the but from the acceptance of their char- action been against that company, the ter, and from the character of the serv- question as to the applicability of the ices they have assumed to perform." doctrine referred to might arise, but In Smith, v. 'New York & H. R. Co. here it cannot. As between the de- (1859) 19 N. Y. 127, 75 Am. Dec. ceased and the defendants, no such re- 305, it was held that an engineer upon lation as that of master and servant the train of a licensee company is not existed. The question between them, 132 MASTER AND SERVANT. [chap. ii. tlierefore, is the same as if the deceased N. Y. L. E. & W. company, who, in had been a passenger upon the train to matters relating to the maintenance of which the accident occurred, and the property, should be under the exclusive defendants can only succeed by show- direction of the latter company. The ing that the switch tender was not, contract further provided that, as the at the time of the accident, their serv- employees conducting the business, were !>,nt, in such a, sense as to render them joint employees, and were paid by each responsible to any third person for his party in proportion to the business done negligence. . . The act of March by it, it was agreed that each party 29, 1848, authorizes the N. Y. & N. H. should be responsible for the acts of R. Co. to run their cars upon a section such joint employees when engaged in of the defendants' road, upon such that party's business; and, finally, that terms as may be agreed upon between the N. Y. L. E. & W. Co. should incur the two companies. The precise nature no additional responsibility from the of the arrangement made pursuant to fact that such employees were hired or this statute does not appear. But it paid by it. In an action brought against is shown that all the switchmen and the defendant by an engineer employed flagmen who attended to the trains of by the P. P. & B. R. Co. to recover dam- the N. Y. & N. H. R. Co. upon that sec- ages for injuries caused by the negli- tion of the defendants' road were em- gence of a switchman in regard to the ployed by the defendants; from which maintenance of a switch, it was held it is to be inferred that the contract that the switchman was not the serv- between the two companies was such ant of both companies. The court said: that the N. Y. & N. H. R. Co. had "He was hired and paid by the defend- nothing to do with the selection and ant, and was under the exclusive direc- payment of this class of employees. Of tion of its superintendent. The P. P. & course, therefore, as between that com- B. Co. had no voice in his selection, and pany and the defendants, the latter could neither discharge him nor direct would be responsible for the character him in his work. The provision of the and conduct of such employees, who, contract, that each company should be under such circumstances, must be re- responsible for the acts of the employees garded as, to all intents and purposes, only when engaged in such company's their servants and agents, and not those business, had no relevancy to the ac- of the N. H. Co., between whom and the cident to the plaintiff. The P. P. & B. employees no privity of contract what- Co. had no control over the maintenance ever existed. If, then, there was noth- of the road. That duty devolved, under ing in the relations of these two com- the contract, solely upon the defendant, panics to prevent the defendants from The sole right which the P. P. & B. Co. being liable directly to the N. H. Co. had was a right to use the tracks. The for the negligence of this class of control of the road, and the maintenance agents, much less can they exempt of the tracks, and their charge and themselves from responsibility to third control, remained in the defendant. The persons." switchman was its servant; and for The N. Y. L. E. & W. R. Co., lessee damages resulting from his negligence of the G. & D. railroad, granted to the the defendant was liable." Sirader v. P. P. & B. R. Co. the right to use 'New York, L. E. & W. R. Co. (1895) the railroad track of the G. & D. road 86 Hun, 613, 33 N. Y. Supp. 761. jointly with the N. Y. L. E. & W. road. To the same effect, see Snow v. Housa- under an agreement which provided that tonio R. Co. (1864) 8 Allen, 441, 85 during its continuance the P. P. & B. Am. Dec. 720, referring to a case put R. Co. should pay the N. Y. L. E. & W. by way of illustration in Farwell v. a stipulated proportion of the rental Boston d W. R. Corp. (1842) 4 Met. of the G. & D. road, and of the expense 49, 38 Am. Dec. 339; Re Central Ver- of maintaining the tracks, bridges, and mont R. Co. (1881) 54 Vt. 200; Cata- property used jointly, including the wissa R. Co. v. Armstrong (1865) 49 wages of yard master, switchmen, train Pa. 186. (The act of 1868, to be re- despatchers, flagmen, and other serv- ferred to hereafter, was passed in con- ants; that the railroads and premises sequence of the last-cited decision), included under the agreement should See § 50, post. be maintained and operated under the A flagman employed by a railroad control of the superintendent of the company — whose tracks in a city were § 42] EXISTENCE OF RELATION— WHEN INFERRED. 133 used by other companies — to give sig- referred to, cites the eases of Gulf, C. nals at a crossing for the convenience c£ 8. F. R. Go. v. Dorsey (1886) 66 of the trains of all companies so using Tex. 148, 18 S. W. 444 (see last note) the track was held not to be a fellow and Missouri P. R. Co. v. Jones (1889) servant of an engineer operating a 75 Tex. 151, 16 Am. St. Rep. 879, V2 train for one of the various companies S. W. 972. We think both these cases using the tracks of the flagman's em- clearly distinguishable from the present ployer; the reason assigned being that case. There the plaintiff was engaged he received his orders from, and was in the general service of both the rail- answerable to, his own employer alone, way companies involved. Here the Erickson v. Kansas City, 0. & 8. R. plaintiff was the servant only of the Co. (1903) 171 Mo. 647, 71 S. W. 1022. receivers of the Missouri. Kansas, & A railroad company operating its Texas Railway Company. While the trains over the tracks of another com- track on which appellee was operating pany is not liable for any dereliction the train of the receivers was jointly of duty on the part of a crossing watch- used by them and the appellant, the man in the sole control of the lessor plaintiff was in no sense the servant road, in failing to shut down gates or of appellant. No contract, express or give necessary warning of danger. Wills implied, was shown to exist, by which, v. Atchison, T. & 8. F. R. Go. (1908) as a servant, he owed it any duty what- 133 Mo. App. 625, 113 S. W. 713. ever. He was held to obey the orders Where a street crosses several paral- of the train despatcher of the appellant, lei tracks owned by different companies, not because the train despatcher was one of whom by mutual agreement, em- the employee of the appellant, but be- ploys and pays a flagman whose duty cause by arrangement between the ap- it is to warn travelers of the approach pellant and the receivers Mr. Polhemus of the trains of any of the companies, became their train despatcher also. The his employer is the proper party defend- plaintiff, in receiving orders from the ant in an action to recover damages train despatcher mentioned, is presumed for his negligence in signaling, although to have been acting in obedience to the the train which caused the injury was command of the receivers, between one belonging to another company, whom, and himself alone a contractual Biichanan v. Chicago, M. & 8t. P. R. relation Is shown to have existed." Go. (1888) 75 Iowa, 393, 39 N. W. In Hydell v. Toledo & 0. C. R. Go. 663. (1906) 74 Ohio St. 138, 77 N. E. In Texas & P. R. Co. v. Easton (1893) 1066, where the T. R. Co., desiring to 2 Tex. Civ. App. 378, 21 S. W. 575, cross the tracks of the P. Co., entered it was held that an engineer in the into a written agreement whereby the employ of one railway company was not right to cross was obtained for an a fellow servant of an engineer in the agreed consideration and the perfor- employ of another company owning a mance by the T. Co. of a covenant that joint track used by both companies and it would construct all crossing frogs operated under the orders of the lat- and other fixtures necessary to make- ter company's despatcher and superin- the crossing, and maintain the same ; tendent, so as to prevent his recovery and of the further covenant that it for injuries due to the negligence of would erect, maintain, and operate an the latter company's engineer in disre- interlocking system which should be garding an order of the despatcher as satisfactory to the signal engineer of to where to meet the injured engineer's the P. Co. and under the operation of train. The court said : "The fact which trains of either party might be- that the plaintiff was subject to the permitted, under the laws of the state, orders of his masters, the receivers, to pass over said crossing without eom- and by virtue thereof to the control ing to a stop. In compliance with these of the superintendent or despatcher of provisions the T. Co. constructed the the Texas & Pacific Railway Company, crossing, established and maintained an indicates that such superintendent was, interlocking system, which included a pro Rao vice, the representative of the tower from which to operate the signals receivers, rather than that the plain- for trains on both roads, and also a tiff was the servant of the Texas & derailing device. It employed, paid, and Pacific Railway Company. The appel- controlled the towerma;i to operate said lant, in support of tlie proposition interlocking system, having the sole 134 MASTER AXD SERVANT. [chap. n. right to command and discharge him. awaited a signal from an officer of the On one occasion the signals indicating London & Northwestern Railway Com- a clear line were continued until a pany before he shunted the train into freight train on the road of the P. Co. the siding; but without doing so, and was so near the crossing that it without any signal at all, he shunted could not be stopped before reaching the train, and negligently caused the the same. Then the towerman sud- injury in question to the plaintiff. It denly changed the signals and opened was contended that under the circum- the derail, thereby derailing and wreck- stances the plaintiff and the engine ing the engine and a number of cars, driver must be taken to have been in which wreck the fireman was injured, servants engaged under one master, in Held, that on such facts the T. Co. one common employment. The conten- is liable in damages to the fireman for tion did not prevail, the court saying: the injuries sustained by reason of the "We are of opinion that, inasmuch as negligent acts of the towerman. the injury sustained by the plaintiff A station or track used in common was occasioned by the servant of the de- liy two chartered companies, though be- fendants, not in the courts of any com- longing to one of them exclusively, may mon employment or operation under the be considered as belonging to each rel- same master, but by negligence in the atively to its own operation and busi- discharge of his ordinary duty to the iiess. Each must protect its own pas- defendants alone, this ease is distin- sengers from the other's negligence, so guishable from all which have been de- long as the passengers are in their cided in relation to the above doctrine proper places, but not when they are of exemption, and that therefore this not in their proper places. Central R. action is maintainable." <.G Blcg. Co. V. Perry (1877) 58 Ga. The fact that there is a "joint station 461. staflf," and that the servant belongs In Vose V. Lancashire & Y. R. Co. to it, is not conclusive evidence that he (1858) 2 Hurlst. & N. 728, 27 L. J. is the servant of both companies which Exch. N. S. 249, 4 Jur. N. S. 364, a are using the station. This doctrine car repairer in the separate service of was established by the carefully con- one company was allowed to recover sidered case of Swainson v. North-East- damages from the other company for em R. Go. (1878) L. R. 3 Exch. Div. injuries caused by its failure to give 342, 47 L. J. Exch. N. S. 372, 38 L. T. proper directions to its servants in re- N. S. 201, 26 Week. Rep. 413, revers- gard to the movement of its trains, ing (1877) 37 L. T. N. S. 102, 25 Week. The case was deemed to be one in which Rep. 676. The circumstances, as stated the defense of common employment was by Pollock, B., were as follows: not available. "Two railway stations, the one belong- In Warburton v. Great Western R. ing to the Great Northern Railway Com- Co. (1866) L. R. 2 Exch. 30, 36 L. J. pany, and the other to the North Exch. N. S. 9, 15 L. T. N. S. 361, 15 Eastern Railway Company, abutted up- Week. Rep. 108, 4 Hurlst. & C. 695, on each other and were approached by the plaintiff was a servant in the em- lines of rail, two of which belonged ploy of the London & Northwestern to these companies, the entrances to or Railway Company, and was at work exit from the station being governed at the Victoria Station, in Manchester, by signals and points, which were when an engine-driver in the employ worked by signalmen whose duty was of the defendants, the Great Western common to both stations. The deceased Railway Company, having entered the man Swainson was one of these signal- station, shunted a train belonging to men. . . . He was engaged and paid the defendants from one part of the by the Great Northern Railway Com- station to another, and in so doing was pany, and wore their uniform, and guilty of the negligence complained of. was not made aware at the time of The station was the property of the his appointment that he was a joint London & Northwestern Railway Com- servant; but in fact his duty was to pany, and was used in common by the attend to the North-Eastern trains as plaintiff's employers, and the defend- well as the Great Northern, as to points ants, and other companies. By an and signals, when any engines or trucks agreement between these companies, the had to be transferred from the rails defendants' engine driver ought to have of one company to those of the other; § 42] EXISTENCE OF RELATION— WHEN INFERRED. 135 as between the two companies Swainson liowever, was taken by tlie court of ap- was one of what was called the 'joint peal. "The defendants," said Bram- station staff,' all of whom were engaged well, L. J., ''were not in any manner and paid by the Great Northern Rail- the masters of Swainson; it is true way Company. The cost of their that he was one of the joint station salaries was treated as a joint charge staff; and he was bound to discharge and borne equally by the two companies; some duties for their benefit; but they and when Swainson received his wages could give him orders only by permis- at the end of each week, he signed a sion of the Great Northern Railway pay sheet which was headed 'Great Company. Again, could the defendants Northern Railway Traffic Department have sustained an action against Swain- Pay Bill, Joint Station Staff.' . . . son for incompetence in the discharge Swainson, in the discharge of his duty, of his duties whereby they suffered dam- was standing on foot space between the age? It is plain they could not. It Great Northern arrival and the North- may seem strange that, if there had Eastern departure lines. A North-East- been a partnership between the defend- ern engine came towards the station ants and the Great Northern Railway on the Great Northern arrival rails Company, as to the business carried on with some Great Northern coal trucks, at the joint station, neither company and Swainson signaled to the driver would have been liable for the injury to go on to the North-Eastern departure done to their servants, and it may be line. The driver obeyed, and went on argued that the only difference between to that line until he passed some points, a partnership and the mode of conduct- when he reversed his engine and backed ing the business in the present case is out again, having a van before the en- one of form, but the answer is that, gine, which obscured his view of the line, in the case of a partnership, Swainson Swainson was then looking in the other would have been entitled to a remedy direction, watching a train coming against the defendants in the event of from the south, and failing to observe the nonpayment of his wages; and the engine and van coming out, he was though in point of fact this may not struck by the step of the van, knocked have been a great advantage, yet the whose lines were adjacent and parallel decidendi was that a railway company at a crossing for the negligence of a is bound to the exercise of care for the gateman it was observed that, if the safety of all persons while exercising effect of the arrangement between the its franchises, whether on its own line defendant and the company which had or on that of another, hired the gateman were taken to be that When a railroad company sells a the latter company became an inde- ticket for passage over connecting , pendent contractor, charged with the roads, from one point to another, the business of protecting the defendant's trains operated upon the connecting line with- gates, the defendant would lines are regarded for this purpose as still be liable for the gateman's failure the trains of the contracting company; to use due care for the protection of and each of the connecting companies travelers, whether the gates were main- and their employees are to be treated tained in obedience to an order under as the agents and employees of the con- Rev. Laws, chap. Ill, § 192, or in pur- tracting company. XVathins v. Penn- suance of an absolute common-law duty sylvania R. Co. (1892) 21 D. C. 8 (con- to take adequate measures to safeguard tracting company liable for assault by persons having occasion to use the gatekeeper of connecting company), crossing. The liability of the company In Murray v. Lehigh Valley R. Co. in the latter point of view was a legiti- (1895) 66 Conn. 512, 32 L.R.A. 539, 34 mate deduction from the fact that the Atl. 506, the court said: "The case frequent running of railroad trains over shows that, in the use of the portion of a grade crossing on a crowded street track owned by the Central railroad in a great city is a business the neees- company, this defendant was bound by sary effect of which is to expose other its agreement with that company to persons to great danger. obey the orders and signals given by In Wahash, St. L. t& P. R. Co. v, Pey- the servants of that company. The ton (1883) 106 111. 534, 46 Am. Rep. case shows, then, that, to the extent 705, the W. Co. had leased from the of that agreement, and for the purposes C. & W. I. R. Co. the right to run its included in it, this defendant had, by trains over a portion of its road at a the terms of that agreement, made the station used by several companies. The servants of that company its own serv- lessor company retained control of the ants; and, as the case further shows passenger trains of the W. Co. over that that the train on which the plaintiff portion of the track, and, by its serv- was a passenger was upon this portion ants, directed and controlled the trains of track, and was being operated in obe- in going in and out of the depot. The dience to the orders of those persons point raised was whether the W. Co. who, by the agreement, were the serv- was liable for an injury sustained by a ants of this defendant, we think the third person through the negligence of charge was fully justified." In another the servants of the lessor company in part of the opinion it was observed: leaving near the traek a pile of lumber "A railroad corporation is a carrier of § 43] EXISTENCE OF RELATION— WHEN INFERRED. 143 tAveen them as to put their servants in the position of fellow serv- ants.'' jSTor is there any such unity, in fact or legal identity, between a connecting railroad company and a steamboat company, as will ren- der their respective employees servants of a common master, where the two corporations are entirely separate, and distinct fares and freights are charged for the carriage of passengers and goods, al- though each sells tickets over the route of the other, and the money so received is divided between them in a certain ratio.^ Such agree- ments, however, may, under certain circumstances, constitute a part- nership, and whether this is their effect must be determined by the ordinary principles applicable to the contract. The question, there- fore, need not here be considered in detail ; but the cases cited below are worth noting in the present connection.^ passengers by virtue of the franchise granted to it by its charter, — a fran- chise intended for the publio good. By asking for and receiving the fran- chise the corporation comes under the obligation to answer in damages to every- one who may be injured by any neg- ligence in the use of the privilege it has so received. And public policy will not permit the corporation to relieve itself of this obligation by any con- tract with others." See also McElroy V. Nashua £ L. R. Corp. (1849) 4 Gush. 400, 50 Am. Dec. 794, where the defend- ant — a licensee company — was held lia- ble for an injury received by a passen- ger, owing to the negligent management of a switch by the servants of the li- censor. As to the general principle involved in cases of this description, see § 36, ante. A railroad company is not, under the general rule of liability for the negli- gence of parties permitted to use its tracks, liable for negligence of an engi- neer upon a private furnace track which crosses its track. Bunting v. Pennsyl- vania R. Co. (ISgO) 118 Pa. 204, 12 Atl. 448 (no cases cited in the opinion). i Philadelphia , W. & B. R. Co. v. State (1882) 58 Md. 372. In Kowalewska v. A'eic York, L. E. & W. R. Co. (1893) 72 Hun, 611, 25 N. Y. Supp. 184, it was held that an em- ployee of a railroad company, engaged in shoveling coal out of cars of another company, delivered upon the trestle of the former, is not a fellow servant with tlip employees of the latter, engaged in delivering such cars. 2 Carroll v. Minnesota Valley R. Co. (1868) 13 Minn. 30, Gil. 18, 97 Am. Dec. 221. 3 Where the agreement between the owners of two connecting steamboats is simply that, if at the end of the season the net earnings of either shall exceed those of the other, the excels is to be divided, there is no such joint ownership of the earnings as will maki' the owners partners. The claim of either to a share of the profits is a claim against the other personally, — a right to demand that he shall pay over one half of the amount of the excess. Fay V. Davidson (1868) 13 Minn. 523, Gil. 491. On the other hand, the carriers will be liable, where they have a vested in- terest in the earnings before any divi- sion takes place. Connolly v. Davidson (1870) 15 Minn. 519, Gil. 428, 2 Am. Rep. 154. A case on the border line is Cobb v. Abbot (1833) 14 Pick. 289, where the agreement was that one of two proprie- tors of connecting coaches should fur- nish and maintain horses and coaches, and receive the money paid for the transportation of passengers between B. and H., and that the other should do the like between W. and H., and they had hired the driver to drive all the way from B. to W. and back, for a cer- tain sum per month, and perquisites. It was held that they were jointly lia- ble for the value of a package intrusted to an absconding driver in the employ of one of them. "It should seem in the outset," said the court, "that there was but one enterprise, namely, to run a 144 MASTER AND SERVANT. [CIIAP. 11. 44. Servants working on chartered ships; generally. For a full discussion of the effect of charter parties upon the rights and liabili- ties of the shipowner and the charterer the reader will consult works which deal with the law of shipping. But it will be necessary to consider the decisions with regard to those instruments, in so far as they illustrate the subject discussed in the present chapter. Both on principle and on authority it is clear that the fact of a ship's being chartered does not necessarily involve the conclusion that the owner is not liable thereafter as the master of those employed upon it* The authority and liability of shipowners as owners is pre- sumed to continue until they have proved the existence of some con- tract which relieves them from that liability.^ Hence in an action line of stagecoaches from Barre to Wor- cester and back. The contract between the defendants was not a stipulation that one would run coaches one part of the way, if the other would the other part; but it seems to have been a joint undertaking, and the advertisement was of a stagecoach running from Worcester to Barre and back. Each of the defend- ants was at the expense of supporting the line at one end of the route; and if the arrangement had been to divide the profits equally or proportionally, there would have been a partnership, beyond any doubt. Does it make a difference that they divided the profits according as they were earned at each end? The question is not without diffi- culty, but, on the whole, we think they must be considered so far jointly con- cerned as to be jointly liable for this driver's act in this particular instance. They jointly hired him, and for a joint object; and the well-managing of the business at one end of the line was' of importance to the other." The mere fact that one of two part- ners in the business of public carrier over a given route finds the horses and hires and pays the drivers on one of the stages, and the other partner does the like upon the other stage, will not enable cither partner to escape liability for the negligence of the servants of the other. Weyland v. Elhins (1816) Holt, N". P. 227, 1 Starkie, 272. The liability of all the members of an association of carriers, for a loss on any part of the entire route over which it does business, attaches, whether they have or have not any direct interest in the instrumentalities used on that part of the route where the loss occurred. Fairchild v. Slocum (1838) 19 Wend. 329. On the ground that a, traffic arrange- ment under which, for the purpose of obtaining a continuous line, one rail- road company operated the lines of two others, and the payments for freight carried were divided by the three com- panies according to mileage, did not constitute a partnership, it was held that a servant of the operating com- pany was not the servant of the other two companies, and consequently could not maintain an action against them for an injury caused by the negligence of the operating company. Williams v. Kansas City, 8. & (?. R. Co. (1908) 120 La. 870, 45 So. 924. A person sent, for the purpose of see- ing to the unloading and return of cars, with a train which, on permission ob- tained by the shipper, goes over the track of another company, is an em- ployee of the original carrier, and the other company is not liable to him for any injury not caused by a defective track or some negligence on the part of its servants. He cannot recover against that company for an injury occasioned solely by a defect in the trucks of a car belonging to his own employer. Killian v. Augusta Oc K. R. Go. (1887) 79 Ga. 234, 11 Am. St. Rep. 410, 4 S. E. 165. 1 Andei-son v. Boyer ( 1897 ) 13 App. Div. 258, 43 N. Y. Supp. 87. The re- versal of the decision in (1898) 156 N. Y. 93, 50 N. E. 976, does not affect this point. See note 3, infra, and cases cited in this and the following sections. ZHagar v. Clark (1879) 78 N. Y. 45; § 44] EXISTENCE OF RELATION— WHEN INFERRED. 145 against shipowners for damages caused by the negligence of the cap- tain of a chartered ship, the burden is on them to show that the con- tract was such as made the captain the servant of the charterer, and relieved them of liability for his acts.* The liability of a shipowner for claims arising either ex contractu or ex delicto depends upon whether he or the charterer has the possession, command, and navi- gation of the ship. In this respect there is no difference between a ship and any other kind of personal property.* The entire command and possession of a vessel, and consequent control over its navigation and use as an instrumentality for transportation, must be surren- dered to the charterer before he can be held as special owner for the voyages.^ If such a surrender is inferable from the provisions of the charter party, the rule which makes the owner of the ship liable for the proper performance of a contract entered into by the master ceases to be applicable.^ In determining the effect of a given charter party in relation to the respective liabilities of the shipowner and the charterer, the es- sential question to be decided is whether the agreement is one for Hacker v. Young (1833) 6 N. H. 95, 97. See further, on this subject, § 46, post. 3 Anderson v. Boyer ( 1897 ) 13 App. Div. 258, 43 N. Y. Supp. 87. In this case the supreme court considered that there was no evidence going to show that the chartered ship and its crew had been placed by the charter party entirely under the control of the char- terer, and for this reason held that the captain was not a fellow servant of an employee of the charterer, who was sent to take charge of the goods after they had been unloaded. This decision was reversed in (1898) 156 N. Y. 93, 50 N. E. 976, where although the rule stated in the text was not impugned, it was held to be a necessary inference in point of law, that the crew of the char- tered ship had been transferred, for the time being, to the control of the charterer; since the undisputed evi- dence was that the owner of the ship had agreed to furnish it with the crew at a specified price per diem, and that the charterer was to do all the work necessary to carry his goods. This case and those cited in the last two notes seem to be in conflict with an English nisi prius decision, where the defendants were sued as owners of a ship, for nondelivery of the plaintiff's M. & S. Vol. I.— 10. goods; but it appeared from the evi- dence that the vessel had been char- tered for the voyage. Lord Kenyon nonsuited the plaintiff, holding that, as no express contract was proved with the defendants, the charterers were, for that voyage, to be deemed the owners; and that the captain was their agent pro hoc vice, the liability being shifted by the charter party from the defend- ants to the charterers. James v. Jones, (1799) 3 Esp. 27. If the facts were simply as stated in the report, it is not easy to reconcile this ruling with the more recent English cases cited in this and the ensuing sections. * Somes V. White (1876) 65 Me. 542, 20 Am. Rep. 718. SHagar v. Cla/rlc (1879) 78 N. Y. 45; Searff v. Metcalf (1887) 107 N. Y. 211, 1 Am. St. Rep. 807, 13 N. E. 796; An- derson V. Boyer (1897) 13 App. Div. 258, 43 N. Y. Supp. 87; McDowell v. Homer Ramsdell Transp. Co. (1894) 78 Hun, 228, 28 N. Y. Supp. 821; Emery V. Hersey (1827) 4 Me. 407, 16 Am. Dec. 268; Nelson v. Western Steam Nav. Co. (1909) 52 Wash. 177, 100 Pac. 325; The Phele (1834) 1 Ware, 263, Fed. Cas. No. 11,064. ^Reynolds v. Toppan (1819) 15 Mass. 370, 8 Am. Dec. 110. 146 MASTEK AND SERVANT. [chap. ii. the transportation of a cargo during the period which it covers, or a letting of the whole ship, which substitutes the charterers to all the rights and responsibilities of the owners.' If the general owner re- tains the ship, and contracts to carry a cargo of freight for the voy- age, the charter party is a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal respon- sibility of ownership. But where the freighter hires the possession, command, and navigation of the ship for the voyage, he becomes the owner, and is responsible for the conduct of the master and mari- ners.* Whether the owner or the freighter has the possession, com- -iMcQilvery v. Capen (1856) 7 Gray, Mairsh (1810) 13 East, 238, 2 Campb. 523. 517, decided by Lord Ellenborough when 8 3 Kent, Com. *138. sitting m banco. There Lord EUenbo- "If the charter party let the entire rough uses an expression which I think vessel with a transfer of its command is the right one. He does not speak of and possession and consequent control 'demise,' but of 'control and posses- over its navigation to the charterer, sion.' " Baumvoll Manufactur von he will generally be considered as owner Scheibler v. Oilohrest [1892] 1 Q. B. for the voyage or service stipulated." (C. A.) 253, 259. In the same case On the other hand, "if the charter par- Lopes, L. J., made these remarks: "An- ty let only the use of the vessel, the other proposition which is the result of owner at the same time retaining its the cases is this: If a charter party is command and possession, and control such as to give the charterer possession over its navigation, the charterer is a of the vessel, as well as the right to mere contractor for a designated serv- use her carrying capacity, so that the ice, and the duties and responsibilities vessel is in eflfect let to him, and the of the owner are not changed." Leary master in charge of her is his servant, V. Vn/ited States (1871) 14 Wall. 607, then the owner is not in the position 20 L. ed. 756. of a carrier, either as regards the char- "It seems to me," said Lord Esher, terer or anyone else; and there is no in a recent English case, "that through reason for regarding the master as pre- all the cases it has been assumed that sumptively his agent in contracting the question depends, where other with the shippers. It appears to me things are not in the way, upon this: that Furness here actually parted with Whether the owner has by the charter, the possession and the control of this where there is a. charter, parted with vessel, and, therefore, from this point the whole possession and control of the of view also, cannot be held liable." ship; and to this extent, — that he has It may be observed that the exception given to the charterer a power and right taken by Lord Esher to the use of the independent of him, and without refer- word "demise" in this connection is ence to him, to do what he pleases with somewhat hypercritical. The term has regard to the captain, the crew, and been employed not infrequently by oth- the management and employment of the. er English judges, — e. g., by Field, J., ship. That has been called a letting in Meiklereid v. West (1876) L. E. 1 or a demise of the ship. The right ex- Q. B. Div. 428, and by Lord Herschell, preasion is that it is a parting with in Baumvoll Manufactur von Scheibler the whole possession and control of the v. Furness [1893] A. C. 8. ship; and in such case the captain is "There are . . . two kinds of con- not the captain of the owner, and, if tracts passing under the general name so, he has no authority to bind the own- of charter party, differing from each er by any bill of lading or by any con- other very widely in their nature, their tract. I have said that this appears to provisions, and in their legal effects, me to go through all the cases, and I In one, the owner lets the use of his have pointed out passages in them all, ship to freight, he himself retaining the beginning with the case of Frazer v. legal possession, and being liable to all S 4*] EXISTENCE OF RELATION— WHEN INFERRED. 147 mand, and navigation of the ship is a question to be decided in each instance from the terms of the charter party, which embodies the terms of the contract between them.® It has been held that nothing definite can be inferred from the use of the word "hire," since that the responsibilities of owner. The mas- and the men as he pleased, and to give ter is his agent, and the mariners are orders to the captain and the men, and in his employment, and he is answer- the defendants had no further control able for their conduct. The charterer over them. Afiderson v. Boyer (1897) obtains no right of control over the 13 App. Div. 258, 4.S N. Y. Supp. 87. vessel, but the owner is in fact and in This doctrine was not impugned by the contemplation of law the carrier of court of appeals, though the judgment whatever goods are conveyed in his ship, itself was reversed (1898) 156 N. Y. The charter party is a mere covenant 93, 50 N. E. 976. See note 3, supra. for the transportation of merchandise. In discussing the contention that the or the performance of the service which effect of the English registration acts is stipulated in it. In the other, the was to render a registered owner of a vessel is herself let for hire, and the ship liable for stores furnished to the charterer takes her into his possession, ship by order of the charterer, during It is a contract for a lease of the ves- the charter party, Lord Ellenborough, sel. The owner parts with possession Ch. J., said: "The register acts were and the right of possession, and the hir- passed diverso intuitu; but to say that er has not only the use, but the entire the registered owner, who devests him- control, of the vessel herself. He be- self by the charter party of all control comes the owner during the term of and possession of the vessel for the the contract. He appoints the master time being, in favor of another, who and mariners, and is responsible for has all the use and benefit of it, is still their acts. If goods are taken on liable for stores furnished to the vessel freight, the freight is due to him, and by the order of the captain, during the if, by the barratry or other misconduct time, would be pushing the effect of of the master or crew, the shippers suf- those acts much too far. The question fer a loss, he must answer for it. If is whether the captain, in this instance, he ships his own goods, he is his own who ordered the stores, were or were carrier." Drinkwater v. Tlie Spartan not the servant of the defendant who (1828) 1 Ware, 149, Fed. Cas. No. is sued as owner. And as they did not 4,085. stand at the time, in the relation of Unless the charter party interferes owner and master to each other, the with the general control of the owners captain was not the defendant's servant, they are liable for the negligence of and therefore the latter is not liable the servants they put on board for the for his act." charterer. Fenton v. Duilin Steam A letting of even the entire capacity Packet Co. (1838) 8 Ad. & El. 835, 1 of a ship will not amount to a demise. Perry & D. 103. unless the possession is transferred to Where the effect of the agreement is the charterer. The Erie (1859) 3 Ware, to confer on the hirer the control and 225, Fed. Cas. No. 4,512. possession of the ship for the stipulated * 3 Kent, Com. *138. period, and to place the master and "Whether the possession of a vessel crew under the hirer's orders, the in- passes out of the owner to a charterer ference is that there is a demise of the depends upon no single fact or expres- vessel pro tempore. Goady v. Govern- sion, but upon the whole of the Ian- mew* of Newfoundland, Newfoundl. Rep. guage of the contract, as applicable to (1884-96) 588. its attendant circumstances." Abbott, An instruction is correct which in ef- Shipping, 12th Eng. ed. p. 33. To the feet declares, in a case where a third same eflFect, see Dean v. Hogg (1834) person is suing, that the question to be 10 Bing. 345, 4 Moore & S. 188. dacided is whether the defendants had Mr. Scrutton on Charter Parties, 4th devested themselves of the control of ed. p. 4, note, considers that the modern the boat and the men, so that the char- tendency is against the construction of terer had the right to employ the boat a charter as a demise or a lease, the 148 MASTER AND SERVANT. Jchap. n. is equally appropriate to a contract for services and to a lease. ^'' But there is also some authority for the view that a provision which re- fers to the "use and hire" of the ship should be construed as indicat- ing an intention to demise it.^* The fact that the owners are to re- ceive a proportion of the profits or earnings as compensation for the use of the vessel, instead of a fixed and determinate sum, does not render them liable for supplies or wages. ^* Nor is the fact that the charterer is to pay the running expenses decisive ; for he may do that, and still leave the owner in possession.''' The intention of the parties, being a matter of inference from a written contract, is for the court alone ; but where its provisions are ambiguous, the jury may properly be allowed to determine, from the conduct of the parties while the contract was in process of execution, whether the owner did actually surrender all control over his ship and 14 crew. 45. Servants working on merchant ships under charter. — The au- thorities cited in § 18, ante, show that, as a matter of ultimate an- alysis, the question whether the servants working on a chartered ship were the servants of the owner or of the charterer must always re- solve itself into the question whether the owner or the charterer had the power of controlling them in regard to the manner in which their authority of the older precedents hav- Boyer and his superintendent sought ing been somewhat shaken by recent de- him out, gave instructions to him, gave cisions. him directions what to do and how to 10 Adams v. Homey er (1870) 45 Mo. deal with Schaenawelf, and exercised 545, 100 Am. Dec. 391; Grimherg v. the right to control his movements so ColiPmbia Packers' Asso. (1905) 47 Or. far as to direct what he should do at 258, 114 Am. St. Rep. 927, 83 Pac. 194, certain times and under certain circum- 8 Ann. Cas. 491. stances. Considering that evidence with 11 See the opinion of Thesiger, L. J., the evidence of Boyer as to the contract, as quoted in § 45, note 5, post. the jury were at liberty to find that the i-i Baker v. Buckins (1856) 5 Gray, Boyers had not devested themselves of 596; The Phebe (1834) 1 Ware, 263, all control over the captain and the Fed. Cas. No. 11,064. boat, but still exercised some supervi- 13 Adams v. Eomeyer (1870) 45 Mo. sion over it; and, that being so, the 545, 100 Am. Dec. 391; Grimberg v. jury might have found that the captain Goliimbia Packers' Asso. (1905) 47 Or. was still their servant, and that they 258, 114 Am. St. Rep. 927, 83 Pac. 194, were responsible for his negligence. 8 Ann. Cas. 491. The finding upon that subject, therefore, li Anderson v. Boyer (1897) 13 App. was warranted by the evidence, and it Div. 258, 43 N. Y. Supp. 87. "The evi- was not error for the court to refuse dence," said the court, "shows that the to instruct the jury, as a matter of law, Boyers did exercise some control over that there was no liability on the part the captain while he was carrying these of the defendants." The reversal of goods. The charter, if it may be called this decision in (1898) 156 N. Y. 93, one, was not unlimited. It was to carry 50 N. E. 976, does not, it would seem special goods from one particular place affect the authority of this passage, to another; and it appears that, while See note 3, supra. the captain was engaged in that duty. § 45] EXISTENCE OF RELATION— WHEN INFERRED. 149 work was to be done.^ Speaking generally, it may be said that, in the absence of some special provision which negatives such a conclu- sion,^ the inference is that the party who is to appoint the whole crew, or the captain and officers, is also to exercise control over all the persons engaged in the navigation of the ship during the period 1 "When is the captain the owner's captain? He is the owner's captain if the owner appoints him and exercises authority over him, or has a. right as between themselves to exercise that au- thority over him which an owner has ordinarily to exercise over his captain. I say 'as between themselves,' because the owner may have given a right to the charterer inconsistent with his ex- ercise of that authority. Still, if the captain is the servant of the owner, appointed by him on ordinary terms, the captain cannot say, 'You have no right to order me to do anything; you have transferred that right to someone else.' He cannot say that because he is the owner's servant, and the owner would have a right to dismiss him im- mediately if he did not obey his orders." Baumvoll Manufactur von Scheibler v. Gilohrest [1892] 1 Q. B. (C. A.) 253, per Lord Esher, M. R. That the evidence as to possession or nonpossession of the powers of controll- ing, appointing and dismissing the servants on the ship furnishes the most important of the criteria for determin- ing whether they are the servants of the owner or of the charterer has been recognized in The Great Eastern (1868) L. R. 2 Adm. & Eccl. 88, 17 L. T. N. S. 667, per Sir R. Phillimore, and in Baum- voll Manufactur von Scheibler v. Gil- ohrest [1892] 1 Q. B. (C. A.) 253, per Lopes, L. J. (p. 260). That the shipowner is liable to a stevedore's employee for injuries caused by the negligent handling of the winch in loading a chartered ship, if he re- tains control and furnishes the officers and crew, was laid down in McGough v. Ropner (1898) 87 Fed. 534. Where the charter party contained the provision, "stevedore to be appoint- ed by the charterers, but employed and paid for by owners at current rate," it was held that the stevedore was to be deemed the servant of the shipowner, the word "appointed" being construed as "nominated." Harris v. Best (1892) 7 Asp. Mar. L. Cas. (0. A.) 274. The mere fact that the owner of the ship reserves a right of exercising over the crew, or some particular member of it, a sufficient amount of control to insure that his property shall be prop- erly used, will not put him in the po- sition of their master. Compare § 25, ante. Thus, in Blaikie v. Stemiridge (1859) 6 C. B. N. S. 894, 28 L. J. C. P. N. S. 330, 5 Jur. N. S. 1128, it was held that a stipulation in a charter party that the stevedore was "to be appoint- ed by the charterer, but to be paid by, and to act under, the captain's orders," did not make the stevedore the cap- tain's servant. It was considered that the payment of the stevedore was mere- ly a matter of bargain between the ship- owner and the charterer, and that the meaning of such a provision was that the cargo was to be shipped and stowed by the stevedore at the charterer's ex- pense, and consequently at his risk, but subject to the control of the master on behalf of the shipowner, with a view to protect his interests by securing a proper trim of the ship. On the other hand, the mere fact that the charterer has the power of ordering where the vessel shall go does not make him responsible for the supplies. The Great Eastern (1868) L. R. 2 Adm. & Eccl. 88, 17 L. T. N. S. 667. Compare cases cited in § 25, ante. S Where the charter party does not amount to a demise, and it is expressly provided that the stevedores and other laborers engaged in stowing the cargo, though appointed by the charterer, are to be under the control and direction of the master, they are not the servants of the charterer, and the owner is liable for improper storage. Sack v. Ford (1862) 32 L. J. C. P. N. S. 12, 13 C. B. N. S. 90, 9 Jur. N. S. 750, distinguish- ing Blaikie v. Stembridge (1859) 6 C. B. N. S. 894, 28 L. J. C. P. N. S. 330, 5 Jur. N. S. 1128. See note 1, supra. 150 MASTER AND SERVANT. [chap. n. covered by the charter party.' The rationale of this doctrine is that the fact of the owner's having reserved or parted with the power of appointing the crew indicates that he intended to retain or surren- der that possession of the ship, which, in the nature of the case, he 3 Where the effect of the charter par- the responsibility for the safe delivery ty is that the shipowner is to supply of the cargo, saving such losses as the master and seamen, and to have might arise from excepted perils, rest- through them the management of the ed upon them. navigation, they must be treated as In a case where the charterer agreed his servants, not only as between him to "charter and hire," the shi'p, but the and third persons, but as between him owners, provided the master and the and a shipper. Omoa & C. Coal & I. Go. mates, while the charterer engaged to V. Huntley (1877) L. R. 2 C. P. Div. employ the crew, the natural inference 464, 37 L. T. N. S. 184, 25 Week. Rep. was held to be that the owners retained 675. control of the navigation of the ship It was remarked by Littledale, J., through the master and mates. Grim- arguendo, in Laugher v. Pointer (1826) berg v. Columbia Packers' Asso. (1905) 5 Barn. & C. 547: "If a man charters a 47 Or. 258, 114 Am. St. Rep. 927, 83 ship for a voyage or for time, and the Pac. 194, 8 Ann. Cas. 491. master and mariners are appointed by In Multnomah County v. Willamette the owner, this ship is employed for the Tounng Co. ( 1907 ) 49 Or. 204, 89 Pac. benefit and for transacting the business 389, a mere contract of affreightment of the charterer, just the same as if he and not a demise was held to be in- had a ship of his own employed in the dieted by a charter party, under which same service; and it might be said that the owners agreed to let the vessel, he deputes to the owner the selection of "with a full complement of ofBcers, the master and mariners; but in such seamen, engineers and firemen, and in a case the law has never considered the every way fitted for the service, to charterer liable to third persons for the trade" between such ports as the char- negligence of the master and mariners." terer might direct. The general rule is that, although the A master appointed for a vessel by owner lets the whole capacity of the charterers, to whom the possession and ship, yet, if he appoints the master and control of the vessel have been trans- crew, it is not a demise of the ship, but ferred, acts as the servant or agent of a contract of affreightment. The Erie the charterers, instead of the real owner (1859) 3 Ware, 225, Fed. Cas. No. of the vessel in procuring supplies 4,512. therefor, even though he may have been It has been held that, where a person previously appointed master by such to whom a barge was lent navigates it owner. The David Wallace v. Bain with his own men, the owner of the ( 1903 ) 8 Can. Exch. 205. barge is not liable for their negligence. Where the owners appoint the officers Scott V. Scott (1818) 2 Starkie, 438. and crew and retain control, they re- in Cuddy V. Horn (1881) 46 Mich, main liable to all the ordinary re- 596, 41 Am. Rep. 178, 10 N. W. 32, the sponsibilities of owners. The Terrier passengers on a steam yacht chartered (1896) 73 Fed. 265. Here the inclu- for their use, but not under their con- sion in the contract of a stipulation trol in matters of navigation, were held that the charters were to have the to have a right of action against its privilege of sending a supercargo on the owners for injuries caused them by the vessel was relied upon as a corrobora- negligent management of the ofBcers tive element. Such a stipulation was placed in charge of the yacht by the deemed entirely inconsistent with the owners. notion that they were to become the In Slark v. Brown (1852) 7 La. Ann. owners pro hac vice. The court ex- 337, it was held that the possession, pressed the opinion that, whatever the command, and navigation of the ship terms of the charter, the ship itself remained in the owners, through the would be liable for the torts of its master and mariners appointed and crew. The authority relied on was paid by them; and consequently that Sherlock v. Ailing (1876) 93 U. S. 99, § 45] EXISTENCE OF RELATION— WHEN INFERRED. 151 can exercise through them alone ; the ultimate issue in every case be- ing, Which of the two parties to the contract had possession and care of the vessel by his servants, at the time the injury was inflicted? * In practice, however, the rights and liabilities of the parties are sel- dom gauged by this test alone. The omission or insertion of a clause relating to the appointment of the crew is in fact merely one of the several elements which bear upon the question whether the ship was or was not demised in the sense explained in § 44, note 8, ante. According as this question receives an affirmative or a negative answer, it will be presumed that the charterer or the owner was to exercise the power of control.^ 23 L. ed. 819, where the court re- transaction between the shipowners marked (p. 108, L. ed. p. 822) that and the defendants, the defendants were by the maritime law "the vessel not, for the purposes of this particular may be prosecuted, without any refer- voyage, put in the position of the ence to the adjustment of responsibili- shipowners: "There are, no doubt, ex- ty between the owners and employees, pressions in the charter party, — for in- for the negligence which resulted in stance, the paragraph which speaks of the injury." This, however, was said the use and hire of the ship, and tlie with regard to the liability of a ship paragraph which speaks of the whole for the negligence of a licensed pilot, of the ship being at the disposal of hired in accordance with the Federal the freighters for the conveyance of statute on that subject. The observa- the goods, — which, taken by themselves, tion plainly has no application to the would seem to involve the idea that the case of an independent contract such as defendants, for the particular voyage, the demise of a ship. were to be put into the position of the The absence of an express provision shipowners; but when the whole docu- that the charterer was to provide the ment is examined, it is apparent that officers and crew was in one case com- that was not the intention of the par- mented upon aa a circumstance which ties. There is one clause in the agree- tended to corroborate the inference ment which distinctly negatives the drawn by the court, that there was no idea that the defendants were to be demise of the ship. Bagar v. Clark put into the position of the shipown- (1879) 78 N. Y. 45. ers. I mean the clause which pro- For a case in which the effect of a vides that the master and owners of clause vesting the power of appoint- the said ship shall give the same at- ment in the owner was held to be over- tention to the crew, and shall in every ridden by the other provisions of the respect be and remain responsible to contract, see The Del Norte (]902) 55 all whom it may concern, as if the C. C. A. 220, 119 Fed. 118, note 5, said ship were loaded on the berth by infra. and for the account of the said own- * See Fenton v. Dublin Steam Packet ers, independently of this agreement; Co. (1838) 8 Ad. & El. 835, 1 Perry and then at nearly the close of the & D. 103. charter party there is a provision 6 (a) Owner held to he in control which, perhaps, taken by itself would of the master and crew. — In Wagstaff not necessarily negative the liability of V. Anderson (1880) L. R. 5 C. P. Div. the defendants as shipowners, but is (C. A.) 171, affirming (1879) L. R. very important in favor of the view 4 C. P. Div. 283, where the master was of the defendants when read with the held not to be the servant or agent of clause to which I have just referred,— the charterers in respect to the sale being the provision 'that the charterers' of goods after condemnation Thesiger, responsibility under this charter party, L. J., thus stated this reasons for except for freight as provided, shall concluding that, aa regards the real cease on the vessel being loaded.' " 152 MASTER AND SERVANT. [CHAP. II. The plaintiffs chartered the defend- ant's ship for the period of twenty-five years, with the option of purchase. By the charter party the charterers were to pay for pilotages, and in the event of loss of time from damage prevent- ing the working of the vessel, the pay- ment of hire was to cease until the vessel should be again in an efficient state to resume her services. The neg- ligence of the pilot, master, mariners, and other servants of the owner was mutually excepted. Owing to the neg- ligence of a pilot the ship grounded in getting to her berth in a harbor. Counsel argued that the effect of the clause providing that the charterers were to pay the pilot made him their servant. This contention was rejected by Mathew, J., and it was held that the charterers were not bound to pay hire during the period that the ship was in dock undergoing repairs. Fraser v. Bee (1901) 49 Week. Rep. (Q. B. Div.) 336. The general owner remains liable, when he is' to appoint and pay the master and crew and provision the ves- sel, is to retain possession of her, and an exclusive possession and right to her cabin and other parts for the ac- commodation of the crew and equipage, and is to receive and deliver the car- goes. The Nathaniel Hooper (1839) 3 Sumn. 542, Fed. Cas. No. 10,032, per Story, J. (salvage case). Compare Reed v. United States (1870) 11 Wall. 591, 20 L. ed. 220; Bill v. The Golden Gate (1856) Newberry, Adm. 308, Fed. Cas. No. 6,492. Stipulations that the general owners shall keep the vessel in good condition during the existence of the charter, and receive on board certain goods at the request of the charterer, and refuse to receive other goods without his con- sent, are inconsistent with the theory that the charterer is special owner. Leary v. United States (1871) 14 Wall. fill, 20 L. ed. 756. Where the general owner lets the ves- sel to freight, and covenants to man, victual, and navigate her at his own expense, and to receive on board any goods tendered by the charterer, the cliarter party is a mere affreightment sounding in covenant. Marcardier v. Chesapeake Ins. Go. (1814) 8 Cranch, 39, 3 L. ed. 481. Where the charter party provides that the stevedore is to be named by the charterers, and to be employed under the captain's supervision and control, he is the servant of the ship or her owners, not of the charterers. The Boskerma Bay (1884) 22 Fed. 662. There is no demise where the whole ship is placed at the disposal of the charterer except the part used for the officers and crew and the stores, and the owners appoint the crew. Richard- son V. Winsor (1871) 3 CTiff. 399, Fed. Cas. No. 11,795. Compare the argu- ment of the court in Dean v. Bogg (1834) 10 Bing. 345, 4 Moore & S. 188, as quoted in this note, infra, and The Nathaniel Booper (1839) 3 Sumn. 542, Fed. Cas. No. 10,032. Nor where the charter party places the ship at the disposal of the char- terer for a certain time, but the owners are to appoint, victual, and pay the master, officers, and crew of the ship, and pay all expenses except those for coals, pilotages, port charges, and labor. Sack V. Ford (1862) 32 L. J. C. P. N. S. 12, 9 Jur. N. S. 750, 13 C. B. N. S. 90. Nor where the owner navigates the ship at his own expense, and appoints the master. Kleine v. Catara (1814) 2 Gall. 61, Fed. Cas. No. 7,869. Nor where the owners reserve the right to furnish a captain to command and run a steamboat, and a man to take charge of the barges which it is to tow. Adams v. Bomeyer (1870) 45 Mo. 545, 100 Am. Dec. 391. Where the charterer hires a vessel for six months with the option of retaining her six months longer, but the owners are to keep her in good order, and the charterer is not to find seamen, coal, etc., but to pay for all disbursements in these and other respects, the im- plication is that the owners have their own engineer and servants on board, and that the charterer is to pay for them. Fenton v. Dublin Steam Packet Go. (1838) 8 Ad. & El. 835, 1 Perry & D. 103. In discussing the effect of the char- ter party in Manchester Trust v. Fur- ness [1895] 2 Q. B. (C. A.) 539, Rigby, L. J., supported his opinion that there was no demise of the ship, by advert- ing to the facts that the possession and control were entirely reserved, in many important respects, to the actual shipowners, — as for the maintenance of the ship, or for the purpose of with- drawing the steamer from the service § 45] EXISTENCE OF RELATION— WHEN INFERRED. 153 of the charterers If they would not make to the master the proper ad- vances, or for the reservation of proper and sufBcient space for the ship's of- ficers and crew and tackle such a reser- vation heing absurd, if the ship were given up entirely with the officers and crew. He also considered that all the other clauses about the customary assistance of the ship's crew to be given to the charterers pointed to a retention of control through the mas- ter for the actual shipowners. A simple contract for the use of a steamer for a single day to carry ex- cursionists to a certain place does not imply that the exclusive possession of the vessel is to be transferred, or that the crew become servants pro hac vice of the hirer, in such a sense as to re- lieve the owner of responsibility for their negligence. Dean v. Hogg (1834) 10 Bing. 345, 4 Moore & S. 188. The contract was contained in a letter from the owner to the hirer in these terms: "I note the A. is engaged to you for Richmond or Twickenham, at the hire for the day of £5, 10s." The court said: "Here there was no express con- tract for the exclusive possession of the vessel by Lewis. And there could be no ob.iect or purpose in considering the vessel as taken out of the posses- sion of the owners, and put into the possession of Lewis. All that the de- fendant Lewis bargained for was that he and his party should be carried by the captain and the crew, on board the Adelaide, to Richmond, without the ad- dition of strangers; and such a con- tract might be well carried into effect, without considering the possession changed from the owners to Lewis. The captain and the crew, who con- tinued in the management of the ves- sel, were the servants of the owners, not of Lewis. If any injury had been occasioned by the vessel, the owners, not Lewis, would have been answerable for the damages. There were some parts of the vessel manifestly not in the possession of the defendant Lewis, and some parts to which he had even no right of access or entry, such as the parts occupied by the crew, and room containing the machinery, and the like. If the captain had carried goods to Richmond for other persons, to any extent short of incommoding the defendant Lewis and his friends, the defendant could not have prevented it, either by removing the goods or by action against the owners, — all which considerations tend to show the pos- session was never given up." Where a railroad company having by its charter the right to own and operate steamboats chartered or hired a steamboat, manned by its own of- ficers and crew, under its pay, to the managers of an excursion, it is liable for injuries to a passenger, resulting from the negligence or wrongful act of its servants, unless it had transferred to the hirers the exclusive right to dis- charge the servants and employ others in their stead; and this is so, alttiough the contract of carriage was between the passengers and hirers. Semble, that it might be different if the naked boat had been hired, without further stipulations. White v. Worfolk d 8. R. Go. (1894) 115 N. C. 631, 44 Am. St. Rep. 489, 20 S. E. 191. The mere fact that by the charter party the appointment of the crew and the navigation of the ship are reserved to the owner does not charge him with liability for the expenses incident to the voyage, such as lighthouse tolls, where the rest of the instrument shows that the possession to this ex- tent is retained, not to restrain or in- terfere with the full and free iise of the ship, but as subsidiary and sub- servient to that use. The effect of such reservation is then simply that the services of a certain number of persons paid by the owners are hired with the ship itself. Trinity House v. Clark (1815) 4 Maule & S. 288. Lord Ellenborough said: "It is the same thing as the hire of a wagon and team for a certain term, the proprietor of the wagon stipulating that the wagon should be driven, and the horses taken care of, by his own wagoner and boy, whom he was to feed. In such a case it could hardly be made a question that the wagon and team were in pos- session of the hirer, during the harvest, or whatever the term might be for which they were hired." Compare The India (1883) 21 Blatchf. 268, 16 Fed. 262 (crew appointed by owner, but charterer given entire possession and control of ship). (6) Charterer held to be in control of the master and crew. — The conclu- sion that the master is in possession 154 MASTER AND SERVANT. [CHAP. II. of a cargo as agent of the charterers, and not as servant of the owners, is warranted where it appears that the charterer has the power of appointing him, and that the freight for tlie goods is to be paid to the master for the charterer's use, no provision being made for its application towards the payment of the agreed price for the hire of the vessel; and there is noth- ing in the contract that indicates any intention to make the delivery of the cargo depend upon the precedent or con- comitant payment of any portion of the stipulated price. Belcher v. Capper (]842) 4 Mann. & G. 502, 5 Scott, N. K. 257. Clauses providing that the owner sliall pay for the insurance, maintain the vessel in an efficient state, and have the option of appointing the engineer, are not sufficient to negative the infer- ence that there is a demise of the ves- sel, where the contract also provides that the charterers shall man and vic- tual the vessel, and pay all wages and other charges of the navigation, and that the captain shall be under the di- rection of the charterers as regards employment, agency, or other arange- ments. The captain under such cir- cumstances is the servant of the char- terers, not of the owner, and has no authority to bind the latter by a, bill of lading. Baumwoll Manufaotur von Scheibler v. Fumess [1893] A. C. (H. L. C. ) 8, affirming Baumwoll Mtm- ufactur von Scheibler v. GUchrest [1892] 1 Q. B. (C. A.) 253. Unless some special evidence is in- troduced which goes to show that the control remains with the owner, it will be inferred that one who takes a vessel at a fixed price, and employs the per- sons engaged in navigating her, and agrees to pay them and the running expenses, is the owner pro hac vice, and responsible for negligence or mis- conduct in the navigation. Sherman v. Fream (1859) 30 Barb. 478. A charter party whereby the char- terer undertakes to man and equip the vessel at his sole expense, to use her for certain specified voyages, to load and unload her, to pay all the expenses of performing the voyages, provision- ing or otherwise, to have the insur- ance extended, if it should expire be- fore the voyages should be completed, at his own cost and risk, and finally to deliver up said vessel in as good condition as when received, except the natural wear and tear, is a hiring of the vessel; and the charterer, and not the owner, is the carrier, and as- sumes pro hac vice all the rights and obligations of owner. First Nat. Bank . V. Stewart (1872) 26 Mich. 83. By a charter of a steamship the en- tire ship was let and delivered to the charterer for the term of four months, under the express and distinct agree- ment that he should have full charge of her and be entitled to all her earn- ings; that all of the officers of the vessel, including the master, engineer, and steward, who were to be appointed by the owner, should be "in all re- spects under the order and direction" of the charterer, and subject to removal on his complaint; that he should re- deliver the ship to the owner at the expiration of the term, in as good order and condition as she was at the time of the agreement, with certain excep- tions of usual wear and tear and dam- ages arising from sea perils and in- evitable casualties. It further provided that in case the charterer should fail to pay the rental at the times speci- fied, or the operating expenses, includ- ing wages, the owner should have the right to retake possession, and that on his request the master should take and hold possession of the ship as his representative. Held, that such charter constituted a demise of the vessel, and that neither the master nor steward could be regarded as agent of the owner during the life of the charter, so as to charge him or the vessel with liability to the charterer on account of their al- leged wrongful acts. The Del Norte (1902) 55 C. C. A. 220, 119 Fed. 118, affirming (1901) 111 Fed. 542. It would seem that McDowell v. Homer Ramsdell Transp. Co. (1894) 78 Hun, 228, 28 N. Y. Supp. 821, was decided on the theory that the charter of a steamboat for excursion purposes operates so as to transfer the absolute control both of the boat and of the crew to the charterer. An agreement to hire a vessel from B. to H., and from thence to M. or else- where, in any legal trade for the space of twelve months, at so much per month, the owners covenanting that the vessel "shall be tight, stiff, staunch, and strong, well victualed and manned § 45] EXISTENCE OF RELATION— WHEN INFERRED. 155 ■at their own expense, during that pe- riod," and the hirer paying "all port charges and pilotage at every place" to which she may go, — is not a eon- tract of freight. With regard to the destination and loading of the vessel the hirer is owner pro hac vice. Win- ter V. Simonton (1827) 3 Cranch, C. €. 104, Fed. Cas. No. 17,894. The charterer, and not the owner, of a boat and crew hired for a single trip on a canal, is liable as carrier to the shippers who contract with the char- terer for the conveyance of the goods. Campbell v. Perkins (1853) 8 N. Y. 430, distinguishing Fenton v. Dublin Steam Packet Co. (1838) 8 Ad. & El. 835, 1 Perry & D. 103 (see subd. a, supra, of this note), on the ground that the injury there was received by a person having no contractual rela- tion with either the charterer or the owner, and that the shipowner was held liable for the reason that he controlled the crew. The charterer becomes special owner, where the contract is to man and vic- tual the vessel, and navigate her free of expense to the owners. Perry v. Osborne (1827) 5 Pick. 422. And where he is to victual and man the ship, and have the possession and control of her. Holden v. French (1878) 68 Me. 241. And where the hiring is "on shares," the hirer to victual and man the ves- sel and employ her in such voyages as he thinks best. Webb v. Peirce (1852) 1 Curt. C. C. 104, Fed. Cas. No. 17,320. And where the charterer has the "full and absolute control" of the ship during the existence of the charter, and has the privilege of appointing the crew. Posey v. Scoville (1881) 10 Fed. 140 (charterer held liable to one of the crew who was injured by an explosion of a boiler). And where he sails the vessel on shares, hiring, paying, and victualing his own crew, and paying the owners one half the net freight remaining after paying the port charges. Thorp V. Eammond (1870) 12 Wall. 408, 20 L. ed. 419. And where he engages to victual and man the ship, and pay half the expenses of the navigation, the profits to be equally divided, the fact that the letting is not for any specified period, and that the owner is to be answerable for one's man's wages, will not make the charterer any the less owner for tne voyage. Cutler v. Winsor (1828) 6 Pick. 335, 17 Am. Dec. 385. And where he is to use and sail the vessel "in the fishing business," with- out any expense to the owner. Mc- Lennan V. Reed (1853) 35 Me. 176. And where he agrees not only to pay the charter money, but also the charges of victualing and manning, and all other charges, and finally, after the ship has performed her voyage, to de- liver her up to the owner. Drinkvxiter V. The Spartan (1828) 1 Ware, 149, Fed. Cas. No. 4,085. And where he is to take a schooner, and employ her in freighting and fish- ing for the season, and, after taking out of the gross receipts a certain per- centage for his commissions and port charges, divide the remainder between himself and the owners. Baker v. Huekins (1856) 5 Gray, 596. And where a vendee of the ship is to employ her in the fishing trade, and be chargeable with all expenses, the former owner to receive the earning for the purpose of paying himself the price. Winsor v. Cutts (1831) 7 Me. 261. The mere fact that the hirer of a ship on shares is to take the outfit and supplies from the owners does not imply that the right of control remains vested in them. Houston v. Darling (1839) 16 Me. 413. In an action under the English mer- chant shipping act, 1854 (17 & 18 Vict. chap. 104), § 169, which pro- vides that the wife of any seaman, in whose favor an allotment note of part of his wages is made, may recover by summary procedure the sum allotted, with costs, from the ovmer or any agent who has authorized the drawing of the note, the registered owner of a ship was held not to be liable on an allotment note given to a sailor by the charterer, where the charter party was to the following effect: The ship was to be placed under the direction of the charterer, to be employed by him for the conveyance of merchandise or 156 MASTER AND SERVANT. [chap. ii. cable service. By another clause, the execution of that instrument entirely steamer was "let for the sole use of devested himself, not only of the pos- the charterer," for three or more cal- session of, but also of all control over, cndar months, at his option, and he her. The charter party, as is already was to pay the stipulated freight until stated, contained not only words of the ship was returned by him; the demise, which by themselves passed the charterer was, further, to find all ship's possession of the ship for the stipu- stores, to pay crew's wages, repairs of lated time to the charterer, but also engines and boiler's, etc., the appellant contained the other stipulations above paying his insurance on the vessel only, set out, carrying out the same object. The vessel was to be delivered up by The charterer, in fact, appointed tlie the charterer to the appellant on the master, and the naaster so appointed termination of the charter, fair wear paid the wages as the charterer's agent, and tear excepted. The evidence also The appellant had no control over showed that the charterer, having either the ship or the master or the taken possession of the ship under the voyage or the crew. Indeed, his rights charter, appointed one Fawens as mas- ^^ respect of the ship were limited to ter, and that the latter engaged the the tare right to receive the stipulated respondent's husband as one of the ^^re, and to take her back into his crew. Field, J., said: "The only seri- possession when the charter should ous contention upon which his [the come to an end. The appellant, not owner's] liability was sought to be °^^J ™ade no contract with the re- rested before us was that, inasmuch spondent's husband, either himself or as ha was the de facto registered owner ^J any authorized agent, but the arti- of the Sydney Hall, he was 'the owner' =1^3 of agreement are made by the within the meaning of the 169th sec- master, and the allotment is, by the tion; and it was urged that by that express direction of the respondent's section a special and peculiar right l»«sband and the master, directed to and remedy are given to the wife to ^^e charterer, who acted upon it until sue and recover against the appellant *''» failure. Now, under these circum under her husband's contract with the stances, we cannot think that it wan master, although the husband could ^^^ intention of the legislature to im- not himself have recovered as against P°se a liability upon a shipowner the appellant. Now, in order to dis- through the contract of third parties, pose of this question, we must con- and without any act or contract of hia sider what were the respective positions °W' merely because he is registered of the appellant and of Mr. Henley, as 'owner.' The authorities are numer- the charterer, and the master, in order °^^ "^l^ieli PO>"t to the distinction be- to see whether the appellant can be ^^een those cases in which the effect truly said to have been such 'owner' «* the charter is to retain the owner- within the meaning of the section in ^^"^ '" ^^^ °^"er, and those in whicli question. The object of the section is °e parts with all possession and con- to enable a seaman, when about to ^rol, and they are vested in the char- leave home on a voyage, to make pro- terer as temporary owner. Now tlie vision for his wife during his tempo- Present ease falls clearly within the lat- rary absence; and the mode by which *" ^""^"^ll' ,t"^ ^\ ^}'"^^ ^^^^ ^l" this is done is by enabling him to set f^^'I^'^'S of the word 'owner' in the , . .. , „ j„ t !?„ 1 169tn section at least, must be re- apart, in the hands of his employer, j. . -, , i. i. , c ^, ' ' . - ., , • 1 , . strained to such actual owner for the . portion of the wages which he is ^.^^ ^^ ^^ ^^^ ^y ^i^,^^^ j^i^. earning on board, and to give his wife ^^^ „^ ^^ ^.^ master or other author- the power of receiving them. Now, m j^gd agent, manages and controls her, the present case, although the appel- and enters into the agreement for the lant was in every sense, before the wages of which the allotment note is execution of the charter party, the part." Meilclereid v. West (1876) 1 'owner' of the ship, he had by the Q. B. 428. § 46] EXISTENCE OF RELATION— WHEN INFERRED. 157 46. Same subject discussed in reference to cases where the master of the ship is also the charterer. — In cases where the captain of a ship hires it from the owners, it would seem that the courts, having regard to the peculiar relation which exists between the captain and the owner of a ship, lean rather more strongly against the theory of a demise than in cases into which this element does not enter. The difference of standpoint thus indicated is especially noticeable in those which involve the effect of a provision that the captain is to man the ship. This circumstance is not as conclusive a test of the transfer of the possession as it is in the case of a stranger; for the selection of the crew is one of his ordinary functions as a servant of the owners. The principle to be deduced from the authorities seems to be that such a provision will not of itself warrant the inference that he exchanged his position as servant for that of an independent contractor, as long as the other provisions are consistent with the theory that he was stipulating as a servant.^ But in cases of this lAn agreement between the owner agreement is to employ and navigate and the captain of a vessel that ttie the ship, and victual and man her, and latter shall sail the vessel wherever he the hirer is to be entitled to retain as cliooses, be at liberty to take and re- his compensation therefor, and for fuse any cargo, engage and pay the his own services as master, one half inen, and furnish all requisite supplies, of the freight (Arthur v. The Cassius and give the owner one third of the [1841] 2 Story, 81, Fed. Cas. No. 564). net profits, is not such a demise as Where the master is, by the contract, will absolve the owner from liability to receive half the earnings for his for the negligence of the captain. Steel services, and for victualing and man- v. Lester (1877) L. E. 3 C. P. Div. ning the ship, and paying the port 121, 47 L. J. C. P. N. S. 43, 36 L. T. charges, but the writing which em- N. S. 642, 26 Week. Rep. 212. bodies the contract contains detailed in- The general owners of a vessel are structions as to what he is to do in liable for damages sustained by the navigating the ship, and no words of failure of the master to furnish proper letting, he is to be regarded as the medical care to one of the crew, where servant of the owners, not the owner the arrangement between the owners pro hao vice. Latham v. Lawrence and the master is that he is to sail (1839) 13 Conn. 299. the vessel on shares, and attend to the An agreement between the owner and hiring and victualing of the crew, the master of a vessel, to the effect Such an arrangement merely provides that the former shall make contracts a mode of paying the master for his for and receive freight, and pay wharf- services, and does not enable him to age; and that the latter shall have dictate the voyages, decide as to cargo, exclusive charge of the navigation, and fix rates of freight, and absolutely con- receive a share of the freight money, trol the vessel to the exclusion of the victual the vessel, hire and pay the owners. Sca,rff v. Metcalf (1887) 107 crew, and be allowed to select the kind N. Y. 211, 1 Am. St. Rep. 807, 13 N. of employment in which the vessel is E. 796, reviewing the earlier New York to be engaged, — does not imply such gJ^ggg a surrender of control as will make the The general owners remain liable as master owner pro hac vice. Annett v. carriers, where the captain is to vie- Foster (1865) 1 Daly, 502. The court tual and man the vessel, and have one said: "There was not such a parting half the freight money and $5 for every by the defendant with the control and trip (Emery v. Hersey [1827] 4 Me. management of the schooner and of her 407 16 Am. Dec. 268) ; and where the earnings as would make Thompson, the 158 MASTER AND SERVANT. [chap. ii> type, not less than in those in which the charterer is a stranger, the- prima facie presumption that the owner retained his control of the- ship and crew is suhject to rebuttal by specific evidence.* captain, the temporary owner; the de- fendant was the owner and the freight- er; he made the contract with Belfair for the carriage of the brick, collected the freight, and he alone was entitled to receive it in the first instance; he would be answerable to Belfair in the event of a failure to deliver the briclcs pursuant to the contract; — all of which are determining circumstances to show that he had not so devested himself of the control and management of the ves- sel and of her earnings, as to vest in another the rights and responsibilities of ownership for the time being. . . . The defendant, it is true, testified that Thompson had the privilege, if he did not like the brick trade, to go into any other that he thought more profitable; but however that may have been, or whatever may be the exact meaning of this testimony, which is somewhat loose, the defendant, at the time of the accident and for some time before, liad contracted for the employment of the vessel, and had received and shared in the freight; and the fact that she was then employed in an enterprise the earnings of which were received by the defendant, and proportionably divided between him and Thompson, is suf- ficient to fix the defendant's liability." Where the agreement is simply to navigate the vessel on shares, the us- age of the port to which the vessel belongs is admissible in evidence to show whether the agreement amounts to a letting to hire or the appointment of a master. Thompson v. Hamilton (1832) 12 Pick. 425, 23 Am. Dec. 619. 2 Provisions which have been held to point that the owner was devested of his control are the following: — Tliat the vessel was let to the captain at a specified yearly rent, to be used and employed by him as he might think proper. Frazer v. Marsh (1810) 2 Campb. 517, 13 East, 238. In this case there was the corroborative circumstance that the owner had made no attempt to interfere with the management of the ship. It may also be observed that no special emphasis was placed upon the fact that the captain was the charterer. That he was to sail the vessel on shares, and she was to be under his exclusive control. Somes v. White (1876) 65 Me. 542, 20 Am. Kep. 718. That the vessel was to be let oni shares to him, and that he was to vic- tual and man her, the owner having: nothing to do with the purchase of sup- plies, nor with the employment of the vessel. Winsor v. Cutis (1831) 7 Me. 261. That he was to sail the vessel on shares, to victual and man her, to gO' wherever he chose, and to employ her in such ways as he might think fit. Well) V. Peirce (1852) 1 Curt. C. C. 104, Fed. Cas. No. 17,320; Giles v. Yigoreux (1853) 35 Me. 300, 58 Am. Dec. 704. That the vessel was to be let to him' for the fishing season, and that he was to victual and man her, and was to pay to the owners for her hire a certain proportion of her earnings, and was to take his outfits and supplies of them. Houston v. Darling (1839) 16 Me. 413. That he was to man and victual the ship, pay port charges, and employ her as he pleased. Thompson v. Snow (1826) 4 Me. 264, 16 Am. Dec. 263 (supplies). That he was to have possession and" control of the vessel, to victual and man her at his own charge, and to- employ her in such business as he chose. Skolfield v. Potter (1849) 2" Ware, 395, Fed. Cas. No. 12,925. That he was to have the vessel fitted: where he pleased, and have the fish which might be caught cured by whom he chose. Mayo v. Snow (1854) 2' Curt. C. C. 102, Fed. Cas. No. 9,356. That he was to victual and man the ship at his own cost and charges, and" pay a fixed sum for her use. Hallet V. Columbian Ins. Co. (1811) 8 Johns. 272. That he was to man and victual the- vessel, and defray all expenses during- the term of hiring, paying for the use- of her one half of the earnings. Tag- gard v. Loring (1820) 16 Mass. 336,. 8 Am. Dec. 140. That the vessel was to be at his risk during the period covered by the agree- ment; that after deducting the first cost of such cargo as might be carried,. 47, 48] EXISTENCE OF RELATION— WHEN INFERRED. 159 47. Servants working on ships chartered by the state. — Where a vessel is chartered for the use of the state, it is frequently placed under the direct control of some naval officer. The arrangement necessarily absolves the owner from liability for acts done by the crew in obedience to commands given by such officer, within the sphere of his legitimate authority.^ But in cases not involving this arrange- ment, the effect of the charter party is considered on precisely the same footing as in the cases where private persons are concerned.^ 48. Servants engaged, together with the servants of a third person, in handling goods. — A servant who is engaged, together with the serv- ants of a third person, in loading or unloading or otherwise handling goods, is regarded as acting in behalf of his own master with respect to whatever he does in the course of the work, unless some specific evidence is produced of his having been temporarily placed under the control of the third person.^ The presumption that he is so act- he was to receive a certain percentage of the net proceeds; that he was to purchase cargoes at his own expense; and that he was to victual and man the vessel. Reynolds v. Toppan (1819) 15 Mass. 370, 8 Am. Dec. 110. That he was to victual and man the ship at his own expense, and that the contract could be terminated by the restoration of the ship, or by the inter- vention of the owners at the end of any voyage, but not while he was con- ducting any voyage which he had un- dertaken. Thomas v. Osborn (1856) 19 How. 22, 15 L. ed. 534. That the vessel was to be chartered for a specified period, and he was to pay all bills against her, keep her in good repair, and deliver her up in good order. Mott v. Ruckman (1853) 3 Blatchf. 71, Fed. Cas. No. 9,881. Where the master takes a vessel on shares, "to account to the owner for one half the earnings," he is, as to all persons but the actual owner, in all contracts, regarded as the owner, and entitled to all the rights and liable to all the duties of an owner. WiHinms v. Williams (1843) 23 Me. 17, distin- guishing the case from those in which tl)e charter party provides for the pay- ment of a stipulated sum by the month or for the voyage. 1 It has been held not to be a mis- direction to tell the jury that the owner of a transport hired by the government for the purpose of assisting in an ex- pedition is not responsible for damages caused by handling the ship in obedi- ence to the orders of the naval officer in command. Hodglcinson v. Femie (1857) 2 C. B. N. S. 415, 26 L. J. C. P. N. S. 217, 3 Jur. N. S. 818. In Fletcher v. Bmddick (1806) 2 Bos. & P. N. R. 182, the owners were held liable for the negligence of the crew of a, vessel chartered by the gov- ernment, although there was a King's officer on board, whose orders the cap- tain of the ship was, by the agreement, bound to obey, and although the court was unable to decide whether the stipu- lation meant "that the officer should see to the navigation of the ship, or only direct to what place the ship should be carried." Lord Tenterden's apt comment on this ruling was that the case was not ripe for determina- tion, until this doubt was resolved. See Abbott, Shipping, 11th Eng. ed. p. 55. In a somewhat recent case, Sir James Hannen remarked that it was unnecessary to determine whether the law, as laid down in this case, had been modified by Quarman v. Burnett (1840) 6 Mees. & W. 499, 4 Jur. 969, and the decisions following it. The Tasmania (1888) L. R. 13 Prob. Div. 110, 59 L. T. N. S. 263, 6 Asp. Mar. L. Cas. 305. 2 See, for example, Leary v. United States (1871) 14 Wall. 607, 20 L. ed. 756, cited in § 44. note 8, ante. 1 In an action for personal injuries caused by falling through a coal hole connected with the defendant's store, while a teamster of A was delivering coal for the store, the defendants re- 160 MASTER AND SERVANT. [chap. u. ing will prevail, although it may be shown that he obeyed the direc- tions of the occupant of the premises to the limited extent explained quested the judge to instruct the jury stitute a defense to an action brought that, "if they were satisfied that the by him against the company to re- injury was caused by the carelessness cover for personal injuries received in or negligence of the teamster who un- the course of the work. Pennsylvania loaded the coal, the plaintiff could not Co. v. Baches (1890) 3 33 111. 255, 24 recover unless he was the servant of N. E. 563. the defendants, and not the servant of An employee of a coal company is not A, who furnished the coal." The judge a volunteer who assumes all the risks, refused so to rule, but, among other in climbing upon an empty box car to instructions not excepted to, gave the fasten the brake, for the purpose of following: "That the defendants, if preventing it from being driven against they were occupants of the store, would a car which his employer is loading, not be liable for the negligence or care- by other cars negligently switched by lessness of the teamster, if, as the serv- the railway company upon the same ant of A, he had the exclusive posses- track at a high rate of speed. Weather- sion or control of the premises so far ford, M. W. & N. W. B. Go. v. Duncan as was necessary to enable him to de- (1895) 10 Tex. Civ. App. 479, 31 S. liver the coal. But if the jury are W. 662. satisfied that the defendants were, at An employee of a quarry owner, the time, the occupants of the store, while engaged in loading a railway and, as such occupants, had the right car belonging to his master, is not to direct or control the mode or man- deemed to be a servant of the railway ner of said delivery, then the teamster company, where it exercises no control would be the servant of the defendants, over him. Roddy v. Missouri P. R. so as to render them liable for injuries Co. (1891) 104 Mo. 234, 12 L.R.A. 746, occasioned by his negligence or care- 24 Am. St. Rep. 333, 15 S. W. 1112. lessness in the delivery of the coal." In Wakefield v. Boston Coal Co. Held, that the defendants had no (1908) 197 Mass. 527, 83 N. E. 1116, ground of exception. Clapp v. Kemp on the ground that there has been no (1877) 122 Mass. 481. transfer of control, it was held that In Catlin v. T. B, Peddie li Co. an employee of a coal dealer, engaged (1900) 46 App. Div. 596, 62 N. Y. In delivering coal to a customer of the Supp. 76, it was held that the tenant dealer, was, while using a coal hole in of a building was not liable to the a, sidewalk for making delivery there- servant of another tenant, for injuries of, acting within the scope of his em- caused by the negligence of the driver ployment, so as to render the dealer of a delivery wagon in starting an ele- responsible for his negligent acts in fail- vator which he was using for the pur- Ing to guard the hole sufficiently. The pose of hoisting the goods delivered by fact that, in response to the employee's him. inquiry, directions were given him by A buyer of lumber is not charge- the customer to use the hole, did not able with the negligence of a driver of produce any change in the relationship the seller in unloading the lumber in of the parties. the street in front of the former's prem- Where, under a contract for the sale ises, inflicting an injury iipon a third of an engine, the vendor agreed to fur- person, where he did not attempt to di- tilsh a mechanic to erect it, and the rect the manner in which the lumber right to compensation depended upon should be unloaded, although he did the successful operation of the engine, specify the place. Johnson Chair Co. it was within the scope of the employ- V. Agresto (1897) 73 111. App. 384. ment of that mechanic, after erecting A person employed by a mill com- the engine, to subject it to the test pany to assist in moving railway cars of actual operation, to discover defects; on a scale platform, and in unloading and if an explosion occurred while he grain therefrom into the sheds of the was so testing it, through his negli- mill company, is not the servant of the gence, the vendor is liable. Wright railway company. Consequently the Steam Engine Works v. Lauyrence Ce- rule protecting the master from lia- ment Co. (1901) 167 N. Y. 440, 60 N. bility for injuries caused by the ordi- E. 739. nary risks of the service does not con- I 48] EXISTENCE OF RELATION— WHEN INFERRED. 161 an earlier section,^ or that tlie servants of the occupant assisted him in the performance of his work.' m 8 See cases cited in § 25, note 2, ante, especially subds. (b) and (g) ; also Otis Steel Co. V. Winkle (1907) 82 C. C. A. 62, 152 Fed. 914 (§ 24, note 1, ante). 3 The servant of a drayman, who is sent by his master to convey goods from a vparehouse, does not become the servant pro hoc vice of the warehouse- man's servants merely because he as- sists them in loading the goods on the dray. Abraham v. Reynolds (1860) 5 Hurlst. & N. 143, 6 Jur. N. S. 53, 8 Week. Rep. 181 (servant held to be entitled to recover for injuries caused by the fall of a bale of cotton). "If the master," said Watson, B., "had been injured, no doubt he could have re- covered. The plaintiff was the servant of Jump, the carter, not the servant of the defendant. The defendant had no control over him. As to the case alluded to, of a ship coming into or going out of a dock, when the mariners have to throw off or make fast a rope; if by the negligence of either party the rope flies and breaks the leg of one of the other party, can it be said tliat the mariners and dock laborers are both servants of tbe same person? They are persons doing work for a com- mon object, but not under the same control, or by the same orders. To hold that the rule applies to such a case would be extending the doctrine in question further than any case has yet carried it." "I desire," said Mar- tin, B., "to confine my judgment to the case immediately under our considera- tion. The subject is one of great diffi- culty. This, however, is like the case where a farmer's servant is delivering corn at the warehouse of a corn mer- chant; if the farmer's servant below is injured by the negligence of the corn merchant's servant above, no rea- son can be assigned why an action for compensation should not be maintain- able." Pollock, C. B., remarked that the servants of the warehouseman and the customer had a "common object," but "separate ends, and for some pur- poses antagonistic interests." In Rowrke v. WMte Moss Colliery Co. (1876) L. R. 1 C. P. Div. 556, 35 L. T. N. S. 160, the judges seemed to be strongly inclined to the opinion that this case was not correctly decided on M. & S. Vol. I.— 11. the facts. But it seems to be a perfect- ly reasonable construction of the evi- dence, that the drayman rendered his assistance as the servant of his regu- lar employer, and submitted to the di- rections of the warehouseman only to such an extent as was necessary for the proper performance of the joint work. In helping the servants of a rail- way company to ship cattle, a driver's servant acts as the servant of his own master, and not of the company. Wyl- lie V. Caledonian R. Co. (1871) 9 Sc. Sess. Cas. 3d series, 463. Three judges delivered opinions; but the rationale of the situation is explained most clear- ly in the following extract from that of Lord Kinloch. "It is proved that it was the common practice for drovers or their servants, to help to put the cattle on the trucks; and for the plain reason that they w&re much more like- ly to get the cattle to go in and out peaceably than other less acquainted with their ways. The practice may be said to have formed a compact between the company and the general body of drovers. But the compact was between parties holding in some sense an antag- onistic position. It was not one be- tween employers and employed, but be- tween principal contracting parties; and one of the conditions fairly to be considered part of it was that, whilst the drovers or their servants gave this aid the company should, on their side, exercise all the care and diligence ordi- narily required of them. I consider the case altogether different from that quoted to as of a volunteer joining the railway servants in doing the com- pany's work. In such a case the vol- unteer may be regarded as pro tempore in the service of the company, and the case not to be different from that of all concerned being in the company's employment. The pursuer was not a volunteer helping the company's serv- ants in the company's work. He was doing his own work or that of his mas- ter. The case is the same as if Dun- lop, the master, had himself been there, helping to put the cattle into the truck. I conceive that, in such a case, Dunlop could not have been considered in the legal sense a coUa/borator with the rail- way servants; and I think as little can 162 MASTER AND SERVANT. [CHAP. II. In this class of cases tte question whether the delivery or receipt of the goods was complete at the time when the event which is re- lied on as a cause of action occurred, has sometimes been regarded as material and controlling.* But it would seem to be scarcely prop- the pursuer. ... I can perceive no ground for holding any implied con- tract between the pursuer and the rail- way compaHy, to the effect of exempt- ing the company from liability for the negligence of their servants. The im- plied contract I conceive to be emphatic- ally and directly the reverse. I con- sider the pursuer to have stood pre- cisely in the same position with every- one else contracting with the railway for conveyance or carriage. On the principle on which the plea now con- sidered proceeds, any passenger Avho helps the railway porter to carry his luggage to the luggage van would, I suppose, be considered by the railway company a collaborator with their serv- ants, and not entitled to claim against the company for any accident sustained in his journey by tlie fault of the rail- way officials. For the argument does not limit the exemption to the case of negligence on the part of the railway servants employed in trucking the cattle, but extends it to the case of enginemen and brakemen and all the railway servants employed about the cattle bank." The mere fact that a servant sent to take charge of goods after they have been unloaded from a vessel helps on the work of unloading will not make him a coservant of the crew. Anderson V. Boyer (1897) 13 App. Div. 258, iW N. Y. Supp. 87, reversed in (1898) 15(i N. Y. 93, 50 N. E. 976, but not as to this particular point. See § 44, note 3, ante. A servant acts for his own employ- er, and not as a volunteer, when, as the agent of a consignee, he receives cars from a railroad company near the scales of his employer, instead of on them, where he might have required the company to place them, and is not, while singling out such cars, a fellow servant with a brakeman of the com- pany. Gonlan v. New York C. & E. R. R. Go. (1893) 74 Hun, 115, 26 N. Y. Supp. 659. One employed by another having a contract to furnish a railway company with wood, who sustains injuries while assisting the company's brakeman in pushing cars loaded with the wood, ow- ing to the brakeman's negligence, is not a fellow servant of the brakeman. so as to preclude a. recovery, where he is acting in furtherance of his mas- ter's business, and not merely as an accommodation to the brakeman. Bon- ner V. Bryant (1892) 1 Tex. Civ. App. 269, 21 S. W. 549. It has also been held that coservice is not predicahle as between the fol- lowing classes of employees: A servant delivering goods on thu premises of a third person, and a serv- ant of that person. Wadsworth v. Duke (1873) 50 Ga. 91. A station hand, and the servant ol an express company whom he was lielp- ing to load goods. Hopper v. Southern Exp. Go. (1903) 133 N. C. 375, 45 S. E. 771. A member of a ship's crew, and the servant of a consignee engaged in un- loading the ship. Robinson v. Pitts- burgh Goal Co. (1904) 63 C. C. A. 258, 129 Fed. 324. A member of a ship's crew who was managing a guy-rope used in hoisting the cargo, and the servant of a steve- dore engaged by the consignee of the cargo. Kilroy v. Delaware d H. Ganal Go. (1890) 121 N. Y. 22, 24 N. E. 192. As to this case, see further, § 24, note ], ante. The cases in which the handling of the goods was effected by the servants of a principal employer in combination with those of an independent contract- or are noticed in § 39, note 1, ante. * It has been held that a tenant of the upper floor of a mill, upon the outside of which a hoisting apparatus was constructed, was not liable for an injury to an employee of a tenant of a lower floor, caused by the fall of bags of wool purchased by him, from such apparatus, because of their neg- ligent fastening therein by the em- ployee of the seller; the special rea- son assigned for the decision being that, as the delivery was not complete until the goods were fastened to the lift, the driver must be taken to have § 49] EXISTENCE OF KELATION— WHEN INFERRED. 163 er to treat this element as one whicli is sufficient in itself to deter- mine the position of a servant. There is much difficulty in admitting that a transfer pi'o hac vice of the control over the servant can be legitimately deduced from evidence that the delivery or receipt of the goods handled by him was incomplete. Such evidence, it is sub- mitted, should at the most be regarded as merely corroborative of the circumstances which have a more direct bearing upon that point. 49. Servants working on trains not operated by their employers. — A servant who is not in the employ of a railway company, but who has duties to fulfil on a train for his own master, is not deemed to be a servant of the company, except in so far as those duties are actually discharged under its directions, or pertain to the functions which it is bound as a common carrier to perform.* represented the seller in regard to the work of unloading the goods. Fuhr- meister v. Wilson (1894) 163 Pa. 310, 30 Atl. 150. It has also been held that an em- ployee of one who has made a con- tract for the purcliase of logs to be "boomed and delivered," and who di- rects him to take charge of the raft after it is ready, closed, and delivered to him, acts as the servant of the sell- er in assisting him in rolling logs into the river and opening the boom to let them in. Under such a contract the delivery is not complete until the logs are in the water, and up to that time the servant of the vendee has no pos- session of them as such servant. Gas- per V. Beimhach (1894) 59 Minn. 102, 60 N. W. 1080. 1 Postoffice agents traveling on rail- ways in cliarge of the mails are pas- sengers, not servants of the railway companies. Oleeson v. Virginia Mid- land R. Go. (1891) 140 U. S. 435, 35 L. ed. 458, ].l Sup. Ct. Rep. 859 (rule taken for granted) ; Southern P. R. Co. V. Camm. (1906) 75 C. C. A. 350, 144 Fed. 348; Yarrington v. Delaware & H. Go. (1906) 143 Fed. 565; Chesapeake & 0. R. Go. V. Patton (1904) 23 App. D. C. 113 ; Weaver v. Baltimore & 0. R. Go. (1894) 3 App. D. C. 436; Lindsay V. Pennsylvania R. Co. (1906) 3 L.R.A. (N.S.) 218, 26 App. D. C. 503, 6 Ann. Cas. 862; Wabash R. Co. v. Jellison (1906) 124 111. App. 652; Malott v. Central Triist Go. (1906) 168 Ind. 428, 79 N. E. 369, 11 Ann. Cas. 879; Deck- er V. Chicago, M. & St. P. R. Co. (1907) 102 Minn. 99, 112 N. W. 901; Mellor V. Missouri P. R. Co. (1891) 105 Mo. 455, 10 L.R.A. 36, 16 S. W. 849; Sey- bolt V. New York, L. E. d W. R. Co. (1884) 95 N. Y. 562, 47 Am. Rep. 75; Houston & T. G. R. Co. v. Hampton (1885) 64 Tex. 427; Carpenter v. Bos- ton d A. R. Co. (1881) 24 Hun, 104; Illinois G. R. Go. v. Porter (1906) 117 Tenn. 13, 94 S. W. 666, 10 Ann. Cas. 789; Sproule v. St. Louis & 8. F. R. Co. (1906; Tex. Civ. App.) 91 S. W. 657. In Muster v. Chicago, M. & St. P. R. Co. (1884) 61 Wis. 325, 50 Am. Rep. 141, 21 N. W. Z23, the court said: "We do not understand counsel as claiming that the railway company is liable for the negligent act of the postal employee, if it is otherwise free of negligence con- tributing to the injury of the plaintiff. Such a claim, if made, could not be sustained. The government compels the company to carry the mails, and desig- nates the trains upon which the same shall be carried. It prescribes the kind of cars which shall be provided, and appoints clerks and agents to take ex- clusive charge of mails on the trains, and to receive and distribute the same. Such clerks and agents are paid by the government, and are answerable only to the governntent for the manner in which they discharge their duties. The railway companies upon whose trains such duties are performed have no con- trol whatever over them, and it would be just as absurd to hold one of these companies responsible for the negligent acts of such government employee. 164 MASTER AND SERVANT. [chap. ii. 50. Statutory modification of the common law in Pennsylvania. — In Pennsylvania the doctrines of the common law were, as regards which it had no means of preventing, cover against it for injuries caused by as to hold the companies responsible the negligence of the engineer. Cham- for the negligent acts of passengers on berlain v. Milwunkee & M. R. Co. their trains, committed under like oir- (1858) 7 Wis. 425. See § 3563, post. cumstances." An employee of a sleeping car com- The Pennsylvania act of April 4, ] SOS pany is the servant of the railway (see § 50, post), has been held to company only as to the performance have the effect of making a railway of such duties as the defendant has the postal clerk the coservant of the train- right to direct and control, or of sucli men. Pennsylvania R. Co. v. Price as pertain to the safety and security (1880) 96 Pa. 256. This case was taken of passengers. While merely riding in to the Supreme Court of the United the sleeping car, and looking after the States, upon the contention that such welfare of passengers therein, he is in a clerk was within the proviso of tliat no sense u, fellow servant of those oper- act expressly exempting passengers from ating the engine and train. There was its operation; but the writ of error neither a common employer, a common was dismissed, the ground taken being director, nor a common service. Jones that § 4000, Rev. Stat., U. S. Comp. v. St. Louis 8. W. R. Co. (1894) 125 Stat. 1901, p. 2719, did not make him Mo. 675, 26 L.R.A. 718, 4C Am. St. Rep. a passenger, nor give him any right, 514, 28 S. W. 883. The court said: as against the railroad company, which "\Ve do not think the relationship of would not belong to any other person master and servant thus created by in a similar employment by a private law, and independent of contract, would person. Price v. Pennsylvania R. Co. necessarily constitute the servants of (1885) 113 U. S. 218, 28 L. ed. 980, the two companies fellow servants, witli- 5 Sup. Ct. Rep. 427. in the rule respondeat superior, most An expressman employed by an ex- certainly not in respect of duties which press company by which he is paid, were not common. The injury result- who also takes care of the baggage car ed from the negligent management of in which the express matter is kept, and the train. There was nothing, either who acts as baggage master in hana- in the agreement of plaintiff or in the ling such baggage, without charge there- contract between the defendant and the for by the express company, is not a Pullman Company, which required him fellow servant of the railroad employees to assist in running and managing the in charge of the train on which he is train, nor did his duties to the Pull- riding. Gohh V. St. Louis & B. R. Co. man Company require it of him. <1899) 149 Mo. 609, 50 S. W. 894; Plaintiff, and the negligent servants of Davis V. Chesapeake & 0. R. Co. (1906) defendant, did not have a, common em- 122 Ky. 528, 5 L.R.A. (N.S.) 458, 121 ployer, and the duties, a neglect of Am. St. Rep. 481, 92 S. W. 339, 12 which caused the damage, were not corn- Ann. Cas. 723. mon, and under neither the general In one case this doctrine was applied, rule nor any exception to it can they although a rule of the railway com- be regarded as fellow servants, in the pany provided that express messengers, sense of relieving defendant of lia- while with its trains, were employees bility." of the railway company in all matters In Chicago, R. I. & P. R. Co. v. Ham- connected with the movement and gov- ler (1905) 215 HI. 525, 1 L.R.A.(N.S.) ernment of trains, and were bound to 074, 106 Am. St. Rep. 187, 74 N. E. conform to the directions of the con- 705, 3 Ann. Cas. 42, reversing (1904) ductor thereof. Union P. R. Co. v. 114 111. App. 141, an action for injuries Kelley (1894) 4 Colo. App. 325, 35 Pac. to a sleeping-car porter, the declaration 923. averred that plaintiff was in the em- But if an expressman is voluntarily ploy of the sleeping car company, and acting as a, brakeman in the employ- the uncontradicted evidence was that raent of a railroad company, at the such company owned the car, had en- time of the accident, he is in lav\f a tire charge of its operation, employed servant of the company, and cannot re- and paid the men who ran it, and that 50] EXISTENCE OF RELATION— WHEN INFERRED. 165 cases of the particular type reviewed in the two preceding sections, for a considerable period superseded by the act of April 4, 1868, which provided as follows : "When any person shall sustain personal injury or loss of life, while lawfully engaged or employed on or abotit the roads, works, depots, or premises of a railroad company, or in the railroad company paid a compen- sation to the sleeping-car company for running the cars over its road. Held, that plaintiff could not be regarded as a servant of the railroad company. Nor are the employees of a railroad company fellow servants with an em- ployee upon a sleeping or parlor car, under a contract between the railroad and car companies by which the latter agrees, at its own cost and expense, to furnish such employees, and the for- mer agrees that such employees shall be entitled to free passage, although it is provided that such employees shall be governed by, and subject to, the rules and regulations of the railroad company for the government of its own employees, and that the railroad com- pany shall be liable for the injury or death of such employees, only to the same extent it would be if they were its own, and that the car company shall indemnify it for all liability in excess thereof. Hughson v. Richmond & D. R. Go. (1894) 2 App. D. C. 98. The court said: "The agreement between the de- fendants, mentioned in the statement of the case, while not binding upon the plaintiff, he not being a party thereto, shows plainly the relation that the agents and servants of the Pullman company bore to the railway company. The agreement is based upon the as- sumption that the agents and employees of the respective companies were not serving the same common master, nor engaged in the same employment; but that the agents and servants of the Pullman company were engaged in a separate and distinct employment, re- ceiving their compensation from, and remaining subject to the exclusive con- trol and direction of, a. separate and independent master from the railroad company, and hence the provisions of transporting them free of charge while in the performance of duty for the Pull- man company. There was no contract whatever existing between the plaintiff and the railroad company, nor service to be rendered by the former to the latter; and therefore there could be no implied contract that, in consider- ation of employment and the payment of wages, the plaintiff would assume the risk of injury that might result from the negligence of the employees of the railroad company. No such employ- ment existed. And such implied con- tract, according to the later decisions, is the real ground of the exemption of the master from liability to his serv- ant for injuries received in the course of the employment, by the negligence of a fellow servant. And, such being the case, clearly the principle of ex- emption from liability does not apply in this case." Compare Harold v. A'cio York C. & H. R. R. Go. (1885) 13 Daly, 89 (woman hired by a sleeping car company to clean its cars, and in no manner subject to the orders of the railway company, not a coservant of the latter company's employees). In cases involving the responsibility of a common carrier, such as a rail- way company, for injuries sustained by one of its passengers, the porter and other employees of a sleeping car com- pany on one of its cars forming part of the railway company's train, will be considered as the servants ami em- ployees of the railway company. Wil- liams V. Pullman Palace Gar Go. (1888) 40 La. Ann. 417, 8 Am. St. Rep. 538, 4 So. 85. To the same effect, Denver & R. G. R. Go. V. Derry {Denver & R. G. R. Go. V. Berry) (1910) 47 Colo. 584, 27 L.R.A.(N.S.) 701, 108 Pac. 172. A drover or shipper of live stock who is traveling on a railway pass is not a servant of the company. Garroll V. Missouri P. R. Go. (1885) 88 Mo. 239, 57 Am. Rep. 382; Omaha Powell V. Virginia Constr. Co. (1890) 88 Tenn. 692, 17 Am. St. Rep. 925, 13 S. W. 691. In order to determine which of two persons is liable for the negligence of a third who was performing services in which both were interested, "we must inquire whose is the worit being per- formed, — a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work." Standard Oil Co. v. Anderson ( 1909 ) 212 U. S. 215, 53 L. ed. 480, 29 Sup. Ct. Rep. 252. 8 It was suggested by Abbott, Ch. J., in Laugher v. Pointer (1826) 5 Barn. & C. 547, that the "payment of board, wages, and tne furnishing of a livery, may also be circumstances worthy of attention, because they also may in some cases be considered as evidence of a choice and a contract," the implica- tion presumably being that a transfer of services might be inferred from such choice. This suggestion, however, must be regarded as overruled by the follow- ing remarks of Parke, B., in Quarman v. Burnett (1840) 6 Mees. & W. 499, 4 Jur. 969. "My brother Maule thought there was some evidence to go to the jury, of the horses being under the de- fendants' care, in respect of their choos- ing this particular coachman. We feel a difiiculty in saying that there was any evidence of choice, for the servant was the only regular coachman of the job mistress's yard; when he was not at home, the defendants had occasionally been driven by another man, and it did not appear that, at any time since they had their own carriage, the regular coachman was engaged, and they had re- fused to be driven by another;' and the circumstances of their having a livery, for which he was measured, is at once explained by the fact that he was the only servant of Miss Mortlock ever likely to drive them. Without, how- ever, pronouncing any opinion upon a point of so much nicety, and so little defined, as the question whether there is some evidence to go to a jury, of any fact, it seems to us that, if the defend- ants had asked for this particular serv- ant, amongst many, and refused to be driven by any other, tliey would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack postboy ceases to be the servant of an innkeeper, where a traveler has a 174 MASTER AND SERVANT. [chap, ii, the servant puts himself under the control of the person for whom the stipulated work is done, even though the former is directly inter- ested in the results of the duty to be performed, and has strongly urged that the latter should avail himself of the servant's skill; for in the end the acceptance of the services is the act of one over -whom the general employer has no authority.^ Wherever the circumstances are such as to suggest the possibility that, at the time vyhen the injury v^as received, the servant in ques- tion had been temporarily transferred to the employment of a per- son other than his general employer, any evidence is competent which tends to establish the fact of such transfer.'" In such cases the jury should also be instructed as to the proper verdict to render, in the event of their believing the evidence offered to prove the transfer.*^ It need hardly be stated that unless the servant knew that he was working for someone other than his general employer, the relation- ship of master and servant could not exist between the servant and such other party. '^ In stating the effect of the cases which turn upon the question whether the given employee was or was not the servant pro hoc vice of a party other than his general employer, it has been deemed ad- particular preference of one over the defendant's employ for that day, and em- rest, on account of his sobriety and ployed and paid by the company put- carefulneas. If, indeed, the defendants ting in the pipes, since in that case de- liad insisted on the horses being driven, fendant was not responsible for his neg- not by one of the regular servants, but ligence. Connor v. Koch ( 1901 ) 63 App. by a stranger to the job master, ap- Div. 257, 71 N. Y. Supp. 836. pointed by themselves, it would have n Where there is some evidence going made all the difference." To the same to show that a subcontractor was in ex- effect, see Joslyn v. Gand Rapids Ice Go. elusive control of an elevator car, and (1883) 50 Mich. 516, 45 Am. Rep. 54, directed its movements while the work 15 N. W. 887. Compare also the ruling in question was being done, it ia error in Martin v. Temperley (1843) 4 Q. B. to refuse to instruct the jury that, if 298. they believe this evidence, they should s The Martin Kalbfteisch (1893) 5 find that the man operating the elevator, C. C. A. 120, 14 U. S. App. 187, 55 Fed. although in the general employment of 336, where a pilot ordinarily in the the owner of the building, became the employ of the charterer of a vessel in special servant of the subcontractor pro tow was appointed to take charge of the hao vice. Diehl v. Robinson (1902) 72 tug, after a consultation between the App. Div. 19, 76 N. Y. Supp. 252. charterer and the masters of the tug 12 Unless the plaintiff knew he was and the vessel. working for an independent contractor, 10 Where the defendant gave up the and consented to the transference, the use of an elevator in his building for relation had not been established, for the day to a company which was en- he could not be transferred from one gaged in putting in pipes for a Are ex- master to another without his consent, tinguisher, and while the company was either expressly given, or implied from so engaged a bundle of pipes fell from the nature and character of the work the elevator and killed the plaintiff's when compared with his ordinary em- husband, it was held error to exclude ployment. Bowie v. Goffin Valve Co. evidence that the man was detached from (1909) 200 Mass. 571, 86 N. E. 914. § o3J, EXISTENCE OF RELATION— WHEN INFERRED. 175 visable to segregate those in whicli the employee was placed in charge of a plant, from those in which this element was not involved. This method of classification is adopted partly for the historical reason that the subject of special service for a particular purpose was first discussed and developed in relation to servants deputed to manage instrumentalities belonging to their masters, and partly because the fact that an instrumentality used by a servant for the purposes of a given piece of work was the property of his general employer may well be considered to possess a distinct evidential significance, as tending to show that there was no suspension of that employer's con- trol while the work was in progress. 53. Servant deputed to perform work for third persons by means of instrumentalities belonging to his master presumed prima facie to re- main under his control. — Three distinct theories have been judicially propounded as to the legal situation which, in our present point of view, results from the hiring of an instrimaentality which is to be used in the performance of certain vsrork for the benefit of the hirer, and which is to be managed for the purposes of that work by a serv- ant of the owner. One theory is that the transfer of the possession of the instrumen- tality is presumed to carry with it the right to control the servant as long as that possession continues.^ A second theory is that the servant is deemed to have been hired by the contractee, through the agency of the contractor, for the pur- pose of doing the stipulated work, and that, although selected by, and normally in, the employment of the contractor, he becomes sub- ject to the directions of the contractee from the time when the per- formance of the contract is commenced.* This conception of the re- 1 This conception emerges in the judg- service ; and, consequently, that he was ments delivered by Holroyd and Bayley, answerable for the driver's negligence JJ., in Laugher v. Pointer (1826) 5 in driving him, the defendant, whilst Barn. & C. 547 (see facts in next sec- under his, the defendant's orders; and tion). The former judge remarked: it is to be considered, I think, as the "In the present case, I think the horses defendant's driving of the carriage and were to be considered in law as in the horses by his servant." possession of the defendant, and the In Sproul v. Hemmingway (1833) driver as the defendant's servant, for 14 Pick. 1, 25 Am. Dec. 350, one of the the purpose for which he was sent to reasons advanced by counsel for hold- the defendant; and I think that a ing the owners of a tow to be liable taking of the horses or driver away for the negligence of the crew of the from the defendant's service during the tug was that the tug was in the pos- time for which he had hired them would session of those whom she was em- have been a taking them away from ployed to tow. But this contention did him for which he might have main- not prevail. tained an action of trespass, as for a 2 In Laugher v. Pointer (1826) 5 taking them out of his possession and Barn. & C. 547, 569, Bayley, J., argued 176 MASTER A2S[D SERVANT. [chap. ii. lation of the parties obviously begs the question at issue, and conld scarcely have been put forward in the case referred to, if the dis- tinction between agents and independent contractors had been fully elaborated at the date when it was decided. Having due regard to that distinction, it is manifest that, under the circumstances with which we are now concerned, "the mere hiring of a person is not al- ways sufficient to create the relation of master and servant. There must be, besides the hiring, some degree of actual control over the person hired, and some right to direct him from time to time as the master may see fit." ^ A third theory is that a servant sent to take charge of an instru- mentality owned by his master, while it is placed at the disposal of another party for the performance of a given piece of work, is pre- sumed to remain the servant of his general employer, and that some special circumstances apart from the mere fact of the hiring of the chattel must be put in evidence in order to overcome this presump- tion. An examination of the cases cited in the following sections will show that this is now the prevailing doctrine. But one court of very high authority has recently rendered a decision which seems to em- body an essentially different rule as to the incidence of the burden of proof.* 54. Rule applied in the case of horse-drawn vehicle. — In view of some of the cases collected in § 57, note 3, subd. (a), post, it is scarcely permissible to lay it down as a doctrine universally accept- ed, that a jury is never warranted in inferring a suspension of the thus: "Had the defendant hired the Though the former is his master in driver, can there be a doubt but that he general, he has, for a time, let him out would have been defendant's servant? to me; and a master is liable for the If he leaves it to the ovi'ner of the horses acts of one who is in his service or to hire him, is he not, in substance, employ, though the master who is to hired by the defendant? If I hire horses he charged is not his immediate em- of A and hire B to drive, B is undoubt- ployer, but employs him through the edly, for the time, my servant. Is the medium of another. If I hire the driver, driver less my servant for the time, I am answerable for him; if I employ because I hire him and the horses under J. S. to hire him, am I not still nn- one bargain, and allow the owner of the swerable? I exercise my own judgment horses to select him? He is employed in the one case, I leave it to J. S. to for me; that cannot be disputed. He exercise a judgment for me in the drives where I direct, and so as I re- other, but still it is for me that the quire nothing contrary to my contract judgment is exercised. The service is with the owner of the horses, he must performed for me." obey my reasonable commands. He ^ Bonifuce v. llelyea (1868) 5 Abb. must go where I order; must stop where Pr. N. S. 259. I require; must go the pace 1 specify. * See Delory v. Blodgett (1904) 185 Though the owner of the horses is, to Mass. 126, 64 L.R.A. 114, 102 Am. St. a certain extent, his master, I am, to Rep. 328, 69 N. E. 1078, § 58, note 1, a certain extent, his master also. Tpost. § 54J EXISTENCE OF RELATION— WHEN INFERRED. 177 general employer's control, unless there is some direct and specific evidence whicli goes to show that it was intended by the parties to the contract that the driver should be entirely subject to the control of the hirer with respect to the management of the team. But the continuance of the general employer's control has been affirmed in cases of this class so frequently, and with relation to such a large va- riety of circumstances, that there would seem to be good grounds for saying that this doctrine really sums up the effect of the authorities, as a whole. Whether this view be well founded or not, it will, at all events, be apparent from a perusal of the decisions collected in the subjoined note, that it is extremely difficult to make good a claim or a defense based upon the theory that a person sent to take charge of a vehicle hired from his general employer was under the hirer's con- trol in such a sense as to have become his servant for the time being. ^ 1 In Laugher v. Pointer ( 1826 ) 5 Barn. & C. 547, after an elaborate dis- cussion in which all the common-law judges took part, the court of King's bench was equally divided upon the question whether the defendant could be held liable on the following state of facts: The plaintiff was owner of the horse that was injured by a col- lision with a team, the defendant was owner of the carriage drawn by the team, who, having occasion to use it on the day in question, had applied to a job man, by whom he had been supplied with a pair of job horses and a coachman. The job man did not give anytliing to the coachman for the day's work, but the defendant paid him 5s.; this 5s. was not, however, paid in pursuance of any contract or engage- ment, either with the job man or coach- man, but was merely given as a gratuity to the coachman, who had no employ- ment relative to any business of the defendant except the driving of the car- riage in question. The gist of the argu- ments of Holroyd and Bayley, JJ., has already been given in the notes to the preceding section. The following pas- sages from the opinions of Littledale, J., and Abbott, Ch. J., which were ex- pressly approved by the court of ex- chequer, in Quarman v. Burnett (1840) 6 Mees. & W. 499, 4 Jur. 969, as com- plete and correct expositions of the law, will indicate the considerations upon which the prevailing doctrine is found- ed. Littledale, J., after observing that the case was not one in which the serv- M. & S. Vol. I.— 12. ant in question had been hired by an intermediate upper servant, proceeded thus: "And, therefore, if the defend- ant is in this case to be answerable for the acts of the driver provided by the job man, it must be upon this prin- ciple, — that if a man, either for his benefit or pleasure, employs an agent to conduct any business, such agent is to be looked upon in the same light as if he was the immediate servant of the employer, and that the owner of the property by employing such an agent to transact his business, confides to him the choice of the under work- men; and then the principle must go on to this, — that such agent and under workmen are to be considered in the same light as the foreman or manager of a person in conducting his business, and as the workmen selected by such foreman or manager ; and that it makes no difference to persons who receive an injury in what light the offending party stands to the principal, whether as an underworkman employed by an agent or an underworkman employed by the foreman of the principal. And that the only thing to be looked to is wheth- er in the end the principal pays for the employment in the course of which the injury is occasioned. . . . Suppose a man has a ship or a carriage or other thing to repair, and he, instead of hav- ing the repairs done on his own prem- ises and by his own servants, sends it out to be repaired by a person who exer- cises the public employment under which it would be repaired, and any damage 178 MASTER A^^D SERVANT. [CHAP. II. happens in the course of the repair by the negligence of the persons employed; these are employed by a person who may be considered the agent of the prin- cipal, and yet the law would not hold the principal liable. If a man hires a carriage and horses to travel from stage to stage, the carriage and horses are employed for the benefit or pleas- ure of the traveler, instead of using his own, which he may not do, either from inability to keep horses or a de- sire of expedition, and yet the law has never considered the traveler liable. There is no difference in principle be- tween a man's traveling by the stage or traveling by the day. In one case and the other the traveler is using the carriage and horses for his benefit; he pays so much by the day instead of so much by the mile; he pays the coach- man a gratuity in one case, and the postilion in the other case, and yet the traveler has never been held liable. . . . It may be said that the defend- ant in the present case was owner of the carriage, and that therefore the principles of these latter cases [refer- ring more especially to Bush v. Stein- man (1799) 1 Bos. & P. 404] apply; but, admitting these cases, the same principle does not apply to personal movable chattels as to the permanent use and enjoyment of land or houses. Houses and land come under the fixed use and enjoyment of a man for his regular occupation and enjoyment in life; the law compels him to take care that no persons come about his prem- ises who occasion injury to others. The use of a personal chattel is merely a temporary thing, the enjoyment of which is, in many cases, trusted to the care and direction of persons exercising public employments; and the mere pos- session of that, where the care and direction of it is intrusted to such per- sons, who exercise public employments, and in virtue of that furnish and pro- vide the means of using it, is not suffi- cient to render the owner liable. Mov- able property is sent out into the world by the owner to be conducted by other persons; the common intercourse of mankind does not make a man or his own servants always accompany his own property; he must in many cases confide the care of it to others who are not his own servants, but whose em- ployment it is to attend to it. . . . I think that there cannot be any dif- ference, in point of law, as to the lia- bilities of these persons arising from the mere ownership of the carriage; and that the ownership of the carriage makes him no more responsible than it would do if it had been sent to be re- paired by a coach maker who, in the course of repair, had occasioned any damage to other persons; but if the injury arises from the driver, it is he, or the person who appoints him, that i& to be responsible. It may be said that, according to this doctrine, a person whoi hired job horses and a coachman for a year would not be answerable for the negligence of the caachman; if the coachman remain the mere servant of the job man, not otherwise employed in the service of the hirer, I think the hirer would not be liable for whatever time he hired the coachman and horses; but where the coachman Is hired for a year, it will very often happen that he is employed in other services besides the mere attention to the coach and horses; and if, by such circumstances, he becomes the servant of the hirer, be- sides being the servant of the job man, the case might then admit of a different consideration. . . . There are many cases where questions have arisen upon the liabilities of postmasters, of cap- tains of ships of war, and of owners of ships who have taken pilots, and of fac- tors who have acted for their principals, and others, as to what degree of posses- sion is kept by the owner. These I have not thought it necessary to notice, be- cause I think the sole question here is whether, if a man employs another to do work respecting personal movable property, and that other furnishes a servant, that servant is to be considered in the same light as a servant appoint- ed by the person himself." Abbott, Gh. J., said: "I am sensible of the difficulty of drawing any precise or definite line as to time or distance. But I must own that I cannot perceive any substantial difference between hir- ing a, pair of horses to draw my car- riage about London for a day, and hir- ing them to draw it for a stage on the road I am traveling, the driver being in both cases furnished by the- owner of the horses in the usual way; nor can I feel any substantial difference between hiring the horses to draw my own carriage on these occasions, and § 54] EXISTENCE OF KELATION— WHEN INFERRED. 179 liiring a carriage with them of their owner. If the hirer be answerable in the present case, I would ask on what principle can it be said that he shall not be answerable if he hires for an hour or for a mile? He has the use and benefit pro tempore not less in the one case than in the other. If the hirer is to be answerable when he hires the horses only, why should he not be an- swerable if he hires the carriage with them? He has the equal use and benefit of the horses in both cases, and has not the conduct or management of them more in the one case than in the other. If the temporary use and benefit of the horses will make the hirer answerable, and there be no reasonable distinction between hiring them with or without a carriage, must not the person who hires a hackney coach to take him for a mile or other greater or less distance, or for an hour or longer time, be answer- able for the conduct of the coachman? Must not a person who hires a wherry on the Thames be answerable for the conduct of the waterman? I believe the common sense of all men would be shocked if anyone should affirm the hirer to be answerable in either of these cases. Will it be said that the hirer is not answerable in either of these cases because the coachman and the wherry man are ready to attend to the call of any person who will employ them? I answer. So, also, is the stable keeper. If it be said that they are obliged to obey the call of any person when they are on the stand or at the stairs, I would ask. Will there be any difference if they are spoken to before- hand, and desired to attend at a par- ticular hour? — which is not an unusual occurrence where persons have an en- gagement to go out at an early hour in the morning. If the personal pres- ence of the hirer will render him re- sponsible, why should he not be equal- ly so if he is absent, and has hired the horses or carriage for his family or servants? Does his presence give him any means of superintending or controlling the driver? Can any legal obligations depend upon such minute distinctions? If the case of a wherry on the Thames does not furnish an analogy to this sub.iect, let me put the case of a ship hired and chartered for a voyage on the ocean, to carry such goods as the charterer may think fit to load, and such only. Many accidents have occurred from the negligent man- agement of such vessels, and many ac- cidents have been brought against their owners, but i am not aware that any has ever been brought against the char- terer, though he is to some purposes the dominus pro tempore, and the voy- age is made, not less under his employ- ment and for his benefit, whether he be on board or not, than the journey is made under the employment and for the benefit of the hirer of the horses. Why, then, has the charterer of the ship, or the hirer of the wherry or the hackney coach, never been thought an- swerable? I answer, because the ship- master, the wherry man, and the hack- ney coachman have never been deemed the servants of the hirer, although the hirer does contract with the wherry man and the coachman, and is bound to pay them, and the pay is not for the use of the boat, or horses, or carriage only, but also for the personal service of the man. In the case now before the court, the hirer makes no contract with the coachman; he does not select him; he has no privity with him; he usually gives him a gratuity, but he is not by law obliged to give him any- thing; and from thence I conclude that the coachman is not the servant of the hirer. And if the coachman is not the servant of the hirer on such an occa- sion, but is chosen and intrusted by the owner of the horses to conduct and manage them, I think it cannot be said that the hirer has in law, what he certainly has not in fact, the conduct and management of the horses. If the coachman is in such a case the servant of the hirer, he may, at any moment, require him to quit the charge of the horses, and deliver them over to an- other, and must be obeyed ; but I think it cannot be said that the coachman may not lawfully refuse, and ouglit not in most cases to do so." Two years after the decision in Lau- gher V. Pointer, all the judges of the King's bench concurred in holding that a hirer of post horses was not liable for the acts of the postilions. Smith V. Laim-ence (1826) 5 Barn. & C. 547. Bayley, J., one of the two judges who was of opinion that the hirer of the job horses in Laugher v. Pointer became the master pro tempore of the driver. 180 MASTER AND SERVANT. [CHAP. II. relied upon the theory that post horses "are taken never to be out of the pos- session of their actual owner." This doctrine had already been as- sumed to be settled law by Lord Ellen- borough, in a nisi prius case twenty- five years earlier in date. Dean v. Branthwaite (1803) 5 Esp. 35. There an objection on the part of the defend- ant, that the action should have been case, for abuse of that which was com- mitted to him under a contract, and not trespass, was overruled, on the ground that the horses continued under the control and direction of the stable keeper's servants who were intrusted with the driving, and that he would be answerable for any accidents pro- duced by the postboys' misconduct on the road. Two years afterwards the same judge, in a case where post horses were hired out in the ordinary way to draw a private carriage, directed the jury that the postilions remained under the control of the liveryman, and that he was liable for a collision caused by their negligent driving. Sammell v. Wright (1805) 5 Esp. 263. The whole question was at length set at rest in Quarman v. Burnett (1840) 6 Mees. & W. 499, 4 Jur. 969, which, although resembling Laugher v. Pointer supra, in most respects, presented some novel features, which materially strengthened the case against the hirer. The facts were thus stated by Parke, B., who delivered the judgment of the whole court: "The defendants were two old ladies, who had been in the habit of employing a person by the name of Mortlock and his daughter to supply them, originally with a, fly and horse and driver by the day, at a certain sum for the whole; . . . but afterwards [when] they became pos- sessed of a carriage of their own, . . . with a pair of horses and a driver by the day or drive, for which ... a certain sum was charged. She [Miss Mortlock] paid the driver by the week, and the defendants besides gave him a gratuity for each day's service. For the . . three years [before the accident which formed the subject-matter of the action] the same coachman constantly drove the defendants' carriage, and they had purchased a livery hat and coat for him, which, it appeared, were usual- ly hung up in the passage of the defend- ants' house. . . . The coachman, before he drove, was in the habit of go- ing in and putting on the coat and hat, and, when he had finished the drive, of returning and replacing them. On the day in question, he wore the hat only, and when he had returned home with the ladies, and after they had got out of the carriage, . . . [he] went in to replace the hat, and left the horses without anyone to hold them. . . They set off whilst the coachman was so occupied, and ran against the plain- tiff's carriage, overturned it, and in- flicted . . . the injury complained of. ... It appeared that there v? as no other regular coachman in the job mistress's yard, and when he was otherwise em- ployed, some other person in the yard acted as coachman, but never for de- fendants since they had their own car- riage, though occasionally before that time. For the plaintiff it was contend- ed that they [the defendants] were liable for the coachman's neglect, in- dependently of the special circumstances of the case; and that there were be- sides two peculiar grounds, on which the defendants ought to be held respon- sible: First, that there was evidence to go to a jury of selection and choice by the defendants of the particular coachman, so as to make him their serv- ant; and, secondly, that when the coachman went in to leave his hat, he was, in so doing, acting as the servant of the defendants, and therefore his neglect was theirs." The conclusion ar- rived at by the court was that the view contended for by Littledale, J., and Ab- bott, Ch. J., in Laugher v. Pointer, was the correct one, and that the special circumstances adduced to establish the fact of a transfer of the servant were not sufficient for that purpose. See § 52, note 8, ante. This decision was followed in a New Jersey case where the coach, as well as the driver and the horses, had been hired, the court stating that it had been regarded as settling the rule in England, that "the hiring of horses to be driven by a driver regularly in the employ of the person from whom the horses are hired does not create the relation of master and servant between the hirer and the driver, from which a liability for the driver's negligence would arise." New York, L. E. & W. R. Co. V. Steinlrenner (1885) 47 N. J. L. 161, 54 Am. Rep. 126. § 54] EXISTENCE OF RELATION— WHEN INFERRED. 181 The following passage from m. Penn- sylvania, case decided in the same year as Quarman v. Burnett, supra, may be advantageously read in connection with the above quotation, as it serves to illustrate the subject from a, somewhat different standpoint: "If a horse is hired to me, and I am to ride or drive him, I am to judge of what distance he can travel in a given time, and to see that he is not overheated or too mvich fatigued. But if, as often happens, the owner himself goes along and drives, I have no care of the horse, and no re- sponsibility if he is injured. But if the owner sends a driver, who is to drive, and water and feed the horses, it is as to me the same as if the owner himself drove. If his driver oversets and breaks my arm, his master is liable to me; and if, at the same time, the carriage Is broken, I am not liable to the owner; it was not done by me, but by himself or his servant. But a horse may be hurt at the same time, — I am not liable for that; it was the result of carelessness or unskilfulness of the owner or his servant. And wherever the owner sends a servant to drive and take care of the horses, he who is car- ried has no responsibility, unless the injury occurred from some act or inter- ference of his." Hughes V. Boy er (1840) 9 Watts, 556. Other decisions illustrating the gen- eral doctrine stated in the text are the following: — D contracted with the defendants, an urban authority, to supply by the day a driver and horse to drive and draw a watering cart belonging to the defend- ants. The driver was employed and paid by D, and was not under the defend- ants' direction or control, otherwise than that their inspector directed him what streets to water. In an action to recover damages for injuries caused by the negligent conduct of the drivel- while in charge of the cart, Held, that the defendants were not liable. Jones V. Liverpool (1885) L. R. 14 Q. B. Div. 890, 54 L. J. Q. B. N. S. 345, 33 Week. Rep. 551, 49 J. P. 311. Where the only evidence is that A and B occasionally exchanged work with their teams, and that A sent his team to haul a, load for B, the legitimate inference is that the driver, while do- ing the work, was in A's employ. Mich- ael V. Stanton (1875) 3 Hun, 462. The owner, and not the hirer, of a team which the owner furnishes with a driver, is liable for injuries to tliird persons caused by the negligence of the driver. Sacker v. Waddell (1903) 98 Md. 43, 103 Am. St. Rep. 374, 56 Atl. 399. If nothing more is shown than that the owner of a wagon and team hired them out with a driver to do a day's work, a finding of the jury that the driver is the servant of the bailor, and that the bailor is liable for injuries caused by the defective condition of the harness, by reason of which the driver could not control the team, will not be disturbed. Crockett v. Calvert (1850) 8 Ind. 127. The driver of a horse and truck, who, with them, is selected to perform serv- ices for a third party, under a con- tract by his employer to furnish horse, truck, and driver daily for a specified price, is a servant of his regular em- ployer while engaged in such service, and not a servant of the third party. Quinn v. Complete Electric Constr. Co. (1891) 46 Fed. 506. A person employed and paid by a contractor as driver of a horse and wagon, which, together with the driver, the contractor lets by the day to a city, to be used in the work of paving a street, and who has the entire manage- ment of the horse as to the manner of driving him, and whose duty it is to see that he is properly shod, is the serv- ant of the contractor in so driving the horse and having him shod, and for an injury to a third person caused by his negligence in these respects the con- tractor is liable. Huff v. Ford (1878) 126 Mass. 24, 30 Am. Rep. 645 (horse kicked a loose shoe through a plate- glass window, after he had been violent- ly struck by the driver). A livery stable keeper is liable for the negligence of his driver temporarily engaged in the service of an undertaker. Hershlerger v. Lynch (1887) 9 Sadler (Pa.) 91, 11 Atl. 642. F engaged a cari'yall to convey cer- tain persons to and from a picnic, and was to collect the fares, and pay them over to the owner. He directed the vehicle to be sent to a certain place, where "he would take charge of it, and go with them, and gather the crowd up." The owner was to send out later after them. There was nothing to in- 182 PIASTER AND SERVANT. [chap. II. dicate F was to exercise any control over the driver. Held, that the driver was servant of the owner, and not of F, and that the owner was liable for in- juries caused by the driver's negligence. Fenner v. Crips Bros. (1899) 109 Iowa, 455, 80 N. W. 526. The relation of master and servant, involving the consequent responsibility of the former for the acts of the latter, does not exist between associates who have hired a coach and its driver, it appearing that they neither selected nor paid him, and, at most, had only a right to order him to go forward or stop. Lewis V. LCal. App. 347, 87 Pac. 1105. capitalist's mandatary or agent; the I 8 Principal & Agent, p. *1. mason or the bricklayer who directly 9 Contr. 16th ed. p. 350. The learned lets his labor to the capitalist is the author remarks that "we should bear latter's servant or locator. ... I in mind that 'agency' is not coextensive employ, for instance, an engine maker -with 'employment,' though it is, un- to build for me a particular engine, he fortunately, not uncommon to speak of having exclusive control over the use a person employed as the agent of his of his time when working for me, and employer." pursuing his own mode of worlcing; or 10 "Agency, or mandate . . . is I engage a printer to print for me a distinguishable from locatio conditctio particular manuscript, he having like operarum, or the relationship of master discretion as to time and mode; or I and servant, by the fact that the former employ a salesman, he having like dis- relates to business transactions, in cretion as to the parties to whom to which there is more or less discretion sell, — in each of these cases, the cm- allowed to the employee, while the lat- ployment is agency, or mandate, and ter relates to manual services, which not that of master and servant, or lo- the employee is, as a rule, obliged to catio conductio operarum." Wharton, perform under specific orders. Thus, a Agency, §§ 19, 20. As regards this publisher is the mandatary or agent of passage it should be observed that the § 66] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 229 66. Various elements which may serve for the purpose of differentia- tion between servants and agents.— After a review of the authorities discussed in the two preceding sections, the only conclusions which it seems possible to draw are these: (1) That the element of control over the details of the work supplies a reasonably precise test by which to distingTiish servants from independent contractors; (2) that this test fails when it becomes necessary to trace the line which separates agents from independent contractors; (3) that no criterion appropriate to all classes of cases has yet been suggested for the pur- pose of differentiating servants from agents. The situation indicated by the third of these conclusions, the one with which we are at pres- ent most nearly concerned, is extremely unsatisfactory. But it seems to be an unavoidable consequence of the fact that persons in the po- sition of servants are, when engaged in the performance of their duties, acting in behalf of their master, and therefore, in the broad sense of the term, agents.^ But for practical purposes the nature of apparent assumption of the learned au- thor that, wherever there is a locatio condxiGtio operarum, there arises the relation of master and servant, is man- ifestly erroneous. Such a contract only produces that relation when the "loca- tor" is to be under the control of the "conductor" in respect to the details of the work. Nor can the statement that a contractor who undertakes to build a house for a capitalist is the lat- ter's agent be regarded as correct ex- cept in a very qualified sense. These two terms do not connote entirely iden- tical conceptions. The status of an agent is ascribed to every servant, in so far as he may have authority to bind his master in dealings with third persons; and this circumstance obvi- ously involves the consequence that ag- ency is not necessarily negatived by the fact that the employee in question was bound to do his work in the manner specified by his employer. On the other hand, proof of that fact at once ex- cludes the inference that the employee was a "contractor" within the technical meaning of the word. "The true distinction is to be found in the nature of the undertaking, and the time and manner of its performance. Agency properly relates to transactions of business with third persons, and im- plies more or less of discretion in the agent as to the time and manner of his performance. Service, on the other hand, has reference to actions upon or about things. It deals chiefly with matters of mere manual or mechanical execution, in which the servant acts under the direction and control of the master. It may be said, perhaps, that this distinction is not altogether sat- isfactory in actual application, inas- much as it is difficult to conceive of anj form of service, except, perhaps, the very lowest, in which more or less of discre- tion is not allowed the servant; or of anj' form of agency, except, perhaps, a few forms of independent calling, in which the agent is not or may not be subject to the specific control of the prin- cipal. In the majority of cases, how- ever, the distinction is suflBciently clear for practical purposes, particularly in- asmuch as the same principles of law will ordinarily be applied to either re- lation. ... In the view that he who executes the will and is subject to the control of another is a servant, agency is but a higher form of service; while in the view that he who acts for and represents another is an agent, service is but a lower form of agency." Mechem, Agency, § 2. 1 A servant manifestly comes within the scope of the definition of agent which is given in Story on Agency, 9th ed. § 3, viz., one who is employed "to do any act for the benefit of another." 230 MASTER AND SERVANT. [chap. hi. the relationship, created by a given contract of employment may be determined with reasonable precision by a consideration of the fol- lowing elements: (1) The existence or absence of a right on the employer's part to control the employee as to the manner in which his functions are to be performed. This test is decisive, whatever may be the character of the work assigned to the employee.^ (2) The fact that the employee was engaged for a definite or in- definite period. As agents are frequently employed for a fixed period, the alternative situations thus predicated are not of such im- portance in themselves; but a contract of agency should, it seems, 2 A captain of a ship has been held ey received to the company, for a com- to be the servant of the shipowners, mission on the receipts of the ofEce, for the reason that "he is appointed and determines for himself the par- and paid by them ; they can dismiss ticular time and manner of attending to him, and he is subject to their orders." each part of the business intrusted to Lord Esher in Hedley v. Pinkney & him, is an "agent," not a "servant." Sons S. 8. Go. [1892; C. A.] 1 Q. B. 58, State v. Smith (1897) 57 Kan. 657, 47 disapproving Ramsay v. Quinn (1874) Pac. 535. Ir. Rep. 8 C. L. 322, in which a pas- Compare also the cases in which it sage in Story on Agency, § 314, de- has been held that managing directors daring a captain to be an agent, was of a company are not "in the nature of adduced in support of the conclusion servants who are being paid for their that he was a vice principal or alter services in the way in which servants ego. are paid;" but that "they continue This ruling seems to qualify the ef- members of the company," and are feet of an old case, in which the court properly designated "working members declared that the law takes notice of of the company, who get paid for the the master of a ship as something more work that they do." Be Leicester Clu-b than a servant, such as a common hoy- d County Racecourse Go. (1885) L. R. man, and that for certain purposes he 30 Ch. I)iv. 629; Re Bolt & Iron Go. is the agent of the owners. Morse v. (1887) 14 Ont. Rep. 211, affirmed in Slue (1684) 1 Vent. 190, 238, 1 Mod. (1889) 16 Ont. App. Rep. 397. These 85, 2 Keble, 866; 3 Keble, 72, 112, 135. cases, it is clear, might have been de- But perhaps it was not meant to do more cided upon the simple ground that such in the earlier decisions than to assert functionaries are not subject to the di- the doctrine that the master is, for cer- rections of any superior in regard to tain purposes, the agent of the owners, the manner of performing their func- as well as their servant. This doctrine, tions. it is scarcely necessary to say, is con- If the rest of the evidence points to stantly applied. See Abbott, Shipping, the conclusion that a person employed 14th ed. pp. 155, et seq. to sell goods was a servant, that con- Under Kan. Gen. Stat. 1889, par. elusion is not rebutted by the fact that 2220, which distinguishes between em- the employee took out the government bezzlement by "agents" and by "serv- license, without which the goods could ants," a man employed by an express not lawfully be sold, nor by the fact company to take charge of its business that he was the owner of the horse and at a local office, who receives and con- wagon which were necessary for the signs express matter, collects charges transportation of the goods. Shea v. thereon, and keeps an account of the Reems (1884) 36 La, Ann. 966. See, business of the office, makes reports however, § 67, note 4, post. thereof, and transmits balances of men- ■§ 66] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 231 usually be inferred, where the employee is not only engaged for an indefinite period, but paid by commission. (See next paragraph.) * (3) The fact that the employee received his compensation, either in the form of fees and commissions or in the form of fixed wages or salary. With regard to these contrasted modes of compensation, the effect of the authorities, broadly speaking, may be said to be that, wherever the whole or a substantial part of the wages or salary of the employee consists of a specific sum payable at the end of certain stated periods, the appropriate inference ordinarily will be that he was a servant, even though the other evidential elements warrant the conclusion that the contract was one of agency.* But possibly this rule is not applicable in the case of certain classes of professional 3 Where L. was employed by a company above the prices limited by the defend- to buy sheep for them, on the terms that ant. Shea v. Reems (1884) 36 La. he was to receive one penny for each Ann. 966 (employer held liable for neg- sheep bought by him, there being an ligence of employee). The court said: express statement in the letter accept- "It would be difficult to imagine one ing his offer, that "the arrangement person's binding himself to pay a fixed was to be for no specified time," it was compensation weekly for the service of held that L. was merely a commission another, if the latter were to be eman- agent, not a servant, and therefore cipated from the former's direction and could not sue the company for damages, control, and left free to perform the on the ground that he had been dis- service or not at his whim, or to per- charged before the end of a certain form it in a manner opposed to the period, during which he was instructed employer's will, and, perhaps, yielding to travel through the country, purchas- him no benefit. If the term of em- ing sheep. All that he was entitled ployment had been for one year, and at to receive was the commission on the a fixed annual compensation, the incon- sheep actually purchased, together with gruity of such a construction would be such expenses as he had incurred be- more striking; but the principle is iden- fore being dismissed. Liscombe v. tical." Echuca Meat Preserving Co. (1870) 1 Similar conclusions were arrived at Vict. Rep. (L. ) 148. with regard to persons employed to sell 4 In Hunter v. Belcher (1864) 10 L. goods, in Singer Mfg. Co. v. RaJin T. N. S. 548, Bruce, L. J., argued upon (1889) 132 U. S. 518, 33 L. ed. 440, the assumption that a commercial trav- 10 Sup. Ct. Rep. 175, and Pickens v. eler compensated by a fixed salary was Diecker (1871) 21 Ohio St. 212, 8 Am. to be regarded as a servant rather than Rep. 55. But in these cases the ques- as acent. tion discussed was whether the em- Where there is a salary, that raises ployees were independent contractors or a. presumption that the person receiving servants. it is bound to devote his time to the A person employed eo nomine as a work as the emplover may direct ; State sugar broker, but stipulating and con- V. Yeiter (1894) 54 Kan. 277, 38 Pac. senting to receive an annual fixed sal- 320 (embezzlement case). ary in lieu of commissions, and "agree- The relation of master and servant is ing to effect sales of sugar and molasses established by evidence to the effect to be consigned to his employer, and that one A was employed by defendant for no one else, and to exert all his to peddle goods for the latter at a speci- personal influence to promote the inter- fied wage per week, with an additional ests of his employer," and "to write all compensation of 2 per cent on the letters concerning the sugar and molas- price of all goods sold, and with the ses market for his employer, and make privilege of keeping any excess of price out account sales for sugar and mo- tor which he sold the goods over and lasses in the transactions made by him," 232 MASTER AND SERVANT. [chap. ra. men employed to discharge responsible functions for large corpora- tions.^ On the other hand, it is not necessary, in order to establish the existence of a contract of service, that the employee should have been paid by wages or salary. If he is shown to have been under the control of the employer in respect to the details of his work, he will be regarded as a servant, although his remuneration may have taken the form of a commission.* But, having regard to the ordinary usages of commercial life, it is clear that the fact of the compensa- tion having been paid in the form of commissions is an element which tends strongly to show that the employee was an agent, and not a servant.'' (4) The fact that, under his contract, the employee was to devote — is a clerk, and not a broker in the servant, see Rex v. Ward (1819) Gow, ordinary acceptation of such terms. 168; Reg. v. Turner (1870) 11 Cox, C. Tete V. Lanaux (1893) 45 La. Ann. C. 551; Reg. v. Chater (1861) 9 Cox, 1343, 14 So. 241 (action for salary). C. C. 1; Reg. v. BaAley (1871) 12 Cox, The court reasoned thus: "A clerk is C. C. 56; Reg. v. Tite (1861) Leigh & C. one who hires his services to an em- C. C. 29; Rex v. Carr (1811) Russ. & ployer at a fixed price, under a stipu- R. C. C. 198; Campbell y. State (1878) lation to do and perform some specific 35 Ohio St. 70. duty or labor which requires the exer- Compare also the cases which exem- cise of skill. 'The broker is he who is plify the rule that the fact of an em- employed to negotiate a matter be- ployee's being paid a certain per- tioeen two parties, and who, for that centage of the profits of a business doe» reason, is the mandatary of both.' Rev. not necessarily constitute him a partner Civ. Code, art. 3016. The leading and of the employer. §§ 68, 69, post. essential difi'erence between a clerk and '' This element, although not the only a broker is that the former hires his one taken into consideration, was pres- services exclusively to one person, while ent in the following cases, in which it the latter is employed to make bargains was held that the prisoner could not be- and contracts between other persons in convicted as a "servant." Reg. v. matters of trade, commerce, and navi- Walker (1858) 8 Cox, C. C. 1, 27 L. J> gation. For the services of the former Mag. Cas. N. S. 207; 1 Dears. & B. C. there is a fixed stated salary, while C. 600 ; 4 Jur. N. S. 468 ; Reg. v. May- for those of the latter, a compensation, (1861) Leigh & C. C. C. 13; Reg. v. commonly styled brokerage, is allowed. Dowers (3866) 10 Cox, C. C. 254; Keg. Storey, Agency, § 26." v. Mirshall (1870) 11 Cox, C. C. 490, See also the cases involving the con- 21 L. T. N. S. 797; Reg. v. Negus struction of the embezzlement statutes, (1873) L. R. 2 C. C. 34, 42 L. J. Mag. § 67, note 5, post, especially subds. Cas. N. S. 62. (c) and (d). " In Reg. v. Turner (1870) 11 Cox, C. 5 Mr. Mechem remarks that "the gen- C. 551, 22 L. T. N. S. 278, Lush, J., eral counsel of a railroad company, em- in charging the jury as to the consider- ployed by the year at a fixed salary, and ations which were to be kept in view devoting to its business his entire time, in determining whether the prisoner is not on that account ordinarily eon- was a 'clerk or servant' within the sidered a servant." Agency, § 2. meaning of the statute, said: "That. SReg. V. Negus (1873) L. R. 2 C. C. depends on the terms of his employ- 34, an embezzlement case, in which this ment. If a person says to another was said by Bovill, Ch. J., to be a, rule carrying on an independent trade, 'If deducihle from all the authorities. you get any orders for me, I will pay For other cases of the same descrip- you a commission;' and that person re- tion, in which the employee, although ceives money, and applies it to his own- paid by commission, was held to be a use, he is not guilty of embezzlement. ? 67] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 233 his whole time to the alleged master, or was at liberty to work for other employers as well. Proof that the former of these situations existed points strongly, but not conclusively, to the inference that the employee was a servant; ' and if it is also shown that the employee was remunerated by fixed wages, or salary, service is perhaps infer- able as a matter of law.^ On the other hand, the fact that he was do- ing work for other employers besides the alleged master will not of itself exclude the inference that his relation to the latter was that of a servant.^" (5) The fact that the employee was or was not bound to furnish accounts. Evidence that the employee was subject to this obligation does not of itself prove that he was a servant rather than an agent. ^^ 67. Cases illustrating the distinction between a servant and an agent. — The relevant cases may conveniently be distributed into the following classes : — ( 1 ) Cases in which the employer had become insane before the ter- mination of the period over which the engagement of the employee extended, and it was sought to apply the rule that the mental in- capacity of a principal operates as a revocation or suspension of the authority of an agent exercising a bare power of authority.^ (2) Cases which turned upon the applicability of the provisions in the English factors acts (6 Geo. IV. chap. 94, and 5 & 6 Vict. chap. for he is not a 'clerk or servant;' but was that he was at liberty to dispose if a man says 'I employ you and will of his time as he pleased, but was bound pay you, not by salary, but by commis- to devote the whole of it to the prose- sion,' then the person employed is a cuter. servant. And the reason for such dis- In Reg. v. Negus (1873) L. R. 2 C. tinction is this, — vie., that the person C. 34, 42 L. J. Mag. Cas. N. S. 62, it employing has no control over the per- was laid down that the fact that the son employed, in the first case; but prisoner was to work only for the pros- wliere, as in the second instance I have ecutor did not enable the court to say, put, one employs another and binds him as a matter of law, that he was a to use his time and services about his servant. (the employer's) business, then the per- 9 This seems to be the effect of the son employed is subject to control." ruling of the recorder of London, in In a case where an ice company lieg. v. Flanagan (1867) 10 Cox, C. C. agreed to give plaintiff the right to 561. sell all of its product for five j'cars at 10 Rex v. Carr (1811) Russ. & R. C. a commission of $1 per car for ice C. 198; Beg. v. Herbert (1873) 4 shipped from its plant, it was held Austr. J. R. 89. that the contract was an employment to ^^ Reg. v. Walker (1858) 8 Cox, C. sell on commission, and not one creating C. 1, 27 L. J. Mag. Cas. N. S. 207, 1 the relation of master and servant. Dears. & B. C. C. 600, 4 Jur. N. S. 465. Morrow v. Tunkhannock Ice Co. (1905) 1 In Sands v. Potter (1897) 165 111. 211 Pa. 445, 60 Atl. 1004. 397, 56 Am. St. Rep. 253, 46 N. E. 282, 8 In Reg. v. Bailey (1871) 12 Cox, affirming (1894) 59 111. App. 206, the C. C. 56, 24 L. T. N. S. 477, the con- contract entered into with a man em- viction of a prisoner as a "servant" was ployed to superintend a creamery was held to be proper, where the evidence held to have been one of hiring and ■234 MASTER AND SERVANT. [chap. hi. 39), that "any agent who shall be intrusted with the possession of goods or of the documents of title to goods shall be deemed to be the ■owner thereof." ^ (3) Cases relating to the construction of wills in which legacies were bequeathed by testators to "servants" eo nomine.^ (4) Cases which involved the validity of proceedings taken under various statutes providing for certain summary remedies as between masters and servants.* (5) Cases which involved the construction of statutes relating to the prosecution of "servants" for embezzlement. The cases under this head which are cited below are, it will be observed, chiefly Eng- ^ervice, and the applicability of the 936, a farm bailiflf on the gentleman's above rule (see Mechem, Agency, §§ 253 estate was held to be a, servant, not an et seq.) was denied. The plaintiff, ac- agent. The court refused to attach any jjordingly, was held to be entitled to importance to the fact that the re- recover salary earned after the defend- muneration of the employee was desig- :ant was declared insane. nated "salary" and not "wages," the 8 On the ground that these act do two words being, for juridical purposes, not apply to the case of master and equivalent in meaning, servant, it has been held that, where a * In a case where the question was wine merchant gave authority to his whether a man employed at so much a clerk to sign delivery orders in his mas- week to sell goods for the defendant, a ter's name, and receive dock warrants storekeeper, was a "servant," entitled to in his own, which he likewise author- recover his wages by the summary pro- ized him to pledge for the purposes of ccedings provided by the masters and "the master's business, and the clerk servants act of New South Wales (20 fraudulently deposited some of these Vict. No. 28), it appeared that the de- •dock warrants with a pawnbroker, as a fendant had procured the plaintiff a security for money bona fide lent to him, hawker's license, for the purpose of en- the clerk was not an agent within the abling him to perform his work. Held, .acts, and consequently that the merchant that the plaintiff was an agent, and not was entitled to recover the dock war- a servant. Ex parte Kimpton (1890) rants from the pawnbroker. Lamb v. 7 W. N. 10. The act here construed Attenborough (1862) 1 Best. & S. 831. has been replaced by act No. 59 of 1902, The court said: "Bryant, being the but the definition of the word "servant" clerk, and in that sense the servant, of is not altered. Tliis case seems to be the plaintiff, had authority to sign de- somewhat inconsistent with Shea v. livery orders on his behalf, and give Reems (1884) 36 La. Ann. 966, in re- them to persons dealing with the plain- spect to the evidential significance which tiff, in the course of his business; and is attributable to the fact that the li- acting on that authority, he, in fraud cense was taken out by the employer. of his principal, assigned some away. See g 66, note 1, ante. The plaintiff would of course be con- In Quebec it has been held that a eluded by what his servant did by his clerk {commis) is an agent, and not a authority, but he is bound no farther; servant, in the sense in which that term and consequently, when we find that 's used in the ordinance of the city of these dock warrants were parted with Montreal, authorizing masters to arrest by his servant without his authority, servants and apprentices who abandon they still remain his property, and he is their service. Martin v. De Montigny •entitled to recover them from the party (1885) Montreal L. Rep. 1 S. C. 260, to whom they were pledged." 8 L. N. 196. The decision is in conflict 3 In Bulling v. Ellice (1845) 9 Jur. with the common-law authorities. § 67] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 235 lish and colonial, the reason being that "agents" are commonly in- cluded in the corresponding class of statutes in the United States.* 6 (a) Persons employed, to receive, ■collect, or hold money. — The secretary ■or treasurer of a friendly society, who is employed to receive the subscriptions of the members, is indictable as a 'clerk or servant" of the society. Reg. V. Murphy (1850) 1 Ir. C. L. Rep. 91, 4 Co.x, C. C. 101. It was also held that the mere fact of the prisoner's having accounted for the subscriptions received :by him for the members did not so alter his relation to the society as to convert him thenceforward into a trustee. A person acting as the paid secretary «f a money club is within the statutes. Reg. V. Tongue (1860) Bell, C. C. 289. The terms "clerk" and "servant" of ■a private person, or of any copartner- ship, used in § 1, chap. 104, Laws of 1881 (Gen. Stat. 1889, Crimes Act, U 2220, § 88), include the cashier of a partnership operating a private bank, not incorporated, when such cashier is employed at a monthly salary, to trans- act the business of the firm, under its direction and control. State v. Yeiter (1894) 54 Kan. 277, 38 Pac. 320. A solicitor who was appointed as the land agent and manager of parochial .assessments of a railway company, with a specified salary, but who, in the course of his duties, collected the rents of the company's house properties, re- freshment stalls, etc., was held to be a "clerk or servant." Reg. v. Gibson (1861) 8 Cox, C. C. 436. A person employed by the overseer of a parish to collect the poor rates is a "servant." Reg. v. Adey (1850) 4 Cox, C. C. 208. An extra collector of poor rates, whose remuneration was paid out of the parish fund by a percentage on his collections, was held to be a "servant," in Reg. v. Ward (1819) Gow, 168. A conviction for embezzling the mon- ey of the treasurer and committee of a hospital was sustained, where the prisoner was a collector for the hospital, paid by salary and commission, whose duty was to account to the treasurer every month for the money collected by him, and pay it over. The points taken in his behalf were that he also collected debts for tradesmen, and held the of- fice of bailiff, and that he was not under the control of the committee so that he could be sent to collect funds on any particular day. Reg. v. Herbert (1873) 4 Austr. J. R. 89. Where the prisoner had represented to the prosecutor that, having a little spare time on his hands, he would like to turn it to account in collecting debts (nothing being said about remunera- tion, although the prosecutor intended to give him the ordinary commission), and, accordingly, a list of debtors was given to him, he was held to be a "serv- ant." Reg. V. Hughes (1846) 2 Cox, C. C. 104. Where a person who had formerly been a farm servant of the prosecutor was employed by the latter to collect some outstanding debts, he being about to emigrate, and take the prisoner with him, for the purpose of setting him up in business for himself; but there was no evidence of any arrangement between them that the prisoner was to be paid anything for doing this work, it was held that he could not be indicted as the "servant" of the prosecutor. Reg. V. Hoare (1859) 1 Fost. & F. 647. A person employed to collect the sacrament money, on a day when a communion is celebrated, is not a "serv- ant," either of the minister, or of the churchwardens, or of the poor of the parish. Rex v. Burton (1829) 1 Moody, C. C. 237. A bare authority to get orders and collect money on commission does not constitute the employee a "clerk or servant" within the meaning of the New Zealand larceny act 1867. Reg. v. Clifford (1877) 3 New Zealand Jur. R. N. S. (S. C.) 51. A person employed to collect moneys which it is the duty of his employer to collect, as an overseer of a parish, but who is at liberty to collect such moneys when and where he thinks proper, is not a "clerk or servant." Reg. V. Harris (1893) 17 Cox, C. C. 656, following, but doubting, Reg. v. Bowers (1866) 10 Cox, C. C. 250. A person whose duty it is to obtain orders when and where he likes, and forward them to his principal for execu- tion, and then has three months within which to collect the money for the goods sent, is not a "clerk or servant" so that he may be prosecuted for embezzle- 236 MASTER AND SERVANT. [chap. m. ment if he appropriates money so col- messenger and collector, some eight to lected. "If such a person, at tue re- twelve weeks during the six months quest of his principal, collects a sum prior to the embezzlement, the payments of money from a customer, with the for his services being made not with obtaining of whose order he has had relation to any special agreement, but nothing to do, he is a mere volunteer, according to the prosecutor's own esti- and is not liable to be prosecuted for mate of the value of the work done, it embezzlement if he does not pay over or was held that the relationship of master account for the money so received." and servant did not exist at the time Reg. V. Mayle (1868) 11 Cox, C. C. of the appropriation of the moneys, 150. As respects the second of the Reg. v. Wilford, reported in the Sydney points here decided, Gurney, recorder, (N. S. W.) Morning Herald, June 9, considered that the fact of the pris- 1876. oner's having a general employment to Where a person not engaged in the collect the money at any time within business of collecting moneys for others three months was perfectly inconsistent as an independent employment is em- vvith the relationship of master and ployed to collect money for another, servant. subject to his direction and control, the A constable employed to collect cer- relation of principal and agent is there- tain demands without suit if the debtors by created. And in such case the agent would pay, and by procuring and serv- may be guilty of embezzlement, al- ing process before a justice of the peace though he was to receive for his serv- if they would not, was held not to be ices a percentage of the moneys col- a "servant" of the creditor. People v. lected. Campbell v. State (1878) .35 Allen (1847) 5 Denio, 76. Ohio St. 70 (the contention of counsel Defendant was collector of pew rents was that he was not a joint owner of for a church corporation, and acted as the money). It is not easy to say such, under a special and express agree- whether the court has here used the ment by which, as compensation for term "agent" inexactly, or has proceed- his services, he was to have "5 per ed on the theory that the exercise of cent of all the pew rents, no matter control was the indicium, of agency, who collected them." Held, that the If the latter explanation is correct, the effect of this agreement was to give case is, in respect to this particular defendant an undivided one twentieth point, at variance with Reg. v. Walker in the rents collected, so that the same (1858) 27 L. J. Mag. Cas. N. S. 208. became the joint property of the cor- It was held that a captain of a poration and of defendant; and that he volunteer corps, who received money was, therefore, not properly indictable for the corps, was a trustee for the for an alleged embezzlement and fraud- corps, and could not be convicted for ulent conversion of the same. State embezzlement under § 70 of the New v. Kent (1875) 22 Minn. 41, 21 Am. Zealand larceny act 1867, as being "in- Rep. 764. the service" of the Queen. Reg. v. A person employed to collect bills Mayhen (1886) New Zealand L. R. 5 for the proprietors of a newspaper es- C. A. 13. tablishment is not an "agent or serv- (b) Persons employed to effect sales. ant" within Mass. Rev. Stat. chap. 126, — (See also some of the cases cited in § 29. Com. V. Libbey (1846) 11 Met. the precedirg subdivision.) 64, 45 Am. Dec. 185. The prisoner agreed with the prose- A person who, being in financial dif- outor to act as his traveler, and "dili- ficulties, assigns all his book debts, gently employ himself in going from estate, and effects to trustees, for the town' to town in England, Ireland, and benefit of his creditors, and is employed Scotland, and soliciting orders for the by the trustees to manage the business prosecutor's wares," and that he would and collect the debts, is not a "clerk not, without the consent in writing of or servant." Reg. v. Barnes (1858) 8 the prosecutor, take or execute any Cox, C. C. 129. order for vending or disposing of any Where the evidence showed that the wares of a like nature, for or on ac- prisoner was apparently a mere idler count of himself or any other person, who was willing to do occasional jobs It was further agreed that the prisoner for a small remuneration, and who had should be paid by commission, and been employed by the prosecutor as a should render weekly accounts. Tha i 67] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 237 prosecutor subsequently gave the pris- a question for the jury, — a commercial oner written permission to take orders traveler paid by commissions is a "serv- for two other manufacturers. The ant" within the meaning of the em- prisoner was held to be a "clerk or bezzlement statutes. Reg. y. Tite {1861) servant" of the prosecutor. Reg. v. Leigh & C. C. C. 29. Turner (1870) 11 Cox, C. C. 551, 22 The prisoner was employed at a L. T. N. S. 278 (decided principally monthly salary, and by the terms of his upon the ground that it was contem- employment he was, in the discharge of plated by the contract that the prisoner his duties, subject at all times to the should devote his whole time to the immediate direction and control of the service of the prosecutor). See, however, agent of the company. His duties were § 3, notes 4, 5, ante. to make sales of sewing machines, and The prisoner had signed the following to return to the agent the proceeds of document addressed to his employers: such sales, whether the same consisted "I undertake to do business with you of money or notes. Held, that the court in Birmingham and other towns, for a had properly told the jury that these commission of half per cent on the facts would be sufficient to make him amount of invoices; and if at any a "servant." Gravatt v. State (1874) time I make a bad debt, I agree that 25 Ohio St. 162, 167, 168. the commission on this account for In one case it was held that a man twelve months back, or from the time who was employed by the prosecutors of dealing, if for a short period, shall and other houses as a traveler, to get "be deducted from my first settlement orders and receive debts, being paid afterwards; commission to cover all by a commission on such orders and •expenses." One of the firm for whom the debts, was a "clerk or servant," al- prisoner worked testified that he con- though he defrayed his own expenses, sidered the nature of the business of and did not live with any of his em- a person employed by them as an agent ployers, nor in any of their counting- in the country, was to collect their houses. Rew v. Carr (1811) Russ. & debts, and to get what orders he pleased, R, C. C. 198. Cockburn, Ch. J., ex- and on those orders to receive a com- pressed the opinion that this decision mission. The same witness also testi- was sustainable on the ground, viz., fied that he was in the habit of de- that a traveler, "although he travels scribing the prisoner sometimes as for more than one person or firm, is agent, and sometimes as traveler. It to some extent under control, and must was held to be for the jury to deter- go here and there as he is ordered." mine from the entire evidence', whether Reg. v. May (1861) Leigh & C. C. C. the employee was a "servant." Reg. v. 13. But if we compare the facts with Chafer (1861) 9 Cox, C. C. 1. those involved in flep. v. Boioers (1866) A man who was employed by the L. R. 1 C. C. 41, 35 L. J. Mag. Gas. prosecutors as a traveler to solicit N. S. 206, and similar cases, there orders, and was to give the whole of would seem to be good reason for say- his time to them, was held to be a ing that the traveler was not engaged "servant," although he received no by his employers, on terms which placed regular salary, but was paid by commis- him under their control with respect sions. Reg. v. Bailey (1871) 12 Cox, to the details of his work. The power C C. 56. of an employer to prescribe a certain A defendant may be convicted of route for a traveler would seem to in- embezzlement as a "servant," where he dicate merely the possession of that appropriated the money received from limited measure of control which, as a sale efi'ected in pursuance of written is shown in § 25, ante, does not con- instructions which contained an inti- stitute him the master of the employee mation that, in consideration of his controlled. faithfully eflfecting the sale, his em- The material part of the terms of ployers would remunerate him at the employment by a coal merchant were rate of $3 per week. Reg. v. Moran, as follows: "Is. per ton procuration Brisiane (Queensland) Courier, April fee payable out of the first payment, 4 27, 1876. per cent for collecting, and 3d. on the If the control necessary to constitute last payment. Collections to be paid the relationship of master and servant on Friday evening before 5 p. m., or is shown to have existed, — and this is Saturday before 2 p. M." He received 238 PIASTER AND SERVANT. [chap. Hi. no salary, was not obliged to be at the ment: "As you are now going into office except on Friday or Saturday to the retail coal trade on your own ac- account for what lie had received. He count, we think it best to have a proper was at liberty to go where he pleased understanding, and in future we pay for orders. Held, the prisoner was not you a commission only; your salary a "clerk or servant" within the statute will be stopped from this date. There relating to embezzlement. Beg. v. 3Iar- is a large amount against you, and we shall (1870) 11 Cox, C. C. 490. Cock- request you to do all you can to get burn, Ch. J., said: "The prosecutor it in." Held, that under this new agree- had no power to say to the prisoner, ment B was not a "clerk or servant" 'Go out and get orders;' but the agree- within the statute. With regard to the ment only amounts to this, — 'You shall effect of the last sentence in the second be my agent to get me orders if you agreement, Erie, Ch. J., remarked: can; and if you do, you shall have such "That was a new contract; and if under a commission.' " it they had desired him to go — say on Where the evidence merely shows that Tuesday — to get in debts, and he had the prisoner was employed to obtain said; 'No, I cannot; but I will some orders for a certain commodity, at a other time,' that would not have been certain city, or in a certain district, a breach of the contract." The com- and was to receive a commission on prehensive character of this ruling such orders as he might obtain, he can- seems to have discredited the doctrine not be convicted as a "servant." Reg. implied in the intimation of Willianu, V. May (1861) Leigh & C. C. C. 13, J., in Reg. v. May (1861) Leigh & C. 30 L. J. Mag. Gas. N. S. 81. C. C. 13, 30 L. J. Mag. Gas. N. S. 31, In Reg. v. Bowers (1866) L. R. 1 that, if the prisoner had been employed G. G. 41, 35 L. J. Mag. Gas. N. S. 206, to receive money, as well as to take it was declared by Erie, Ch. J., that orders, his judgment would have been the law is now clearly established that for sustaining the conviction, a clerk or traveler who is under the That the relation of master and serv- orders of his employer, and bound to ant existed will not be inferred where receive and obey his directions as to the the evidence shows merely that the course he is to pursue, is within the prisoner was employed to solicit orders, statute; but a clerk or traveler who that he was to be paid by commission, is entitled to get orders, and receive that he had no authority to receive money when and where he chooses, is money, that he was at liberty to apply not a "clerk or servant" within the for orders whenever he thought most statute. This he considered to be the convenient, but that he was not to re- efifect of Reg. v. May (1861) Leigh & eeive employment from any other per- C. C. C. 13, 30 L. J. Mag. Cas. N. S. son than the prosecutor. Reg. v. Negus^ 31, and Reg. v. Walker (1858) Dears. (1873) L. R. 2 G. C. 34, 42 L. J. Mag. & B. C. C. 600, 8 Cox, G. C. 1. In the Cas. N. S. 62, following Reg. v. Bowers case before him the evidence was that (1866) L. R. 1 G. C. 41, 35 L. J. Mag. A agreed to engage B as agent or Cas. N. S. 206. traveler for the sale of coals, at a A drover to whom cattle were de- salary of one guinea per week, and Is. livered in his character of salesman, — per ton as commission on coals sold, this being the business which, accord- and 6d. per ton on coals sold to dealers ing to the evidence, he carried on, — procured by B as customers; that B and to whom his employer had given agreed to collect all moneys in connec- a power of sale, to be exercised on the tion with his orders; that the commis- road if a suitable opportunity presented sion was not to be due until the money itself, was held to be an agent not a was received by A; and that moneys servant. Reg. v. Goodbody (1838) S received by B were not to be kept more Car. & P. 665. As to the cases in which than one week in his hands. Held, that the theory relied upon has been tha.t under the agreement B was a "clerk the drover was a bailee, not a servant, or servant." After the prisoner had see § 75, post. been in A's service about a year, he A member of a friendly society, ap- was desirous of selling coals by retail pointed a member of a committee to on his own account; and A agreed to manage a railway excursion, and nom- supply him with coals, and then made inated by that committee to sell the the following alteration in their agree- tickets and pay over the money received § 68] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 239 68. Servant or partner; servant compensated by a share in profits, not necessarily a partner; general rule. — The fact that a person has a right to share in the proiits of a business or a single adventure is pre- sumptive evidence that he has the interest of a partner therein.^ But if the essential object of the contract in question is the performance of certain services in connection with the business or adventure, this presumption is deemed to be rebutted by proof that the apportion- ment of the profits to the person performing the services was adopted as a convenient method of measuring his compensation.^ This doctrine may also be stated in other forms which involve pre- to the person appointed for that pur- pose, but who received no remuneration for his services, is not a "servant" of the society. Reg. v. Bren (1863) Leigh & C. C. C. 346, 33 L. J. Mag. Cas. N. S. 59. (c) Distraining 'brokers. — A person employed as a distraining broker, if engaged in the service of his employer exclusively, and paid a salary by him, is a servant. Reg. v. Flanagan (1867) 10 Cox, C. C. 561. (d) Servants of municipal todies. — A person employed at a yearly salary, under the appellation of accountant and treasurer to the overseers of a township, is a "clerk or servant." Rex v. Squire (1818) Russ. & R. C. C. 349, 2 Starkie, 349. That an assistant overseer of a town- ship was a "servant" was not disputed in Reg. v. Guelder (1860) Bell, C. C. 284. iLindley, Partn. 6th ed. pp. 41, 55; 1 Parsons, Contr. pp. 156, 162, note 1. 2 In Story on Partn. 6th ed. pp. 62 et seq., the following clear statement of principles is given; "The question is whether the circumstances under which the participation in the profits exists may not qualify the presumption, and satisfactorily prove that the portion of the profits is taken, not in the char- acter of a partner, but in the character of an agent, as a mere compensation for labor and services. If the latter be the true predicament of the party, and the whole transaction admits, nay, requires, that very interpretation, where is the rule of law which forces upon the transaction the opposite interpre- tation, and requires the court to pro- nounce an agency to be a partnership, contrary to the truth of the facts and the intention of the parties? Now, it is precisely upon this very ground, that no such absolute rule exists, and that it is a mere presumption of law, which prevails in the absence of controlling circumstances, but is controlled by them, that the doctrine in the authorities al- luded to is founded. If the participa- tion in the profits can be clearly shown to be in the character of agent, then the presumption of partnership is repelled. In this way the law carries into effect the actual intention of the parties, and violates none of its own established rules. It simply refuses to make a person a partner, who is but an agent for a compensation payable out of the profits; and there is no hardship upon third persons, since the party does not hold himself out as more than an agent. This qualification of the rule (the rule itself being built upon an artificial foundation) is, in truth, but carrying into effect the real intention of the par- ties, and would seem far more con- sonant to justice and equity than to enforce an opposite doctrine, which must always carry in its train serious mis- chiefs or ruinous results, never con- templated by the parties. In this view the distinction taken in the authorities above alluded to has a reasonable and just foundation, and is entirely con- sistent with the equities, which ought to prevail in all reciprocal contracts." "It is undoubtedly true, as a, general rule, that a communion of profits will make men partners, and draw after it a liability for losses. But it is abundantly settled that the rule is not universal; and the exception which will best reconcile the cases, is least liable to abuse, and is so distinctly marked that it can be easily administered, is that which allows one man to employ another as a subordinate in his business. 240 MASTER AND SERVANT. [chap. III. cisely the same results as respects the rights and liabilities of the par- ties, but which are suggestive of slightly different logical standpoints. For example, it has been laid down that, where employees are paid salaries proportionate to the profits of the business in which they are employed, it will not be inferred that a partnership exists between the persons thus paid and the persons who pay them, if it appears from the whole a^eement that a partnership was not intended ; ' and that one acting as agent or servant does not become a partner, with liabilities as such, merely by receiving a certain proportion of the profits as his compensation.* In England and some of the British possessions the common-law rule has now been embodied in statutory provisions.^ and agree to pay him out of profits, if any shall arise, without giving the party employed the rights or subjecting him to the liabilities of a partner." Burokle V. Eckart (1845) 1 Denio, 337, affirmed in (1849) 3 N. Y. 132. When a party is interested only in the profits of a business as a means of compensation for services rendered, he is not a partner. American Seeding Mach. Co- V. John Conklin's Sons Go. (1909) 64 Misc. 652, 120 N. Y. Supp. 592, affirmed in (1911) 145 App. Div. 950, 130 N. Y. Supp. 1104. That an agreement to share profits may, but does not necessarily, imply a joint interest in the property from vphich they are to arise, was laid down in Meservev. Andrews (1870) 104 Mass. 360, where an auditor's report was held incomplete, because it did not state facts from which the precise nature of the agreement could be inferred. The rule which declares a person sharing in the profits of a, concern to be a partner is merely "one of evidence, more or less decisive according to the circumstances of each case, and not of itself conclusive." Re Ward (1879) 2 Flipp. 462, Fed. Cas. No. 17,144. At one time the usual method of pay- ing the wages of seamen was by assign- ing them a share in the profits of the voyage. See Laws of Oleron, Acts- 3, 8, 16; Laws of the House Towns, art. 24; Ordinances of Louis XIV. 6, 3, title 4, art. 7; Jacobsen, Sea Laws, 132. In § 69, note 1, post, are cited several cases (see especially paragraphs relat- ing to England, the Federal courts, and Massachusetts) in which a partnership was not to be inferred from such par- ticipation in profits. SLindley, Partn. p. 42. Where A desired to have a partner, so that there should be someone to close up his business in case of death, and entered into a written agreement with B to take him in on a salary for the first year, and a share of profits thereafter, it was held that, as such was the intention of the parties they became partners during the first year. Adams Bank v. Rice (1861) 2 Allen, 480. 4 Parsons, Partn. § 69. "To allow a clerk or agent a portion of the profits of sales as compensation for labor, or a factor such a percentage on the amount of sales, does not render the agent or factor a partner, when it ap- pears to be intended merely as a mode of payment adopted to increase and secure exertion." 3 Kent, Com. *34. "Compensation for services, to be paid out of and contingent on profits, does not of itself constitute the em- ployee a partner." Ryder v. Jacobs (1897) 182 Pa. 624, 38 Atl. 471. Com- pare also Story, Partn. §§ 41-49; Bates, Partn. § 43; Bell, Law of Scotland, § 364. According to Story on Partnership, §§ 50, 51, a rule similar to that of Anglo-American law was adopted by the jurists of ancient Rome, and is ad- ministered in modern France. See also, as to the French doctrine, 3 Kent, Com. *34, note (b). BBy 28 & 29 Vict. chap. 86, § 2, it is enacted that no contract for the remuneration of a, servant or agent of any person engaged in any trade or § 09] SERVICE— OTHEK CONTRACTUAL RELATIONS COMPARED. 24J By the Spanish Code of Commerce of 1829, art. 269, one employed in a commercial house may receive for his salary a share of the profits, without being liable as a partner, either to the firm or to third persons.^ 69. Application of the rule as between employer and employee. — In the note below are collected numerous cases in which the rule enunciated in the last section was applied or recognized in civil ac- tions in which it was merely necessary to determine the rights of the employer and employee inter se.^ undertaking, by a share of the profits declared by the master and servant acts of such trade or undertaking, shall of of Ontario (Rev. Stat. 1897, § 3), and itself render such servant or agent re- of British Columbia (Rev. Stat. 1897, sponsible as a partner therein, or give § 3 ) . him the rights of a partner. 6 See Taylor v. Sotolingo (1851) 6 In the partnership act 1890, 53 & La. Ann. 154. 54 Vict. chap. 39, the corresponding 1 United Kingdom and British Colo- provision, § 2, runs as follows: "In nies. — A manager of a concern who re- determining whether a partnership does ceived a share of the profits as his or does not exist, regard shall be had salary was held not to be liable, as to the following rules: ... (3) The between himself and his employers, for receipt by a person of a share of the any portion of the losses. Geddes v- profits of a business is prima facie evi- Wallace (1820) 2 Bligh, 270. dence that he is a partner in the busi- A contract of service, and not of neas; but the receipt of such a share, partnership, is inferable from evidence or of a payment, contingent on or vary- showing that C, having contracted with ing with the profits of a business, does the government for the conveyance of not of itself make him a partner in mails by sea, agreed with H. to employ the business." him during the existence of the con- The efi'ect of this provision has been tract, at a fixed yearly salary payable discussed with reference to the follow- quarterly, and in addition thereto a ing circumstances: "Under a written sum equivalent to 10 per cent on the contract, A lent B £500 for his busi- profits. Harrington v. Churchwm-d ness. A was to have the sole control (1860) 29 L. J. Ch. N. S. 521 (em- and management of the business, and ployee held entitled to an accounting an option was given him (which was in equity for the stipulated share of not exercised) of becoming a partner profits, but only on the ground that with B in the business, within a cer- the account was too complicated to be tain time. For the use of his money A taken by a jury). was to be paid the weekly sum of £3, By indenture between the plaintiff afterwards reduced to £2, 'out of the of the one part, and the defendants, profits' of the business. B was to draw who were partners in a manufacture, like weekly sums. B having become of which the plaintiff had been the bankrupt, A claimed to prove for the patentee, of the other part, it was money he had advanced. Held, that stipulated that the plaintiff should have under the circumstances A was not a the conduct and management of the partner." Re Young [1896] 2 Q. B. business, and that the remuneration 484. Vaughan Williams, J., considered which he should receive in respect of that he ought not to hold that the his services should be such a sum of presence of the clauses giving the power money as would be equal to 401. per of control over the disposition of the cent upon the net profits; that a re- money advanced showed that the part- duced amount should be paid to his nership was intended. executors in the event of his death, That no partnership is created by an until the expiration of the license; that agreement that a servant shall receive the plaintiff might purchase the busi- a share of profits in lieu of wages is ness on certain terms; that the defend- M. & S. Vol. I.— 16. 242 JIASTKR AND SEEVANT. [chap. hi. ants might determine tlie plaintiff's en- gers to settle questions as to salaries gagement as manager if he should not and wages, and to determine what was in every respect perform the covenants to be left in the business as working contained in the indenture, but that capital, and what should be paid out so long as he continued to observe them to account of the grantor's capital; his appointment as manager should be (2) sole power to give authority to irrevocable during the continuance of sign the name of the firm; (3) power the license; and that nothing therein to inspect the books and to dismiss any contained should extend to constitute of the employees for misconduct; (4) a partnership. Held, there being an and power to wind up the business if absence of every Incident of partner- it could not be carried on at a profit, ship except that of sharing in the prof- Held, that, under these provisions, the its, that that circumstance alone did employees were not partners, but serv- not constitute the indenture a contract ants of the trustees, of partnership, but that it amounted In Richards v. Job Bros. (1884-96) only to a contract of hiring and service. Newfoundl. Rep. 642, it was held that Stooker v. Brockelbank (1851) 3 Macn. the crew of a sealer, who were paid by & G. 2.50, 15 Jur. 591, 20 L. J. Ch. N. a share in the catch, were servants of S. 401 (employee held to have no right the shipowner, not his partners, to an injunction restraining defendant Federal courts- — Berthold v. Gold- from excluding him from the position smith (I860) 24 How. 536, 16 L. ed. he had held in the defendant's estab- 762 (employee held to have no right lishment). to file a bill for an accounting, or for See also Wilkinson v. Frasier (1803) enforcement of a partner's lien) ; The 4 Esp. 182 (seaman shipping on shares, Frederick (1803) 5 C. Rob. 8 (seamen not a partner of the captain, so as to held to be unable to recover the value be unable to sue the latter for his of their shares, when the ship had been proportion of the profits) ; Andrews v. confiscated as belonging to an enemy) ; Pugh (1854) 24 L. J. Ch. N. S. 58 The Crusader (1837) 1 Ware, 438, Fed. (person paid by commission for getting Cas. No. 3,456 (allegation of partner- orders held not to be a partner; bill ship between master and mate of vessel for an accounting dismissed) ; Hunter not sustained by proof merely of the V. Belcher (3864) 10 L. T. N. S. 548 mate's having shipped for a share of (commercial traveler held to have no the profits) ; Reed v. Hussey (1836) right to an accounting) ; Rishton v. Blatchf. & H. 525, Fed. Cas. No. 11,646 Orissell (1868) L. R. 5 Eq. 326 (1870) (share of sailor recoverable as wages) ; 18 Week. Rep. 821 (contract that a Hazard v. Hazard (1840) 1 Story, 371, manager of a business was to receive Fed. Cas. No. 6,279 (employee held to for his services a percentage of the have no right to an accounting) ; Cof- profits in each year, with a guaranteed iin v. Jenkins (1844) 3 Story, 108 Fed. minimum, held not to give any right Cas. No. 2,948 ; Duri/ee v. BiA;j«s (1849) or interest in the concern; bill for an Abb. Adm. 529, Fed. Cas. No. 4,197; accounting dismissed) ; Ross y. Parkyns Kright v. Parsons (1855) 1 Sprague, (1875) L. R. 20 Eq. 331, 44 L. J. Ch. 279, Fed. Cas. No. 7,886 (members of N. S. 610 (contract by which plaintiff crew held to be so far in the position was to perform certain work for the of hired seamen that they were entitled defendant, and was to receive a salary to be cured at the ship's expense ) ; and one fifth of the profits, and not Hussey v. Field (1858) 1 Sprague, 394, bear the loss if business should yield Fed. Cas. No. 6,947; Re Blumenthal no profits in any particular year, held (1878) 18 Nat. Bankr. Reg. 555, Fed. to be a contract of service; bill for an Cas. No. 1,575; Brown v. Hicks (1885) accounting dismissed). 24 Fed. 811 (master of whaling ship, In Walker V. Peith (1906) 8 Sc. Sess. who was to have "the one fifteenth lay Cas. 5th series, 381 (income tax case), or share of the net proceeds" obtained a deed executed by the sole member of during the term of his service, held en- a firm provided that after his death his titled to recover damages, when the ship servants should have a certain interest was ordered home before the end of the in the profits of the business. It was term); Hambly v. Bancroft (1897) 83 stated that they were to carry on the Fed. 444 (facts same as in Stone v. business; but the testamentary trustees Bancroft (1896) 112 Cal. 652, 44 Pac. were given (1) power to appoint mana- 1069, infra). § 69] SERVICE— OTHEE CONTRACTUAL RELATIONS COMPARED. 243 A contract provided that defendant, an aetor, should give his services to plaintiff for ten years as an author and inventor, and that the property in his productions, including his time and services, should belong exclusively to plaintiff, in consideration of an annual salary of $5,000 and a proportion of profits in excess of certain amounts. The contract provided that plaintiff could terminate the same at the end of any one year. Held, to constitute a contract of employment, and not one of partnership, though it contemplated a joint association in an adventure, or a series of adventures, in which plaintiff was to contribute the capital, and de- fendant his time and services. Mallory V. Mackaye (1899) 34 C. C. A. 653, 92 Fed. 749 (syllabus). See also Keith V. Kellermann (1909) 169 Fed. 196. Alabama. — Hodges v. Dawes (1844) 6 Ala. 215 ; Emanuel v. Dramghn ( 1848 ) 14 Ala. 303; Moore v. Sm^th (1851) ]9 Ala. 774. A proposition by one person, accepted by another, to pay the latter $1 per month for services rendered as timber inspector in the business of the former, and an additional amount equal to 40 per cent of the net amount which shall be realized and collected from "inspec- tion charges, interest on money ad- vanced, and commissions on the same, you, as my employee, not to be liable for any losses beyond your profits as stipulated," — is a contract of employ- ment, instead of partnership; and the employee is entitled to net profits realized from inspection charges, al- though there are losses from bad in- vestments. Stafford v. Sibley (1895) 106 Ala. 189, 17 So. 324. An agreement to manage a farm fur- nished by another, and to share the crop, was held not to create a partner- ship. Tayloe v. Bush (1883) 75 Ala. 432. Defendant, having taken a lease of a quarry, made an agreement with com- plainant to manage the quarry and commissary, and for liis services com- plainant was to receive one half of the profits derived from the quarry and commissary and one half the rents col- lected on houses on the quarry prem- ises. Defendant furnished all the capi- tal to operate the business, and no part of the lease was ever assigned to plain- tiff, who testified that the agreement was that defendant should put up the money in lieu of plaintiff's services, and that plaintiff should receive one half the net profits instead of a, stipu- lated salary. Held, that such agree- ment was a mere contract for services to be paid for from the profits, and did hot constitute a partnership. Zuber V. Roberts (1906) 147 Ala. 512, 40 So. 319. Arkansas. — Olmstead v. Hill (1840) 2 Ark. 346. If a laborer agrees with a landowner to work on the land for a certain pro- portion of the crop, this does not con- stitute a partnership, but simply fixes a measure for the laborer's compensa- tion. Oardenhire v. Smith (1882) 39 Ark. 280 (measure of damages for wrongful discharge of employee deter- mined not to be partner held to be same as if he had been working for wages). Under such an arrangement the share of a laborer is in the nature of wages, unliquidated at the time, but capable of being reduced to a certainty on the sale of the crop. Christian v, Croelcer (1869) 25 Ark. 327, 99 Am. Dec. 223. For cases in which contracts for the cultivation of land on shares are considered with reference to the question whether there was a tenancy, see § 77a, post. California. — The exclusive owner of a business hired an employee at a cer- tain monthly salary. Under the con- tract the employee was also to receive a one-tenth interest in the business, represented by one tenth of the stock of a corporation which was to be formed. His interest was made conditional upon ten years' faithful and exclusive service in the matter of the employment, and to be forfeited and revert to the em- ployer upon breach of the condition: provided that in case of his death after faithful service, and before the expira- tion of five years, one half of such interest should go unconditionally tO' his heirs. The contract was held tO' be one of employment, and not of part- nership. The elements upon which the court laid stress were that the writing itself showed that in the near future the "History Company" was to be in- corporated; that the one-tenth interest in the property given by the defendant to the plaintiff failed to vest any abso- lute title in him, but was dependent upon conditions, and liable to be for- feited and revert to the defendant at any moment; that it was expressly 214 MASTER AND SERVANT. [chap. hi. stipulated that if the plaintiff should tory lien declared in favor of "iaborers." die within five years from its date, See § 750, post, (lurr v. Martin (1884) llien only one half of the one-tenth 73 Ga. 528; McElmurray v. Turner interest should pass to his heirs; that (1890) 86 Ga. 215, 12 S. K. 359; Cherry there was nothing in the agreement to v. Strong (1895) 96 Ga. 183, 22 S. E. indicate an intention to make the plain- 707; De Loach v. Delk (1904) 119 Ga. tiff's salary dependent upon the profits 884, 47 S. E. 204; Garrick v. Joiies of the business. Stone v. Bancroft (1907) 2 Ga. App. 382, 58 S. E. 543. (1896) 112 Cal. 652, 44 Pac. 1069. To In Holloway v. Brinkley (1871) 42 tile same effect see Hambly v. Bancroft Ga. 226, it was held not to be neces- (1897) 83 Fed. 444, su-pra, where the sary for a "cropper" to file a bill for same contract Avas involved. an accounting, in order to recover his The existence of a partnership was share of the profits; — that his claim also negatived in Barber v. Cazalis could be enforced by attachment. The (1866) 30 Cal. 92 (agreement to super- apparent assumption here that the intend construction of mining tunnel, plaintiff had the option of filing a bill and to receive a certain interest in the is, as is shown by numerous cases cited mines to be developed) ; Berry v. Wood- in this note, not warranted. hum (1895) 107 Cal. 504, 40 Pac. 802, Illinois. — Street v. Thompson (1907) (evidence showed that plaintiff was 229 111. 613, 82 N. E. 367 (suit for ac- cmployed to seek for a gold mine, and counting not maintainable where it was that, if he found it, he was to be al- agreed that, in consideration of a cer- lowed his expenses and "big wages" for tain weekly salary and half of the year- his time and labor, and in addition ly net profits of defendants' business, thereto an "interest" in the mine; — plaintiff was to give his entire time held that he could not maintain a suit and services to the selling of defendants' for specific performance). goods, plaintiff's necessary traveling ex- The rule was also enunciated in Ly- penses to be paid by the defendant) ; den V. Spohn-Patrick Co. (1909) 155 Pierpont v. Lanphere (1902) 104 111. Cal. 177, 100 Pac. 236. App. 232 (plaintiff not entitled to file Colorado. — Beckwith -v.Tallot (1875) a bill for an accounting). 2 Colo. 639; Darrow v. St. George Indiana. — Emmons v. Neivman (ISTi) (1886) 8 Colo. 592, 9 Pac. 791. 3S Ind. 372. Georgia. — The relation of employer Iowa. — "For convenience, P. carried on and employee, and not that of partner, a business under the name of P. & Co. is created by an agreement by which He had a contract with plaintiff's hus- the owner of a sawmill agreed with an- band that the latter should act as man- other to furnish the mills, wagons, ager of the business, that P. should mules, and hands, and that such other control it and direct said manager, who person should "give the business his should be compensated by receipt of one personal attention in looking after it, half of the net profits, nothing being and have for his services half the said about sharing losses. Said mana- profits." Thornton v. McDonald (1899) ger, without the knowledge of P., made 108 Ga. 3, 33 S. E. 680 (point involved a note to plaintiff, signing thereto the was the right to enforce a, laborer's name of P. & Co., by himself as mana- lien). It was held that, in a case of ger. Plaintiff knew that her husband this kind, if the i\ndisputed evidence was allowed to draw but a limited sum establishes such a state of facts as that monthly. Held, there was no partner- indicated, a mere admission by the ship inter se, that plaintiff cannot re- owner of the business that the employee cover against P. without proof that she was his partner will not be sufficient was ignorant of the provisions of said to establish the fact that the partner- contract, or proof that she was induced ship really existed, where it does not to believe by defendant's acts that a. appear that the party setting up the partnership existed." Winter v. Pipher partnership had ever acted upon or (1895) 96 Iowa, 17, 64 N. W. 663. been misled by such an admission. See also Reed v. Murphy (1850) 2 It has been held in several cases that G. Greene, 574; Ruddick v. Otis (1871) "croppers" — that is, persons farming 33 Iowa, 402; Holbrook v. Oherne land in consideration of a share of the (1881) 56 Iowa, 324, 9 N. \V. 291. produce — are not partners, and conse- Kentucky. — Fuqua v. Massie (1894) quently are entitled to enforce the statu- 95 Ky. 387, 25 S. W. 875 (employee de- SERVICE— OTHEE CONTRACTUAL RELATIONS COMPARED. 245 termined not to be partner held liable to be discharged for good cause ) . Louisiana. — Chaffraia; v. Price (1877) 29 La. Ann. 176; Mawnsell v. Willett (1884) 36 La. Ann. 322; Halliday v. Bridewell (1884) 36 La. Ann. 238; Bullae V. Pailhos (1829) 8 Mart. N. S. 174; Cline v. Caldmell (1832) 4 La. 140; Hallet v. Desban (1859) 14 La. Ann. 539; MoWilliams v. Elder (1900) 52 La. Ann. 995, 27 So. 352; Uiller v. ChamAler (1877) 29 La. Ann. 88; Leon- ard V. Spurhs (1903) 109 La. 543, 33 So. 594. The terms of the employment of a manager of two plantations were that tic was to receive one thirteenth of the product of both places, besides being furnished with provisions for himsejf and family, a cook, washerwoman, and fuel. The court held that there were none of the elements of a partnership in the agreement. The employee was neither to receive any of the profits, nor to share in any of the losses of the enterprise. He was merely to receive a certain portion of whatever crops might be made. He was therefore a mere employee, to be paid in a portion of the crops instead of a certain sum of money. Being an employee, he could be discharged for cause. Jeter v. Penn (1876) 28 La. Ann. 230, 26 Am. Rep. 98. Maryland. — Weems v. Stallings ( 1806 ) 2 Harr. & J. 365; Kerr v. Potter (1848) 6 Gill, 404 (bill for an accounting dis- missed) ; Bull V. Schulerth (1852) 2 ild. 38; Sangston v. Baek (1879) 52 Md. 173; Reddingtonv. Lanahan (1882) 59 Md. 429; Drovers' & M. Nat. Bank V. Roller (1897) 85 Md. 495, 36 L.R.A. 767, 60 Am. St. Rep. 344, 37 Atl. 30 (claimant held entitled, as a servant, to have his share of profits included, as wages, among preferred debts) ; Whiting v. LeaUn (1886) 66 Md. 255, 7 Atl. 688 (disapproving Taylor v. Terme (1810) 3 Harr. & J. 506, where receipt of profits by an agent was held to constitute him a partner). Massaohussetts. — An agreement was entered into by which the plaintiff was to render service for the defendant in a factory which he had recently become owner of, at a fixed annual compensa- tion. It was stipulated that if the en- cumbrances on the property were paid as they became due, from the profits of the business, and the plaintiffs' notes on demand, given at the same time. should in the meantime be paid, the defendant was to convey to the plaintiff one half of the property and business, and not otherwise. On the ground that the agreement was executory, it was held not to be a partnership. Haskins V. Burr (1870) 106 Mass. 48 (bill for an accounting dismissed ) . See also Bishop v. Shepherd (1839) 23 Pick. 492; Denny v. Cabot (1843) 6 Met. 82; Haskins v. Burr (1870) 100 Mass. 48 (bill for an accounting dis- missed) ; Zeigler v. Day (1877) 123 Mass. 152 (defense of common employ- ment held to be available in an action by an employee determined not to be a partner); Adamson v. Guild (1901) 177 Mass. 331, 58 N. E. 1081. Miehigan. — Re Bennett ( 1883 ) 51 Mich. 71, 16 N. W. 236; Stockman v. Alichell (1896) 109 Mich. 348, 67 N. W. 336 (verdict should not have been directed on the theory that the sharing of profits indicated a partnership; Morroio v. Mu/rphy (1899) 120 Mich. 204, 79 N. W. 193, modified on rehear- ing in (1899) 120 Mich. 209, 80 N. W. 255 (negativing contention of employ- er that the employee should have brought a suit in equity for the recov- ery of his compensation). Mississippi. — Van Duzer v. W. F. Zimmerman Lumber Co. (1907; Miss.) 43 So. 177; following Fairly v. Nash (1892) 70 Miss. 193, 12 So. 149. Missou/ri. — Wiggins v. Graham (1872) 51 Mo. 17; Gill v. Ferris (1884) 82 Mo. 156. Nebraska. — Waggoner v. First Nat. Bank (1894) 43 Neb. 84, 61 N. W. 112, overruling Strader v. White (1869) - Neb. 348; Tyson v. Bryan (1909) 84 Neb. 202, 120 N. W. 940. New Hampshire. — Atherton v. Tilton (1863) 44 N. H. 452. New Jersey.— Nutting v. Colt ( 1849 ) 7 N. J. Eq. 539; Bargrave v. Conroy (1868) 19 N. J. Eq. 281; McMahon v. O'Donmell (1869) 20 N. J. Eq. 306. New York. — Smith v. Bodine (1878) 74 N. y. 30 (not necessary for the em- ployee to sue in equity for his compen- sation) ; Backett v. Stanley (1889) 115 N. Y. 625, 22 N. E. 745; Muzzy v. Whit- ney (1813) 10 Johns. 226; Hodgman v. Smith (1852) 13 Barb. 302; Brockway V. Burnap (1853) 16 Barb. 309 (gen- eral rule affirmed in an action to re- cover personal property in the posses- sion of one whose plea Avas that he was plaintiff's partner) ; Clark v. Gilbert 246 MASTER AND SERVANT. [chap. m. 70. — as between employee and third persons. — In respect to third persons an employee who shares in profits incurs the liability of a partner of his employer, where he has held himself out as being a partner/ or where the percentage of profits assigned by the contract (I860) 32 Barb. 576; Thomas v. Sjyrin- App. — , 72 S. W. 433 (employee de- arer (1909) 134 App. Div. 640, 119 N. termined not to be partner held liable Y. Supp. 460 ; Thomas v. Springer to be discharged for good cause ) . (1909) 134 App. Div. 982, 119 N. Y. Vermont.— Amhler v. Bradley (1834) Supp. 463; American Seeding Mach. Co. 6 Vt. 119; Hcuwkins v. Mclntyre (1873) V. .John ConMin's Sons Co. (1909) 64 45 Vt. 496. Misc. 652, 120 N. Y. Supp. 592; Eath- Virginia. — Wilkinson v. Jett (1836) away v. Clendening Go. (1909) 135 7 Leigh, 115, 30 Am. Dee. 493; Rohin- App. Div. 407, 119 N. Y. Supp. 984. son v. Allm (1889) 85 Va. 721, 8 S. E. North Carolina. — Cossack v. Burg- 835 (question arose in administration im/n (1893) 112 N. C- 304, If S. E. 900. suit, whether certain property was part- Pennsylvania. — Miller v. Ba/rtlet nership property or the separate prop- (1826) 15 Serg. & R. 137; Raiguel's Ap- erty of the deceased, the alleged part- peal (1876) 80 Pa. 234; Ryder v. Ja- ner) ; Jackson v. Eaynie (1907) 106 cobs (1897) 182 Pa. 624, 38 Atl. 471; Va. 365, 56 S. B. 148. KoMfmann v. Katifm,a/rm (1908) 222 Pa. Washington. — Dow v. Dempsey (1899) 58, 70 Atl. 956. 21 Wash. 86, 57 Pac. 355 ; Belch v. A contract of a corporation with P., Big Store Co. (1907) 46 Wash. 1, 89 reciting that it "hereby employs said Pac. 174. P. to be manager of its publishing de- West VvrginAa. — Sodiker v. Apple- partment for the term of two years, gate (1884) 24 W. Va. 411, 49 Am. . . . with reasonable and proper au- Rep. 252. thority to conduct said department, and Wisconsin. — Ford v. SmAth (1870) 27 said P. hereby accepts said employ- Wis. 261; La Flex v. Bursa (1890) 77 ment," is a contract of employment. Wis. 538, 46 N- W. 801 (rejecting the though P. is to receive a proportion of defendant's contention that no action the profits of the business, and, at the at law could be maintained for the expiration of the contract, one third of wages of the employee), the value of the stock, copyright, and 1 This obviously follows from the gen- plates. Peniston v- John Y. Buber Co. eral principles of the law of estoppel, (1900) 196 Pa. 580, 46 Atl. 934 (em- as applied to partnership, ployee liable to be discharged for mis- The substantial effect of the decision conduct). in Cox v. Hickman (1860) 8 H. L. Cas. Rhode Island. — Bentley v. Harris 268, is that persons who share in a (1873) 10 R. I. 434, 14 Am. Rep. 695; business do not incur the liability of Boston & C. Smelting Co. v. Smith partners unless the business is carried (1880) 13 R. I. 27, 43 Am. Rep. 3; on by themselves personally, or by oth- Potter V. Moses (1850) 1 R. I. 430 ers as their real or ostensible agents. (partnership not dissolved by desertion See Lindley, Partn. p. 54; Bates, Partn. of employee). §§ 18, 23; 1 Parsons, Contr. p. *158. South Carolina- — Bartlett v. Jones For other cases in which decisions (1847) 2 Strobh. L. 471, 49 Am. Dec. declaring employees to have incurred 606. the liability of partners have been spe- Tennessee. — Norment v. Hull (1839) cifically put upon the ground of "hold- 1 Humph. 320; Bell v. Hare (1874) 12 ing out," see Lee v. Bullard (1848) 3 Heisk. 615. La. Ann. 462; Mershon v. Eobensaok Texas. — First Nat. Bank v. Pemving- (1850) 22 N. J. L. 372; Appleton v. ton (1889) 75 Tex. 272, 12 S. W. 1114 Smith (1869) 24 Wis. 331. (person first employed on a salary to The statement of his employer that purchase cattle, and then engaged to do he was a partner will not preclude the the same work, for a compensation employee from denying the existence of consisting of half the profits) ; Goode the partnership. In Edmanson v. v. McCartney (1853) 10 Tex. 193; TTiompson (1861) 5 L. T. N. S. 428, 31 ShMte V. McVitie (1903) — Tex. Civ. L. J. Exch. N. S. 207, 10 Week. Rep. ^ 70] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 247 to the employee was so greatly out of proportion to the services ren- dered as to show that the arrangement was a device to avoid respon- sibility.* But in the absence of one or other of these special elements the general rule stated in § 68, ante, is no less applicable in this in- stance than it is where only the rights and liabilities of the parties to the contract are involved.^ 300 (action for gooda sold and deliv- ered), the defendants had stipulated between themselves that one of them, a clerk sharing profits, should not be re- garded as a partner; but the employer had declared to third persons that the clerk was a partner. It was held that this declaration did not affect the clerk. ^Hargrave v. Oonroy (1868) 19 N. J. Eq. 281. 3 The rule that actual participation in the profits as principal creates in general a partnership as between the participant and third persons, whatever may have been the real relation of the former to the firm, "has no application •whatever to a case of service or special agency, where the employee has no pow- er as a partner in the firm, and no in- -terest in the profits as property, but is simply employed as a servant or spe- cial agent, and is to receive a given sum •out of the profits, or a proportion of the same, as a coiiipensation for his serv- ices." Berthold'v. Goldsmith (1860) 24 How. 536, 16 L. ed. 762. "If the party is not to receive a part ■of the profits in specie, but a sum of ■money calculated in proportion to a giv- en quantity of the profits, then, even as to third persons, he would not be a partner, but an agent or servant." Macy V. Comhs (1860) 15 Ind. 469, 77 Am. Dec. 103. For other cases in which the doctrine that an employee whose compensation is measured by a percentage of the profits cannot be held liable as a partner by ■a, third person has been applied and recognized, see the following para- graphs. United Kingdom and British Colonies. — Ex parte Hamper (1811) 17 Ves. Jr. 403 (joint commission in bankruptcy against employee sharing profits held ■to be improper) ; Ex parte Rowlandson (1810)1 Rose, Bankr. Cas. 91 (same facts as in case last cited) ; Heyhoe v. Burge (1850) 9 C. B. 431 (employer Tield to have no power to bind employee ■contractually) ; Benjamin v. Porteus (1796) 2 H. Bl. 590 (person compen- sated for selling goods by what he re- ceived in excess of a certain amount held to be a broker, not a partner, and therefore competent as a witness to prove the contract between buyer and seller); Meyer v. Sharpe (1813) 5 Taunt. 74, 2 Rose, 124 (agent paid in proportion to the profits of an adven- ture held not to be a partner, in pro- ceedings involving the property in goods as between pawnees of agent and as- signee in bankruptcy) ; Mair v. Glen/- nie (1815) 4 Maule & S. 240 (captain of a vessel, whose wages were "regu- lated and paid by a reference to a cal- culation on the profits of the venture," held not to be a partner, in an action where the question was as to the own- ership of the vessel as between a cred- itor holding a bill of sale and the as- signee in bankruptcy). In June, 1844, A entered the service of B as bookkeeper and cashier, and so continued until December, 1848, with- out coming to any agreement as to the amount of his salary. It was stated by A that in December, 1848, it was agreed between him and B that the salary should be at the rate of £250 a year from June, 1844, and that the reason that such arrangement was not made before was that B was engaged in mak- ing experiments in a certain manufac- ture, from which he hoped to derive a considerable fortune, out of which A expected to be paid. B became bankrupt in February, 1849. Held, that A was a clerk, and not a partner, and was therefore entitled to prove for his sal- ary in bankruptcy proceedings. Eio parte Hichin (1850) 3 De G. & S. 662, 14 Jur. 405, 19 L. J. Bankr. N. S. 8 (petitioner stated that he never looked to the shares in the patent as a remu- neration for his services, except for such additional services as were not within the scope of his duty as clerk). In Perrott v. Bryant (1836) 2 Younge & C- Exch. 61, it was held not to be necessary to bring in, as parties to a 248 MASTER AND SERVANT. [CHAP. III. bill filed for the customary tithes of oysters, the men who dredged for the oysters and shared in the profits of the work, but had no interest in the boats. In ShoAC V. Gait (1864) 16 Ir. C. L. Rep. 357, it was held that the remu- neration of a servant by a share of the net profits did not render him a part- ner of the employer. In Ontario the general rule stated in the text was applied in Clark v. Mc- Kellar (1862) 12 U. C. C. P. 562; Northern R. Go. v. Patton (1864) 15 U. C. C. p. 332. Federal courts. — Re ^Yard (1879) 2 I'lipp. 462, Fed. Cas. No. 17,144 (sharer of profits held not to be liable to be ad- judicated a bankrupt) ; Einstein v. Gourdin (1877) 4 Woods, 415, Fed. Cas. No. 4,320. Alabama. — Shropshire v. Shepperd (1842) 3 Ala. 733 (question was wheth- er employee's interest disqualified him as a witness ) . The relation of master and servant is created where a person accepts a proposition from a timber broker, by which the latter offers to employ him "in my business," and to pay him a stipulated salary and "a sum of money equal to 40 per cent of the net amount which may be realized and collected" from certain sources of the revenue of the business, and also states that "you, as my employee, are not to be liable for any losses (beyond -your profits as stipulated ) ." But the relation is con- verted into one of partnership where it is afterwards stipulated that the em- ployee as engaged is to receive 40 per cent of the profits derived from inspec- tion charges, interest on money ad- vanced and commissions on same, and speculations in timber, and bear 40 per cent of the losses, while the broker is to receive 60 per cent of the profits, and bear 60 per cent of the losses. Stafford v. Sibley (1896) 113 Ala. 447, 21 So. 459. Colorado. — Le Fevre v. Castagnio (1881) 5 Colo. 564. Connecticut. — Pond v. Cummins (1882) 50 Conn. 372 (a sharer in prof- its here held not to have an interest in the property which was attachable) . Georgia. — Sankey v. Columbus Iron Works (1871) 44 Ga. 228. Illinois. — Parker v. Fergus (1867) 43 111. 437 (employee not liable for price of work done by third person for his employer) ; Burton r. Goodspeed (1873) 69 111. 237. Iowa. — Reed v. Murphy (1850) 2 G. Greene, 5714 (question was as to the competency of the employee as a wit- ness) ; Bolbrook v. Oberne (1881) 56 Iowa, 324, 9 N. W. 291 (employer held to have no power to bind employee con- tractually ) . Kansas. — Shepard v. Pratt (1876) 16 Kan. 209. Louisiana. — Ballet v. Desban (1859) 14 La. Ann. 539; Miller v. Chandler (1877) 29 La. Ann. 88. Maine. — Allen v. Dunn (1839) 15 Me. 292, 33 Am. Dec. 614; Dminel v. 8t07ie (1849) 30 Me. 384. Maryland. — Crawford v. Austin (1870) 34 Md. 49. Massachusetts.— Baxter v. Rodman (1826) 3 Pick. 435 (seamen not neces- sary parties to an action brought to re- cover from a third person a part of the product of a voyage) ; Grozier v. At- wood (1826) 4 Pick. 234; Bradley v. White ( 1845 ) 10 Met. 303, 43 Am. Dec. 435 (employee held not liable for price of goods sold to his employer ) . Michigan. — Ball v. Edson (1879) 40 Mich. 651. Mississippi. — Fairly v. Nash (1892) 70 Miss. 193, 12 So. 149 (employer held to have no authority to bind em- ployee). Missouri. — Bremen Sav. Bank v. Branch^Crokes Saw Co. (1891) 104 Mo. 425, 16 S. W. 209. Nebraska. — JEtna Ins. Co. v. Bank of Wilcox (1896) 48 Neb. 544, 67 N. W. 449. Nevada. — Mason v. Backett (1868) 4 Nev. 420. New Bampshire. — Newman v. Bean (1850) 21 N. H. 93. New Jersey. — Smith v. Perry (1800) 29 N. J. L. 74 (employee held to have no power to release debts due to em- ployer) ; Voorhees v. Jones (1861) 29 N. J. L. 270; Bargrave v. Gonroy (1868) 19 N. J. Eq. 281. New York. — Champion v. Bostwick (1837) 18 Wend. 175, 31 Am. Dec. 376; Burckle v. Eckhart (1849) 3 N. Y. 132, Affirming (1845) 1 Denio, 337; Cassidy V. Ball (1884) 97 N. Y. 159 (employee not liable for the price of goods sold to his employer) ; Gonklin v. Barton (1864) 43 Barb. 435 (similar facts); Grapel v. Bodges (1889) 112 N. Y. 419, 21 N. Y. S. R. 845, 20 N. E. 542 (em- § 71] SERVICE— OTHER CONTRACTUAL EELATIOKS COMPARED. 249 71. —in criminal proceedings.— In cases where an employee is pros- ecuted for the theft of his employer's property, and the defense set up is that he was a partner of such employer, the essential point to be determined is whether they were partners as between themselves, and not whether they were partners as to third persons.'^ The present writer has not found in the reports any judicial expression of opinion ployees held not to be necessary parties 2 Neb. 348 (overruled in Waggoner v. to a suit brought by their employer to First Nat. Bank (1894) 43 Neb. 84, recover compensation for services which 61 N. W. 112 ) ; Hodgman v. Smith they have assisted him to perform); (1852) 13 Barb. 302; Purtnance v. Vanderburgh v. Hull (1838) 20 Wend. M'Clintee (1820) 6 Serg. & E. 259. 70 (where it was held that after releas- 1 See the remarks of Pollock, C. B., ing his contingent interest in the profits in Reg. v. McDonald (1861) 31 L. J. a clerk was competent as a witness); Mag. Cas. N. S. 67, 1 Leigh & C. C. C. Lamb v. Grover (1866) 47 Barb. 317; 85, where it was held that a cashier Fitch V. Hall (1856) 25 Barb. 13. and collector who is paid partly by Pennsylvania. — Dunham v. Rogers salary and partly by a percentage on (1845) 1 Pa. St. 255 (employee not the profits, but is not to contribute to liable for price of goods sold to his the losses, and has no control over the employer) ; Bdioards v. Tracy (1869) management of the business, is a "serv- 62 Pa. 374. ant," not a partner. South Carolina. — An agreement by The captain of a barge, who was em- whioh the cultivator of land is to be ployed to take coal to market and paid compensated by a share of the crop, and for his labor a fixed proportion of the which provides that he is to be "under profit made on the sale beyond the the exclusive direction" of the landown- price paid at the colliery, was held to er, and that the landowner is to have be a "servant." Rex v. Hartley (1807) the exclusive control of his time and 7 Russ. & R. C. C. 104. services, creates the relation of master Where a partner in a firm contracted and servant. Hujf v. Watkins (1880) to give his clerk one third of his own 15 S. C. 82, 40 Am. Rep. 680 (action share of the profits, the other partners for enticement held to be maintain- assenting to the arrangement, it was able). For other oases involving simi- held that the clerk was not thereby con- lar facts, but decided on a different stituted a partner. Holmes' Case ground, see § 77, post. (1811) Lewin, C. C. 256. Chambre, J., Texas. — Goode v. McCartney (1853) cited a case in which all the judges 10 Tex. 193; Bradshaw v. Apperson held that a prisoner who was employed (1871) 36 Tex. 133; Cothran v. Mar- by the master of a coal vessel, and by madulce (1883) 60 Tex. 370; Buza/rd v. the custom of the trade received two First Nat. Bank (1886) 67 Tex. 83, 2 thirds of the freight, was not a joint S- W. 54; Brown v. Watson (1888) 72 proprietor with the master. Tex. 216, 10 S. W. 395. The following agreement: "Samuel Wisconsin. — Appletonv. Smith (1869) Wortley engages to take charge of the 24 Wis. 331; Nicholaus v. Thielges glebe land of the Rev. J. B. Clarke, his (1880) 50 Wis. 491, 7 N. W. 341 (gen- wife undertaking the dairy and poul- eral rule affirmed in a replevin suit try, etc., at 15s. a week, till Michael- to recover property seized as belonging mas, 1850, and afterwards at a salary to a partnership ) . of £25 a, year, and a third of the clear The following cases, in which it was annual profits after all expenses of laid down that employees sharing prof- rent, rate, labor, and interest on cap- its are always to be regarded as part- ital, etc., are paid, on a fair valuation ners with respect to third persons, are made from Michaelmas to Michaelmas- clearly erroneous. Olmstead v. Hill Three months' notice on either side to (1840) 2 Ark. 346 (arguendo); Taylor be given, at the expiration of which v. Terme, 3 Harr. & J. 506 (overruled time the cottage to be vacated by Sam- in Whiting v. Leakin (1886) 66 Md. 255, uel Wortley, who occupies it as bailifl", 7 Atl. 688); Strader v. White (1872) in addition to his salary," — is not a 250 MASTER AND SERVANT. [CIIAI'. III. as to the criterion which is applicable in respect to other classes of cases. But presumably the intention of the parties as between them- selves would always be controlling.^ 72. Specific interest in the profits as profits; significance of. — In all the earlier, and many of the more recent, decisions, the rule an- nounced in § 68, ante, has been declared to be subject to a qualifica- tion which was thus criticized by Lord Eldon in an oft-cited passage : "The cases have gone further to this nicety, upon a distinction so thin that I cannot state it as established upon due consideration, — that if a trader agrees to pay another person, for his labor in the concern, a sum of money even, in proportion to the profits, equal to a certain share, that will not make him a partner ; but if he has a specific in- terest in the profits themselves, as profits, he is a partner." * Where the rights of the contracting parties themselves are concerned, the contract of partnership, but an agree- ment for the hire of a laborer. Reg. v. Wortley ( 1851 ) 5 Cox, C. C. 382, 2 Den. C. C. 333, 15 Jur. 1137, 21 L. J. Mag. Cas. N. S. 44. A contract between agricultural la- borers and their employer by which they share in the products of the farming and the expense of conducting it does not constitute a partnership. Randle v. State (1873) 49 Ala. 14 (defendant, indicted for the larceny of a bale of cotton, was held to have been wrongly convicted, for the reason that he intend- ed to take only what he supposed to belong to himself as a laborer on shares ) . That a person receiving a fixed sal- ary and a share of the profits is indict- able as a "clerk" or "agent" was laid down in Com,, v. Bennett (1875) 118 Mass. 443. For a case which recognizes the rule that in the absence of a specific statu- tory provision a member of a partner- ship cannot be convicted of embezzling the property of the firm, see State v. Butman (1881) 61 N. H. 511, 60 Am. Kep. 332. In England embezzlement by a mem- ber of a copartnership was made penal by 31 & 32 Vict. chap. 116, § 1. For provisions of similar enactments which have been passed in other juris- dictions, the reader is referred to treat- ises on Criminal Law. 8 In a case where the question was whether a sale of liquor had been made by an agent, and was therefore protect- ed by the license of the principal, it was held that a partnership did not re- sult from a contract by which the seller was to receive all the profits for his services except a certain sum to be paid to the licensee. Keiser v. State (1877) 58 Ind. 379. ^Ex parte Hamper (1811) 17 Ves. Jr. 403. In Ed) parte Routlandson (1810) 1 Rose, 91, Lord Eldon declared it to be settled law, "that if a, man, as a re- ward for his labor, chooses to stipulate for an interest in the profits of a busi- ness, instead of a certain sum propor- tioned to those profits, he is, as to third persons, a partner, and no arrangement between the parties themselves could prevent it." "It is impossible to discover any dif- ference, but -what is found in the terms, between a dividend and a commission; yet this difi'erence, flimsy as it is, seems to be firmly established." Miller v. Bart- let (1827) 15 Serg. & E. 137. "There is a distinction between an agreement to share the profits of a trade indefinitely, as profits, and an agreement with an agent to allow him a certain share of the profits as a com- pensation for his services. If he is al- lowed no more than a fair compensa- tion, it is immaterial to the creditors whether he is allowed wages or a share of the profits." Blanohard v. OooUdge (1839) 22 Pick. 151. In some cases another distinction has been taken, vis:., that between sharing in gross profits and sharing in net prof- I 72] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 251 effect of the possession of a specific interest of this description mani- festly cannot be stated more strongly than this, that, in the absence of evidence to the contrary, it will be regarded as proof of their in- tention to create a partnereship.* But the doctrine deducible from a large number of cases in which this distinction has either been the ratio decidendi, or has been recognized, would seem to be that, so far as regards third persons, an employee is conclusively presumed to have incurred the liabilities wherever the "agreement provides for a proprietary interest in the profits as compensation for services be- stowed." ' its, the theory being that the latter form of participation did, and the for- mer did not, betoken the existence of a partnership. Dry v. Boswell (1808) 1 Oampb. 330; Mair v. Glermie (1815) 4 Maule & S. 240; Wilkinson v. Frasier (1803) 4 Esp. 182; Heyhoe v. Burge (1850) 9 C. B. 431 (in charge of Parke, B., to jury) ; Parsons, Partn. § 50, note 2; Story, Partn. § 34. But presumably no court would now uphold the propriety of such a distinction. 8 A contract provided that plaintiff took an interest in defendant's dry- goods business to a certain amount, that the stock was to be turned over to him, and the business continued un- der a new firm name, that plaintiff was to receive a salary, as manager, from the firm and in addition one third of the net profits for five months of the year 1902, and for the full year of 1903. The contract further specified certain of plaintiff's duties as manager, and de- clared that at the beginning of 1904 plaintiff might become a half owner in the stock by satisfactory arrangement with defendant, whereby he could share equally in the profits in addition to salary. On executing the contract, plaintiff entered on the performance of his duties as partner and manager of the firm, was introduced by defendant as his partner, and continued so to act for five days until defendant ejected him from the store. Held, that such agreement constituted an executed con- tract of partnership. Ramsey v. Meade (1906) 37 Colo. 465, 86 Pac. 1018. Where the parties had contracted that one of them should contribute to common business connections in foreign countries, valuable for such business, and receive as his compensation one third of the net profits, that a set of books should be kept open for inspec- tion at all times, and that neither par- ty was to enter into contracts with rela- tion to the business without the con- sent of the other, a partnership was held to have been constituted. Price v. Middleton (1906) 75 S. C. 105, 55 S. E. 156. The conduct of the parties after forming the connection was deemed to have settled any doubt that might oth- erwise have existed as to their inten- tion, each of them having been recog- nized as having authority to act for all in the promotion of the common busi- ness. In Ott V. Boring (1907) 131 Wis. 472, 110 N. W. 824, 111 N. W. 833, 11 Ann. Cas. 857, decedent proposed that, if claimant would remove with decedent to another city and assist him in estab- lishing a business, decedent would pay claimant $15 per week and give him a one-fourth interest in the business when decedent 'was able to draw $10,000, be- side keeping the stock up and paying decedent's personal and store expenses. Claimant did as requested, and for sev- eral years drew $15 per week, and then drew $17.31 per week until decedent's death, when the business had grown from an inventoried value of $19,000 to $119,000. Held, that such facts were sufficient to show an agreement for a partnership, to be constituted after the lapse of a certain time, and to establish claimant's acceptance of the proposi- tion as a whole, and not merely the part providing for his weekly wage. SHaokett v. Stanley (1889) 115 N. Y. 625, 22 N. E. 745. The statement in the text is applica- ble to cases cited in the following para- graphs, as well as to those mentioned in the last note. United Kingdom. — Meyer v. Sharpe 252 MASTER A^U SERVAM. [CHAP. III. Some logical grounds upon which this distinction may be con- ceived to rest have been suggested.* But its importance has been greatly diminished by the extensive adoption of the broad doctrine an- nounced by the House of Lords in Cox v. Hickman,^ viz., that a part- (1813) 5 Taunt. 74; Hesketh v. Blan- chard (1803) 4 East, 144; Ex parte Digly (1835) 1 Deacon, Bankr. 341 (where a person who, after having been retained as a clerk at an annual sal- ary, entered into a new engagement by which he was to receive a moiety of the profits of the business for his serv- ices, was held to be a partner, for the purpose of issuing a joint fiat in bank- ruptcy). Alabama- — Tayloe v. Bush (1883) 75 Ala. 432. Connecticut. — Loomis v. Marshall (1837) 12 Conn. 70, 30 Am. Dec. 596 ( not a case of service ) . Georgia. — Sankey v. Columbus Iron Worlcs (1871) 44 6a. 228; Thornton v. McDonald (1899) 108 Ga. 3, 33 S. E. 080. Indiana. — Macy v. Combs (1860) 15 Ind. 469, 77 Am. Dec. 103. loiva. — Price v. Alexaiider (1850) 2 G. Greene, 427, 52 Am. Dec. 526. Kcunsas. — Shepard v. Pratt (1876) 16 Kan. 209. Louisiana, Lee v. Bullard (1848) 3 La. Ann. 462 (employer was to receive nothing if nothing was made). Here, however, there was also evidence of an estoppel. Massachusetts. — Zeiglerv. Day (1877) 123 Mass- 152. Minnesota. — Warner v. Myrick (1870) 16 Minn. 91, Gil. 81. Missouri. — Plummer v. Trost (1884) 81 Mo. 425 (agreement by A and his wife with B, to work on the latter's farm, all sharing jointly in the proceeds of the joint labor, held to constitute a partnership). Nebraska. — Gates v. Johnson (1898) 56 Neb. 809, 77 N. W. 407, holding that a partnership may properly be found to have existed, where the evidence is conflicting, and susceptible of the con- struction that there was a community of interest in the profits as profits, and not by way of payment of compensation for services. New York. — Leggett v. Hyde (1874) 58 N. Y. 272, 17 Am. Rep. 244; Eodg- man v. Smith (1852) 13 Barb. 302; Brockway v. Burnap (1853) 16 Barb. 309. North Carolina. — Cossack v. Burgayn (1893) 112 N. C. 304, 10 S. E. 900. Pennsylvania. — In Pennsylvania it is well-settled law "that a participant in profits directly as such, no matter what may be the arrangement between the parties, is, as to third persons, «, part- ner." But the right to receive a com- mission equal to a certain proportion of the profits as a compensation for services does not constitute the recipi- ent a partner. Edwards v. Tracy (1869) 62 Pa. 374. South Carolina. — Pierson v. Stein- myer (1851) 4 Rich. L. 309, 320. Texas. — Goode v. McCartney (1853) 10 Tex. 193; Bradshaw v. Apperson (1871) 36 Tex. 133. West Virginia. — Sodiker v. Applegate (1884) 24 W. Va. 411, 49 Am. Rep. 252. * In Champion v. Bostwick (1837) 18 Wend. 175, 31 Am. Dec. 376, the court expressed its approval of tne views put forward by Mr. Carey in his Law of Partnership, part 2, note 1. That writ- er insists it is for the interest of the creditors generally that a servant should receive a compensation for his labor in proportion to the profits of the business, without having a specific lien upon such profits, rather than that he should receive a fixed compensation, whether the business produced profits or otherwise. If, on the other hand, he should stipulate for an interest in the profits of the business which would en- title him to an account, give him a, spe- cific lien or a preference in payment over other creditors, and confer on hiin the full benefit of the increased profits of the business, without any correspond- ing risk in ease of loss, it would oper- ate unjustly as to other creditors. Tlie conclusion drawn is that it is perfectly right in principle, that he should be regarded as liable to third parties as a partner in the latter case, but not in the former. 5 (1860) 8 H. L. Cas. 268. See Lind- ley, Partn. 581; 1 Parsons, Contr. 9th ed. *158, note 1. In Leggett v. Hyde (1874) 58 N. Y. § 73] SERVICE— OTHER COXTRACTUAL RELATIONS COMPARED. 253 nership is not inferable from the sharing of profits, unless tlie effect of the transaction is such as to constitute the person who controls the business the agent of the person taking the profits. It is difficult to see how any court which concurs in this doctrine can reasonably con- tinue to recognize a distinction which, if it be assumed to constitute the basis of an invariable inference in point of law, will compel us to go to the length of holding that a third person is always entitled to treat as the principal of the employer an employee whose position in other respects presents all the indicia of service. But the precise effect of the principle embodied in Cox v. Hichman does not seem to have been as yet judicially considered with reference to employees who share in profits ; and as a further discussion of the matter would carry us beyond the scope of this treatise, it will be unnecessary to do more than to refer in passing to this difficulty. 73. Participation in losses as well as profits. — As the very essence of a partnership is that both the profits and the losses of the given en- terprise or business should be shared, it seems very questionable whether, in any case where the rights of a third person are concerned, even an explicit declaration in a contract in which such sharing was provided for, that it was intended to be one of hiring and service, would be effectual, for the purpose of exempting the employee from the liability of a partner.'^ It may, at all events, be regarded as cer- tain that, in the absence of such a declaration, the presumption of the existence of a partnership would doubtless be deemed conclu- sive.^ On the other hand, there seems to be no valid reason why a con- tract which, as regards the rest of its incidents, is one of employ- 272, 17 Am. Rep. 244, it was stated share losses as well as profits. Emanuel that the doctrine of Coco v. Hickman v. Draughn (1848) 14 Ala. 303. And had not been adopted in New York; but where one party found the shop, loom, later decisions are to the contrary ef- and tackle for weaving, and the other feet. See Bates, Partn. § 23. found the labor, and they shared the 1 The learned author of a standard produce of the whole by dividing be- treatise observes that "an agreement to tween them, not only the cash on hand, share profits and losses, in the sense of but their debtors. Gregg Twp. v. Ealf- making good the losses, if any are sus- Moon Tiop. (1834) 2 Watts, 342. tained, may be said to be the type of In Lomme v. Kintzing (1871) 1 a partnership contract," and that he is Mont. 290, an agreement between two not "aware of any case in which per- persons, by which, first, one of them sons who have agreed to share profits was to receive one third of the profits and losses in this sense have been held in compensation for his services, and, not to be partners." Lindley, Partn. secondly, the other was to be individu- 6th ed. p. 43. See also 1 Parsons, ally liable for all debts, was held to Contr. 9th ed. *162, note 1. render the former liable as partner to 2 The existence of a partnership was a, creditor having no knowledge of the inferred where there was a specific stip- second provision prior to the time when ulation that a selling agent should the debt was contracted. 254 MASTER AND SERVANT. [chap. hi. ment, should not be treated as such, in a case where merely the recip- rocal rights and obligations of the parties themselves are concerned.* 74. Other circumstances tending to show whether the contract was one of service or partnership. — The evidential value of the following circumstances as elements tending to prove or disprove the existence of a partnership has also been considered. (1) That the employee furnished no capital, either in cash or other tangible property. This circumstance has been adverted to aa one which tends to show that there was no partnership.^ But obvi- ously it is not necessarily conclusive in this sense, inasmuch as the value of his services or special knowledge is frequently the whole or a part of the capital contributed by a member of a firm of partners. (2) That the employer was to bear any loss that might accrue to him ; * or that the employee was "not to be liable for any losses be- yond his profits as stipulated ;" ^ or that the employee should not bo required to restore to the concern any part of the fixed salary which was to constitute part of his remuneration, "in case any unexpected demand should be made on the parties after the division of the profits in any one year." * These stipulations, the effect of which is essen- tially similar, all tend to negative the conclusion that there was a partnership. (3) That the contractor was to devote the "whole or such part of his time and attention to the business as may be required for conduct- ing the same." Such a stipulation militates strongly against the theory that a partnership was intended, but is not conclusive, as it is consistent with the hypothesis that the contractee may be a sleep- ing partner.* 3 Several decisiona to the effect that agrees to pay another half the profits there may be a, community of loss as of the business for services rendered, well as profit, and yet no partnership, without any provision in case of loss, are cited in 1 Parsons, Contr. 9th ed. does not create a partnership. Winter *162, note 1. v. Pipher (1895) 96 Iowa, 17, 64 N. W. iZeigler v. Day (1877) 123 Mass. 663. 152; Pond v. Cummins (1882) 50 Conn. "As between the parties themselves it 372; Shute v. MoVitie (1903) — Tex. is perfectly competent for them to agree Civ. App. — , 72 S. W. 433. tliat one shall have his full share of ^ Ross V. Parkyns (1875) L. R. 20 the anticipated profits as a compen- Eq. 331, 44 L. J. Ch. N. S. 610. sation for his labor or skill, without 3 See Stafford v. Sibley (1895) 106 running any risk or absolute loss, ex- Ala. 189, 17 So. 324, as stated in § 69, cept as to third persons, if instead of note 1, ante. In the same note is cited producing profits the business should a case in which, on the broad ground prove a losing concern." Champion v. that in order to make i>, person a part- BostwioJc (1837) 18 Wend. 175, 31 Am. ner it is necessary to show that the Dec. 376. intention is that he shall share in ^ Ross v. Parkyns (1875) L. R. 20 losses as well as profits, it has been held Eq. 331, 44 L. J. Ch. N. S. GIO. that a contract by which one person i Ross v. Parkyns (1875) L. R. 20 § 74a] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 25.> (4) That the word "salary" was used to express the compensation payable under the contract. This element, though not conclusive against the existence of a partnership, is regarded as strong evidence that there is no such relation between the parties.® (5) That "proper books of account should be kept of and relating to the said business, by the said E. (the employee), he obtaining such assistance, from time to time, as he may find necessary, subject to the approval of the said P. (the employer)." Such a provision tends to show that the contract was one of service.'' (6) That the employee was to be under the direction of one of the principals in the enterprise ; that he was in a certain event to be liable to dismissal ; and that not only should he have no right to in- spect the books which were to be kept, but that the balance sheet by which his share of the profits was to be determined should, when verified by a statutory declaration, be conclusive against him. These provisions in combination were held to be incompatible with the the- ory of a partnership.* (7) That the contract could be terminated at the option of the re- cipient of the benefit of the stipulated work. This circumstance is strongly indicative of a contract of service, and may be conclusive when combined with others having a similar significance ; ® but it is not of itself sufficient to show that the contract is one of service, if the rest of the evidence points clearly to the conclusion that a part- nership was intended.^" 74a. Doctrine of the French law, as administered in Cluebec. — The doctrine of the French law is embodied in the following statement of a distinguished jurist: "A contract between an employer and an em- Eq. 331, 24 Week. Rep. 5, 44 L. J. Ch. the defendants as an engineer and N. S. 610, 30 L. T. N. S. 331, per Jessel, draftsman" for one year. M. R. In this case, however, the ambi- As to the significance of a similar guity of the words was entirely done stipulation in cases where it is neees- away with by the contents of the rest sary to differentiate servants from of the contract. See preceding and fol- agents, see § 66, par. (4), ante. lowing notes. ^ ^oss v. Parkyns ( 1875 ) L. R. 20 In Harrington v. Churohioard (1860) Eq. 331, 44 L. J. Ch. N. S. 610. Com- 6 Jur. N. S. 576, 29 L. J. Ch. N. S. 521, pare § 66, par. (3), ante. 8 Week. Rep. 302, one of the significant T Ross v. Parkyns (1875) L. R. 20 provisions in a contract held to be one Eq. 331, 44 L. J. Ch. N. S. 610. of service was that the contractor was B Eamngton v. Churchward (1860) to devote his whole time to the perform- 29 L. J. Ch. N. S. 521, 6 Jur. N. S. 576, ance of his duties. See par. (6) in 576, S Week. Rep. 302. this section. ^ Harrington v. Churchward (1860) See also Porter v. Curtis (1896) 96 29 L. J. Ch. N. S. 521, 6 Jur. N. S. 576, Iowa, 539, 65 N. W. 824, where a con- 8 Week. Rep. 302. tract of service was held to be indicated 10 Whiting v. Leakin (1886) 66 Md, in a case where the plaintiflF undertook 255, 7 Atl. 688. to "devote his time to the business of 256 MASTER AND SERVANT. [CHAP. III. ployee whose remuneration consists either of a portion of the profits, or of a commission on the business which he procures for his em- ployer, is a contract for the letting of work." ' In Quebec this doc- trine has been applied both in actions between the parties themselves, and in actions by third persons.^ The jurisprudence of that Province, therefore, stands in this regard upon the same footing as that of the countries in which the common law prevails. 75. Servant or bailee.— In the Codes which are based upon the civil law, the hiring of workmen is enumerated as one of the three princi- pal species of hiring labor and industry, the other two being the hiring of carriers, and the hiring of persons who undertake works by estimate.^ Speaking generally, the juristic conception which, in this method of classification, associates contracts of service with one par- ticular description of contracts of bailment is foreign to the common law. In a few of the older English cases, it is true, carriers have been referred to as being "servants" of the bailor in some respects.^ 1 Baudry Lacontinerle, vol. 20, No. 29. To the same effect see the following au- thorities: Troplong, Societe, vol. 1, No. 46; Laurent, vol. 26, No. 154; fiouil- lard, No. 34; Duvergier, Societe, No. 53. 8 In Pratt v. Berger (1884) 28 Lower Can. Jur. 192, an employee viflio re- ceived half the profits of the business as his salary was held not to be en- titled to an accounting as a, partner. In Reid v. McFarlane, Rap. Jud. Quebec 2 B. R. 130, the headnote reads as follows : Participation in the profits of a business does not make the person participating liable as partner towards third parties, unless the intention was to form a contract of partnership, or unless he has been held out to the pub- lic as a partner. M. entered into an agreement with N. {who was then do- ing business alone under the style of N. & Co.), by which M. advanced N. the sum of $2,000, for which he was to receive 8 per cent interest and one half the net profits of the business. M. also entered N's employment as manager, at a salary of $1,200 a year. The agreement was for a year, at the end of which time N. agreed to take M. into the business as a partner, if M. so desired. After about fifteen months N. made an assignment, and M. was sued for a debt of B. L. Nowell & Co., on the ground that by virtue of the above agreement he was a partner. Held, that M., having acted merely as manager, and never having been held out to the public as partner, was not liable as such to third parties, creditors. The provision in the Quebec Civil Code, art. 1831, that "participation in the profits of a partnership carries with it an obligation to contribute to the losses," was explained as being ap- plicable merely to a partnership of which the existence is assumed. 1 French Civ. Code, art. 1779; Quebec Civ. Code, art. 1669; Louisiana Civ. Code, art. 2673 (2643). One of the two kinds of locatio operis faciendi is the hire of labor and services in respect to the articles delivered. Story, Bailments, 9th ed. § 422. 2 In Ward v. Macauley (1791) 4 T. R. 489, a case in which the question involved was one of the proper form of action, Buller, J., observed during the argument of counsel : "The carrier is considered in law as the servant of the owner, and the possession of the servant is the possession of the master." Similarly, in Gordon v. Harper (1796) 7 T. R. 12, Grose, J., remarked, ar- guendo: "WTiere goods are delivered to a carrier, the owner has still a right of possession, as against a tort feasor, and the carrier is no more than his servant." In this connection, reference may also be made to the rule that delivery of goods to a carrier by a seller for trans- mission to the buyer is deemed to be S 75] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 257 But, in view of the well-recognized distinction between contracts which create the relation of master and servant, and all other con- tracts which involve the performance of work, this language is mani- festly wanting in precision. A carrier is an independent contractor, not a servant. A point of contact between service and bailment is found in those cases where there is an undertaking by one person to assume the custody of a chattel delivered to him by the ovraer, either for safe- keeping merely or for the purpose of doing certain work in respect to it, or by means of it. Here, if the person to whom the chattel was delivered was a servant of the owner before the transaction took place, or was to pass under the control of the owner while his custody of the chattel continued, he might, from one point of view, be regarded as acting in the double character of servant and bailee. This situation may be dismissed with the remark that in almost every conceivable state of facts a merger of the character of bailee in that of servant would be implied, and the possession thus as- sumed would be treated as being that of the master himself.^ On the other hand, if no such control over the bailee is to be exercised by the bailor, the rights and liabilities of the parties to the contract, both as between themselves and as regards third persons, are de- termined upon the theory that the bailee is an independent con- tractor. The question whether the latter situation is predicable under the circumstances is often one of no small practical import- ^ince. The effect of the decisions in which it has been dealt with is stated in the two following sections. In criminal prosecutions the importance of differentiating bailees from servants arises from the fact that at common law a bailee, being considered to have rightful possession of property in his {•barge, could not be guilty of larceny in respect of it, for the rea- son that a conversion, that is to say, a wrongful change of posses- sion, could not result from a misappropriation.* The effect of the delivery to the buyer, and to constitute B. C. C. 113, where the prisoner was an "actual receipt" by him within the charged with stealing a pair of boots statute of frauds. Pollock & Wright, from a stall, of which a boy who was Possession, p. 59. living with and assisting the owner, 3 It has been remarked that the holder his father, had charge when the crime of goods may make his servant a bailee was committed, it was held that the if he thinks fit; but that the law does boy was not a bailee, but a servant, not regard this as a normal state of and that the property in the boots could things, and probably rather strict proof not be alleged to be in him. would be required. Pollock & Wright, iRoscoe, Crim. Ev. 9th ed. 651. Possession, p. 60. A mechanic receiving materials to be In Reg', v. Green (1856) Dears. & made into shoes at his own shop is not M. & S. Vol. I.— 17. 258 MASTER AND SERVAKT. [CHAP. III. cases which have turned upon the question whether the defendant was a servant or a bailee is stated below.' In England the distinc- tion between the two classes of contracts in this point of view has become less important since the passage of a statute under which bailees of chattels, etc., may be found guilty of larceny if they fraudulently convert such chattels to their own use.® Enactments of the same tenor are presumably in force in most, if not all, of the British possessions and of the American states. But in Eng- land the question whether the defendant was a bailee or a servant may still be material; for, although a bailee is punishable as for a simple larceny under the section of the act just cited, a servant is liable to a much more severe penalty under § 67, a/rdeP A similar situation may possibly arise from the wording of the statutes in other jurisdictions. an agent or servant of the person fur- nishing the leather, within the mean- ing of Mass. Eev. Stat. chap. 126, § 29, against embezzlement. Gom. v. Young (1857) 9 Gray, 5. See also note 3, supra. 6 The prisoner was convicted on an indictment charging him with embez- zlement, in one count as servant to A, and in another count as servant to B. A and B were two, among other, sewers of gloves residing at C, the manufac- turers of the gloves carrying on busi- ness at D. The prisoner was a carrier residing at C, and was exclusively em- ployed between the glove sewers at C and the manufacturers at D. The sewers were not known to the manu- facturers, but when a sewer wanted work the prisoner gave her name and a number to the manufacturers, and received from them unsewn gloves for her to sew. Each sewer, having her number, sent back by the prisoner the gloves when sewn, with her name pinned to the parcel. These parcels the prisoner delivered to the manufacturers; and if the parcels were found correct he received the total amount due to the sewers in one sum, and fresh parcels of unsewn gloves. His duty then was to deliver to each sewer her fresh work and also the money due to her, deduct- ing his charge. If any work was miss- ing the manufacturers looked to the sewer if found, but if not they looked to the prisoner for it. The prisoner, according to the course above stated. took out the numbers for A and B, and, having received money for both of them from the manufacturers, denied the re- ceipt of the money, and applied it to his own use. Held, that the prisoner was not a servant, but merely a bailee, and was guilty only of a breach of trust. Reg. v. Gilhs (1855) Dears. C. C 445. A person who has been intrusted to drive a number of sheep a certain dis- tance, and who on the way separates one of them from the rest, with the intention of fraudulently converting it to his own use, is not guilty of larceny, as he is not a servant, but a special bailee, and there has not been such a severance of the sheep as to put an end to the bailment. Rex v. Reilly (1826) Jebb, C. C. 51. A drover who is employed to take cattle by rail to a certain place and deliver them to a purchaser, but who is at liberty to take charge of the cattle of any other person, is a mere bailee, although he is paid the expenses of the cattle on the journey, and is remun- erated by daily wages. Reg. v. Hey (1849) Den. C. C. 602. Doubts were expressed as to the correctness of Rex V. M'Namee (1832) 1 Moody, C. C. 368, where it was held that the pos- session of a drover is the owner's pos- session, although he is a general drover, at least if he is paid by the day. 6 24 & 25 Vict. chap. 96, § 3. 7 See 2 Russell, Crimes, 317. § 75a] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 259 75a. Relationship between the proprietor and driver of a cab or iackney carriage. — a. At common law. — The accepted doctrine is that, apart from statute, or some special circumstances which show the intention to create the relation of master and servant, the con- tract between the proprietor and the driver of a cab or hackney carriage will be deemed to be one of bailment, where the essence of the arrangement between them is that the driver is to have the use of the vehicle and horses for a certain price, and is to retain all his earnings in excess of that sum. This doctrine is controll- ing both in cases which are concerned with the liability of the pro- prietor to third persons for the tortious acts of the driver,^ and ^ V enables v. Smith (1877) L. R. did not remain under the absolute direc- 2 Q. B. Div. 279, per Cockburn, Ch. J.; tion and control of the company, and R. V. London Improved Cab Co. (1889) thereby cannot be said to be a servant L. R. 23 Q. B. Div. 281; Gates v. Bill within the meaning of the definition. (1902) 2 K. B. (C. A.) 38 (per The right of the master to discharge Vaughan Williams, and Romer, L. JJ., and remove the servant is incident to pp. 38, 42). the relation, but in this case the ab- In a recent case, McColligan v. Pemi- stract right did not exist. It is true sylvania R. Co. (1905) 212 Pa. 229, the lease could be canceled for the un- 6 L.R.A. (N.S.) 544, 112 Am. St. Rep. expired term, but only when the con- 739, 63 Atl. 792, where the proprietor ditions thereof, or some of them, had of a hansom cab was held not to be been violated. The cancelation of the liable for the negligence of the driver, lease was a contractual right, and did the lease under which defendant let not arise because of the employment the hansom to the driver provided that relations of the parties. The driver, "for and in consideration of the sum under the contract, had legal rights of $4.50, and on the conditions stated enforceable against the company and below, hires to H. Priest, driver, han- only limited by the conditions therein som No. 65 with two horses, for thirteen contained. If the company undertook hours from 9:30 A. M. of the date to cancel the lease, or remove the driver, stamped on the back of the certificate." for a, reason not set out in the con- The conditions stated therein were in ditions of letting, it would be liable substance, that the driver should as- in damages for breach of the contract, sume all liability for damages to any Then, again, as has been stated, the person or property, and that he agreed driver is entitled to all the proceeds not to use a horse longer than six derived from fares received from pas- and one half hours without returning sengers who hire the cab. The aggre- to the stable for exchange, to wear a gate of these fares may be $5 or $25 uniform, to abstain from the use of a day, but the company has no control intoxicating liquors, to present a neat over, or interest in, the results of the and clean appearance, to conform to work in this most important respect, the prescribed rates and regulations. All of these things are inconsistent Upon his failure to observe these con- with the relation of master and servant, ditions, the company reserved the right and indicate that of bailor and bailee, to cancel the unexpired term of the We have, then, under the express terms lease. The court said: "In the case of the contract, a bailment, and this at bar the defendant company does not relation is supported by the inferences control the results of the work, has no and results just stated. As against right to the proceeds arising from the this admittedly prima facie relation of fares paid drivers by passengers, and bailor and bailee, we are asked to say hence the fundamental and essential that, by reason of the conditions limit- principle necessary to create the rela- ing the rates, fixing boundaries, pre- tion of master is lacking. The driver scribing kinds of uniforms, requiring 260 MASTER AND SERVANT. [chap. hi. in cases which involve the reciprocal rights of the proprietor and the driver inter se? The conclusion thus arrived at is clearly an inevitable deduction from the notion that a bailee belongs to the category of independent contractors. But the practical consequences to which that notion leads in cases of the type with which we are here concerned and others of a similar description can scarcely be regarded as satis- factory. There would seem to be sufficient grounds for saying that, under a genuinely scientific system of jurisprudence, which would leave a court at liberty to determine the rights of parties with reference rather to the essential effect and operation than to the actual form of their agreements, a contract of bailment which pro- vides for the regular and continuous performance of work by means of instrumentalities owned by the bailor, and under conditions sub- stantially the same as those under which work of a like nature is performed by a servant, would probably be treated as subjecting the bailor, in respect to third persons at all events, to the responsi- bilities of a master. If this view be sound, the decisions discussed in the following sections, although by some authorities they have been thought to rest upon a questionable construction of the statutes involved, will merit approbation on the broad ground that they have established a rule which tends on the whole to subserve the ends of justice, in a class of cases in which third persons are left virtually remediless if the enforceability of their claims is determined vidth reference to the normal incidents of contracts of bailment. h. Under English and Colonial statutes. — The actual decisions in all the English cases have turned upon the effect of the metropolitan hackney act and similar statutes.' It has been laid dovm that the cleanly and sober habits and other in-' why the real relation of the parties cidental matters, the relation is not should be changed thereby." what it appears to be on its face, but To the same effect was the decision is something different. The contention in Braverman v. Hart (1907) 105 N. is not sound. The conditions and regu- Y. Supp. 107, involving injuries caused lations, incidents of the contract of let- by an automobile. ting, in some instances, it is true, are ^Fowler v. Loch (1872) L. R. 7 C. consistent with the relation of master ?• 272. The court was divided in opin- and servant, but not inconsistent with J_°" ^, *° the other points presented, that of bailor and bailee. If the com- " 3?°^ ^l *° *"i\°"e. „. „ . _ ,, ii-i. i 31&2 Wm. IV. chap. 22: 6 & 7 pany, m order to protect its property yj^^. chap. 86. The former of these and give the traveling public modern prohibits any person from keeping, conveniences and suitable accommoda- ^^^^^^ ^j. jetting to hire any hackney tions, has deemed it advisable to em- carriage, within the metropolis, without body in the contract of letting certain a license. Section 20 requires that on reasonable regulations, no legal or busi- the hackney carriage shall be affixed ness reason can be properly assigned a plate, on "which there shall be paint- § 75a] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 261 provisions of these acts do not necessarily create in all cases the relation of master and servant between the proprietor and the driver. The terms of the contract must still be looked to for the purpose of determining what the relation between them really is.* But the actual decision in the case in which this doctrine was enounced has been overruled, as being erroneous with relation to the facts in- volved ; ^ and although this general expression of opinion has never been explicitly condemned, it is not easy, having regard to the gen- eral trend of the authorities, to conceive of any possible arrange- ment which would enable the proprietor to relieve himself from lia- bility to third persons for the tortious acts of the driver. Whether an agreement might not be so drawn as to place the driver in the position of a bailee in respect of their reciprocal rights and obliga- tions is a more doubtful point.® The established doctrine is that, where the essence of the arrange- ment between the proprietor and the driver of a cab or hackney carriage is that the latter shall pay a certain amount per diem for the use of it, and make what he can by plying for fares, the effect of the statutory clauses mentioned at the beginning of this subsection is to render him, so far as third persons are concerned, a servant of the proprietor.' The fact that the driver's compensation is the ed, in letters and figures of black upon and to the acts of Parliament -which a white ground, the Christian name and regulate their respective duties, we are surname of the proprietor or of one of opinion that the driver is to be con- of the proprietors of such hackney car- sidered the servant or agent of the pro- riage." In the latter it is enacted by prietor, with authority to enter into sec. 21 that the proprietor of a hack- contracts for the employment of the ney carriage, before he permits a cab, on which the proprietor is liable, licensed driver to take it out, "shall There can be no doubt that this would require to be delivered to him, and shall be so if the driver were engaged at fixed retain in his possession, the license of wages, accounting to the proprietor for such driver or conductor while such all the earnings of the cab. But must driver or conductor shall remain in not the actual arrangement between liis service." By sec. 28 the proprietor them be equally considered a mode by is made liable to a penalty for the mis- which the proprietor receives what may conduct of the driver. By sec. 35 he be estimated as the average earnings is bound, when required, to produce the of the cab, minus a reasonable compen- driver; and on failure is himself to sation to the driver for his labor? To pay. stimulate the industry and zeal of the *Rex V. Spurr (1881) L. R. 8 Q. B. driver, he is allowed to pocket all the Div. 104. earnings of the cab above a given sum: 6 See note 11, infra. but it is from the earnings of the cab 6 See case cited in note 13, infra. that this sum is paid ; and it is evi- 7 In Powles V. Eider (1856) 6 El. dently calculated on both sides that & Bl. 207 (action for damages incurred the earnings of the cab will exceed this by loss of luggage). Lord Campbell, sum, which varies according to the C'h. J., reasoned thus: "Looking to the season of the year. This is quite dif- position of the proprietor and the driver ferent from hiring a job carriage or a. of a cab under the circumstances proved, carriage and horses to be driven by the 262 MASTER AND SERVANT. [CHAP. III. amount by wLicli his receipts exceed a fixed sum does not make any hirer or his servant, where the hirer becomes bailee, and can in no sense be considered the servant of the proprietor. . . . The learned judge also observed that the acts of Parliament "always regards the proprietor and driver of the hackney cab as employer and em- ployed, or master and servant, and clearly contemplate that the party vrho engages the cab under the care of the driver shall have a remedy against the proprietor." After stating the effect of § 20 (see note 3, supra), he proceed- ed thus: "The proprietor vrho applies for and accepts a license to which such a condition is annexed, and employs his cab under it, must be considered to hold himself out to the world as the pro- prietor; and he must incur the liabil- ities of proprietor to all who use the cab with the authority of the driver, in the ordinary course of dealing. If the proprietor does not drive it him- self, he declares that the driver is his servant. Again, the sections 23, 24, 27, 28, of statute 6 & 7 Vict. chap. 86, (see note 3, supra), clearly consider that the driver is a person appointed by the proprietor, for whom, in the exer- cise of his employment as driver, the proprietor is answerable. It would be most inconvenient and unjust towards the public if an action such as the pres- ent, brought against one who proclaimed himself to be the actual proprietor of the cab when it was engaged by the plaintiff, and actually was so, could be defeated by evidence of a secret agree- ment between the proprietor and the driver with respect to the remunera- tion of the driver, and the proportions in which the earnings of the cab are to be divided between them. On such considerations Morley v. Dunscornbe (1848) 11 Li. T. 199 [a nisi prius case], appears to have been decided. This decision is expressly in point; and we think that we ought to abide by it." This decision was followed in Vena- Ues V. Smith (1877) L. R. 2 Q. B. Div. 279, where the arrangement was similar, and the proprietor was held liable for injuries caused by the negligent man- ner in which the driver handled the cab. In Playle v. Kew (1886) 2 Times L. R. 849, a nisi prius case, Venables V. Smith was followed. In Bex v. London Improved C(ib Co. (1889) L. E. 23 Q. B. Div. (C. A.) 281, the effect of the act was again carefully considered, and the court reached the conclusion that it puts the driver "so far as regards the public, in the position of servant, and the proprietor in the position of master, with the liabilities that attach to that position." Lopes L. J., from whose judgment these words are quoted, repeated them in Keen v. Henry, infra. In Gates v. Bill [1902] 2 K. B. (C. A.) 38, the liability of the proprietor of the vehicle was again affirmed. Romer, L. J-, one of the members of the court, observed: "The law appears to me to have become perfectly well set- tled to the effect that the proprietor of a London cab, who employs a driver on the terms upon which the driver in this case was employed, is, so far as the general public are concerned, by virtue of the statute in the position of the master of that driver." But Vaughan Williams, L. J., made the fol- lowing remarks (pp. 41, 42) : "I cannot say that I consider the decisions which have been given on this subject altogether satisfactory. . . . It cannot, I think, be said that the grounds of decision in the various cases have been altogether identical; and, as regards the effect of the enactments in relation to hackney carriages, I must confess that, had this matter come be- fore me as a new matter with regard to which there had been no previous decisions, I should have hesitated to draw from the provisions of the statute the inference that the legislature meant to assume the existence of any relatioil between the cab proprietor and the cab driver, or to impose any liability on the former, otherwise than in respect of the matters expressly dealt with by §§ 28 and 35 [of the act of 6 & 7 Vict.). But I am not at liberty to deal with this matter as res integra." In Bombay Tramway Co. v. Khairaj Tejpall (1883) Indian L. R. 7 Bombay ser. 119 (buggy and two horses hired for a daily payment), the Bombay act VI. of 1863 was held to require the same construction as the English one. A by-law which was held to be within the powers of a city council, under the licensed carriages statute, 1864, of § 75a] SERVICE— OTHER COXTEACTUAL RELATIONS COMPARED. 203 difference in the character of his relation to the proprietor.* An action will in every instance lie against the registered proprietor of the vehicle, although he may have let it to another person, and the latter may have been the immediate employer of the driver. But this is merely an alternative remedy, and the injured party may, if he so desires, proceed against the immediate employer.^ JSTor can one of the members of a partnership which owns the vehicle escape liability on the ground that he has not actually obtained a license authorizing its use for the purpose of plying for hire.^" Victoria (Australia), provided that no owner of a licensed carriage should in- trust that carriage to another person as driver except as that owner's serv- ant. It has been held that every owner licensed under this by-law, and employ- ing a driver, is to be presumed, until the contrary is proved, to have com- plied with the by-law. As the existence of such a presumption constituted some evidence, though not conclusive, that the driver was the owner's servant, it was held error to direct a verdict for the owner, in an action brought to re- cover for injuries caused by the negli- gence of the driver- Clutterbuck v. Gmry (1885) 11 Vict. L. Rep. 810. 8 Hex V. London Improved Cab Co. <1889) L. R. 23 Q. B. Div. (C. A.) 281. SKeen v. Henry [1894] 1 Q. B. (C. A.) 292. There the defendant, the pro- prietor had let a cab to his son, who had provided the driver, and also the horses and the harness. Lord Esher, M. E., said: "If the driver had been the servant of the defendant, his negli- gence would at common law have given the plaintiff a right of action against the defendant. It follows that in such a case the act gives the plaintiff a right of action against the defendant, although the driver is not his servant. This right, however, does not interfere with any right of action which the plaintiff may have at common law against the driver's master, in the ordi- nary sense of the word. If the defend- ant's son were really the driver's mas- ter, the plaintiff could have brought an action against him in respect of the injury. But under the act he is entitled also to bring an action against the registered proprietor of the cab; and the fact that he can do so in no way militates against his right of action against the defendant's son. The pro- prietors of hackney carriages cannot, by letting their carriages, escape from their liability under the statute." Ad- verting to the difference between the circumstances in the case under review and in King v. London Improved Cab Co., supra, Kay, L. J., observed that the effect of the decision in the earlier case was that "in the interest of the public, the act had made it unnecessary to consider the nature of the relation between the proprietor of the cab and the driver, and had rendered the pro- prietor liable in case, through the neg- ligence of the driver, an injury should be done to one of the public. If that be so, the decision exactly covers the present case." 10 Gates V. Bill [1902] 2 K. B. (C. A.) 38. Romer, L. J. said: "I cannot see that there is anything in the acts which makes it an essential condition of his liability to the public for the negligence of the driver that he should have discharged his duty in the matter of obtaining a license, and have so be- come a licensed cab proprietor. It would be a strange thing if a cab pro- prietor, whose duty it was to obtain a license, could, by disregarding that duty, and illegally carrying on his business without a license, escape from the lia- bility to which he would have been sub- ject if he had performed that duty. In the present case I would rather as- sume in favour of the defendant that she had not acted improperly in not obtaining a license, and that the true view is that, when the son obtained a license in his own name, he must be taken to have obtained it in that name as the trade name of the partnership for that purpose. But whichever way the case ought to be regarded, I think the defendant is liable in this action." 264 ilASTER AXD SERVANT. [CHAP. ni. In a case decided by a divisional court it was held that a cab proprietor who had let only the vehicle for hire, and not the horses or harness, occupied the position of a bailor with respect to the driver, and was not liable for his negligence. ^^ But by two of the members of the court of appeal the distinction thus suggested has been pro- nounced untenable. ^^ The extent and character of the reciprocal rights and obligations of the owner and the driver of the vehicle is a question which has been left in no little uncertainty by the only case in which the sub- ject has been discussed." 11 Rex V. Spurr (3881) L. R. 8 Q. B. Div. (C. A.) 104, 51 L. J. Q. B. (N.S.) 105, 45 L. T. N. S. 709, 30 Week. Rep. 152, distinguishing Powles v. Eider (1856) 6 El. & Bl. 207, and Venalles v. Smith (1877) L. R. 2 Q. B. Div. 279, where the proprietor owned the whole equipment and the horses. 12 In Keen v. Henry (1894) 1 Q. B. (C. A.) 292, discussing the contention that King v. London Improved Gab Co. (note 9, supra), was distinguishable from King v. Spurr, supra, and that the latter case had not been overruled, Kay, L. J., remarked: "When I look at the two cases, it seems to me im- possible to say that King v. Spurr has not been overruled. Lindley, L. J., did, indeed, in King v. London Improved Gah Co., suggest that King v. Spurr might be distinguishable, 'though the distinction may not be a very broad one, for there the cab only was hired by the driver, and the horse was his property.' But it is evident that the Lord Justice did not think the distinc- tion a sound one." 13 In Fowler v. Lock (1872) 41 L. J. C. P. N. S. 99, L. R. 7 0. P. 272, 20 Week. Rep. 672, 26 L. T. N. S. 476, where a driver sued the proprietor of the cab for injuries due to his being furnished with an unfit horse, which ran away, it was contended on behalf of the defendant, on the authority of the cases of Morley v. Dunscombe (1848) 11 L. T. 199, and Powles v. Bider (1856) 6 El. & Bl. 207, that the plaintiff was the servant of the defend- ant, and that, within the decisions on the subject, the master was not liable to the servant for injuries sustained in the ordinary course of service. On be- half of the plaintiff it was argued tliat those were cases where a third party, viz., one of the public, was injured; that, although the cab owner might, by reason of statutable provisions and re- sponsibilities to the public, be liable to a person injured when riding in the cab, these elements were not controlling where the relations of cab owner and cab driver to one another were con- cerned; and that these parties were to one other as bailor and bailee on a contract of hiring. It was further con- tended for the defendant that, even if the latter relation was the true one, there was no implied promise by the cab owner that the horse supplied was reasonably fit for the purpose for which it was used, and, if so, the defendant was not liable. On both of the points submitted the majority of the court were of opinion that the plaintiff was entitled to judgment. Referring to Powles V. Eider (1856) 6 El. & Bl. 207, Grove, J., said: "I think it suffi- ciently appears that what the court had under consideration in that case was the relation and responsibility of the cab proprietor to the public; and that it had not in view the nature of the contract between the cab owner and the driver or cabman. Indeed, this seems to be excluded by the part of the judg- ment last quoted. The court, it is true, considered the payment of a fixed sum as a mode of compensation for the cab- man's labor; and no doubt this may be so; but the payment by the person who uses the horse and carriage to the proprietor of it, though not inconsistent with such a view, cannot, I think, be legarded as evidence of a contract of service, but rather (prima facie, at least) as more consistent wi,th that of a contract of hiring. j.n this case, therefore, where the cabman is under no control as to his movements by the § 75a] SERVICE— OTHEE CONTRACTUAL RELATIONS COMPARED. 265 Under the English workmen's compensation act, the relationship of master and servant does not exist between the owner of a taxi-cab cab owner; where he may make special bargains with the public; where he does not and cannot reasonably be expected to know the risks he encounters; -vrhere he prima facie pays instead of re- ceives; where he is not carrying out his master's orders; where the perils are unknown to him and change from day to day; where there is no notice of dismissal, but only a refusal to sup- ply cab and horse on nonpayment; and where there are no correlative duties beyond those of bailor and bailee, and statutable duties of each respectively to the public, — I feel obliged to come to the conclusion that the cabman is not the servant of the cab owner in the sense (to use the term above quoted) of rendering the latter exempt from lia- bility to the former in cases where a party not bearing the relation of master and servant would be liable." Byles, J., considered that, if the case had arisen before the hackney carriage acts were passed, or in a place where they were not applicable, the relation of the parties would have been the same as that which would have resulted from a contract by the owner of a horse and cart, to allow another man to have the entire and exclusive personal use and control of them at so much a week or so much a day, for the purpose of car- rying, for the driver's profit, passengers or goods within the limits of a town, but without reserving to himself (the owner) any right to direct where the horse and cart should go, provided they were used within the prescribed limits, and were returned within the agreed time. Such a contract, he considered, would fall within that class of bail- ments called locatio, i. e., contractus quo de re fruendd, vel faciendd pro certo pretio convenit. Certain expressions used by Lord Campbell in Powles v. Eider were admitted to be inconsistent with this view, but it was pointed out that these, as not being necessary to the decision of the case, were perhaps extrajudicial. That ease, the learned judge remarked, "was decided on the hackney carriage acts there cited, and on the relation created by those acts as between the proprietor and the pub- lic. Here, on the contrary, we are dealing with the rights and liabilities of the proprietor and driver inter se. The driver, as between the cab owner and himself, seems to me to have the complete and e.xclusive control and dis- position of the vehicle within a. certain district, and not to be a servant of the proprietor, and therefore by the terms of the contract entitled to be furnished with a suitable, at least with a quiet or manageable, horse. But, even on the supposition that the relation existing between these parties inter se was not analogous to that of bailor and bailee, but was that of master and servant, I think, nevertheless, in the present case that there was evidence of the de- fendant's liability. For, in this case, there was the personal interference and superintendence of the master, the now defendant, in the supply of the horse, and therefore evidence of his personal negligence causing injury to his serv- ant, by sending the servant out with an untried, vicious, and dangerous horse, not reasonably fit and proper for the work; the master having had the means of knowing the horse's character, and the servant having had no such op- portunity." Willes, J., was of opinion that the driver was a servant, but the proprie- tor's want of knowledge of the defective qualities of the horse necessarily in- volved the consequence that the action could not be maintained (see chapter XLIII, post) . "It would be a remarkable hardship," he said, "to hold that the cab master is not a letter out of the cab, but a principal, and liable for the cab driver as his servant as regards third persons, and yet that he is not an employer, but an independent letter to an independent hirer, as between him and the cabman, so as to be liable to the latter as upon a warranty which is not implied between master and servant or agent, or between ooadventurers. The legislation upon the subject of hackney cabs has been relied upon as justifying us in putting this double face upon the transaction; but the effect of that legislation is to recognize and stamp upon the transaction the char- acter of an employment in which the cabman is a servant, and to make the proprietor liable for him as such. The cabman is aware, or ought to be, that 266 MASTER AND SERVANT. [CHAP. III. and the driver, who is paid a certain percentage of the takings, but over vyhom the owner has no control while the taxi-cab was out."* c. Under the New York ordinance. — In a case relating to a cab plying for hire in ISTew York, the doctrine of the English courts with respect to the liability of the proprietor for injuries caused to a third person by the negligence of the driver was followed, on the ground that the municipal ordinances of that city concerning such vehicles are substantially of the same tenor as the statutes which regulate hackney carriages in London.^* 76. Same subject. Other relationships discussed. — a. Belationship he- •tween the owner of an omnibus and the -person driving it. — In one case the relationship of bailor and bailee was held to have been created by an agreement between a hotel keeper and another per- son, under which the latter, in consideration of his driving the for- he enters into such a bargain as makes him in point of law the driver of the cab master; and in acting upon that employment he acquires no greater right against his employer than if he were the coachman of a private gentleman, whose claim under like circumstances would at once have been rejected. Priestley v. Fowler (1837) 3 Mees. & W. 1." On appeal [1874] (L. R. 9 C. P. 751, note, 30 L. T. N. S. 800) the court of exchequer chamber was divided in opin- ion as to whether, upon the imperfect statement of facts on the record, the horse and cab were intrusted to the plaintiff as servant or as bailee. Those of the judges who inclined to the opin- ion that the driver was a bailee were not satisfied that there was necessarily a warranty that the horse was fit for the purpose for which it was bailed; but that it might be that the plaintiff took upon himself the risks of its fit- ness. A new trial being had, the jury found, in answer to questions put to them by the judge, that the horse was not rea- sonably fit to be driven in a cab; that the plaintiff did not take upon himself the risk of its being reasonably fit to be so driven; that the defendant did not take reasonable, precautions to sup- ply the plaintiff with a reasonably fit horse; and that the horse and cab were intrusted to the plaintiff as bailee, and not as servant. A verdict having been thereupon entered for the plaintiff, the court refused to disturb it. Lord Coler- idge, Ch. J., said: "The answer of the jury to the second question virtually amounts to a finding of personal negli- gence on the part of the defendant; and, as there was evidence to support that finding, and the learned judge is not dissatisfied with the verdict, there will be no rule." Fowler v. Loch (1874) L. R. 10 C. P. 90. The views of Willes, J., as above stated, were disapproved by Vauglian Williams, L. J., in a recent case, Gates V. Bill [1902] 2 K. B. 38. ^^'■Doggett v. Waterloo Taxi-Cah Co. [1910] 2 K. B. 336, 79 L. J. K. B. 1085, 102 L. T. N. S. 874, 26 Times L. R. 491, 54 Sol. Jo. 541, 3 B. W. C. C. 371. iiCargill v. Duffy (1903) 123 Fed. 721. The ordinances in question re- quire licenses for both cabs and drivers, and provide that the cabs shall be num- bered and have the name and place of business of the owner and licensee post- ed therein, and that every owner or driver of any hackney cab shall wear conspicuously a metal badge, upon which is to be engraved the words "Li- censed Hack" and the number of such licensed hackney cab, "said badge to be issued to and belong to said owner and to be issued by him to any driver representing him and for whom he shall be responsible." § 76] SERVICE— OTHEE CONTRACTUAL RELATIONS COMPARED. 267 mer's guests free to and from certain raihvay stations, and paying the defendant so much a day for the board of the horses at the de- fendant's stables, should be entitled to the use of the omnibus and horses, and to take for his own use all sums "which he could earn by conveying passengers other than the defendant's guests, and by carry- ing luggage.^ b. Relationship between the oioier and the hirer of a traction engine. — Where the defendant, who was the owner of a traction en- gine, to which his name and address were affixed, as required by the English locomotives act 1865, § 7, let it for three months, and, owing to the negligent management of the engine by the hirer, per- sonal injuries were occasioned to the plaintiff, who was being driven in a carriage upon the highway, it was held that the defendant was not liable in respect to such injuries.^ c. Relationship between an employer and an employee engaged to sell goods. — In one case, already noticed under another aspect, it was urged that a person hired to sell goods should be regarded as a bailee, for the reason that he was the owner of the horse and wagon i Plenty v. Orr (1906) 13 Ont. L. Rep. 59 (hotel keeper not liable for negligence of driver). Anglin, J., said: "Apart from his contractual obligation to meet all trains, and to convey Bruns- wick Hotel passengers to and fro free of charge, Mullen vfas at liberty to come and go with the bus and horses when and as he pleased; to carry what pas- sengers and baggage he liked; and to use the bus and horses as he deemed best in his own interest. The accidental allusions to the receipts of Mullen, made by the defendant and by Mullen him- self, as wages, are merely instances of the misuse of words by persons lack- ing appreciation of precise meaning and effect. Such accidental slips, while strongly indicative of honesty, in my opinion afford little assistance in de- termining the true legal relationship, of these persons, one to the other. On the other hand, all idea of improper design on the part of the defendant and Mullen in making the arrangement which they entered into being excluded, the circumstance that Mullen was to pay the defendant 70 cents a day for the board of the horses seems wholly inconsistent with the idea that Mullen was the servant of the latter. If, in- stead of carrying Brunswick Hotel pas- sengers free, Mullen had agreed to pay a fixed sum approximately equivalent to their bus fares to the defendant, it would be scarcely possible to argue that the relationship was other than that of bailor and bailee. I cannot see how the true character of that relationship is altered by the fact that, in lieu of paying to the defendant a certain sum in cash for the use of the horses and bus, Mullen contracts to carry certain passengers for the defendant free of charge. ... I think all the evidence tends to prove that, as to the manner and method of driving and using the bus and horses (subject only to his con- tractual obligation to carry certain pas- sengers for the defendant), Mullen was as free and unfettered as he would have I)een if paying a certain sum in money for hire of the horses and the omnibus." Z Smith V. Bailey [1891] 2 Q. B. 403. The court declined to accept the contention of counsel that, because it has been held, on the construction of the acts relating to hackney carriages ( see above ) , that a cab owner must be treated, so far as the public are con- cerned, as the master of the cab driver, and as such responsible for his negli- gence, a similar construction should be put on the locomotives act. 268 MASTER AND SERVANT. [chap. hi. used for the purpose of transporting the goods from place to place. This contention was rejected on the ground that, as the given con- tract provided for the payment of wages, its effect was to place the time and labor of the employee under the exclusive control of the hirer.' d. Relationship between a merchant and a master porter. — In one case it was held that a master porter employed by a merchant at Liverpool to hoist or lower goods was not a bailee, but a servant, and that the party employing him was liable for any injury caused through his negligence or want of skill.* B. Distinction between conteacts of seevicb and tenancy. 77. Generally. — The cases which turn upon the distinction between contracts of service and tenancy are divisible into two classes: (1) Those in which the sole question to be determined is whether the relation of master and servant, or the relation of landlord and tenant, was created by the contract between the owner of the premises occupied and the person performing the work. (2) Those in which it is conceded, or established by satisfactory evidence, that the person performing the work was, in respect to such work, a servant of the owner of the premises occupied, and the question to be determined is whether he should be regarded as a servant or a tenant in respect to some matter extrinsic to the stipu- lated work.^ Both these questions are primarily for the consideration of the jury, or other tribunal whose function it is, in the given instance, S Shea V. Reems (1884) 36 La. Ann. may pay his servant by conferring on 966 (§ 65, note 1, ante). him an interest in real property, either * Randall v. Murray (1838) 3 Nev. in fee, for years at will, or for any & P. 239, 8 Ad. & El. 109, 1 W. W. & other estate or interest; and if he do H. 149, 2 Jur. 324. As regards this so, the servant then becomes entitled decision it may be observed that al- to the legal incidents of the estate as though it was unquestionably correct much as if it were purchased for any in so far as the master porter was de- other consideration." Hughes v. Chat- nied to be a bailee, the conclusion that ham (1843) 5 Mann. & 6. 54, 78. he was a servant in such a sense that Where the defendant undertook to his negligence was imputable to the mer- work the plaintiff's farm, but did not chant was in all probability erroneous, agree to give his personal services, the See § 37, note 1, ante, and author's court said that the contract created monograph in 40 Canada Law Journal, neither the relationship of landlord and p. 541, and in 62 L.R.A. p. 620. tenant nor that of master and servant, 1 "There is no inconsistency in the but was one of a special nature partak- relation of master and servant with ing of both. Re Ballou (1909) 62 Misc- that of landlord and tenant. A master 513, 116 N. Y. Supp. 1118. § 77a] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 209 to determine issues of fact,* the conclusion arrived at being, of course, subject to review in a higher court which has all the facts before it.^ If the action is being tried in a court consisting of a judge and jury, it is unnecessary to submit to the jury the character of the occupation, if that depends upon the significance of substantially undisputed facts ; * but this question cannot be determined as one of law, if the evidence is conflicting, or diverse inferences may be drawn therefrom.* "The terms of the contract, so far as the parties differed, it was the duty of the jury to determine; but the terms being fixed, their legal import was for the court to declare. This should be determined upon a consideration of the nature and purpose of the contract, and the character of the business to which it relates." * 77a. Service or tenancy. — The former of the questions specified in the preceding section has been discussed with relation to contracts of the following descriptions: (1) Contracts to cultivate land in consideration of receiving a portion of the produce raised. The cases under this head are far from being harmonious. This conflict of authority is to be accounted for partly by the fact that contracts of this type have been discussed from different juristic standpoints. But an examination of the decisions will show that the courts, even when their standpoint has been the same, have not always arrived at identical conclusions with regard to the effect of essentially similar agreements. This diversity of views is especially noticeable in the cases in which the rights and liabilities of the parties have been determined with reference to the question with which we are immediately concerned in the present section.^ The other questions upon which those rights and liabili- 2 Hughes V. Chatham (1843) 5 Mann. » Rex v. Field (1794) 5 T. R. 587 & G. 54, 7 Scott, N. R. 581; Clarh v. (ratability of occupier as determined by St. Mwry (1856) 1 C. B. N. S. 23, 26 court of sessions), and cases cited L. J. C. P. N. S. 12; Rex v. Hurdis passim in the ensuing sections. (1789) 3 T. R. 497. *Kerrains v. People (1875) 60 N. In Rex V.' Snape (1837) 6 Ad. & El. Y. 221, 19 Am. Rep. 158. 278 (a settlement case), Williams, J., B Eerrains v. People (1875) 00 N. Y. remarked that the court would not be 221, 19 Am. Rep. 158. critical in examining the grounds of e Bowman v. Bradley (1892) 151 Pa. the finding of the inferior tribunal. 351, 17 L.R.A. 213, 24 Atl. 1062. In Rex V. Seacroft, 2 Maule & S. In Kerrains v. People (1875) 60 N. 472, it was declared that the court of Y. 221, 19 Am. Rep. 158, the effect of sessions was the proper forum to de- the arrangement was determined by the termine the effect of the evidence, and court, as a question of law, upon the the contention of counsel that a cer- contract and facts as stated, and the tain presumption might be drawn by conclusion so arrived at was upheld by tlie court of review from the facts the court of review, stated was rejected. 1 A "cropper," i. e., a laborer who is 270 MASTER AND SERVANT. [CHAP. m. ties have been made to turn are : (1) Whether the effect of the given paid for his labor by being given a pro- portion of the crop which he helps to harvest, is not a, tenant, since ne has no estate in the land nor in the crop till the landlord assigns him his share. He is as much a servant as if his wages were fixed and payable in money. Has- kins V. Royster (1874) 70 N. C. 60], 16 Am. Rep. 780 (action for enticement of cultivator held to be maintainable) ; McCutchin v. Taylor (1883) 11. Lea, 259 (contract to pay for labor by giving a share of the crop raised by the laborer held to be within the purview of Tenn. Acts 1875, chap. 93, relative to the decoying away of servants) ; Burgie V. Davis (1879) 34 Ark. 179 (holding that the law governing landlord's liens had no application to the case, but that the "cropper" was entitled to file a laborer's lien on the crop for what- ever was due to him ) . A contract between A and B that A might tend so much of B's land as he could cultivate with one horse during a certain year, and that A was to pay B as "rent" two bales of cotton out of the first picking, no part of the crop to belong to A until the rent was paid, — constitutes A a cropper, not a tenant. Haywood v. Rogers (1S75) 73 N. C. 320. In 'Meal v. Bellamy (1875) 73 N. C. 384, the effect of this decision was thus stated: "When the crop is to be the property of the owner of the land, that fixes the character of cropper, and not of tenant, upon the man who is to do the work." In the latter case serv- ice was held to be inferable where the agreement was that A was to pay B, the owner of the land, two bales of cot- ton, provided he also kept up the fences and cleaned the ditches properly, and three bales if this work was neglected; and that B was to make certain ad- vances to A to assist him in making the crop. Where A contracts to raise a crop on B's land, in consideration that B will furnish tools, team, and feed for the team, and give him one-half the crop raised, and out of A's half B is to retain sufficient to pay what A may owe for supplies, the contract is one of service, the wages being half the crop minus the amount of the debt for supplies. Sentell v. Moore (1879) 34 Ark. 687 (landlord held not to be a mere tenant in common of the crop, so as to be obliged to file a copy of the contract in order to secure his lien for supplies, as is provided by the Arkansas act of March 6, 1875). Under a contract by which one under- takes to make a crop on the land of another, in whom the title to the crop is to remain, and who is to keep a portion for the use of land, team, and tools, and from the proceeds of the re- mainder deduct the amount due him for supplies and necessaries furnished to the cropper, and turn the balance over to him, the cropper is only a servant. Bourland v. McKnight (1906) 79 Ark. 427, 4 L.R.A.(N.S.) 698, 96 S. W. 179 (cropper held not to have a title to any portion of the crop, which he could mortgage, so as to create a lien su- perior to the claim of the landowner for the value of cattle and medicine and services of a physician furnished to him). Where plaintiff contracted with de- fendant to work a farm on shares, de- fendant agreeing to furnish the land and a mule and his feed, and plaintiff' agreeing to furnish the labor necessary to make and gather the crop, it was held that such a relation was created as entitled plaintiff on the completion of her labor to foreclose her special laborer's lieu against the defendant. Leiois V. Oioens (1905) 124 Ga. 228,. r>2 S. E. 333. One who takes charge of another's ranch, with the understanding that he is to receive for his services a certain sum per month, and that, after paying from the gross proceeds the operating expenses, inclusive of his own salary, and deducting what is due for supplies and equipment furnished by him, he is to return the residue to the owner, is a servant, not a tenant. Todhunter v. Armstrong (1898, Cal.) 53 Pac. 446 (holding that, even if a lien were ac- tually constituted by an oral agreement — which was denied, — that the occupant was to remain in possession until he was fully settled with and paid, — it would not be a defense to an action by the owner to recover possession ) . The relation of employer and laborer, not that of landlord and tenant, is. created by a contract which requires a laborer to take in charge, plant, and § 77a] SERVICE— OTHER COXTRACTUAL RELATIONS COMPARED. 271 contracts was to create the relationship of landlord and tenant, or of cultivate the several parcels of land designated by the landowner, according to the directions of such landowner; to house two crops, and see that no por- tion is removed until the owner has deducted for himself the amounts stat- ed; and which binds him to be of good moral behavior, and respectful to the landowner, his family, and agent. Mc- Cutchen v. Crenshaw (1893) 40 S. C. 511, 19 S. E. 140 (held, that the laborer had no such interest in his share of the crop as would support a merchant's lien for advances to him ) . The prosecutor contracted with de- fendant to employ him to labor on a certain tract of land, agreeing to fur- nish land, team, food for the team, tools, and seed, while tne defendant was to furnish the labor and feed it, and to be responsible for all implements used by him. The prosecutor was to have one half of the crop, and the de- fendant the other half, from which he was to pay all advances made him, and any help it might be necessary for him to hire. Held, that the relation was either that of master and sei-vant or tenants in common, and that in either relation the prosecutor had a general ownership in the crops, and not a lien or claim under Ala. Code 1876, § 4353, punishing the selling of crops on which another has a "lien or claim." This provision is not intended for the pro- tection of tenants in common against fraudulent acts of cotenants, nor for the protection of masters against fraudulent acts of servants. Ellerson v. State (1881) 69 Ala. 1. Under an Alabama statute enacted since this decision was rendered (Code 189G, § 2712, Code 1886, § 3065), it is provided as follows: "When one party furnishes the land and the team to cul- tivate it, and another party furnishes the labor, with stipulations, express or implied, to divide the crop between them in certain proportions, the con- tract of hire shall be held to exist." For cases in which this provision was applied, and the laborer was held to be entitled to a lien on the crop for the value of the portion specified in his contract, see Farroio v. Wooley (1907) 149 Ala. 373, 43 So. 144, and Arrington V. State (1910) 1G8 Ala. 143. 52 So. 928. Occupation of a separate and distinct house on a plantation, several hundred yards away from that of the owner of the plantation, under a contract by which the occupant is to have for his services as u. laborer the use of the house, and a monthly allowance of meal and meat, and a, right to cultivate a small strip of land for his own benefit, constitutes him a lessee. State v. Smith (1888) 100 N. C. 466, 6 S. E. 84 (owner who expelled occupant by threats and a display of deadly weapons was held liable to be indicted for a forcible entry). A conviction under an indictment charging that defendant violated a stat- ute (Mansf. (Ark.) Dig. § 4451), by enticing away one under a contract to labor for a year, during the year, can- not be sustained by proof that under the contract premises were absolutely surrendered to the one enticed away, to keep until he had gathered and market- ed a crop, half of the profits to be paid for the use of the land, tools, and a team, the owner retaining no control over them or over the service. Such a contract is one of lease, not one of hiring and service. Mondsohien v. State (1892) 55 Ark. 389, 18 S. W. 383. The relation of landlord and tenant is created by an agreement by a mort- gagor to give a certain person all ho can raise on a certain part of land, in return for services. Calvin v. Shinier (1888) — N. J. Eq. — , 15 Atl. 255. The contention of the defendant was that the petitioner was a tenant, the rent being paid in labor instead of money, while the petitioner insisted that the agreement was one to take pay for services, in grain of his own raising. Bird, V. C, upheld the former view, and held that the crops raised on the land passed with the title on a sale under foreclosure. The relation of landlord and tenant exists where one agrees to furnish an- other with a dwelling house, land, and a team and tools for working it, and the latter is to cultivate properly the soil, and make payment of one half the crops gathered. Schlirht v. Callicolt (1898) 76 :Miss. 487, 24 So. 869 (land- lord held to be entitled to a remedy by way of attachment under a statute re- 272 MASTER AND SERVANT. [chap. hi. partners or tenants in common in respect of the crop;* and (2) whether the cultivator was a servant or an independent contractor.' lating specifically to landlords and ten- per. Smithmck v. Oliver (1910) 94 ants). Ark. 451, 127 S. W. 706. A tenancy was held to be inferable, On the other hand, a contract between where the contractor agreed to culti- a landowner and his laborers to culti- vate during one year, at his own cost, vate a crop on shares has been held to the land of the contractee; to gatlier create a tenancy in common in the crop, the crops, and to keep the fences in and not the relation of landlord and repair, while the contractee stipulated tenant. Smith v. Rice (1876) 56 Ala. that the contractor should occupy the 417; Broion v. Goats (1876) 56 Ala. premises during the year. Whaley v. 439; Ragsdale v. Kinney (1898) 119 Jacolson (1883) 21 S. C. 51 (question Ala. 454, 24 So. 443. But see Alabama involved was the right of the occupant cases, and Code sections, referred to to encumber the crop with a lien). in the preceding note. The relation of master and servant The decisions in the following cases does not exist where a person is under proceeded upon the ground that a con- a contract to cultivate land for a cer- tract with an employee for the raising tain rental, and, in addition, to work of a crop, a portion of which he is to for the landlord, if called upon, when- receive as payment for his labor, does ever he was at leisure, for a certain not render him the partner of the em- price per day. The seiwice so provided ployer. Tayloe v. Bitsh (1883) 75 Ala. for is a mere incident to the contract of 432; Oardenhire v. Smith (1882) 39 rental. State v. Hoover (1890) 107 Ark. 280; Jeter v. Penn (1876) 28 N. C. 795, 10 L.R.A. 726, 12 S. E. 451 La. Ann. 230, 26 Am. Rep. 98. See (action for enticement of cultivator § 69, note 1, ante. held not to be maintainable ) . 3 An independent contract, and not By an instrument in writing C, a service, is inferable where it is agreed landowner, specified certain services to that B shall furnish himself and two be performed by H, who was "to have daughters and another person to work the house rent, use of garden, firewood, as laborers on A's land, the land and and pasturage for what cows you keep mules for its cultivation to be furnished for family use," and it was also stipu- by A, and that B is to receive a share lated that H was to have possession of the crop. Barron v. Collins (1873) till a specified date. Held, that H was 49 Ga. 580 (action for enticement held not a mere agent of C, but took an not to be maintainable), interest in the premises as lessee, and In Duncan v. Anderson (1876) 56 was entitled to possession until the ap- 6a. 398, it was assumed by the court pointed term had expired. Colcord v. that a "cropper," or person cultivating Hall (1859) 3 Head, 625. land on shares, was not a servant of "Croppers" have been held to be with- the owner, the decision being that the in the scope of the statutes which de- owner was not liable for the tort of Clare it to he unlawful for a person to the cropper in hiring a laborer previous- procure, with intent to defraud, money ^ ^irei by, and bound to work for, the or other things of value, under a con- plaintifi'. tract to perform services. See § 319, 1° Ponder v. Rhea (1877) 32 Ark. post. '^^^' tlie relation of the cropper to the 2 That a contract between landowner landowner seems to have been regarded and laborer for raising a crop on shares ^^ ^^"f '^\*?'" *^^* °*, ^" independent creates the relation of landlord and ten- tT^r!n?L fV.? f t°l! ^ '^T" ' , , ix. • i i- i 1 iu the precise theory of the court is some- ant, unless the intention to make them ^ji^f obscure partners or tenants in common with re- j^ „^^ <,ase it was said that a con- spect to the crop clearly appears, was tract to cultivate a piece of land and lield in Birmingham v. Rogers (1885) take one half of the produce as a com- 46 Ark. 254. pensation for the labor might be re- The leasing of land for a part of the garded either as a contract to perform crop created the relation of landlord labor on the land while it remained in and tenant between the owner and crop- the owner's possession, or as a hiring § 77a] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 273 (2) Contracts to operate manufacturing establishments.* (3) Contracts to operate ferries. In one case the owner of a ferry was held not to be liable for the negligence of a person who operated it under an agreement which of the land for a rent payable In prod- uce. Chandler v. Thurston (1830) 10 Pick. 805. *The defendant made a contract with D, by which D was to operate, during the milling season, a shingle mill then in the control of the defendant, and manufacture certain brands of shingles from logs to be furnished by defendant, and receive payment therefor from de- fendant at a fixed rate. D agreed to hire and pay the men employed, fur- nish tools and implements, repair breaks in machinery not costing over $5 (larger breaks to be repaired at defend- ant's expenses), and load the shingles at his own expense (the defendant, how- ■ever, to pay such expense beyond a cer- tain figure, until a side track to the mill was completed). Defendant was to put the mill in running order, fur- nish the logs, and remove surplus and refuse timber. Held, in an action by a third person against defendant, to recover damages for injuries caused by sparks emitted from the smokestack of the mill, that the contract was not a lease, but simply for performance of labor, and that defendant was liable for any defective condition of the mill. The court said that the effective words of the contract were those italicized, and that it was clearly a hiring on the part of the defendant, accompanied on his part by an agreement that D, in the performance of the stipulated work, was to have the use of certain ma- chinery of the defendant. The absence ■of any words giving possession of the mill to D was also commented on. Whitney v. Clifford (1879) 46 Wis. 138, ^2 Am. Rep. 703. In FisTce v. Framingham Mfg. Co. (1833) 14 Pick. 491, the construction of the contract in question was thus discussed: "Some of the provisions have a double aspect, and consistently with them he might be either the agent •or the lessee of the defendants; but there are others which admit of only one construction. He was to keep the factory in repair, except that the de- fendants were to repair the main gear- M. & S. Vol. I.— 18. ing if it should be necessary; he was to have the possession for the purpose of doing what he had stipulated to per- form; he had the control of the factory, and could employ what servants he would, and regulate their wages; he might determine how much water should be turned upon the mill; he was en- titled to the use of tlip land about the factory and to the buildings thereon; and whether these buildings were let to laborers employed by him, or to others, rent would probably be paid to him, either in a diminution of wages or otherwise. These provisions are ap- propriate in the case of a lease. The words, 'that no rent is to be charged by the company,' also tend to prove that a letting was contemplated. It was argued that a reservation of rent was essential to a lease; but this point is immaterial, for, taking the whole agreement together, it was manifest that the defendants received rent in the price at which their goods were manu- factured. We are therefore of opinion that Bird was not the servant of the defendants, but their lessee, having the control and possession of the premises mentioned in their agreement, and con- sequently that the defendants are not liable to the plaintiff in this action" (action for damages caused to a neigh- bor by the negligence of the occupant in letting off the water from the pond too rapidly). Under an instrument in the form of a lease, a party named as lessee was to have control of a factory, and was to return to the company owning the plant the profits of the business over a fixed amount. The lessee was to have au- thority to employ and discharge serv- ants to work in the factory, and no restrictions as to the management of the business were reserved by the lessor. Held, that the agreement was in law a lease. A.ult Woodenware Co. v. Baker (1900) 26 Ind. App. 374, 58 N. E. 265 (lessor held not to be liable for an injury sustained by a servant of the lessee, owing to the mismanagement of the latter ) . 274 PIASTER AND SERVANT. [chap. iir. entitled him to receive the fares in consideration of a certain yearlj rent.* The same conclusion was also reached in a case where a ferry- was leased for a moiety of the receipts.^ (4) Contracts to manage hotels.'' (5) Contracts to board the employees of a landowner.' 78. Character of occupation, whether as servant or tenant; gener- ally. — In the reported cases belonging to the second of the two classes differentiated in § 77, ante, one or other of the following points has. been determined: (1) The liability of the servant to certain taxes. (2) The servant's acquisition of a settlement under the poor laws. The rule uniformly adopted for construing the statute of 13 & 14 Car. II. chap. 12, was that the words "coming to settle in a place" ^ Ladd V. Chotard (1824) Minor stantly in his employment a bookkeeper^ (Ala.) 366. The court said: "If the who was to be discharged if the direct- proprietor of a ship, lighter, or wagon ors disapproved of him; and that the hire it for a given time to another, who books were to be open to the examina- employs it in the transportation of tion of the directors. It was accord- goods, would the mere ownership of the ingly held that the occupant of the vessel or vehicle render the proprietor hotel was in possession as the agent of liable? It is evident that the bailor, in the owners, and that he had no legal case of loss, must seek his remedy, not interest in the possession which could against the owner, but against the hirer be set up against an execution for a or master, the bailee, to whose charge debt of the owners. In Charleston v.. he delivered the goods, and who is to Page (1843) Speers, Eq. 159, 177, Har- receive the freight." per, Ch., considered that under this in- spelton V. Deall (1850) 22 Vt. 170, strument the occupant was undoubtedly 54 Am. Dec. 61. a lessee. 7 In State v. Page (1843) 1 Speers, Sit has been held that a woman who- L. 408, 40 Am. Dec. 608, it was held occupied a house belonging to a rail- that the following provisions standing way company and on its line, under by themselves did not make a lease an agreement with the company to- of a hotel; viz., that for seven years board its employees, the price of board the person in question was to "reside to be paid by them, and the company with his family in the hotel (free of to aid her in collecting her pay for all charge for board or rent) ;" that he board by retaining the same for her was to "conduct the same in the man- out of the wages of such employees, was ner contemplated by the parties, and not a servant or employee of the com- to have the whole and exclusive manage- pany; but that the relation of the par- ment thereof;" and that at the end of ties was that of landlord and tenant, the term the furniture should be re- Doyle v. Union P. B. Co. (1893) 147 turned to the owners of the hotel. The U. S. 413, 37 L. ed. 223, 13 Sup. Ct. conclusion that no lease was intended Rep. 333 (action for injuries caused was held to be indicated by other stipu- by a snow slide held not to be main- lations; viz., that the occupant was to tainable; railway company not bound keep the hotel for the term of seven to provide a safe place of work). It continuous years; "that as the landlord was unsuccessfully contended that the- he should provide for the hotel; that circumstance of her being aided by the he should contract no debts on account company in collecting her pay for the- of the concern, without the consent of board changed her position from that, the directors; that he should keep con- of tenant at will to that of servant. § 78] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 275 meant by renting or holding in the character of tenant.* "If the occupation was ancillary to the service (see next section), so as to make the occupation of the servant merely the occupation of the master, then no settlement was gained." ^ Since the enactment of the poor law (4 & 5 Wm. IV. chap. 76), a settlement cannot be ac- quired by hiring and service. See § 64 of the statute. But a settle- ment can still be acquired by a binding as apprentice. (3) The exercise of the elective franchise by the servant. As precedents bearing upon the right of voting, the English cases (of which the effect will be stated in the ensuing sections) have been of much less importance in the United Kingdom itself since the re- cent extension of the franchise, and are of no importance whatever in countries where manhood suffrage prevails. But they supply maii>' useful analogies and statements of general principles which will serve as a guide to the practitioner in other connections.^ The cases, of which the effect is stated under various heads in the note to § 80, post, turn upon the construction of the electoral laws which were in force at different periods, and deal with the question whether the claimant was entitled to vote (1) as a "householder" under one or other of those laws ; or (2) as one who "occupied as owner or tenant" (reform act of 1832, chap. 45, § 27, and reform act of 1867) ; or (3) as "occupier of a building of the value of £10 yearly," under the same act. The construction put upon the act of 1884, which in- troduced a "service franchise," is shown by the cases cited in § 85, post. 1 Lord Ellenborougli in Bex v. Bow- "In order to confer a settlement by ness, 4 Maule & S. 212. renting a tenement, the party must Speaking of the kind of settlement have a residence which might be called which is acquired by renting premises, his own home, as tenant;" residence "in Denman, Ch. J., said: "The kind of the character of servant merely" is not settlement relied upon in this case has "sufficient to satisfy the words of the grown out of the 13 & 14 Car. II. chap, statute 'coming to settle.' " Bex v. 12, § 1, which confines the power of re- HUpdhcm (1823) 3 Dowl. & R. 384, moval to cases where persons come to per Bayley, J. settle on any tenement under the yearly 3 As, for example, where the question value of £10, and by implication has involved is whether the servant has a been held to confer a settlement on a right to retain possession of the prcm- person who comes to settle on a tene- ises after he ceases to be a servant. See ment of that value; and the lawful oc- Kerrains v. People (1875) 60 N. Y. 221, cupation of a tenement of that annual 19 Am. Rep. 158, where the passage value by a party in his own right has quoted from the judgment in the been held to satisfy the words 'coming tlughes Case (1843) 5 Slann. & G. 54, to settle.' The word 'renting' is not to in § 80, note 1, subd. (g) post, was be found in the statute." Bex v. St. cited by the court as laying down con- Mary Xemngton (1833) 5 Barn. & Ad. cisely the correct rule for determining 540. the question involved. liReg. V. Bishopton (1839) 9 Ad. & El. 824. 276 MASTER AND SERVANT. [chap. III. (4) The right of the master to resume possession of the premises occupied. A servant whose occupation is independent of, and not merely ancillary to, his employment, but -which is liable to be de- termined by the dissolution of the contract, is a tenant at will.* On the other hand, where the occupation is merely in the character of a servant, no interest in the premises, even to the extent of a tenancy at will, vests in the occupant* Upon determining the contract of employment of a servant whose occupation is of this description, the master becomes entitled to resume possession of the premises immediately,* this right being enforceable, irrespective of the ques- ^Bex V. Lakenheath (1823) 1 Barn. & C. 531; O'Connor v. Tyndall (1836) 2 Jones (Ir.) 20, per Foster, B. B Combatting the contention that the servant under such circumstances took an estate in the premises. Wiles, J., said: "I can see very weighty reasons why it should be intended not to vest. And I do not by any means agree that this is a dry and barren point; because, though generally speaking the relation of master and servant or principal and agent may, where the servant or agent has been guilty of misconduct, be ter- minated at a moment, if such an ar- rangement as this were held to vest in the servant or agent an interest in the employer's premises, the servant might set his employer at defiance, and, though the latter were perfectly justified in putting an end to the relation of mas- ter and servant between them, the for- mer might insist upon holding on as a tenant until the expiration of a regular notice to quit." White v. Bayley (1861) 10 C. B. N. S. 227. In Kerrains v. People (1875) 60 N. Y. 221, 19 Am. Rep. 158, the court ex- pressed its disapproval of the doctrine laid down in People ex rel. Hubbard v. AnrUs (1866) 45 Barb. 304, to the ef- fect that immediately upon the termi- nation of the service a tenancy at will or by sufferance springs up, and laid down the law aa follows: "In order to have that effect the occupancy must be sufficiently long to warrant an infer- ence of consent to a different holding. Any considerable delay would be suffi- cient, but I can see no principle which would change the occupant, eo instanti, from a mere licensee to a tenant. The employer should resume control of his property within a reasonable time, or consent would be inferred. Whether this time is a day or a week may de- pend upon circumstances." Doyle v. Oibbs (1871) 6 Lans. 180, was cited as a case in which the permission of the employer that the employee might re- main until his wife recovered from an illness was held not to amount to a con- sent. Many of the cases cited in the fol- lowing notes expressly recognize or take for granted the same doctrine. The statement made in MoGee v. Gib- son (1840) 1 B. Mon. 105, that a man occupying merely as a servant is a "tenant at will," is clearly erroneous. 6 In Spurgin v. White (1860) 2 Giff. 473, 3 L. T. N. S. 609, 6 Week. Rep. 266, the court granted to the trustees of a voluntary society a temporary injunc- tion restraining their former manager from disturbing by violence their pos- session of the premises which he liad been allowed to occupy aa manager, and from which he had been expelled after having been discharged for the alleged reason that he had been using the rights attached to his position in a manner which they regarded as fatally injurious to the interests of the society. In Whyte v. Haddington School Board (1874) 1 Sc. Sess. Cas. 4th aeriea, 1124, the employers were held entitled to a summary warrant to remove the serv- ant. In Perret v. Swnchez (1856) 12 La. Ann. 687, it was held, on the ground that an overseer of a plantation cannot maintain adverse possession of it as against his employer, that his expul- sion, after he has been discharged from the house occupied by him as overseer, gives him no claim for damages. In a case, where a farm laborer was provided with a house to live in, and cattle for the use of himself and fam- § 78] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 277 tion whether the servant was or was not justifiably discharged.' He ily, the court said: "If it [i. e., what was delivered into the possession of the servant when he began work] be re- garded as part of the compensation for labor stipulated for, then the right to the compensation ceased when the labor was discontinued. Bowman had the same right to insist on the payment of the cash part of his wages as on that part which provided his family a place to live. His right under the contract of hiring was like that of the porter to the possession of the porter's lodge; like that of the coachman to his apartments over the stable; like that of the teach- er to the rooms he or she may have occupied in the school buildings; like that of the domestic servants to the rooms in which they lodge in the house of their employers. In all these cases and others that might be enumerated the occupancy of the room or house is incidental to the employment. The em- ployee has no distinct right of posses- sion, for his possession is that of the employer; and it cannot survive the hiring to which it is incidental, or un- der which it is part of the contract price for the services performed. So in this case, if the contract was simply a contract for labor at $1 per day and a house to live in the plaintiff held the house by the same title and for the same purpose that he did the land or the cattle in the care of which his labor was to be performed. When his con- tract ended, his rights in the premises were extinguished; and it was his duty to give way to his successor." Bowman v. Bradley (1892) 151 Pa. 351, 17 L.R.A. 213, 24 Atl. 1062. See also Hunt v. Colson (1833) 3 Moore & S. 790 (denying right of serv- ant to maintain an action of trespass against his master's agent for pulling down the house occupied by him) ; FAchengreen v. Appel (1891) 44 111. App. 19, and the cases cited in the following notes. 1 Collison v. Warren (1898) 17 Times L. R. (C. A.) 362 (where the plaintiflf in a suit in which he was claiming to be entitled, under a certain contract, to be retained in the employment of the de- fendant as manager of a hotel, was en- ioined from continuing to reside in the hotel); McAUster v. Ogle (1856) 1 Ir. Jur. N. S. 313; Scott v. M'Murdo (1869) 6 Scot. L. R. 301; Clift v. For- tobello Pier Go. (1877) 4 Sc. Sess. Cas. 4th series, 462; Sinclair v. Tod (1906- 1907) Sc. Sess. Cas. 1038. The above decisions, as well as those which are cited in the preceding and the following notes, show that one of the judges of the supreme court of New South Wales was in error when he laid it down that the curator of a musuom. to whom a portion of the building had been assigned as a residence, was en- titled to remain in his apartments, un- til he had at least received a legal no- tice to quit; and that his official pos- session was sufficient to enable him to maintain an action of trespass against one of the board of trustees, who had entered on the premises occupied by him. Krefft v. Sill (1875) 13 New So. Wales S. C. R. (L.) 280. In Reid v. Smith (1872) 6 Quebec L. R. (Ct. of Review) 367, 4 L. N. 157, an action of ejectment was brought to recover possession of a house which had been leased to the defendant under one of the stipulations of a contract which bound him to act as superintendent of the plaintiflf's mill for a term of five years, and which was terminable by six months' notice on either side. The de- fendant was dismissed without any good cause, and without the stipulated notice. The position taken by the plaintiflf was that, by the mere, fact of his having been dismissed, the contract for his per- sonal services was terminated, leaving only a claim for damages to the serv- ant; and that the lease came to an end at the same time as the service. The court, however, was of the opinion that the plaintiflf, in advancing this theory, had lost sight of the distinction between a contract for the construction of a building or other works ( louage d' ouvrage) , and a contract for personal service (louage de services personnels) The Code (art. 1691) provided for the rescission of the former kind of con- tract at the will of the employer, but was silent as to the power of rescission in the latter case. Accordingly, the con- clusion was arrived at that, as the em- ployer could not, merely by his own will, put an end to the contract of service, it was impossible to contend successfully that he could, merely by his own will, put an end to the lease which 278 MASTER AND SER\'ANT. [ciiAP. m. may eject the servant without any process of law,' and without gi\'- ing him notice to quit,® or, in some jurisdictions, may obtain pos- session by means of an action of forcible entry and detainer, after giving due notice to quit." An action of trespass will not lie against the master for breaking and entering the premises.'^ Nor is the servant entitled de jure to have a reasonable time allowed him for the removal of his household effects.^^ Nor can he maintain action for damages against the master for removing them with reasonable care.^^ The master cannot obtain possession of the premises by means of statutory proceedings of a summary nature, which, under the was one of the incidents of the con- tract of service. Upon the facts here shown, it would seem that a common- law court unhampered by a similar en- actment, would have reached a different conclusion. BMcAlister v. Ogle (1856) 1 Ir. Jur. N. S. 313 (servant held not to be en- titled to maintain an action against the master for assault in removing him by force from the premises) ; De Briar v. Minium (1851) 1 Cal. 450 (similar de- cision) ; Scott V. M'Murdo (1869) 6 Scot. L. R. 369; Fraser, Mast. & S. p. 8. 9Mayheio v. Suttle (1854) 4 El. & Bl. (Exch. Ch.) 347, 1 Jur. N. S. 303, 24 L. J. Q. B. N. S. 54; White v. Bay- ley (1861) 10 C. B. N". S. 227, 234, per Willes, J. ; Doe ex dem. Bughes v. Derry (1840) 9 Car. & P. 494; Young v. Baton (1808) Hume, (So. Ct. of Sess.) 582; Bigeloiv v. Norto^i (1848) 3 N. S. 283; Fleming v. Hill (1876) 10 N. S. 268; Doyle V. Oibis (1871) 6 Lans. 180; Mc- Gee V. Gilson (1840) 1 B. Mon. 105; Kerrains v. People ( 1875 ) 60 N. Y. 225, 19 Am. Rep. 158; Morris Canal & Bkg. Co. V. Mitchell (1864) 31 N. J. L. 99; McQuade v. Emmons (1876) 38 N. J. L. 397. By Ky. Stat. 1903, § 2327, it is pro- vided: "When a tenant enters or holds premises by virtue of a contract in which it is stipulated that he is to la- bor for his landlord, and he fails to begin such labor, or if, having begun, he without good cause fails to comply with his contract, his right to the premises shall at once cease, and he shall aban- don them without demand or notice." 10 By Iowa Kev. Stat. § 2216, it is provided that any person in possession of real property with the assent of the owner is presumed to be a tenant at will, unless the contrary is shown. By § 2218 it is provided that thirty days' notice must be given by either party to terminate the tenancy; but that when an express agreement is made, the ten- ancy shall cease at the time agreed, without notice. Construing these pro- visions the court held that, where a ten- ant had taken possession of premises under an agreement that he was to oc- cupy them only so long as he should continue in the employment of the own- er, he would not be regarded as a tenant at will, but as a tenant for a definite term, who, if he remained in possession after quitting the employment, became a tenant holding over after the termi- nation of his lease, and subject to an action of forcible entry and detainer on the part of his employer, after due no- tice to quit had been given. Grosvenor V. Benry (1869) 27 Iowa, 269. il White V. Bayley (1861) 10 C. B. N. S. 227, 7 Jur. N. S. 948, 30 L. J. C. P. N. S. 253; Allen v. England (1862) 3 Post. & F. 49; Bowman v. Bradley (1892) 151 Pa. 351, 17 L.E.A. 213, 24 Atl. 1062. 12 Doe ex dem. Nicholl v. M'Kaeg (1830) 10 Barn & C. 721. 13 Lake v. Campbell (1862) 5 L. T. N. S. 582; Mead v. Pollock (1901) 99 111. App. 151; Baywood v. Miller (1842) 3 Hill, 90. The case of Scott v. M'Murdo ( 1869 ) 6 Scot. L. R. 301, which accords with these, may be regarded as overruling an earlier Scotch decision to the con- trary effect. Scougal v. Crawford (1819) 2 Mur. 110. In Lake. v. Campbell, supra, it was held that the servant could not recover damages for injury inflicted on his fur- niture and money stolen from a bureau, after these effects had been removed from a cottage occupied by the servant. 5 78] SERVICE— OTHER CONTRACTUAL RELATIONS CO:\IPARED. express terms o£ the enactment, are specifically applicable to the relation of landlord and tenant.^* But he may convert the occupa- tion of the servant into that of a tenant at will, by allowing him to remain in possession a suificient length of time to warrant the im- plication of intentional acquiescence in the continuance of the occu- pation.'^ (5) The right of the master, or of a person authorized by him, to enter on the premises for the purpose of performing work in re- spect thereto. (6) The right of the servant to assert an independent title to the premises. The rule that a tenant is estopped from disputing the title of his landlord '® is applicable also to the case of a person com- ing in, by permission, as a servant." and locked in a neighboring barn. Willes, J., said: "The contract, by the dismissal of the plaintiff, had been broken, and he is entitled to recover for such dismissal; not so for the damage of the goods and loss of the money, as he held the house on against the wishes of his master. The master then had a light to remove the goods and put them in a place of safety, which he did, and there is no evidence as to who locked or unlocked the barn." Williams, J., said: "The plaintiff had no right to retain possession of the house after he had ceased to be in the defendant's service; therefore, after he had been requested to leave the house and remove his goods, he became a trespasser in not doing so, and the defendant had a right to remove the goods himself. It appears from the evidence that what the defendant did was to remove the goods to a barn, and leave them there for the use of the plaintiff and whatever happened after- wards cannot be laid to the defendant's charge, unless the plaintiff connected him with that transaction, which he has failed to do." In Sinclair v. Tod (1906-1907) 8c. Sess. Gas. 1038, the effect of the de- cision was that the servant was not entitled to recover damages from his master for having, without any form of legal process, removed his furniture from the house which he was occupying, he having been given a reasonable time to remove it himself. The implication in this statement, that the action would have been maintainable if a reasonable time for removal had not been given, is indicative of a difference between the English and Scotch doctrines upon the subject. 1* People ex rel. Euibard v. Annis (1866) 45 Barb. 304; MoQuade v. Em- mons (1876) 38 N. J. L. 397. It was held in Hart v. O'Brien (1866) 15 Lower Can. Jur. (Quebec Ct. of Review) 42, that an employee who was allowed the use of a dwelling house as long as he remained in the employ- ment, as part consideration for his services, was liable to ejectment under the lessors and lessees act, as soon as he ceased to be in the employ of the owner. But, as already observed in note 7, supra, the doctrine prevailing in Quebec is not the same as in common-law juris- dictions. 15 School Dist. No. 11 v. Batsche (1895) 106 Mich. 330, 29 L.R.A. 576, 64 N. W. 196 (servant held not to have become a tenant at will) ; Kerrains v. People (1875) 60 N. Y. 221, 19 Am. Rep. 158. See note 3, supra. In Jennings v. McCarthy (1891) 40 N. Y. S. R. 678, 16 N. Y. Supp. 161, this change in the character of the occupa- tion was held to be inferable where the servant, after his employment was end- ed, was suffered to hold over for a long- er period than was necessary to enable him to move conveniently. See also Doyle v. oihls (1871) 6 Lans. 180, note 5, supra. ISWoodfall, Land. & T. 237; Taylor, Land. & T. § 629. 1'' Doe ex dem. Johnson v. Baytup (1835) 3 Ad. & El. 188; Doe ex dem. Willis V. Birchmore (1839) 9 Ad. & El. 662. 280 MASTER AND SERVANT. [chap. hi. (7) The right to sublet or transfer the possession of the premises. A person occupying as a tenant, and not as a servant, is entitled, with the permission of the landlord, to sublet the premises, and to collect from the sublessee the rent -which accrues during the period covered by the sublease.^' But a person placed in possession of premises merely as a servant has no interest vyhich is capable of being assigned to another person.^* Nor can he, without his mas- ter's permission, bring another person on the premises to reside with him.^" On the other hand, a lessee does not, by putting a care- talcer in charge of the leased premises, violate a provision in the lease against subletting or assigning.^^ (8) The right of the servant to be let into possession on the premises which he is to occupy. (9) The liability of the servant to have his property distrained as being that of a servant. (10) The question whether the master or the servant is the proper party to bring an action for trespass committed on the premises. (11) Eligibility for office. An employee occupying premises as a servant merely is not a "substantial householder" within the statute 43 Eliz. chap. 2, § 1, so as to be eligible for the office of overseer of the poor.®^ (12) The requirements of stamp acts. In England it has been held that a lease stamp is not necessary to validate an instrument which provided, among other things, for an employee's occupation of premises as a part of the compensation for his services.*' (13) The correct wording of indictments in prosecutions for the crime of embezzlement. Whatever may be the character or duration of the title under which a servant occupied his employer's premisv^s, he is entitled to the bene- fit of those rules of law which enable a rightful occupant or his licensees to recover damages for personal injuries caused by negli- gent acts committed on adjoining premises.** ii Snedaker y. Powell (1884) 32 Kan. ^ Doe eac dem. Hughes v. Derrv 396, 4 Pac. 869. (1840) 9 Car. & P. 494. 19 Reynolds v. Metcalf (1863) 13 U. 24 The Defiance Water Co. v. Olinger C. C. p. 382. (caretaker) (1896) 54 Ohio St. 532, 32 L.R.A. 736, aOTiicker v. Burt (1908) 152 Mich. 44 N. E. 238, holding that an action 68, 17 L.R.A.(N.S.) 510, 115 N. W. 722 could be maintained by a guest of a (janitor in basement of apartment servant, for injuries caused by the house). bursting of a large standpipe on the ^'i- Presby v. Benjamin (1902) 169 land of a water company. N. Y. 377, 57 L.R.A. 317, 62 N. E. 430. aZBeg v. Spurrell (1865) L. R. 1 Q. B. 72, 35 L. J. Mag. Cas. N. S. 74. § 70] SERVICE— OTHER CONTRACTUAL RELATIONS COilPARED. 281 79. Character of occupation tested with reference to its being ancil- lary or not to the services performed. — The doctrine upon which a large number of decisions are based is that an employee should be regarded as occupying the premises of his employer in the character of a servant, or in the character of a tenant, according as his occupa- tion is or is not susceptible of being described by one of the following phrases : "Ancillary to the service ;" ^ "ancillary to the performance of the duties which the occupier has engaged to perform ;" ^ "auxil- iary to the service;"* "connected with the service;"* "referable to the service;"^ "incidental to and inseparable from the service;"® "incidental to the employment;" ' a "privilege allowed in respect to the principal thing," viz., the hiring ; * "in aid of or necessary to the performance of his service;"' "necessary for the performance of the service;" " "necessary to the service;" " "connected with the service," or "required, expressly or impliedly, by the employer for the necessary or better performance of the service ;" ^^ "incident to, IReg. V. Bishopton (1839) 9 Ad. & El. 824. a Smith V. Seghill (1875) L. R. 10 Q. B. 422. 5 Reg. V. Lynn (1838) 8 Ad. & El. 379; Petersp.eWs Case (1874) 2 O'M. & H. 97. iReg. V. Bishopton (1839) 9 Ad. & El. 824; Rex v. Gheshimt (1818) 1 Barn. & AM. 473; Rex v. Minster (1814) 3 Maule & S. 278. The phrase "necessarily connected with the service" was used by Bayley, J., in Rex v. Kel- stem (1816) 5 Maule & S. 138. 6 Rex V. Iken (1834) 2 Ad. & El. 147. 6 Reg. V. Bishopton (1839) 9 Ad. & El. 824. t Bowmwn v. Bradley (1892) 151 Pa. 351, 17 L.R.A. 213, 24 Atl. 1002. 8 Rex V. Seacroft, 2 Maule & S. 472. According to Taunton, J., in Rex v. IJiien (1834) 2 Ad. & El. 147, where the above-cited case was distinguished, the rationale of the decision was that the cellar was "a privilege attached to the waiter in reference to the principal thing, that is, to his contract as a waiter." sSnedaker v. Powell (1884) 32 Kan. 396, 4 Pac. 869. 10 Rex V. Kelstern (1816) 5 Maule & S. 136; Smith v. Seghill (1875) L. R. 10 Q. B. 422. T-iReg. V. Spurrell (1865) L. R. 1 Q. "R 72 iSKenains v. People (1875) 60 N. Y. 22i; 225, 19 Am. Rep. 158. In another part of the opinion in this case it was remarlred that the question. What is the character of the holding under the con- tract? depends upon "whether it is ex- clusive and independent of, and in no way connected with, the service; or whether it is so connected, or is neces- sary for its performance." In a case where the question was whether certain workmen were ratable under the poor-rate assessment act of 1869, Mellor, J., said: "Where the oc- cupation is necessary for the perform- ance of services, and the occupier is re- quired to reside in the house in order to perform those services, the occupa- tion being strictly ancillary to the per- formance of the duties which the occu- pier has to perform, the occupation is that of a servant. . . . It is quite true that the present appellants, in one sense, were required to reside in the houses of their employers, because the owners of the houses, engaging the ap- pellants in their employment and pay- ing them by piecework, desired them to resHe in the houses while engaged in their service, and in that sense they were required to reside in the houses while engaged in their employers' serv- ice; but that is not the meaning of the words as used in Hughes v. Chatham (1843) 5 Mann. & G. 54, 78. [See § 80. note 1, subd. (g) post.'] 'Required' means more than the master saying. 2S2 MASTER AND SERVANT. [chap. hi. and deemed essential for, the performance of the duties" of the servant;"" "for the purpose of performing his duties;"'* "for the more convenient performance of the service ;" '* "with a view, not to the remuneration of the occupier, but to the interest of the employer, and to the more effectual performance of the service re- quired;" '® "convenient for the purposes of the service" and "ob- tained by reason of the contract of hiring;" " for the purpose of "facilitating the business" of the employer.''' 'You must reside in one of my houses, duties, though not specifically re- if you come into my service.' The quired." See also Mead v. Pollock residence must be ancillary and neces- (1901) 99 111. App. 151, where the sary to the performance of the servant's phraseology of Kerrains v. People duties; and unless he is required for (1875) 60 N. Y. 221, 19 Am. Rep. 158, that purpose to reside in the house, and is adopted. not merely as an arbitrary regulation 13 School Dist. No. 11 v. Batsche on the part of the master, I do not (1895) 106 Mich. 330, 29 L.R.A. 576, think he is prevented from occupying 64 N. W. 196. as a tenant. Then it appears that the i^ Smith v. Seghill (1875) L. R. 10 appellants and otiier workmen are only Q. B. 422, 428. entitled to occupy the houses during the l^iJeajv. Bardwell (1823) 2 Barn. & time of their service at the colliery; the C. 161; Rex v. Minster (1814) 3 Maule occupation terminates at the time the & S. 278; Bex v. Cheshunt (1818) 1 service terminates. Still, the appellants Barn. & Aid. 473. are tenants, though not tenants for any lsZ)o6so» v- Jones (1843) 5 Mann. & fixed time. They occupy as tenants at G. 112. In Smith v. Seghill (1875) L. will as long as they reside in the houses R. 10 Q. B. 422, it was observed that by the arrangement between themselves the ground of the decision in this case and their masters." Smith v. SegMll was that the occupation was "for the (1875) L. R. 10 Q. B. 422, 428, 429. purpose of thereby enabling him [the See also the extract quoted in § 80, note employee] the more readily to perform 1, subd. (j), post, from the opinion of the services required of him." the same judge. The situation opposed to that which In Fox V. Dalby (1874) L. R. 10 C. is expressed by the phrase in the text P. 285, 294, Lord Coleridge, Ch. J., ex- is indicated by the following remarks pressed his approval of the doctrine of Denman, Ch. J., in a poor-law case : enounced by Creswell, J., and Crowder, "This settlement [i. e., that based on .1. in Clarh v. St. Mary (1856) 1 C. B. 'coming to settle' in a tenement] is most N. S. 23, 31, 26 L. J. C. P. N. S. 12, generally acquired by renting, because that "if either ingredient exists, — if the the renting shows the occupation to be occupation be necessary for the better independent, and for the convenience of performance of the duties required to the occupier, and not for that of the be performed by the party; or if, landlord; and on this principle many of though it be not necessary for their the cases where a distinction has been performance, he is required, by the au- taken between an occupation as tenant thority by which he is appointed, to and an occupation as servant proceed." reside there in order to perform them, — Rex v. St. Mary Newington (1833) 5 the occupation is not an occupation as Barn. & Ad. 544- tenant." In the same case (p. 295) ^1 Bowman v. Bradley {1892) 151 Pa. Brett, J., considered the effect of the au- 351, 361, 17 L.R.A. 213, 24 Atl. 1062, thorities to be that the occupation is denying it to be indispensable "that not that of tenant, where the employee occupation of a house or apartments "is required to occupy them for the bet- should be a necessary incident to the ter performance of his duties, though service to be performed, in order that his residence there is not necessary for the right to continue in possession that purpose; or if his residence there should end with the service. It is be necessary for the performance of his enough if such occupation is convenient § 80] SERVICE-^THER CONTEACXUAL RKLATIOXS COMPARED. 283 As a matter of ultimate analysis the test thus indicated may be regarded as the only appropriate one in most of the cases belonging to the class with which we are now concerned. ^^ But it is apparent from §§ 81-83, post, that, even where this test would, so far as the circumstances indicate, have been not only applicable, but sufficient, the courts have not infrequently preferred to rely, either partially or exclusively, upon other elements. 80. Cases illustrating the application of this test. — In the sub- joined note we have collected under convenient headings the cases in which the doctrine referred to in the preceding section may be said to have furnished the actual ratio decidendi} for the purposes of the service, and was obtained by reason of the contract of hiring." 18 Morris Comal & Bkg. Co. v. Miioh- ell (1864) 31 N. J. L. 99. 19 In one instance the real character of the occupation was lield to be im- possible to determine, for the reason that the statement of facts received from the trial court did not show whether or not the occupation was "necessary to the service." Reg. v. Spurrell (1865) L. R. 1 Q. B. 72. See § 83, note 2, post. 1 (a) Employees cultivating land or tending live stock. — The pauper, a mar- ried man, agreed to serve S. for a year as a laborer, and was to have £20 a year, a house and garden, a piece of land for potatoes, the millt of a cow, and the feeding of a pig, which were to run on a neighboring field; and under this agree- ment the pauper served, and had the ex- clusive occupation of the house for him- self and family, the house being about 100 yards from the house of S., and being necessary for the performance of his service; and if he had not had it he would have had more wages. Held, that this was not such "a coming to settle" on a tenement as conferred a settlement. Rex v. Kelstern (1816) 5 Maule & S. 136. Lord Ellenborough, Ch. J. said: "I own I have no doubt in this case that the only occupation of this house was the occupation of the master, and not of the servant whom the master placed there for the mutual convenience of both parties. The mas- ter's house was about 100 yards dis- tant from it, and the servant had it thrown into the bargain in cumulation of wages. This may be compared to rooms allotted to a coachman over the stables of his master, or to an outhouse, where, being a family man, it is more convenient that he should be out of the dwelling house; but that is nothing more than the occupation of the master. So here 1 cannot see that the occupa- tion goes farther." The owner of a mansion house and gardens agreed with a pauper that the latter should take care of the gardens, and for doing so he was to take the is- sues at d profits of part thereof, and to live in a cottage contiguous thereto, belonging to his master; and he was to continue in the premises f'or a year, unless some other person before that time should occupy the mansion, in which case the gardens were to be de- livered up. The pauper continued in the occupation of the gardens on these terms for more than a year, the produce being worth to him £70 per annum. Held, that the pauper being only a serv- ant, and the residence not being his own, he did not "come to settle" within the meaning of the statute. Rex v. SMpdham (1823) 3 Dowl. & R. 384. "The pauper was hired for a year as ci, shepherd. He was to have a house and garden, rent free, 7s. a week, and the going of thirty sheep with his mas- ter's flock, as wages. He served for two years at those wages in the parish of I., during all which time the sheep went on his master's farm, the whole of which was situated in that parish. The feed of the sheep was worth £16 per annum. Held, that this did not confer a settlement, it not being any part of the bargain that the sheep should be pasture-fed." Rex v. BardiceU ( 1 S23 ) 2 Barn. & C. 161. Bayley, J., said that 284 MASTER AND SERVANT. . [ciiiP. iii. "the house and garden, being merely for occupy a house belonging to his master, the more convenient performance of the the amount of the rent being deducted pauper's service as shepherd, must be from his wages, was held not to be laid out of consideration; he did not entitled to the notice required in the occupy them as a tenant, but as a serv- case of ordinai-y tenants, ant. . . . Here the pauper had no In an action for trespass in forcibly residence but in the character of a ■ removing the plaintiff and his house- servant; the house continued the mas- hold effects from his employer's prem- ter's, and the pauper was, with respect ises, after he had been discharged from to this point, in the same situation as the service, a plea was held good on if he had lived in a room in his mas- demurrer, where it alleged that the ter's house." plaintiff was employed by defendant as In Rex V. Snwpe (1837) 6 Ad. & El. a farm hand, and, as part of his com- 278, where a man was hired to take pensation, was given the occupancy of charge of stock, the agreement being a house and garden; and that posses- that he should have 12s. a week wages, sion of the premises was held by the and the keep of a cow, and that he was plaintiff as part of his employment, and to occupy a house on the marshes, rent was connected with his employment, free, the court refused to disturb a find- Beffelfinger v. Fulton (1900) 25 Ind. ing of the sessions that his occupation App. 33, 56 N. E. 688. was in the character of servant, and In Bowman v. Bradley (1892) 151 connected with the hiring. Pa. 351, 17 L.R.A. 213, 24 Atl. 1062, In the Petersfleld Case (1874) 2 where it was held that no trespass was O'M. & H. 97, 1 Rogers on Elections, committed by the employer in ejecting 74 (decided under the reform act of the employee, the facts were mainly un- 1867; see § 78, par. (3), ante), Mellor, disputed, and showed that the defendant J., held that the relation of landlord owned a farm of 29 acres, and about and tenant had been created, where the 4 or 5 acres of this were occupied by evidence was that the voter was paid a mill and pond operated by the owner. 16s. a week wages, from which Is. a To care for the residue and the stock week was deducted for rent of the house upon it, he hired the plaintiff and his he lived in; that his duty was to look family. For the labor of himself, his after the cattle on the farm; and that wife, and his son, the plaintiff was to he could not do this unless he lived in receive $1 per day, and the use of a the house. It is not surprising to read house upon the premises, to be occupied in the report, that the learned judge by himself and family. The only fact afterwards admitted that he was a lit- in dispute was the duration of the con- tie hasty in rendering this decision, tract. The plaintiff alleged it was to Nor do the authorities entirely bear continue for one year. The defendant him out in his general statement of the asserted that it was terminable at his law, which was as follows: "If the pleasure, and that he said to the plain- bargain is this,— 'You still have so much tiff: "I will try you, and on your terms; a week and the use of a house,' — it will and if you don't suit me, I will dis- be inferred that it is in the occupation charge you and expect you to leave the of the employer, and that it is not an premises on sight." The court, after independent occupation. Such is the remarking that the true version was a position of a gamekeeper. On the other question of fact for the jury, and that hand, the occupation is not auxiliary to the defendant or the plaintiff would the service where an employer requires be entitled to a verdict, according as that all persons who get work from him they found that the contract could be shall occupy one of the houses attached terminated without notice, or was in- to his establishment." This statement tended to subsist for a year, unless the clashes with the language of Cresswell, defendant could show a sufficient rea- J., and Crowder, J., in Clark v. St. son for terminating it sooner, proceeded Mary (1856) 1 C. B. N. S. 23, 31, 26 thus: "The first question, therefore, L. J. C. P. N. S. 12, as quoted in § 79, that presented itself on the trial was note 12, ante. over the nature and extent of Bowman's In Young v. Paton (1808) Hume, right to the house from which he was (Sc. Ct. of Sess.) 582, a servant on ousted by the defendant. Was that monthly wages, who was allowed to right an incident of the hiring and de- § 83] SERVICE— OTHER COXTRACTUAL RELATIONS COMPARED. 285 pendent on the continuance of the rela- lord and tenant, but only that of mas- tion of employer and employee, or had ter and servant; and that, consequently, it an independent separate existence, so the remedy, if any, was by an action of that he was to be treated as a tenant assumpsit for a breach of the contra-ct. for years, with a right to remain in pos- Haywood, v. Miller (1842) 3 Hill, 90. session for one whole year whether he On the authority of this case it was remained in the employment of the own- held that the plaintiff occupied as serv- er or not? . . . The subject of this ant merely, where he had agreed with contract was labor. Labor was what defendant to work for him as laborer, Bradley needed and undertook to pay and he was to have, toward his wages, for. It was what Bowman offered to the use of a cow and pasture for her, furnish him at an agreed price. The the use of a house and other property labor was to be performed upon the and privileges, and $20 per month, as land in its cultivation, in the care of long as they could agree. Doyle v. the cows, and the delivery of the milk. Gibhs (1871) 6 Lans. 180 (replevin suit As Bowman was not a cropper, or a for goods removed by employer on re- tenant paying rent, his possession of suming possession). the land and the cows and the imple- Where a farmer employs a laborer ments of farm labor was the posses- for a year, at a. stipulated price per aion of his employer. The barn was month, and agrees to furnish him a used to stable the cattle and store their house at $2 per month, and keep his feed. The house was a convenient place cow for $1 per month, payable monthly, for the residence of the laborer. The the occupation of the laborer is merely house, the barn, the land, the cattle, the incident to the contract of hiring, and farming tools, were turned over into the so soon as he fails to labor, his ten- custody .of the man who had been hired ancy is determined. McGee v. Gibson to care for the property; but he had no (1840) 1 B. Mon. 105 (action of tres- hostile possession, no independent right pass not maintainable against landlord to possession- His possession was that for entering without notice), of the owner whom he represented, and Where one person hired another to for whom he labored for hire. This is work for him one year on his farm, for not denied as to the farm, the barn, the the sum of $270, and agreed to furnish stock, or the tools; but an attempt is him house room for himself and family, made to distinguish between the house and a garden and pasture for a cow, and everything else that came into the it was held that the relation created possession of the employee in pursuance was simply that of master and servant, of the contract of hiring. There is no the houseroom, garden, and pasture be- solid ground on which such a distinc- ing a portion of the consideration of the tion can rest. If the possession of the contract. People ex rel. Huiiard v. An- bouse be regarded as an incident of the nis (1866) 45 Barb. 304 (employer hiring, the incident must fall with the held not to be entitled to assert his principal." right to possession by means of sum- A contract was entered into between mary statutory proceedings applicable H., the owner of a farm, and one M., to landlords only). by which the latter agreed that he and On the ground that a contract under hia wife should work for H. one year, which one person agreed to do certain M. to labor on the farm, and his wife work on the vineyard of another, in the to perform the duties of housekeeper, way of earing for, pruning, trellising, M. with hia wife accordingly moved into staking, and tying up the vines, reoeiv- a house on the farm, carrying with ing a reasonable compensation there- them their household furniture, and en- for, in pursuance of which he was tered upon the performance of the con- placed in possession, did not create tract. Subsequently H., having become the relation of landlord and tenant, but dissatisfied with M's conduct, ordered was one for employment, the court re- him to quit, and leave the house, but fused to grant an injunction restrain- he declined to do so ; whereupon H. ing a contractor from entering the entered the house, and put the furniture premises to perform certain work for out of it. Held, in trespass by M. the owner. Ferris v. Eoglan (1898) against H-, that the contract between 121 Ala. 240, 25 So. 834. them did riot create the relation of land- A, being owner of a farm, let it for 280 PIASTER AND SERVANT. [CHAP. III. seven years to B; and by a written agreement of the same date it was agreed that A should manage the farm for B, B allowing A 12s. a week, and "allowing him and his family to reside in, and have the use of, the dwelling house and furniture therein, free of rent;" and this agreement was to be put an end to by three months' notice or three months' wages. Held, that this agreement did not require a lease stamp, as it did not contain a demise of the house, the occupation of it being a mere remuneration for services. Doe ex dem. Hughes v. Derry (1840) 9 Car. & P. 494. Parke, B., was of opinion that the words "allowing, etc.," might im- port a lease; but that, taking the whole of the instrument together, they must be taken to indicate a reward for serv- ices. See also cases cited in § 82, post. (b) Clerks. — R., a brewer, engaged L. as clerk, at a yearly salary, and agreed to permit him to occupy a cer- tain house as his residence, free from rent, rates, and taxes, another clerk being also boarded and lodged in the same house if R. should require it, but paying for his board; and such salary and house accommodation were to be in full satisfaction to L. for all per- quisites, and for his expenses in the service. Either party might give the other three months' notice of determin- ing the service. L. occupied the house for some time, and then, his health being impaired, removed to another. L. agreed with the landlord for this house, but the latter considered R. as his tenant. Reg. v. Lynn (1838) 8 Ad. & El. 379 [liability to poor rates]. Lord Denman, Ch. J., said : "I think that the appellant was an independent holder of the premises. He took them, and agreed to pay the rent, and, by the universal consent of those inter- ested, was assessed to the rates and window duty. He was the party liable to a distress. The cases which have been cited do not come in question. It would be strong, however, to say that an allowance by the master, as in this case, in part payment for services, made the occupation of a house auxil- iary to the service. Any house he might occupy while he was servant might be so in some sense; but the cases where a party has been held to occupy such premises, as a butler's pantry or a coach house, in the char- acter of servant, are verv different from this." In Rex V. Lou-er Bey ford (1830) 1 Barn. & Ad. 75, where an attorney, having a cottage and land near his residence, allowed his clerk to occupy them, that he might the more conven- iently attend to the business; and suf- fered him to hold them rent free, as an augmentation of his salary, it was observed by Bayley, J., in the course of his judgment, that, if it had been necessary to decide the point, there would have been no difficulty in hold- ing that the occupation was that of a tenant, as it was unconnected witli, and wholly independent of, the service. But the claim was founded on a stat- ute (3 Wm. & Mary, chap. 11, § 6), under which a settlement could be gained by paying rates for a tenement worth £10 a year; and such a claim was not defeasible by proof that the person in question had occupied as a servant, and not as a tenant. In an Irish case where a bookkeeper in a distillery, claiming the right to vote as a, "householder" under the first English reform act (see § 78, par. (3), (Mite), was shown to have been given the privilege of occupying an entire house in lieu of a part of his salary, eleven judges held that he was not qualified for the franchise, although it was admitted that the house was not essential to the discharge of his duties. But in this case there were the other significant elements, viz., that the em- ployer kept the house in repair, and paid the taxes; that the house com- municated with the distillery yard; and that his possession was entirely dependent upon his remaining m the employment. Femr's Case (1836) Al- cock, R. C. R. 248; Rogers, Elections, 81. (c) Managers of a, business. — The provisions of an agreement with refer- ence to which the defendant employer was held not to be guilty of trespass for entering without giving the plain- tiff employee a month's notice were as follows; The plaintiff was to carry on the business of selling beer for the defendant, in the place and stead of, in the same manner and with and upon the same privileges and terms as, one U. had theretofore done, until the agreement should be determined by the notice provided for, that all the beer § 81] SERVICE— OTHER CONTRACTUAL RELATIONH COMPARED. 287 to be sold and consumed on the prem- premises than the wholesale price seems ises should be had and taken by the as if he was to receive something as plaintiff from the defendant, and that being himself the retailer on his prem- the plaintiff should not part with the ises, allowing the plaintiff for his serv- trade or the occupation ol the premises ices the rest of the excess of the retail without the license of the defendant; over the wholesale price. At all that, whenever either party should be events, we must take the sale as stated desirous of determining the agreement, in the agreement, to be for and on ac- the plaintiff should, on receiving a count of the defendant." With refer- month's notice in writing, without be- ence to the effect of the provision with ing paid any sum of money or consid- reference to the abandonment of the eration, quit and deliver up the trade contract by mutual consent, the learned and possession of the premises; and judge said: "This provision seems that the plaintiff should be at liberty well applicable to, and at all events to leave the trade and quit the occu- not inconsistent with, the relation of pation of the premises on giving one these parties being that of employer month's notice in writing. It was held and employed. The giving up the oc- that the agreement did not create any cupation is treated as ancillary to and tenancy between the plaintiff and the connected with the putting an end to defendant, and that the occupation of the plaintiff's carrying on and conduct- the plaintiff was as servant to the de- ing the trade. The notice may be given fendant. Mayliew v. Suttle (1854; at any time, and not at the end of Exch. Ch.) 4 El. & Bl. 347, 1 Jur. N. each month from the commencement; S. 303, 24 L. J. Q. B. N. S. 54. Wight- and it was only proper, where the rela- man, J., said: "It was properly urged tion was not that of menial servant, in answer to this view of the case [i. and where, therefore, there might bo e., that no tenancy was created], tnat some doubt whether the employment the stipulations that the plaintiff' might not be a yearly one, to engage should take beer from no one else, and that the relation of the parties mav that he should not part with the trade ^^ ^ ^^^ g^^ tg t^^ ^ month's notice. or business of occupation of the prem- j^ ^,^^ ^^^jj remarked that, supposing ises without license m writing, are ^^^^^ ^^^ misconduct on the part of more consistent with an independent j^i^tiff, the defendant might have occupation by the plaintiff and with ,'..,',, j. ^ x i his carrying on the business on his terminated the contract at once, and own account; but they are not incon- «" such determination the plaintiffs sistent with the business being that occupation could not have been mtend- of the defendant, as expressly stated ed to be allowed to subsist. It should again and again in the agreement. And be observed that either party will have the defendant may well have chosen a remedy on the contract if it be broken to make it a part of the agreement, by the other determining the engage- that the plaintiff should not sell other ment without a notice and without parties' beer there, and should not give reasonable cause." up the actual occupation, which no Where a fishmonger engaged a man doubt he had, although that occupation to superintend his business in consid- was as servant, and in law the pos- eration of a salary, a percentage of session was the master's. So also, the the profits, and lodging on the prem- faet of the plaintiff's having to pay ises where the business was carried on. the defendant for the beer, as stated the agreement being terminable on in the replication, is not inconsistent giving a certain specified notice, if the with the fact that the possession was employee failed to give satisfaction, it really that of the defendant as mas- was held that he had been duly dis- ter. The beer is stated to be the de- charged in accordance with the terms fendant's; and it is quite consistent of the contract, and that, as he had with the defendant's case, that the no right to remain on the premises plaintiff may have had to pay higher after being discharged, he could not prices than what beer is sold for to maintain an action against the em- be sold again at retail. No doubt the ployer for removing him therefrom by prices were to be paid over to the de- force. McMister v. Ogle (1856) 1 Ir. fendant; and the stipulation that he Jur. N. S. 313. should receive more for the sale on his See also White v. Bayley (1861) 10 288 MASTER AKD SERVAKT. [cmu>. in. C. B. N. S. 227, 7 Jur. N. S. 948, 30 Where a person is employed by the L. J. C. P. N. S. 253, (§ 83, note 3, owner of land to superintend the land post) ; Collison v. ^Vatren (1898) 17 and look after the business of the own- Times L. E. (C. A.) 362 (§ 78, note er, and while in such employment he oo- 7, ante) ; and the following subdivi- cupies a house situated upon said land, sion of this note. his occupancy of the house does not (d) Supervising and other employees create the relation of landlord and ten- on large estates. — A pauper was hired ant between him and the owner, so as as bailiff to P., who held a farm, under to preclude him from acquiring an ad- an agreement that he was to have week- verse title to the property. Davis v. ly wages, etc., and his master to find Williams, (1900) 130 Ala. 530, 54 him a house, and either to furnish him L.R.A. 749, 89 Am. St. Rep. 55, 30 So. with two cows, or the pauper was to be 488. at liberty to hire two, and feed them on In Hector v. Martin (1866) 5 Sc. the farm; and he served three years Sess. Cas. 3d Series, 68, where it was under the agreement, and lived with held that the factor of a landed proprie- his family in his master's house, oc- tor was entitled to the franchise under cupying the kitchen and two rooms, the first English reform act (see § 78, and hired two cows, which fed during par. (3), ante), as tenant of a house the summer in the pastures of his mas- which he had the right to occupy as a ter. Held, that by the feeding of the part of the remuneration for his serv- cows, which was above the yearly value ices, and from which, as his hiring was of £10, the pauper acquired a set- a yearly one, he could not be removed tlement. Rex v. Minster (1815) 3 except at the end of each year. The Maule & S. 276. Lord Ellenborough case was regarded as being distinguish- distinguished the cases in which the able from those in which a servant holds apartments occupied by a servant in house accommodation merely at the liis master's house are only "an appen- will of his employer, and can be turned dage to the service" allotted to him, out at any moment. It was considered "for the more convenient performance that the court was not entitled to as- of his service, which is the principal sume the defeasibility of the right of thing." Le Blanc, J., considered that occupation with reference to the contin- the pauper had a "distinct interest in gency of the factor's being guilty of mis- the pasturage of the two cows, unoon- conduct, which would warrant his dis- nected with his service to the master's missal in the middle of a term. But dairy." Bayley, J., thought the case this decision is in conflict with those was merely "that of a servant who stip- cited in subd. (a) of this note, and in- ulated for a profit out of land of more consistent with the doctrine applied in than that yearly value," which con- Scotland itself, as well as in England f erred a settlement. In Rex v. dies- and America (see § 78 amte) , that the hunt (1818) 1 Barn. & Aid. 473, Bay- right of a servant to reside on premises ley, J., said that this case only decided occupied by him as a servant ceases that "the occupation of a tenement when he is discharged, whether right- which was wholly unconnected with the fully or wrongfully. In view of this service would confer a settlement, but doctrine, there is no reason why the fact that the occupation of one connected that a servant is engaged for a definite with the service would not." period should be treated as an element A servant put into the occupation of in determining the character of the oc- a cottage, with less wages on that ac- cupSincy. count, occupies it in the character of a A man who, while he was employed servant, and his master may properly as a servant of a nobleman, received, as declare on such occupation as his own, part of his salary, the privilege of occu- in an action brought for a disturbance pying a house free of taxes, was held not of a right of way to the cottage. The to be qualified to vote as a "household- character of the occupation is not af- er" in a borough. Circenoester's Case fected by the fact that the cottage is (1792) 2 F'raser, Election Cases, 453. divided into two parts, only one of In State v. Curtis (1839) (20 N. C. which is occupied by the servant, the 363, 4 Dev. & Bl. 222), it was declared other being in the possession of a ten- by the court, arguendo, to be clear law ant paying rent. Bertie v. Beaumont and universally received, that a house (1812) 16 East, 33. on a plantation which is occupied by § 81] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 289 the overseer is as much in the posses- to be very much in the position of a sion of the owner as the plantation it- servant to the stewards, who could re- self, move him from the house at their pleas- In Rex V. Stock (1810) 2 Taunt. 339, ure. The legal relation of the parties Mansfield, Ch. J., remarked arguendo: was held not to be changed by the fact "Many servants have houses given them that it was the custom of the church to to live in, as porters at park gates; appoint their ministers to officiate in if a master turns away his servant, does a given place for one year certain, it follow that he cannot evict him till Such a, custom created no obligation, the end of the year?" Reg. v. Tiverton (1861) 30 L. J. Mag. As to the occupation of a ranger of a Cas. N. S. 79. royal park, see § 81, note 2, post. A minister of a Nonconformist con- (e) Ministers of religious 'bodies. — gregation, placed in the possession of a Where a rector appoints a curate, and chapel and dwelling house by certain agrees that, as a return for his services, persons, in whom the legal estate is and instead of a salary, the curate shall vested, in trust to permit and suffer the be put in possession of the glebe house chapel to be used for the purpose of and lands, to be used for his own bene- religious worship, is a mere tenant at fit, the salary which would have been will to those trustees ; and his tenancy given to the curate if these privileges is determined instanter by a demand of had not been conferred is in the nature possession. He is not entitled de jure, of rent for the glebe, and the agreement before the determination of his tenancy, creates a tenancy between the parties, to have a reasonable time allowed him the estate being one which is of an un- for the removal of his furniture, certain duration, which may be deter- Semile, that he will not be a trespasser, mined at a time of which the curate has if he enter afterwards to remove hia not had notice. Upon the death of his goods, and continue a reasonable time employer, therefore, the curate is, as for that purpose. Doe ex dem. NichoU against the incoming rector, entitled to v. M'Eaeg (1830) 10 Barn. & C. 721. the emblements. O'Connor v. Tyndall Where a religious society employs a (1836) 2 Jones (Ir.) 20. pastor under an agreement by which A curate licensed by the bishop at a he is to receive for his services as such yearly salary, according to the act of a certain cash salary, and the use of a 57 Geo. III. chap. 99, resided in the rec- parsonage as a residence, the inference tory house, which was assigned to him is that the occupancy, being connected pursuant to that act, and was above the with his services as pastor, does not value of £10 a year, for more than create the relation of landlord and ten- forty days before the passing of the act ant. East 'Norway Lake N. E. Luther- of 59 Geo. III. chap. 50. Held, that an Church v. Froislie (1887) 37 Minn, this was a coming to settle within the 447, 35 N. W. 260 (holding that the statute 13 & 14 Car. II. chap. 12, and agreement was personal to himself, and that a settlement was gained thereby, that his personal representative had Rew V. St. Mary Neunngton (1833) no right to the possession of the parson- 5 Barn. & Ad. 540. Parke, J., said: age after his decease.) "It is not clear that the curate is not A minister who occupies a house tenant to the rector ; but it is not neces- merely by virtue of his office is not sary for the purpose of gaining a settle- entitled, when he ceases to hold his ment that he should be so. It is sufli- position, to receive the statutory notice cient if he comes to occupy as having to quit, without which a landlord can- an interest of his own, and not as serv- not resume possession' of rented premi- ant to another." ses. Bigelow v. Norton (1848) 3 N. S. A Wesleyan minister was held not to 283. be the tenant of a house assigned to him (f) Professors in colleges and mas- as a residence by the circuit stewards, ters in schools. — Where one who had part of whose duties consisted of hiring leased certain college premises, with a house for the accommodation of the the intention of conducting the insti- minister. Part of the evidence was to tution as its president, employed a per- the effect that, if the rent and rates due son as one of the professors, under an for such a house were paid by the min- agreement by which he was to have a ister, the amount was refunded to him fixed salary, with the privilege of occu- by the circuit stewards. He was deemed pying such rooms in the college build- M. & S. Vol. I.— 19. 290 MASTKR AND SERVANT. [chap. hi. ing as would accommodate himself and family, and there was evidence tending to show that the president retained a general control over the apartments so occupied, and had the right to enter them at any time for disciplinary pur- poses, a jury is warranted in finding that the professor was not a subtenant, and that his property was not liable to distress. Waller v. Morgan (1857) 18 B. Mon. 136, distinguishing McOee v. Gilson (1840) 1 B. Mon. 105, on the ground that no attempt was made to show that the plaintiflf had reserved a right of general control over the house. Where the schoolmaster of a burgh had been deposed for incompetency under a provision of the education act, it was held that the school board was entitled to have a summary warrant against him, to remove him from a dwelling house under the same roof as the class rooms. The court did not decide what would have been the rights of the board if the house had been quite separate from the class rooms. Whyte V. Haddingtion School Board (1874) 1 Sc. Sess. Cas. 4th series, 1124. The occupancy of a part of a school house as a residence by a teacher, for the purpose of enabling him the better to perform his contract to teach, does not make him a tenant of the school district employing him, but his occu- pation is that of the district. School Dist. No. 11 V. Batsehe (1895) 106 Mich. 330, 29 L.E.A. 576, 64 N. W. 196 (action to recover possession of the premises). (g) Persons in naval and military establishments. — In a case involving the right of a claimant to vote under the reform act of 1867 (see § 78, par. (3), ante), it appeared that he was a sergeant on the permanent staff of the militia, and as such occupied a house close to the premises in which the arms, accoutrements, etc., of the corps were stored, which was built expressly for the accommodation of the men employed in looking after the stores, under the provisions of the militia act 1854. The house was assigned to him by the com- manding officer as a place to live in; if he left it without the permission of his officer, he would be guilty of a breach of discipline, for which he would probably be dismissed from the service; and he was liable to be turned out at any time. He had 2b. 4d. per week deducted out of his pay, as occupier of the house; but he would not receive the 2s. 4d. extra if he resided else- where. He could perform the duties required of him equally well if he were living elsewhere, which he might do- with his officer's permission. Held, that the sergeant did not occupy the premises as tenant, within the meaning of § 3 of 30 & 31 Vict. chap. 102. Fo!B V. Daily (1874) L. R. 10 C. P. 285, following Dobson v. Jonas (1843) 5 Mann. & G. 113, infra. The ground of the decision was that, as the sergeant was "required" by his commanding offi- cer to reside in the house, there was a compulsory occupation for the purpose of performing the duties assigned to him. See the extracts from the opin- ions of Coleridge, Ch. J., and Brett, J., in § 79, note 12, ante. A pauper employed as a laborer by the board of ordinance, having pre- viously occupied a house at an annual rent of £7, which was then purchased by the board, still continued to reside in part of the premises at a weekly rent of 2s., which was deducted out of his wages; during such last occupation he also occupied a shop (the shop and house together being of the annual value of £ 10 ) , and upon his dismissal from his employment he gave up possession of the house as required. Held, that his last occupation of the house was not as tenant, but as servant, and that no settlement was thereby gained. Rem V. Gheshunt (1818) 1 Barn. & Aid. 473. Lord Ellenborough, Ch. J., said; "In this case it seems to me that the party occupied this house -as a servant only, and not in the character of a tenant. It is like the case of a coachman, who frequently occupies a room over the stables; but such occupation is not within the meaning of 13 and 14 Car. II. The pauper here was devested of the tenement as soon as his service terminated. He quitted the possession reluctantly, and was succeeded by the person who succeeded him in his em- ployment under the board of ordinance. All this clearly shows that he was only entitled to hold it during and for the more convenient performance of his service." In a case where the question was whether the master rope maker in a royal dockyard "occupied as owner or tenant" so as to be entitled to a vote under the first reform act (see § 78, S 81] SEKVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 291 par. (3), ante), it was proved that he tal, which was apfa'opriated to the sur- had been assigned a house in the dock geon. Repairs were done by the corn- yard for his residence, of which he had missioners of the hospital. The sur- the exclusive use without paying rent, geons to the hospital, when not pro- as part remuneration for his services, no vided with a residence within the hospi- part of it being used for public pur- tal, were allowed a weekly sum as lodg- poses. The house was stated in the case ing money. By the regulations of the to belong to the Lords of the Admiralty, commissioners of the hospital, no officer If A had not had it, he would have had of the hospital is allowed to make any an allowance for a house in addition exchange of apartments. Held, that to his salary. Held, that A occupied A did not occupy the house 'as ten- the house as tenant. "A was rated ant,' inasmuch as he was required to to the poor rate as occupier. The rates occupy the same with a view to the were paid by the Paymaster General, more efficient performance of his duties also in part remuneration for A's serv- as surgeon." Dobson v. Jones (1843) 5 ices. If he had paid the rates the Mann. & C. 112. Referring to the admiralty would have repaid him. judgment in the Hughes Case (1843) 5 Held, that as the payment was of a Mann. & G. 54, Tindal, Ch. J., said: rate for which A was liable, and as it "We stated that the relation of land- was made on his account, and he gave lord and tenant could not be created value for it, there was a sufficient pay- by the appropriation of a particular ment of rates by him within the same house to an officer or servant as his section." Hughes v. Chatham (1843) residence, where such appropriation was 5 Mann. & G. 54. Tindal, Ch. J., made with a view, not to the remuner- said : "It may be that a servant may ation of the occupier, but to the inter- occupy a tenement of his master's, not est of the employer, and to the more by way of payment for his services, effectual performance of the service but for the purpose of performing them ; required from such officer or servant ; it may be that he is not permitted to upon the same principle as the coach- occupy as a reward, in the performance man who is placed in rooms of his mas- of his master's contract to pay him, but ter over the stable, the gardener who is required to occupy in the performance put into a house in the garden, or the of his contract to serve his master, porter who occupies the lodge at a park The settlement cases, cited in argument, gate, cannot be considered to occupy as established and proceeded on this dis- tenants, but as servants merely, whose tinction. We think it applicable to the possession and occupation is strictly present question; and as there is noth- and properly that of their masters." ing in the facts stated to show that the See also § 81, notes 2, 3, post. claimant was required to occupy the (h) Civil serva/nts. — See cases cited house for the performance of his serv- in § 81 notes 2, 3, post. ices, or did occupy it in order to their (i) Employees in mills, factories, etc. performance, or that it was conducive — A pauper whose children were engaged to that purpose more than any house to work for three years at a mill re- which he might have paid for in any moved with his family to a cottage other way than by his services; and, rented by the mill owner, C, for the as the case expressly finds that he convenience of families so employed, had the house as part remuneration The bargain between him and C. was for his services, we cannot say that the that a stated weekly payment for the conclusion at which the revising bar- use of the cottage should be deducted rister has arrived is wrong. "The case, from the children's wages. The pauper, indeed, stated that the claimant was who was not himself in the service of master rope maker, and as such had the C, continued to occupy the cottage for house as his residence; but that expres- sixteen years, during all which time, sion is equally applicable, whether he and after he quitted it, some one or was made tenant of the house in pay- more of his children continued to work ment of his services as master rope at the mill. He quitted without regu- maker, or occupied it for the purpose lar notice, in consequence of the sale of performing them." of the cottage. Held, that the pauper's In another case, "A, the surgeon of occupation was as tenant, and not as Greenwich Hospital, occupied, as such, servant, and was sufficient to gain a a house at the infirmary in the hospi- settlement. Reg. v. Bishopton (1839) 292 MASTER AND SERVANT. [chap. III. 9 Ad. & El. 824. Littledale, J., said: "I think the pauper gained a settle- ment in Bishopton. In the cases cited the other way there was the relation of master and servant between the owner of the tenement and the occu- pier. Here the pauper engages for the service of his children, and arranges with Mrs. Coates for the residence of himself and his family in the cottage. This is clearly a renting of the cottage by him. The renting was indeed con- nected with the service of the children; for the cottage would probably not have been let to the pauper, or hired by him, but for the service of the children; but he agrees to pay rent for it. This im- ports the relation of landlord and ten- ant, and there is nothing in the case to rebut the presumption." Williams, J., said : "In the cases referred to, in which the occupation has been held insufficient, the residence was identical with the service, or was incidental to, and inseparable from, it. Here there ■was a renting by one who was not a servant; and the deduction from the wages of his children was only a mode of paying the rent." In a case where the question was whether the voter was the "occupier of a building of the value of £ 10 yearly," within the meaning of the first reform act, it appeared that a factory con- sisting of four stories was let out in separate rooms to a number of persons for cotton spinning, at different rents, according to the size of each room. Each tenant had his own machine, worked by steam power supplied by an engine which belonged to, and was worked at the expense of, the landlord; it being part of each contract that the landlord should supply such power. Each tenant had the exclusive use of his room and the key to the door there- of. The approach to the rooms was, in some eases, by a common staircase leading from the entrance to the fac- tory, to which there was a door that was never fastened, in others by separ- ate staircases outside the building, and in others by doors opening into the yard. Held, that each of these rooms consti- tuted a "building," and that there was sufficient occupation in each tenant. Wright v. Stockport (1843) 1 Barr. & Am. App. & El. Gas. (C. P.) 39; Beg. V. South Kilvington (1842) 3 Gale & D. 161, note. In Kerrmns v. People (1875) 60 N. Y. 221, 19 Am. Rep. 558, affirming (1873) 1 Thomp. & C. 333, so far as that decision related to the character of the occupation, but reversing it on another ground, the prisoner, a work- man, was indicted for the use of a deadly weapon in resisting an eject- ment by his employer, and the defense was that a tenancy was constituted by the parol contract between them, viz., that the employer should pay the work- man for his services 13s. a day, and give him the use of a house to live in throughout the year, or while they agreed, the consequence of this view of their relation being that the workman in holding over would be a tenant at will, and that the employer would not be justified in entering with strong hand. The court said: "Each party relied up- on the terms of the contract with only the additional facts that the house was a part of the mill property, and had been occupied for several years previous- ly by the prisoner while engaged as a laborer in the mill. There was no re- quest to submit the facts to the jury to determine whether the house was occupied to enable the prisoner the bet- ter to perform the service in which he was engaged; or, in other words, whether it was not occupied as an ap- pendage to the mill, and really for the benefit of the owner; nor was there any evidence of an allowance for rent; but it was left to the court, upon the con- tract and facts before stated, to be de- termined as a question of law, and, in my judgment, the court decided correct- ly, — that the defendant occupied as a servant, and not as a tenant. The in- ference from these facts is reasonable, if not irresistible, in the absence of any provision for an allowance for rent, that the house was intended to be occupied by an employee for the benefit of the owner in carrying on the mill. The case thus presented is analogous to that of a person employing a coach- man or gardener, and allowing or re- quiring him to reside in a house pro- vided for that purpose on the premises; or a farmer who hires a laborer for wages, to work his farm, and live in a house upon the same. In these cases the character of the holding is clearly indicated by the mere statement of facts. It is not impossible that other facts may exist to strengthen or weaken the inference that the prisoner occupied as a servant, and not as a tenant, but § 81] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 293 from the facts proved there was no error in holding that he occupied as a servant." (j) Employees loorhmg in mines. — ■ In a case involving liability under the English poor rate assessment act of 1869, "S. was a collier, and resided in a house belonging to his employers, for which he paid no rent; he was not entitled to any notice to quit, and the occupation of the house would cease at the time when his service ceased. His employers had several houses, and they filled these up with their workmen in their discretion, giving preference to married men. A workman could not go into a house without the owner's con- currence. Some of the workmen were single men, and no house was given to them; these got the same wages as all other workmen, but no allowance for rent. If there were not suflBcient houses an allowance was made to the married men to assist them in paying their rent. If a house was vacant the owner would call upon a married man to go into it; if he did not go his allowance would cease. It was not absolutely necessary for a workman to live in one of the houses to perform his work." Smith v. Seghill (1875) L. R. 10 Q. B. 422. Quain, J., said: "The governing facts of the case were these: The men were paid, not day wages, but by piecework, according to the quantity of coal hewn in a certain number of hours; therefore the occupation of the houses had noth- ing to do with their wages, nor was it in any way taken into consideration in determining the amount of wages they earned. But these houses were oflFered as an inducement to the married men to live near the works; and an impor- tant fact is that the men were not re- quired to keep these houses as a con- dition of their service; they were per- mitted to occupy them as married men, but it was no necessary part of the serv- ice that they should live in the houses. That appears to me to be a material circumstance, and plainly distinguishes the case from that of the occupation by a gardener or a coachman, or the surgeons residence in Greenwich Hospi- tal. Hughes v. Chatham (1843) 5 Mann. & G. 54." See subd. (g), supra. Mellor, J., said: "It appears that, if there was no house for a married work- man, he had an allowance for house rent, but if there was a house empty, and the workman would not come into it, he had no allowance. An inference might possibly be drawn from this, that, as he was bound to reside if a house was offered him, upon pain of forfeiting his allowance, he resided in it upon compulsion, and therefore his occu- pation was that of a servant; but I cannot assent to this, and, in my opin- ion, those workmen who did reside in the houses resided in the character of tenants. The colliery owners desire that the married workmen should reside near the works, but that does not change the relation between the parties; unless the men are required to live in the houses for the better performance of their duties, it does not convert the occupation of a tenant into that of a servant. The governing principle is that, in order to constitute an occu- pation as a servant, it must be an occu- pation ancillary to the performance of the duties which the occupier has en- gaged to perform. Here the occupation is not connected with the performance of the employment, and the appellants, therefore, occupy as tenants." For other decisions with regard to similar facts, see § 81, post. (k) Keepers of tailgates. — The plain- tiff was employed to collect toll, and lived in the tollhouse. Is. per week being deducted from his wages by way of rent. His employers having ceased to collect toll at the particular spot, the plaintiff was dismissed from their employ, and received a notice to leave the house, which he promised to do. Held, that the plaintiff was not a tenant of his employers, and therefore that he could not maintain trespass against thejr agent for pulling down the tollhouse. Bunt V. Colson (1833) 3 Moore & S. 790. (1) Persons employed as tenders of canal lochs. — -A servant employed as a lock tender, who as part compensation for his services is permitted to occupy a dwelling house belonging to his em- ployers, and who under one of their standing rules is to leave the house im- mediately upon his being discharged, is not a tenant at will, and is therefore not entitled to the three months' notice to quit which is prescribed by a stat- ute with regard to such tenants. Mor- ris Canal & Bkg. Co. v. Mitchell (1864) 31 N. J. L. 99. (m) Persons taking care of premises. — In a case involving the question whether a person occupied as owner or tenant so as to be entitled to vote under the first English reform act, A claimed 294 MASTER AND SERVANT. [chap. hi. to be registered as the occupier of a Allen v. England (1862) 3 Fost. & F. 40 house of the requisite yearly value to (action for forcible entry), upholding confer a vote. The revising barrister the contention of defendant's counsel found that A was the keeper of tlie tliat plaintiff's occupation was 'in fact Guildhall at B; that the house in ques- as bailiff or agent for defendant, tion was the residence assigned by the The possession of a man placed on corporation to the hall keeper, and in land for the purpose of holding it and which he was required to reside; and of preventing depredation is deemed that it was necessary for the due per- to be the possession of the owner, not- formance of his duties as hall keeper withstanding the fact that he is given that he should reside there. Held, that the privilege of cultivating a part of this was an occupation as servant to the land for his own benefit. The the corporation, and not an occupation owner, therefore, may maintain an ac- as tenant. Clark v. St. Mary (1856) 1 tion for trespass on the land, Davis C. B. N. S. 23, 26 L. J. C. P. N. S. 12. v. Clancy (1826) 3 McCord, L. 422. Willes, J. said : "I think the proper con- It was intimated that the part actually elusion from the facts stated is that cultivated by the caretaker may, under it was part of the terms of the hall such circumstances, be considered as keeper's employment that he should being in his exclusive possession. This reside in the house in question, and qualification of the decision seems to that his occupation was not in the be of very dubious correctness. It in- character of tenant." volves the corollary that the care- A person put into a house to take taker should have been, at the least, a care of it and of other adjoining houses tenant at will as to this portion of the belonging to his employer is deemed to land, a theory which it seems Impossible occupy the premises as a servant, to support by the authorities as they Yates V. Chorlton-upon-Medlock Union stand. (1883) 48 L. T. N. S. 872 (liability to An action for forcible entry cannot poor rates ) . be maintained by a person whom a Whether the occupancy was as ser- sheriff, in pursuance of a writ of resti- vant or tenant was held to be a, ques- tution, has placed in possession as the tion for the jury where the agreement representative of the party declared to was that he should take care of cer- be entitled to restitution. Mitchell v. tain houses, let, repair, and collect Davis (1862) 20 Cal. 45, denying that rent, and have the use of a floor in one the action could be prosecuted on the of them. Jennings v. McCarthy (1891) theory that an agent or servant having 40 N. Y. S. R. 678, 16 N. Y. Supp. 161 the care of real estate might be con- ( right of landlord to resume posses- sidered as a tenant at will of his princi- sion ) . pal or master. Where the plaintiff was employed by In a case where the defendant pro- defendant as a jauitress, and received mised the plaintiff that, in consider- the use of certain rooms as part pay- ation of his services as caretaker of a ment for her services, the relation of building, he should have the occupation master and servant, and not of land- of certain rooms, and subsequently re- lord and tenant, was held to have exist- fused to let him into possession, the ed between the parties, and the occu- court said that, if there was any con- pation of the premises was the occu- tract for the letting of the rooms, the pation of a servant. Anderson v. Stein- remedy for a breach of it was by an reich (1900) 32 Misc. (Sup. Ct.) 680, action on the contract, not on an ac- 66 N. Y. Supp. 498 (damages held to count annexed. Bowen v. South Build- he recoverable for personal injuries ing (1884) 137 Mass. 274. See also caused by the fall of a ceiling in the § 81, note 5, post. servant's bedroom). (n) Envployees in hotels, etc. — A per- A person using land as a garden for son engaged himself as waiter at an more than twenty years, under permis- hotel, and had the tap or privilege of sion from the owner to do so, in order selling malt liquors there, and the use to keep it from trespassers, the owner of the cellar for holding the liquors, from time to time coming on the land which had a separate entrance and of and giving directions as to cutting of which he kept the key, and paid for his trees, was held not to have got a situation of waiter and for the tap and title, so as to enable him to sue a claim- cellar the yearly sum of £ 60. Held, ant under the owner for a forcible entry, that this was not such an occupation i 81] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 295 81. Character of occupation tested with reference to its beneficial or nonbeneficial quality. — The circumstance that the occupation of a servant was beneficial as regards him, or as regards the owner, is sometimes adverted to in cases where the actual ground of the de- cision that he held as a servant was that his occupation was or was not ancillary to his service in the sense explained in §§ 79 and 80, post} Such language is readily accounted for by the fact that an of the cellar as to confer a settlement. Rem V. Seacroft (1814) 2 Maule & S. 472. In answer to the contention that the servant should be considered as hav- ing rented the cellar during the time he was engaged as waiter, the court said that there did not appear to he any taking of the cellar as a tenant, "but that the use of it was only a privi- lege allowed him in respect of the princi- ipal thing, which was the hiring of him- self as a waiter. The employer of a barkeeper who has the privilege of occupying a room on the premises is not liable to an action for forcibly ejecting him after his dis- charge, if no unnecessary violence is used. De Briar v. Minturn (1851) 1 Cal. 450. (o) Stewards of clubs, etc. — In Wil- liams V. Herrick (1849) 5 U. C. Q. B. 613, the court, without expressly de- ciding the point, inclined to the opinion that the agreement set out in the plead- ings was a hiring of the plaintiff as a steward of a certain club, and that the permissive occupation of the rooms mentioned was not as under a demise thereof, but merely as an incident to the situation, the privilege depending upon the continuation of the service, and ceasing therewith. Where one part of college buildings, the title of which is vested in the trus- "tees, is partly occupied for the purposes of the institution by the students and teachers, and another part by a steward, who is not given any lease, his occu- pation is merely that of a servant. Watson V. McEaohin (1855) 47 N. C. (2 Jones, L.) 207 (holding that no in- dictment lay for expelling the steward). (p) Domestic servants. — An action of trespass for the removal of goods after the termination of the employment will not lie where the clear preponder- ance of the evidence is that the plain- "tiff waa employed by a number of stu- dents, sometimes spoken of as a club in the statement of facts, to act as housekeeper for them, they taking meals in the premises, she superintending the preparation of the same, and receiving as her compensation board for herself and daughters, and, if anything was realized over and above the expense of running this boarding house, a small compensation. Mead v. Pollock (1901) 99 111. App. 151. Where the jury found that there was no engagement of any sort for the ser- vant's occupation of the house assigned to him, and that he "merely used the lodging room in his character as ser- vant," the obvious inference was held to be that he was put to lodge in the room at the mere will of his master, that this was for the more convenient performance of the services to be ren- dered by him as a domestic, and for that reason his possession as servant was just as much the possession of his mas- ter as if they had occupied separate rooms under the same roof. State v. Curtis (1839) 20 N. C. 363 (4 Dev. & B. L. 222) (holding that no indictment for forcible entry would lie for exclud- ing the servant from the house after he was dismissed). (q) Servants of cTiaritaHe institu- tions. — See § 81, note 3, post. (r) Persons employed to effect sales. — The right to occupy a tenement under a contract by which the tenant Ls to de- liver milk for the landlord at a certain price per week, and have the right "to live in the house," for which $1 a week should be deducted for rent, terminates when the tenant leaves the landlord's service. Eichengreen v. Appel (1892) 44 111. App. 19 (action for trespass in ejecting plaintiff after he had volun- tarily left the service held not to be maintainable) . 1 In Bex Y. St. Mary Newington (1833) 5 Barn. & Ad. 540, a case where a tenancy was inferred, it was remarked 296 MASTER AND SERVANT. [CHAP. UI. occupation -which is connected with the service must be one which is principally or wholly for the advantage of the owner, and that an occupation which is disconnected from the service must be one which is principally or wholly for the advantage of the servant. In this point of view the beneficial or nonbeneficial quality of the occupa- tion is a circumstance of a merely secondary and derivative charac- ter. But there is one particular class of cases in which it has been treated as a primary factor for the purpose of differentiation, viz., those involving the liability of "occupiers" to the poor rates assessable under 43 Eliz. chap. 2, § 1, and other enactments relating to taxes upon realty. On the one hand, the beneficial character of the occu- pation has been assigned as the ratio decidendi in cases where lia- bility for such taxes has been imposed on persons occupying property belonging to the Crown,^ and on employees of charitable institutions that the occupation was "independent, and for the convenience of the occupier." In Kerrains v. People (1875) 60 N. Y. 221, 19 Am. Rep. 158, the occupation was described as being "for the benefit of the owner." In Dobson v. Jones (1843) 5 Mann. & G. 112, the occupation was held to be that of a servant, partly on the ground that it was not "with a view to the re- muneration of the occupier." 8 The ranger of a Royal park was held to be ratable, as such, to the poor for inclosed lands in the park, which he cultivated and which yielded cer- tain profits. Bute V. Grindall (1786) 1 T. R. 338, Lord Mansfield held that it made no diflference gwo nomine the ranger was "occupier,"— whether by gift or wages. He considered the case to be like the earlier one of Rex v. Mat- thews [VJTl) Cald. 1, where a servant occupying the lodge and 2 acres of land, whether he paid for them by a rent or by service, was equally liable. Buller, J., said: "It is perfectly immaterial what interest the occupier has in the lands, — ^whether he holds as tenant at will, or any other tenure." The controller of Chelsea College, who resided in the apartments assigned to the incumbent of the office, was held to be assessable for the poor rate in re- spect to those apartments. Eyre v. Smallpace (1750), cited in 2 Burr. 1059. Commenting on this case in Rex V. St. Luke's Hospital (1760) 2 Burr. 1053, 1065, Lord Mansfield remarked that such an officer was not charged as a servant of the institution, or as an inhabitant and occupier of the ordin- ary rooms and lodgings therein, but as having separate and distinct apartments which were considered as his dwelling house. Where the sessions had found as a fact that the master gunner at a garri- son town was the occupier of the bat- tery house there, which was the prop- erty of the Crown, and from whence he was removable at pleasure, it was held that the fact of his being the occupier precluded any other question, and fixed his liability to be rated to the relief of the poor. Rex v. Burdis (1789) 3 T. R. 497. "It is not," said Lord Kenyon, "a general position that a servant of the Crown, occupying a house in respect to his office, is not ratable for it; for I was always rated for the house which I had as master of the rolls; and so are the auditors and tellers of the ex- chequer. Soldiers, indeed, cannot be said to be the occupiers of their bar- racks, in the legal signification of the word; they are no more than mere ser- vants." In Holford v. Copeland (1802) 3 Bos. & P. 129, Lord Alvanley re- marked that the ratio decidendi of this case was that the master gunner occu- pied the house "as his domestic house, for his own convenience." In Martin v. West Derby Union (1883) 52 L. J. Mag. Cas. N. S. (C. A.) 66, a superintendent of police was held to be ratable as a tenant in respect to a house occupied by him at some dis- tance from the police station, although § 81] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 297 for whom a house was provided.' On the other hand, these taxes have been held not to be leviable upon persons who have "the use of the building or other subject of the rate as a mere servant of the Crown, or of any public body, or in any other respect, for the mere exercise of public duty therein," and who derive from such use no emolument in any personal and private respect.* ISTonbeneficial oc- it was ahown that it had heen specially hired for him, that he was compelled to live in it, and that it was liable to be used for such purposes connected with the police administration as the chief constable might direct, no special part of it, however, being appropriated to this use. It was held, first, that there was a "beneficial occupation" in such a sense as to bring the premises within the statute of Elizabeth; and, secondly, that he was not exempt from liability, as occupying the house as servant of the Crown; an exemption being allowed on this ground only in cases where the building occupied belongs to the Crown, or is occupied by a servant of the Crown for the purposes of the Crown. The authority relied upon as regards the latter point was Gambler v. Lydford (1854) 3 El. & Bl. 346, which decided that persons who are occupied about the business of some public building, and connected with it as officers, but who live in houses outside it and separated from it, are ratable. In Bex V. Terrott (1803) 3 East, 506, the court, in summing up the effect of some of the earlier decisions, said : "In these cases each of the persons rated had a degree of personal benefit and accommodation from the property en- joyed by him ultra the mere public use of the thing; and which excess of personal benefit and accommodation ultra the public use may be considered as so much of salary emolument annexed to the office, and enjoyed in respect of it by the oiiicer for the time being." 3 A master of a free school, appointed by the minister and inhabitants of the parish under a charitable trust, where- by a house, garden, etc., were assigned "for the habitation and use of the mas- ter and his family freely, without pay- ment of any rent, income, gift, sum of money, or other allowance whatsoever," for the teaching of ten poor boys of the inhabitants, was held to be ratable to the poor for his occupation of the same. Rex v. Catt (1795) 6 T. R. 332. iRex V. Terrott (1803) 3 East, 506, where the court in summing up the effect of the earlier decisions, said : "In all such cases, the parties having the immediate use of the property merely for such purposes are not ratable; be- cause the occupation is throughout that of the public, and of which public occu- pation the individuals are only the means and instruments." Stables rented by the colonel of a regiment, by order of the Crown, for the use of the regiment, are not liable to be rated to the relief of the poor. Amherst v. Sommers (1788) 2 T. R. 372. Servants of the defendant hospital were held not to be ratable, for th& reason that they did not occupy dis- tinct apartments. Rex v. St. Luke's Hospital (1760) 2 Burr. 1053, con- trasting Eyre v. Smallpace (1750), cited in 2 Burr. 1059. A person employed by the Philan- thropic Society to superintend the chil- dren, at annual wages, under an agree- ment that she should have a dwelling free from taxes, etc., with certain other perquisites, and who might be dismissed at a minute's warning on receiving three months' wages, was held not to be ratable to the poor as the "occupier" of the house provided by the society; she having no distinct apartments in the house but a bed chamber, and her family not being allowed to live there. Rex V. Field (1794) 5 T. R. 587. It was considered by Grose, J., that the words of the statute (31 Geo. II. chap. 45, as amended by 31 Geo. III. chap. 19) showed that the legislature in- tended only the beneficial occupiers to be taxed. Buller, J., said: "The true question is whether or not the appel- lant be an occupier. It is said she is; for that an occupier is the person in the possession of, and having control over, the house. Then try this case by that definition. If it be sufficient to live in a house, that equally applies to every servant; then, as to the control. 298 MASTER AND SERVANT. [chap. hi. •cupation is also inferred where a servant is allowed to occupy a house as caretaker, and is ready to leave it at any time if the owner so orders.^ The exemption of a public officer who is occupying property of the Crown for the purpose of discharging his public duties extends, in respect to such occupation, so far as it is reasonably necessary for the performance of his duties, and no farther.^ The test of beneficial or nonbeneficial occupation is obviously very similar in quality to that which is employed in the cases (see § 83, post) in which the existence of a tenancy was deduced from the cir- cumstance that the privilege of occupation was giv^en in lieu of the whole or of a part of the servant's wages.' But the complete identity of the two tests is negatived by the fact that, as will be shown in the section just mentioned, evidence going to show that the privilege of occupation was granted for the purpose of remuneration is equally compatible with occupation either as a servant or as a tenant. the appellant is a mere servant; she arising under an earlier paving act, it was hired as such, and is liable to be was held that the colonel of a regi- dismissed at an hour's notice; for, ment who had rented certain stables though three months' notice was to be for the use of a troop of horses was not given by either party, the society might ratable in respect to them, as he had have turned out this servant immediate- occupied them for public purposes. ly, on giving her three months' wages in Eckersall v. Briggs, 4 T. R. 6. advance. The articles of agreement are 6 Yates v. OhorlUm-upon-Medlach merely personal, and give the appellant Union (1883) 48 L. T. N. S. 872. no interest in the house, which was to Residence in a lighthouse by one as "be applied to certain specific purposes, servant to the owner, at an annual The society, indeed, agreed to provide salary, to take care of the light, is the her with a dwelling, but that dwelling occupation of the master, who alone is a mere lodging. The case states can be rated in respect of such occu- that she has no distinct apartments in pation of the tollhouse. Rex v. Tyne- the house but a bedchamber; and, if mouth (1810) 12 East, 46. that were sufficient to constitute her 6 Reg. v. Stetoart ( 1857 ) 8 El. & Bl. the occupier, every maid servant would 360. be equally the occupier. A person so 7 Xhe relation between the two tests situated is only a servant, and not an is sometimes indicated quite distinctly occupier, either in the legal or common by the language used in cases of the acceptance of the word." type dealt with in the present section. The trustees of a meetinghouse, who This in Rex v. Terrott ( 1803 ) 3 East, made no profit out of it, were held not 506, the court, in summing up the effect to be liable for the poor rate, in Rex of some of the earlier decisions, said: V. Woodward, 5 T. R. 79. "In these cases, each of the persons A woman servant placed as superin- rated had a degree of personal benefit tendent in a house appropriated to the and accommodation from the property charitable purpose of educating poor enjoyed by him, ultra the mere pub- girls was held not to be ratable as oc- lie use of the thing ; and which excess of cupier. Rex v, Waldo (1777) Cald. 358. personal benefit and accommodation. The masters in chancery are not ultra the public use, may be considered ratable as occupiers of their respective as so much of salary and emolument apartments under the paving act 11 Geo. annexed to the oflSce, and enjoyed in III. chap. 22. Holford v. Copeland respect of it by the officer for the time (1802) 3 Bos. & P. 129. In a case being." S 82] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 209 82. — to the effect of the arrangement as giving or not giving the servant an estate in the land. — In some cases the character of the oc- cupation has been considered with reference to the question whether the effect of the arrangement was or was not to give the servant a specific interest in the subject of the occupation.^ But if we advert to the fact that all the cases cited might, so far as the facts in evi- 1 The following cases may be cited as illustrations, more or less distinct, of this mode of viewing the position of the occupant : In Rex V. Langriville (1830) 10 Barn. & C. 899, it was laid down that, in order to constitute the species of settle- ment which was based upon the occu- pation of a tenant of the yearly value of £ 10, "it is necessary that the pauper should have an interest in the subject of the occupation (such subject being of the requisite yearly value) as tenant or occupier; though it is not necessary that he should be under an obligation to pay rent, or that he should have more than an estate at will. Rex v. Fillong- ley (1824) 1 T. R. 458." In the same case Tenterden, Ch. J., remarked: "It is essential, whether the subject of occu- pation be the land itself or a part of its profits, that the pauper should have an interest as tenant or occupier, — a possession by mere license without that interest is not enough. If a person were permitted by the owner of a pasture to feed his cow or sheep upon it for a time, without any valuable considera- tion, and without reference to any con- tract between them, but by a mere fact of charity or favor, no settlement would be gained by such a permissive enjoy- ment of the produce of the land." It was considered that the fact of the mas- ter's having given the servant permis- sion to have the milk of a cow, which was to be pastured on the land, should be regarded as betokening a mere act of kindness or favor of the master, not referable to any contract, and that no interest was thereby required by the pauper in the profits of the land. In Rex v. South 'Newton (1830) 10 Barn. & C. 838, where a shepherd was allowed the use of a piece of land while attending to some flocks, Littledale, J., laid it down that a servant could not acquire a settlement by estate unless he was the "substantial owner of the property," and that the arrangement proved did not show the acquisition of such an interest as would give him such a settlement. Lord Tenterden remarked that "all the interest which he took was in his character of servant from year to year." The question whether the occupation was ancillary to the ser- vice was not specifically referred to in the judgments, but the applicability of this test was discussed by counsel. In Lake v. Gamplell (1862) 5 L T. N. S. 582, it was held that a periion who was engaged to superintend some operations on an estate, at a weekly salary and a house to live in, or so much per annum in lieu of it, acquired no estate in the premises. Neither court nor counsel referred to the ques- tion whether the occupation was an- cillary to the service. By one entire contract a master agreed to give his servant f 20 a year, a cottage to live in, and the agistment of one cow for his own services, and the sum of f 28 and the agistment of another cow in consideration of his lodging and maintaining in the cot- tage two of the master's laborers. The annual value of the lands on which the two cows were depastured exceeded £ 10, but the annual value of land sufficient to depasture only one cow would have been less than £10. Held, that the pauper gained a settlement by the right to agist the two cows. Rex v. Cherry Willingham (1823) 1 Barn. & C. 626. Abbott, Ch. J., remarked that whether the consideration be paid in money, or by service, or by any other matter beneficial to the party, was im- material on a question of settlement, provided the yearly value be £ 10. In Rex V. Lakenheath (1823) 1 Barn. & C. 531, the fact of a schoolmaster's having underlet a part of the house oc- cupied by him to the parish was held to be conclusive proof that he enjoyed the house as his own, and not as the servant of the lord or the receiver of the manor upon which it was situated. The six preachers, lay clerks, bell ringers, and other functionaries of the 300 MASTER AND SERVANT. [chap. hi. dence were concerned, have been decided with reference to the con- sideration that the servant's occupation was or was not ancillary to his employment, it would seem to be justifiable to say their actual and essential effect is susceptible of being stated thus: From the circumstance of a servant's having obtained, during the continuance of his service, the right to reside in a house, or to use a piece of land, belonging to his employer, it will be inferred that he has or has not acquired such an interest or estate in the premises themselves or the things produced thereon as will invest him with the privileges and subject him to the burdens of a tenant, according as it may appear that he occupied the premises in his own right, or merely for the more convenient performance of his duties. If the provisions of the agreement were, on the whole, such as to warrant the inference that the servant occupied the premises in the character of a servant, a stipulation that he should not be obliged to leave the premises unless he had notice to quit at a certain date would not of itself convert his occupation into that of a tenant.^ JSTor is the circumstance that the right of occupation terminates with the abro- gation of the contract of service by consent or by the discharge of the servant deemed to be decisive as to the character of the occupa- tion.' But it is undoubtedly a material element for consideration.* 83. — ^to the fact that the privilege of occupation represents a certain amount of pecuniary compensation. — From a logical standpoint, the fact that an employee received either a smaller pecuniary compensa- tion than would otherwise have been given or no pecuniary compen- Cathedral of Canterbury, being paid ing of the justices that the pauper oe- salaries out of the chapter revenues, cupied as servant .was approved, Wil- which were deprived wholly or in part liams, J., remarked that they appeared from lands and tenements situated in "to have thought that the stipulation certain parishes in the same division of as to notice was an indulgence granted, the county, and which were vested in without any view of conferring such an the dean and chapter, have no such interest as would make the pauper a equitable estate in freehold land as will tenant." Rex v. Snape (1837) 6 Ad. entitle them to vote for a county. Ball & El. 278. V. Leins (1861) 11 C. B. N. S. 114, 3 Kerr aim v. People (1875) 60 N. Y. Keane & G. 499, 8 Jur. N. S. 646, 31 221, 19 Am. Rep. 158; People ex rel. L. J. C. P. N. S. 45, 10 Week. Rep. 151, Buhhard v. Annis (1866) 45 Barb. 304. 5 L. T. N. S. 491. Erie, Ch. J., said: 4 See iJerc v. Gheshunt (1818) 1 Barn. "There is a mere agreement to pay them & Aid. 473, § 80, note 1, subd. (g), ante. certain stipends at the audit room in One of the facts which in a case in- the Cathedral precinct. I cannot dis- volving the right of the franchise was tinguish between the case of these func- relied upon as tending to show that the tionaries, and that of any private employee occupied as servant was that, gentleman's servants. The payment is if he had ceased to be employed, he made out of the general funds of the would have had to give up the posses- dean and chapter. There is no vestige sion of the house at once. Fera/r's Case of any equitable interest in land." (1836) Alcock R. C. R. 248, Rogers, 2 In a settlement case where the find- Elections, 81. § 83] SERVICE— OTHER CONTRACIUAL RELATIONS COMPARED. 30J sation at all, on account of his having obtained the privilege of oc- cupying the premises in question, is obviously susceptible either of the construction that the arrangement v?hich relieved the employer altogether of the obligation of paying any compensation in money, or diminished to a certain extent the amount payable, was adopted as a convenient mode of discharging the whole or a part of the serv- ants' wages, or of the construction that the sum which would other- wise have been paid as wages was represented by the rent of the premises.^ Accordingly, we find not only that the courts have ex- plicitly recognized the inconclusive quality of this fact,^ but also iln Bertie v. Beaumont (1812) 16 East, 33, Lord EUenborough remarked in the course of his judgment: "If the man had been in the occupation of it before, as a tenant paying rent, I should have thought that he still continued to occupy it in the same character, if no new agreement had been entered into in that respect, when he was talven into the plaintiff's employ, and that he was only to pay his rent in service instead of money." 2 In a case the facts of which are stated in 80, note 1, subd. (g), ante, it was remarked: "The fact also of having a lower salary in consequence of being allowed a house, though not immaterial, is by no means decisive; for such a fact might exist in a case in which the house was occupied for the purpose of the service, and not in the character of tenant. It may well hap- pen that something in the service which renders it less onerous or more pleasant may cause a reduction of the salary, without being a part of the salary it- self. A master may give lower wages in consequence of lodging his servants in his house, instead of requiring them to find lodgings out of it, without mak- ing them his tenants." Hughes v. Chat- ham (1843) 5 Minn. & G. 54, 79. "While a deduction from wages of a specified sum for the use [of the premises], or the absence of such an arrangement, would be a material cir- cumstance, it would not be in all cases conclusive either way." Kerrains v. People (1875) 60 N. Y. 221, 19 Am. Rep. 158. In Fo« V. Dalby (1874) L. R. 10 C. P. 285, Brett, J., is reported to have said: "The result of those three cases [i. e., of Hughes (1843) 5 Mann. & G. 54, jDo6- son (1843) 5 Mann. & G. 112, and Clarh (1850) 1 C. B. N. S. 23, as stated in § 80, note 1, subds. (g), (m), ante,'] seems to be this: That, where a person, situate like the respondent, is permitted (allowed, if so minded) to occupy premises iy way of reward for his serv- ices, or as part payment, his occupa- tion is that of tenant." This state- ment, however, appears to be somewhat lacking in precision. By consulting the note specified above, it will be seen that all that is really decided by these cases with regard to the significance of the situation described by the words itali- cized is that, if a tribunal empowered to draw inference of fact finds that an em- ployee in that situation occupied the premises as a tenant, a court of re- view should allow the finding to stand, unless there is evidence which goes con- clusively to show that the occupation was ancillary to the service. The real effect of these cases is more correctly indicated by the following passage in a judgment delivered by Cockburn, Ch. J., in a case where it was held that a man who occupies as servant is not a "house- holder" in the sense in which that term is used in 43 Eliz. chap. 2, § 1 : "I think the facts are not sufficiently found; the most essential element in the consideration of that question being omitted, namely, whether this occupa- tion was an occupation for the purpose of the service or not, — ^whether it was necessary to the service or not. If the occupation of the servant be necessary to the service, then I think his occupa- tion is the occupation of the master, al- though the remuneration which the serv- ant receives is the less on account of his having the advantage of premises or a house of the master for the purpose of his habitation. On the other hand, if the occupation be not necessary to the 302 MASTER AND SERVANT. [chap. m. that it is frequently mentioned among the evidential elements, both in cases where the employee was held to have been occupying the premises as a servant, and in cases where his occupation was held to have been that of a tenant.^ service, then the fact that the advantage N. S. 227, 7 Jur. N. S. 948, 30 L. J. C. of the occupation is part of the remuner- P. N. S. 253, it was held that an em- ation for the service will not render that ployee who was allowed, under his- occupation less an occupation qua ten- agreement, to occupy a building rent ant than it would have been if the man free, and to have at the same time the- had paid rent. It may be that it hap- privilege of carrying on an independent pens to be convenient, both to the mas- business, was liable to be turned out. ter and to the servant, that the servant of the premises whenever his employ- requiring some place of habitation shall, ment should come to an end, and that by agreement with the master, instead he could not maintain an action of of receiving so much for his wages out trespass against his employer for break- of which wages he would have to find ing and entering the premises. Willes,, himself a separate habitation, inhabit J., said: "Upon the correct construction some premises of the master as part of of the documents, it appears to me — the remuneration for his services; but and on the facts there is no dispute- it is only an equivalent for wages. He that no interest in the premises even to would be receiving, in the one instance, the extent of a tenancy at will ever did the whole amount of his wages, out of vest in the plaintiff. My reason for those wages he would have to find him- thinking so is that, looking at the whole self a habitatiouj for which he would of the arrangement between the parties,, have to pay rent; in the other, he in- it resulted in an agreement that the habits the premises of his master, and plaintiff was to give his services to the instead of paying the master the rent Swedenborg Society as manager, for the the master deducts it from the wages, purpose of selling the Swedenborg pub- Although, therefore, the relation of mas- lications. The main and principle of ter and servant happens to exist be- the arrangement was that. And the tween the parties by a subordinate ar- part upon which my brother Parry re- rangement, and the servant occupies lies for the purpose of showing that an premises of the master, rent free, as interest in the premises was vested in part of the wages that he would other- the plaintiff was merely accessory to wise receive if he paid the rent, it does that arrangement, and part of the ma- not follow, from the relation of master chinery for carrying it into effect, — a and servant happening to exist between mere mode, in short, of paying the- the parties, that the occupation may not plaintiff in part for his services as man- be an occupation qua tenant, independ- ager. Taking the agreement to have ent of the master. As I said before, the been that the plaintiff should be em- essential element in the determination ployed as manager, to be paid a certain of the question is whether or not the salary in moneys numbered, there could servant simply occupies as part remun- have been no doubt whatever that his. eration for his services, or whether the occupation would have been an occupa- occupation is subservient to and neees- tion merely as a servant of a society, sary to the service." Reg. v. Spurrell Can it make any difference that, as part (1865) L. R. 1 Q. B. 72. of the remuneration for his services, he That this element is essentially non- vpas to have liberty to carry on the re- discriminative in its character is also tail bookselling business on the premises indicated by the remark of Lord Den- on his own account? Clearly not. man in Reg. v. Lynn (1838) 8 Ad. & Whether the whole amount of his sal- El. 379, that "it would be wrong, how- ary was paid to him in money, or part ever, to say that an allowance by the jn money and part in the permission to master, as in this case, in part payment occupy himself and the premises in the for services, made the occupation of a carrying on that limited trade, can, as house auxiliary to the service." it seems to me, make no difference in- 8 (a) Occupation as serva/nt inferred, the construction of the contract be- — In White V. Bayley (1861) 10 C. B. tween the parties." See also the fol- § 84] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 30y 84. Change in the character of the occupation, when inferred. — (See also § 78, note 12, post.) In a few cases a change in the character of the occupation has been held to be inferable from the evidence- lowing cases, the effect of which has been stated In §§ 80-82, ante. Rex v. Kelstem (1816) 5 Maule & S. 136 (part of the proof was that, if the pauper for whom a settlement was claimed had not obtained the privilege of occupying the house, he would have had more wages ) ; Rex V. South 'Newton (1830) 10 Barn. & C. 838 (enjoyment of land "in lieu of wages which would otherwise have been given for his service") ; Bertie v. Beaumont (1812) 16 East, 33 (servant was allowed to occupy a cottage, with less wages on that account) ; Young v. Paton (1808; Sc. Ct. of Sess.) Hume, 582 (rent deducted from wages) ; B.unt V. Golson (1833) 3 Moore & S. 790 (certain sum deducted from wages by way of rent); Rex v. Snape (1837) 6 Ad. & El. 278 (privileges allowed were spoken of as being in part remunera- tion of the services ) ; Doe ex dem Hughes v. Derry (1840) 9 Car. & P. 494 (employee allowed to have the use of house free of rent) ; Dobson v. Jones (1843) 5 Mann. & G. 112 (employee, if he had not lived upon his employer's premises, would have received a certain sum as lodging money) ; Lake v. Gamp- hell (1862) 5 L. T. N. S. 582 (servant liad a house to live in, or so much per annum in lieu of it) ; Fox v. DaVby (1874) L. R. 10 C. P. 285 (certain sum deducted out of pay of employee, in consideration of the privilege of occupa- tion) ; Mead v. Pollock (1901) 99 111. App. 151 (one of the facts in evidence was that the employee whose right to retain possession of the premises was disputed, received, as her compensa- tion, board for herself and daughter) ; People ex rel. Hubbard v. Anmis (1866) 45 Barb. 304) house room and pasture for cows furnished) ; Doyle v. Gibbs (1871) 6 Lans. 180 (use of house and other property given as part of remun- eration) ; MoOee v. Gibson (1840) 1 B. Mon. 105 (the court remarked that the furnishing of the house was "obviously a mode of paying a part of the wages") ; Bowman v. Bradley (1892) 151 Pa. 351, 17 L.R.A. 213, 24 Atl. 1062 (house to live in was furnished as part of the remuneration) ; Beifelfinger v. Fulton (1900) 25 Ind. App. 33, 56 N. E. 688 (occupation allowed as part of remun- eration) ; Eiohengreen v. Appel (1892) 44 111. App. 19 (certain sum was de- ducted from wages as rent of prem- ises) ; Fleming v. Hill (1876) 10 N. S. 268 (servant occupied a house, rent free, as part of his remuneration). (b) Occupation as tenant inferred. — In Hughes v. Chatham (1843) 5 Mann. & C 54 (right of voting involved), one of the elements mentioned was that the employee was "permitted to reside in the house in part remuneration of his services." In another case where liability to the poor rate was the point involved it was remarked that the "occupation . . had nothing to do with their wages, nor was it in any way taken into con- sideration in determining the amount of wages they earned." Smith v. Seg- hill (1875) L. R. 10 Q. B. 422, per Quain, J. In a case where the occupant was held liable for poor rates on the ground that his occupation was "beneficial," Brett, L. J., remarked that the effect of the arrangement as shown was that he was to have quarters as part of his remuneration for his services. Martin V. West Derby Union (1883) 52 L. J. Mag. Cas. N. S. (C. A.) 66. In a case where a man was permitted by certain persons having a right of common, to occupy a tenement of £10 a year, and the case stated by the ses- sions found that the occupation was allowed as a reward for his services, it was held that he had acquired a settlement. Rex v. Mellcridge (1787) 1 T. R. 598. In a settlement case there was held to be a tenancy in a case where the arrangement was construed as 6ne which enabled the employee to pay his rent by allowing a deduction to be made from the wages of his children. Reg. V. Bishopton (1839) 9 Ad. & El. 824. See also O'Gonnor v. Tyndall (1836) 2 Jones (Ir. ) 20 (curate allowed, in lieu of salary, to occupy glebe house and lands) ; Rex v. Lower Hey ford (1830) 1 Barn. & Ad. 75 (premises oc- cupied rent free, as an augmentation of salary). 304 MASTER AND SERVANT. [CHAP. III. Under such circumstances the rights and liabilities arising out of the occupation will of course depend upon whether the controversy relates to the period which preceded, or to the period which followed, the change.^ 85. Occupancy of a dwelling "by virtue of an office, service, or em- ployment." — The following provision is contained in § 3 of the Eng- lish representation of the people act 1884: "Where a man himself inhabits any dwelling house by virtue of any office, service, or em- ployment, and the dwelling house is not inhabited by any person I In a case where the defendant in an action of ejectment occupied a cot- tage as part of an arrangement under which, for a certain sum of money an- nually paid, and for the right to culti- vate for his own profit certain garden ground, he undertook to do gardening work on the estate, it was held (Lord Moncrieff dissenting) that his occu- pancy was that of a tenant, for the fol- lowing reasons: That the terms of occupancy might reasonably be supposed to have undergone a change, when, after having been for some time in the serv- ice of the owner of the estate, he ob- tained the privilege of cultivating the garden for his own benefit, and at his own cost; that, when the new arrange- ment was entered upon, he took over at a valuation a horse and van belong- ing to the landowner, which had been used for conveying produce to the mar- ket; that, when the plaintiffs were looking for a person to take the defend- ant's place, they advertised that the garden was to let; that the plaintiffs' local agent returned the defendant's name as "tenant," and that he was so entered on the valuation roll of the county. Dunbar v. Bruce (1900) 3 So. Sess. Cas. Sth series, 137. A employed B to work for him at $50 per month for a period of eight months, agreeing also to furnish him a house free of charge from the expira- tion of that period to a subsequent date specified. A subsequently permitted B to sublet this house to C. Held, that after eight months B occupied the house as tenant, and not as servant, and that C was liable to B for the rent- Sned- aker v. Powell (1884) 32 Kan. 396, 4 Pac. 869. The court said: "Powell had the right to occupy the house of Burnham to March 1, 1884, free of charge. He was to work for eight months from March 6, 1883. This time expired prior to November 13, 1883. After he moved away, and perhaps quit work, the house belonging to Burnham was not an accessory or aid to the per- formance of Powell's duties as a serv- ant. Under the contract Powell had paid by his labor and services for the use of the house to March 1, 1884; and even if the occupancy of the dwell- ing during his eight months' service was that of a servant, and not as a tenant, yet after he had performed that service, the relation existing between Burnham and Powell was that of land- lord and tenant. . . . "There is no evidence showing or tending to show that after November 13, 1883, the oc- cupancy of the house was for the benefit of Burnham, or as an accessory or aid to the performance of the duties of Powell as a servant. For aught that appears, after the eight months had expired, there was no service to be per- formed by Powell, and yet Powell was entitled to the house for nearly four months thereafter. If the services of Powell had expired, clearly Burnham had no right to enter forcibly and oust him of the possession of the house, for he had expressly agreed with Powell that the latter should have the house until March 1,.]884, although his serv- ices as a servant might expire Novem- ber 6, 1883. As Burnham permitted Powell to transfer his interest or sub- let the house to Snedaker, the latter held under Powell and not under Burn- ham. Snedaker was therefore liable for the rent which it was adjudged he must pay." See also the passage quoted in § 83, note 1, ante, from Lord Ellenborough'a judgment in Bertie v. Beaumont (1812) 16 East, 33. § 85] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 305 under whom such man serves in such office, service, or employ- ment, he shall be deemed, for the purposes of this act and of the representation of the people acts, to be an inhabitant occupier of such dwelling house as a tenant." The construction put upon this provision is shown by the cases collected in the note below. Its ef- fect, when considered with reference to the general doctrine dis- cussd in §§ 79, 80, ante, consists in the fact that, in so far as the qualification for the franchise is concerned, it has done away with the distinction between occupation as a servant and as a tenant.^ lA shop assistant occupied exclusive- by a religious community had, as such, ly, by virtue of his employment, a fur- during the qualifying period, the ex- nished bedroom in a dwelling house elusive use of a separate bedroom in belonging to his employers. The house the college, by virtue of his office or contained other bedrooms similarly in- employment as a teacher in the college, habited by other persons in the same which was managed by a resident prin- employment, and a dining room in cipal, under the supreme control of the which the inmates of the house took superior general of the community, who their meals in common, which were pro- himself lived in Paris. The revising vided for them by their employers. The barrister having found that each bed- inmates had no keys of their bedrooms, room so occupied constituted a 'dwell- The employers did not inhabit the house, ing house' for the purpose of the fran- but they had a resident caretaker who chise, and was not inhabited by the exercised general control over it, and person by whom the teachers were em- a resident servant who was not under ployed, or under whom they served," the order of the inmates, and by whom it was held that the teachers were en- the domestic service requisite for the titled to the franchise. Alexander v. rooms was done. Held, that there was Burke (1887) Ir. L. R. 22 C. L. 443 sufficient inhabitancy of a dwelling (following the above cases), house, by virtue of service, to confer "R. was the foreman of a shop and the franchise, and that this was not place of business in which a number of affected by the joint user of another young men were employed. By virtue part of the house. Strihling v. Balse of that employment he and they lived (1885) L. R. 16 Q. B. Div. 246. in a separate house, in which he had "H., a servant, occupied exclusively, a bedroom that he occupied exclusively, by virtue of his service, a. furnished He and the other employees took their bedroom in a dwelling house belonging meals in a common sitting room, and to his master, and had, in common with the only other resident in the house another young man, the use of a sitting was a servant, paid by the employer room in the same house. All the fur- to attend to the occupants. R. had a niture belonged to the master, who did latchkey for the hall door, and had not reside in the house, but had free also charge of the other ke>s, and it access at all times to every portion of was his duty to see that the doors were it except H.'s bedroom, and had access locked, and the occupants within doors, to that whenever he asked H. for the every night." Held (Fitz Gibbon, L- J., key, which he bad a right to demand dubitante), that R. was entitled to the whenever he chose. The bedrooms were franchise. Easson v. Chambers (1885) made up by a charwoman, who was Ir. L. R. 18 C. L. 68, 69. paid by the master, and did not reside "C, as his employer's coachman, oc- on the premises." Held, on the au- cupied a room over her stable, and was thority of Strihling v. Halse (1885) treated by her as a domestic servant. L. R. 16 Q. B. Div. 246, that H. was The stable was in her yard, and was entitled to the franchise. Hasson v. portion of the curtilage of her dwelling Chambers (1885) Ir. L. R. 18 C. L. 68 house, the house and yard being all (two of the lords justices dissented), included under the same number in "Each teacher in a college conducted the poor rate book. There was a sepa- M. & S. Vol. I.— 20. 306 -MASTER AND SERVA:SIT. [CHAP. ni. 86. Character of occupation viewed as an element determining the correctness of the wording of indictments for burglary. — It lias been laid down that the essential question to be determined in the cases rate gateway and gate from the yard into a back lane, and also a wieket leading from the yard into the lane. The gate and wicket formed the only access to the yard except by going through the employer's house, and were under her control. Another of her serv- ants cleaned out C.'s room." Held, that C. was not entitled to the fran- chise. Hid. "A noncommissioned officer in the service of the Crown claimed the par- liamentary franchise as the inhabitant occupier of a dwelling house in respect of rooms occupied by him as his quar- ters in barracks. He had inhabited the rooms, which consisted of a bedroom and sitting room, during the qualifying period, subject, however, to certain reg- ulations and powers of superior officers incident to military service; such, for instance, as the power of entry by the commanding officer at any time, and by other superior officers for the pur- pose of preserving order, and by cer- tain officers at stated times for the purpose of inspection of the rooms, the power of the commanding officer to for- bid any person to enter or leave the barracks at any time, and the obliga- tion to be in his quarters at a stated hour every evening. The Crown sup- plied certain necessary articles of fur- niture for the rooms, the rest of the furniture being the claimant's own. The rooms formed part of one of the blocks of buildings situate within the barrack inclosure, the remaining rooms in the block being occupied by other noncommissioned officers, some of whom were superior in rank to the claimant, and the senior of whom was bound to preserve order in the block, and would be entitled to enter the claimant's rooms for that purpose. The colonel commanding lived in a house situate within the walls of the barracks. Held, that the claimant was entitled to the franchise ... on the ground that he had inhabited a dwelling house, . . . and that no person under whom he served had inhabited such dwelling house." Atkinson v. Collard (1885) L. E. 16 Q. B. Div. 254. In two other cases reported under the same caption. where votes were claimed by persons in military service, the facts with re- gard to the occupation of the quarters were similar, with the exception that the claimants, noncommissioned officers, had been absent for twenty-one days during the qualifying period, from their quarters, on duty elsewhere, and could not return without leave; but, during such absence, in one case the claimant's wife and family, and in the other his furniture, remained in the quarters which were retained for him. Held, that, it not sufficiently appearing in those cases that there had been any constructive inhabitancy of the rooms by the claimants during the twenty- one days when they were in fact ab- sent, they were not qualified. In Lowry V. Collard, also reported under the same caption, L., a captain, occupied rooms in a block in the same barracks, and a major, his superior officer, had rooms in the same block. It was held that the major occupied his own quarters only, and not constructively the whole block; that he was not a person under whom L. served; and that, therefore, L. was to be deemed a tenant under § 3 of the act. The appellant was an industrial trainer in the employment of poor law guardians, and as part of his salary was allowed to have the exclusive oc- cupation of a sitting room and bedroom in the main building of the workhouse. The guardians reserved another room in the workhouse, which they used as- a board room; the master of the work- house, whom they employed, resided in other rooms of the building. The appellant could not stay out of his rooms after 9 p. M. without the per- mission of the master; the master, how- ever, had no power to suspend or dis- miss him if he did so, but could only report the matter to the guardians. Held, that the appellant was an in- habitant occupier of a dwelling house "by virtue of his employment;" for the workhouse was not in the circumstances inhabited by the guardians, and he did not serve under the master of the work- house so as to disqualify him from § 86] SERVICE— OTHEK CONTRACTUAL RELATIONS COMPARED. 307 under this head is whether the dwelling or room which was the sub- ject of the burglary was or was not inhabited by the owner through voting. Adams v. Ford (1885) L. R. of his own dwelling. Held (by Lord 16 Q. B. Div. 239. Esher, M. R., and Lopes, L. J., Rigby, The claimants were laborers residing L. J., dissenting), that the cubicle was in cottages on the farms of their em- not part of a house separately occupied ployers. They were permitted, but not as a dwelling within the meaning of the required, to live in the cottages on the parliamentary and municipal registni- terms that they were to give up pos- tion act 1878, § 5, and that the appel- session when their employment ceased, lant was therefore not entitled to the and were either charged a reduced rent, franchise in respect of it, under the or had the rent deducted from their representation of the people act 1884, wages. The rates were paid by the § 3. Glutteriuck v. Taylor [1896] 1 employers, and the names of the claim- Q. B. 395. ants appeared in the rate book as oc- The claimants were nuns residing at cupiers. Held, that the facts showed a convent in the town of E. Each of an occupation by the claimants, not by them occupied a separate bedroom, and virtue of service, but as householders, was subject to the control of the lady Marsh v. Estcourt (1889) L. R. 24 Q. superioress, who could at any time B. Div. 147- change the occupants from one room to A policeman had the exclusive occu- another, or arrange to have more than pation, by virtue of his service, of a one occupant of a single room. She cubicle in a dormitory at a police bar- could refuse to allow a nun to receive racks. The cubicle was separated from a visitor in her room, demand admission the rest of the dormitory, which con- to the room, and require the nun to give tained a number of similar cubicles, up the keys. The nuns took their meals by a partition 7 feet high, but there together in the refectory, and occupied was a space of 5 feet between the top in common other general rooms in the of the partition and the ceiling. The convent; they received no remunera- policeman kept the key of his cubicle, tion, and were under no contract of and was entitled to lock it up at any employment. The premises were vested time. Held, that the cubicle was not in the Roman Catholic bishop of Clogh- "part of a house separately occupied er, the parish priest, and the senior as a dwelling" within the parliamentary curate of E., all for the time being, and municipal registration act 1878, upon trust, for the benefit of the Roman § 5, and that the policeman was not Catholic inhabitants of E. The con- entitled to the franchise in respect of vent was governed by rules subject to it. Barnett v. Hickmott [1895] 1 Q. the supreme authority of the bishop. B. 691. Held, that the nuns were not "inhabi- The appellant had, by virtue of his tant occupiers" of separate dwellings, service as a policeman, the exclusive Semble, the nuns did not occupy their occupation of a cubicle in a dormitory room "by virtue of any oflBce, service, at a police station. The cubicle was or employment." Bannon v. Hanrahan separated from the rest of the dormi- (1900) Ir. Q. B- (C.A.) 455, following tory, which contained a number of the Clutterbuck Case (1896) 1 Q. B. similar cubicles, by wooden partitions 395. Holmes, L. J., said: "Unless I which did' reach the ceiling. The at- am bound by authority to decide con- mosphere of the dormitory was common trary to my own opinion, I should be to all the cubicles, and a gaslight was unable to hold that a sister of mercy shared by them in common. A lavatory has an oflBce, service, or employment and mess room were provided for the within the meaning of this section. It policemen who occupied these cubicles, would be an abuse of language to speak in another part of the police station, of her membership of a religious con- The policemen occupying the cubicles gregation as an earthly service or em- were subject to the control of a superior ployment, and although it might be officer, who had power to impose re- termed an office, there is, as far as I strictions upon their use of the cubicles, can see, no person under whom she inconsistent with the rights which a serves. No doubt she is under author- person ordinarily exercises in respect ity, — the authority of the mother au- 308 MASTER AND SERVANT. [chap. rn. his servant.* A consideration of the facts involved in the decisions cited below, in which it was held, either that the dwelling in which a burglary had been committed was properly stated in the indictment, or that it should have been stated as the dwelling, not of the servant who occupied it, but of the master who owned it, indicates that the same conclusion as that which was adopted would have been reached if the test explained in § 79, ante, had been specifically applied.* perior, the authority of the bishop of the diocese, and the supreme authority of the church; but it would seem to me that, except, perhaps, in the case of the motlier superior, this authority is of a judicial character, and bears no analogy to that of a master over a servant. The mother superior probably comes nearer to what the section has in contemplation, but even as to her, I can hardly believe that the legislature intended to describe her as a person under whom a sister of mercy serves." iRex V. Stock (1809) 2 Leach, C. L. 1015. 2 Apartments in the King's palaces or in the houses of noblemen for their stewards and chief servants must be laid as the mansion house of the King or nobleman. 1 Hale, P. C. 556, 557; 2 East, P. C. chap. 15, § 14, p. 500. Where three persons were charged with having broken into the lodgings of one H. at Whitehall Palace, it was held that the indictment should be for breaking the King's mansion, called Whitehall. Eea; v. Williams, 1 Hale, P. C. 522, 2 Russell, Crimes, 6th ed. p. 28. Where a man was indicted for break- ing into a chamber in Somerset House, and the indictment charged it to be the mansion house of the person who lodged in it, it was agreed that the whole house belonged to the Queen mother, and there- fore that the indictment was bad. Rex V. Burgess, J. Kelyng, 27, 2 Russell, Crimes, 6th ed. p. 28. Where a house at Chelsea was broken into, which was used for an office under government, called the Invalid Office, and the rent and taxes of which were paid by government, it was held that the indictment was defective in laying it to be the bouse of a person who occupied the whole of the upper part of it. Bex V. Peyton (1784) 1 Leach, C. L. 324. An indictment for a burglary in the customhouse rightly describes it as the dwelling house of the King, as he oc- cupies it by his servants. Rex v. Jor- dan (1836) 7 Car. & P. 432, per Gaselee, J., and Gurney, B. The prisoner was indicted for break- ing the mansion house of one S. It appeared that the house belonged to the African Company, of which S. was an officer; that he and many other persons, as officers of the company, had separate apartments in the house, and that the apartment of S. was the one which was broken open. It was held tiiat the apartment of S. could not be called his mansion house, because he and the others inhabited the house mere- ly as officers and servants of the com- pany. Rex V. Hwwkins (1704) Post. C. L. 38, 2 Russell, Crimes, 6th ed. p. 28. An indictment for a burglary in the dwelling house of the East India Com- pany was held to be good, the house being inhabited by the servants of that company. Rex v. Picket (1765) 2 East, P. C. chap. 15, § 14, p. 501, 2 Russell, Crimes, 6th ed. p. 28. Where the servant of a partnership had three rooms assigned to him for lodging over his employer's banking roopi, with which these rooms com- municated by a trapdoor and a ladder, it was held that a, burglary committed in the banking room was well laid to be the dwelling house of the partners. Rex V. Stock (1810; Exch. Ch.) 2 Taunt. 339. Lord Ellenborough asked: "Could Stevenson [the servant] have maintained trespass against his em- ployers for entering these rooms? Or, if a man assigns to his coachman the rooms over his stable, does he thereby make him a tenant?" A burglary committed in a banker's shop, in which no person slept, but to which there was a communication by a trapdoor and a ladder from the upper rooms of the house, in which only a § 86] SERVICE— OTHER CONTRACTUAL RELATIONS COMPARED. 309 The same remark may be made with regard to some cases in which the dwelling was held to have been rightly described as that of the weekly workman and his family lived by the permission of the three partners, who were owners of the whole house, may be laid to have been committed in the dwelling house of those partners. Rex V. Stock (1809) 2 Leach, C. L. 1015. Where an indictment charged a bur- glary in breaking into the mansion house of the master, fellows, and scholars of Bennet College, in Cam- bridge, the fact being that the prisoner broke into the buttery of the college, all the judges, upon reference to them, held that it was burglary. Rex v. May- nard (1774) 2 East, P. C. chap. 15, § 14, p. 501, 2 Russell, Crimes, 6th ed. p. 28. Where, upon an indictment for bur- glary in the dwelling house of B., it appeared that B. worked for one W., who did business as a carpenter for the N. R. Company and put him in to take care of the house and flock mills ad- joining, which belonged to the company, and he received no more wages than he did before he lived there, nor had any agreement for any, it was doubted whether the house was properly laid; and it was thought that there might be some difference between this and Rew V. Smith, cited in 7 Car. & P. 150, as here the man was put in by a person who did the work for the company; and it was thought the safest course to consider the indictment as not prop- erly laying it to be the dwelling house of B. Re parties as to the nature and character of the services to be performed and the compensation to be paid, it became by adoption at least an agreement, or written evidence of an agreement, between them, as to the nature and extent of those services on the one side, and the compensation to be paid on the other. If so, it be- came very material on the trial for the jury to know whether they were to consider that agreement in any respect as binding between the parties, be- cause, although an action of indebitatus assum{)sit will lie for services per- formed under a, special agreement, where by the terms of that agreement the services are to be rendered for a money consideration (Cooke v. Mun- stone [1805] 1 Bos. & P. N. R. 354, Bull. N. P. 189; Alcorn v. Westhrooke [1745] 1 Wils. 117), yet it is com- petent for the defendant in such an action to show that the services have not been performed in the manner speci- fied in the agreement." 1 (a) Release of u. servant's claim for damages. — An agreement to com- promise a disputed claim for damages is a good consideration for a contract. See generally 1 Parsons, Contr. p. 467, and 1 Chitty, Contr. p. 46. According- ly it has been held in numerous cases that an employer's promise to give a servant work for a certain period is binding if induced by the servant's waiver of a claim for damages for per- sonal injuries received in the course of his employment, although the serv- ant does not undertake to remain in the service during the specified period, and is under no obligation to do so. In Steams v. Lake Shore & M. S. R. Co. (1897) 112 Mich. 651, 71 N.. W. 148, where the servant had been given employment, which was to be at his option for life or during his ability to work, the contention of counsel that the contract was not mutual was tlius discussed by the court: "Under the proofs, a valuable consideration was paid to the defendant for the con- ditional agreement which the defend- ant saw fit to enter into, leaving it optional with the plaintiff to continue in defendant's employ, — the engage- ment of the defendant resting not upon the consideration of any promise by the plaintiflF, but upon a consideration actually paid in hand at the time of the engagement, namely, the com- promise of the disputed claim." In an earlier case in the same state it kad been laid down generally that an agreement by the servant to release the employer from liability for dam- ages is a sufficient consideration"to sup- port a promise to furnish steady em- ployment. Hotis V. Brush Electric Light Co. (1889) 75 Mich. 550, 42 N. W. 965. For a case involving a very similar contract, but turning upon the em- ployer's right to discharge the serv- ant for good cause, see Brighton v. Lake Shore & M. S. R. Co. (1894) 103 Mich. 420, 61 N. W. 550. In Pennsylvania Co. v. DoIom (1892) 6 Ind. App. 109, 51 Am. St. Rep. 289, 32 N. E. 802 (agreement by a railroad company to give an injured employee "steady and permanent employment," in consideration of his releasing the company from further liability for his injuries ) , the defendant's counsel argued that in every contract of hiring there must be a twofold obligation, — on the part of the employer, to hire, and on the part of the employee, to serve, — and that these correlative obligations must bind both parties for a definite time. He also insisted that an em- ^ 91] FORMATION AND VALIDITY OF CONTRACT. 333 ployment for an indefinite time is an ■employment at the will of the parties, and therefore, when the term of service is left to the discretion of either, it is at the will of either. To this argu- ment the court replied as follows: "These propositions are doubtless cor- rect as abstract statements of law, and -whatever force they might have when -applied to an ordinary case of hire, they can have no application where the consideration for the employment is paid, partially at least, as it was here, in advance. Suppose that, instead of the release executed by the appellee, he had paid the appellant $500 in cash, in consideration of which the latter had agreed to employ the former as a flagman in its yards, during his life, at the rate of $2 per day. Could it be held that the want of mutuality would entitle the appellant to keep the $500, and after a few months of employment and without any fault on his part, dis- charge him? We think not. There is no want of mutuality in such a case. The appellee has parted with value and the appellant owes him a reciprocal obligation, and that is to furnish him ■work at stated wages to enable him to make a living, or partly so. There is no difference in principle between the case supposed and the one in hand. Here the appellee has relinquished a. claim against the appellant that had a certain value. He has placed it be- yond his power to recover upon that claim, and the appellant has received a corresponding benefit. The appellant, recognizing his obligation in the prem- ises, gives the appellee employment for a short time, and then, without the lat- ter's fault, and without any just cause, and in violation of the terms of its agreement, discharges him and leaves him in his crippled condition to buffet with the world as best he can. This is, in our estimation, a flagrant breach of contract, and courts exist to a poor purpose if they can give no redress for such a wrong." In Garter White Lead Co. v. Kinlin (1896) 47 Neb. 409, 66 N. W. 536, where the contract was one for the em- ployment of the servant for certain wages as long as the employer's works were kept running, or until the servant should see fit to quit, the court declined to hold "that a contract lacks mutuality merely because every obligation of the one party is not met by an equivalent counter-obligation of the other," and said that, "if the consideration existed, the company might well bind itself to furnish the plaintiff employment for a definite period, or an indefinite period, not depending on its own acts, and at the same time give the plaintiff the option of releasing it from that obliga- tion by an earlier determination, if he so desired." By releasing his claim the employee pays in advance for an optional con- tract, and, having done this, he has a right to have it remain optional with him how long he will continue to work for the employer, while the latter owes him a reciprocal duty to furnish him with work so long as he is able to perform it. Smith v. St. Paul & D. R. Co. (1895) 60 Minn. 330, 62 N. W. 392 (agreement to give work as long as the servant is able to perform it). To the same effect see East Line & R. River R. Co. v. Scott (1888) 72 Tex. 70, 13 Am. St. Rep. 758, 10 S. W. 99 ( agreement to give servant work for so long a period as he may desire) ; Rhoades v. Chesapeake & 0. R. Co. (1901) 49 W. Va. 494, 55 L.R.A. 170, 87 Am. St. Rep. 826, 39 S. E. 209 (agreement to give work so long as the servant gives satisfaction) ; Lahc Erie & W. R. Co. v. Tierney (1905) 29 Ohio C. C. 83. judgment affirmed in (1906) 75 Ohio St. 565, 80 N. E. 1128 (memo.) (similar agreement). A claim for damages is a sufficient consideration for an agreement to em- ploy. Kelly V. Peter & B. Stone Go. (1908) 130 Ky. 530, 113 S. W. 486. Where the master agrees to employ plaintiff as a, servant in a certain ca- pacity so long as his services are satis- factory, and the servant releases the employer from all liability for damages for an injury sustained by him in the course of his work, the contract is not void for want of consideration, since the promises are mutual and binding. Sax V. Detroit, O. E. & M. R. Go. (1900) 125 Mich. 252, 84 Am. St. Rep. 572, 84 N. W. 314. A written contract recited an injury suffered by a servant; his confession, three times repeated, that it was caused by his own carelessness, and nothing else; his former faithfulness in the discharge of the duties committed to him; his release of further claim against the employer. It then declared that, in consideration of all this, the 334 MASTER AND SERVANT. [chap, iv, employer promised to pay the servant such release and receipt, and the plain- absolutely $10 per week for a period tifi is not shown to have promised to of two months following the injury, work for the master for life, the al- and thereafter to give him employment leged contract, being wholly without for such time and such wages as might consideration, cannot be enforced, be agreeable to the employer, with a Jackowski v. Illinois Steel Co. (1899) further proviso that the servant might 103 Wis. 448, 79 N. W. 757. be dismissed from employment after the (b) Other valid considerations. — A lapse of said two months, if the em- binding contract is constituted where ployer saw fit. Held, that the contract a corporation agrees to retain a serv- was in all respects complete and en- ant in its employ so long as he owns forceable after it had been delivered and holds a certain amount of its to the servant. Boffffs v. Pacific Steam stock, and he agrees to own and hold Laundry Go. (1901) 86 Mo. App. 616. the stock as long as he remains in tne In the same case it was shown that, employment. In such a case the re- by a subsequent oral agreement, the quirement that the servant shall own servant undertook not to sue the em- and continue to hold the stock, as a ployer, and surrendered the former condition to his retention by the em- written contract itself into the hands ployer, is presumptively for the benefit of the latter, which, in exchange for of the latter, and a detriment to the these considerations, agreed to pay a former, and the consideration for the stated sum in cash to the servant, and agreement is suflicient and mutual, al- to employ him for a definite time there- though the term of service may be after at a fixed rate of wages, — an obli- terminated by the employer's cessation gation which the employer had not as- of business or by the servant's sale of sumed under the former written con- the stock. McMulla/n v. Dickinson Go. tract. Held, that these considerations (1896) 63 Minn. 405, 409, 65 N. W. were amply suflScient to support the 601, 663. mutual undertakings assumed by the Where the promise of a railway parties in the new contract entered into company to appoint a certain person by them as a substitute for their for- its agent at a specified station, and to mer written engagement. retain him in that position as long as In cases of this class the absence of he faithfully discharges the duties of an express promise by the employee to the position, is one of several stipula- serve is a matter of no importance, tions in a written contract which re- except as it may bear on the question cites that they are made in considera- whether the contract was sufficiently tion of a promise by the appointee to certain. East Line d B. River B. Go. convey to the company a right of way v. Scott (1888) 72 Tex. 70, 13 Am. through his land, the promise of the St. Rep. 758, 10 S. W. 99 (charge de- company is supported by a sufficient daring the contract to be nonenforee- consideration, although there is no able on the ground of want of mutual- promise on the part of the appointee ity, held to have been properly refused to accept the agency. Evans v. Cin- in a case where the agreement sued on cinnati, 8. & M. B. Co. (1884) 78 Ala. was that the defendant was to employ 341. , the plaintiff for whatever length of If one person contracted to serve an- time the latter might desire to retain other for a certain sum of money, and the employment). at the same time stipulated that, if The binding quality of the contract he should die before the expiration of is not dependent upon the ability of the term of service, he should receive the servant to show that the claim for nothing for his services, this would be damages which he released was a valid a good contract founded upon a suffi- one. Carter White Lead Go. v. Kinlin cient consideration, and would be legal- (1896) 47 Neb. 409, 66 N. W. 536. ly binding upon both parties; and if But where it appears that the eon- the party who was to render the serv- tract by which the master is alleged ices should die before the expiration to have agreed to employ the servant of the term, his legal representatives for life was a distinct understanding, would not be entitled to recover any- executed after the release and receipt thing. Such a, contract of service would had been given, and that the considera- furnish a good consideration for a tion therefor was not wholly or in part promissory note given by the hirer. § 92] FORMATION VLND VALIDITY OF CONTRACT. 335 92. Uncertainty and indefiniteness.— a. As to the date when the service is to begin. — A contract will not be declared nonenforceable on the ground that the date when the services are to begin is not expressly stated, if that date is susceptible of being fixed by extrane- ous evidence.^ i. As to duration. — A contract of hiring is not incapable of en- forcement on the ground of indefiniteness, merely because the precise number of days, months, or years that the service is to continue is not specified.^ But it is clear that, in any jurisdiction where the Pitts V. Allen (1883) 72 Ga. 69 (head- 8 By the terms of an agreement thfr note of court). plaintiflf was employed as assistant Where A, wishing to furnish a board- manager upon a stated yearly salary, ing house for his employees, agrees to payable in monthly instalments, said give B employment if he will lease his employment to continue so long as the- house to C for that purpose, the lease business of the defendant corporation of the house to C is a good considera- should be continued, provided plaintiff tion for A's promise to employ B. properly and efiBciently discharged his Nicholas v. Mclntire (1892) 44 N. Y. duties, and only so long as he should S. R. 314, 21 N. Y. Supp. 67. own and hold in his own name 50' 1 Where a teacher's contract employs shares of capital stock, fully paid up,, her for a given time at a given price, in the defendant corporation. Held, but fails to state when services shall that the period of employment was for begin, the law implies the services were such time as plaintiff continued to own to be rendered within the school year, and hold the stock shares, not exceeding and the services should begin when the period during which the corporate the board fixed the opening of the business was being transacted, and was term. Crabb v. School Dist. No. 1 fixed with sufficient definiteness. Mc- (1902) 93 Mo. App. 254. Mullan v. Dickinson Co. (1896) 63- The fact that a contract of employ- Minn. 405, 65 N. W. 601, 663. ment stating that the services shall A contract by a railroad company to- commence not later than a certain date give an injured employee "steady and also states that employment may be permanent" employment, as long as he given at an earlier date, but that the is able, ready, and willing to perform employer will not bind Himself to do such services as the company may de- so, does not render the contract so mand of him, is not so vague and in- indefinite as to the time that the em- definite as to time that it cannot be ployer can avoid the obligation alto- enforced. The provision relative to the gether by not specifying a day. Troy ability, readiness, and willingness of Fertilizer Co. v. Logcm (1893) 96 Ala. the servant supplies a definite standard 619, 12 So. 712. to which the duration of the contract Where the complainant in an action may be referred. Petmsylvania Go. v. to recover for an alleged breach of eon- Dolan (1892) 6 Ind. App. 109, 51 Am. tract alleged that the parties agreed St. Rep. 289, 32 N. E. 802. that plaintiff should serve the defend- A like rule prevails where the con- ant in a certain capacity, at certain tract is limited solely by the volition, wages, "for the time the work under- of the servant, or the continuance of taken by the defendant at M. should the master's business. Thus, a con- last," and that defendant refused to tract by which a company, in considera- permit plaintiff to enter on his duties, tion of the release of a claim against the contract set out was held not to be it for damages, agrees to employ the- so uncertain either as to the commence- claimant at specified wages so long as ment or duration of service as to render the company's works are running, or it void. Prescott v. Puget Sound Bridge until the latter shall see fit to quit, d Dredging Co. (1903) 31 Wash. 177, is not void for uncertainty. Carter 71 Pac. 772. White Lead Co. v. Kinlin (1896) 4T 336 MASTER AND SERVANT. [CHAP. rv. doctrine that a hiring without mention of time constitutes a hiring for a year has heen discarded (see § 159, post), no continuing obli- gation is created by a contract, unless the period which it covers is either expressly stated, or is ascertainable with reference to a stand- ard supplied by the contract itself.' If it is agreed that the servant shall have the right of defining the duration of his employment, he Neb. 409, 66 N. W. 536, relying on Pennsjflvama Co. v. Dolan, av/pra. Where a servant who has received a permanent injury in the course of his employment releases his claim for damages in consideration of an agree- ment by his master to furnish him with work so long as he gives satisfaction to the foreman or superintendent by whom he is controlled, at specified wages, there is no lack of certainty or mutuality in the agreement, as all its terms are settled. Rhoades v. Chesa^ peake & 0. R. Co. (1001) 49 W. Va. 494, 55 L.R.A. 170, 87 Am. St. Rep. S26, 39 S. E. 209. A contract to give a servant steady and permanent employment as long as he shall do the work properly is not indefinite aa to its term, for the natural implication is that the employment is to last during the servant's life, and the law treats as certain anything which depends on a certain event. Bwr- rington v. Kansas City Cable R. Co. (1894) 60 Mo. App. 223. There the ■court suggested that possibly a con- tract for steady and permanent em- ployment might be construed as a hiring for an indefinite time, and there- fore determinable at the will of either party, if the sole consideration of the employment was the services rendered during its currency, but said that, even if that should be granted, another principle must prevail where the con- sideration is not only the work done, but the release of a cause of action against the employer. A contract in which one person con- tracted to pay another specified wages "while he was disabled" by reason of certain injuries received, was sufficient- ly definite as to time of performance. If the latter's injuries resulted in per- manent disability, the duration of the contract was for his life. Pierce v. Tennessee Coal, Iron & R. Co. (1895) 110 Ala. 533, 19 So. 22. A sufficiently definite agreement to be enforced under the master and serv- ant act of 1861 was held to have been constituted, where a laborer agreed with a sugar refining company to serve at its mill, "for the period of the crushing season from the date of the arrival at the mill." Davis v. Lawrence (1910) Queensland St. Rep. 98. An employer's proposal to start an employee at $2,200 for the first year, and the latter's agreement "to try the proposition," constitute a contract of employment for at least one year. Louis Lipp Co. V. Fennell (1909) 31 Ohio C. C. 567. An agreement to give a person per- manent employment at stipulated wages if he would give up his business and enter the service of the other party in the same occupation is not too in- definite to be capable of enforcement, when properly construed as a contract to employ him so long as the employer was engaged in that business and had work which the employee could do and desired to do, and was able to do satis- factorily. Carnig v. Carr (1897) 167 Mass. 544, 35 L.R.A. 512, 57 Am. St. Rep. 488, 46 N. E. 117. 3 A written contract by which defend- ant employed plaintiff to manage its surgical instrument department, and agreed to pay him 25 per cent of the net profits derived therefrom after all expenses of operating had been deduct- ed, and, in case of credit losses, they should be borne by plaintiff and defend- ant in the same proportion, and that the contract should continue "until mutually agreed void," is unenforceable for uncertainty as to the time of em- ployment. Faulkner v. Des Moines Drug Co. (1902) 117 Iowa, 120, 90 N. W. 585. The court said: "It is not conceivable that in entering into the contract in suit plaintiff supposed he was entering a service from which nothing but death or the consent of the defendant could relieve him. It is equally incredible that defendant sup- posed or understood that it was there- by taking into its employment a per- 92] FORMATION AND VALIDITY OF CONTKAGT. 337 cannot, it seems, recover damages as for a wrongful dismissal, unless he has actually exercised that right by making an explicit declara- tion of his wish before the action is brought.* Bon whom it was bound to retain in its service until such time as that person should consent to his own discharge. If we should hold the contract enforce- able according to its literal terms, the defendant could never abandon or sell or dispose of its business without plain- tiff's consent, even though its prosecu- tion entailed certain loss or bank- ruptcy; and, on the other hand, if the surgical supply department of the busi- ness should return no profit, and thus leave plaintiff without any compensa- tion whatever for his labor, defendant could nevertheless insist that he go on with the contract to the end of his life." Where A agreed to undertake the duties of manager for B, an actor, at a specified weekly salary for a season, the duration of which was to be de- termined by a subsequent agreement, but no such agreement was made, the contract was held to he too uncertain to enforce, in the absence of proof of a custom defining the length of a season. Mcintosh V. Miner (1899) 37 App. Div. 483, 55 N. Y. Supp. 1074. An agreement by which miners are to work at mining the ore in a specified pit for $1.50 per ton, "as long as we can make it pay," is not of such a cliaracter as to entitle them to damages for its breach. Davie v. Lvmberman' s Min. Go. (1892) 93 Mich. 491, 24 L.R.A. 357, 53 N. W. 625. Where the duties of an employee of a railway company, as defined by the con- tract, require him "to travel and work for the road, to induce capitalists to make investments along its line, and induce excursionists to travel over the road," either party may terminate the contract at will. The rule that con- tracts are to be performed in a reason- able time, when no particular time is specified, is not applicable under such circumstances. Howard v. East Ten- nessee, V. & G. B. Go. (1890) 91 Ala. 268, 8 So. 868. 4 In Bolles v. Sachs (1887) 37 Minn. 315, 33 N. W. 862, the court, in discuss- ing the objection that the contract was not sufficiently certain regarding the period of service to enable the serv- ant to recover damages for its breach, M. & S. Vol. I.— 22. said: "It is self-evident that courts can neither specifically enforce contracts, nor award substantial damages for their breach, when they are wanting in certainty. Damages cannot be meas- ured for the breach of an ob- ligation, when the nature or extent of the obligation is unknown, being neither certain nor capable of being made cer- tain. It does not appear that the plain- tiff ever determined that he would con- tinue in this business for any definite period, or that he declared his election in this respect. Had he not been dis- charged, he might at will, at any time after the making of the contract, have himself abandoned the employment be- cause of dissatisfaction in respect to the profits, or for any other reason. Since the period of his service was thus left to depend upon his mere volition, and never became fixed, it cannot be as- sumed that he would have voluntarily remained in this employment up to the time of the trial, — ^more than a year, — so as to justify an assessment of dam- ages upon that theory." In East Line & R. River R. Co. v. Scott (1888) 72 Tex. 70, 75, 13 Am. St. Eep. 758, 10 S. W. 99, the court, in discussing the effect of a contract by which, in consideration of being re- leased by an injured servant from a claim for damages, a corporation agreed to employ him for as long a period as he should desire, conceded "that the agreement made conferred on appellee the right to fix the period for which he would serve; and that if he had done so when he demanded employ- ment he would be entitled to recover for the breach of the contract, which would have been thus completed and made certain by the exercise and ex- pression of his will, which, for a valua- ble consideration paid, he had acquired the right to exercise for this very pur- pose." It was accordingly held that, as the period for which the corporation was to give employment "was dependent on the will of appellee to be exercised in the future, there was no contract binding appellant to employ appellee for any fixed period; the minds of the par- ties had not met as to a material ele- ment of the contract to which the agree- 338 MASTER AND SERVAlsT. [chap. IV. c. As to the services to he performed. — An express contract of service is not binding unless the written or spoken words by which it is evidenced indicate with reasonable precision the character of the work which is to be performed by the servant.^ ment looked, — the period of service," and that it was error to refuse to charge the jury that, as there was no pleading nor proof that the contract was for service for any definite period of time, and no evidence that plaintiff ever offered to be bound to work for any definite period of time, the contract was too indefinite, and plaintiff cannot re- cover damages for being dismissed. East Line & R. River R. Co. v. Scott (1888) 72 Tex. 70, 75, 13 Am. St. Eep. 758, 10 S. W. 99. The necessary consequence of the doc- trine enounced in these cases seems to be that the servant is, in such a case, liable to dismissal immediately after he begins work, or even that he cannot complain if he is not received into the employment at all. A construction of the contract which leaves the master at liberty to render it quite illusory is difficult to accept. It is submitted that the plain meaning of such stipulations' as are involved in these cases is that the master submits to be bound by the con- tract as long as the servant chooses to fill the promised position, and that, for the purpose of determining whether the contract has been broken by the dis- missal of the servant, and what dam- ages he is entitled to, it should be as- sumed that the servant would have elected to remain in the employment. 5 "The contract itself ought either to specify the amount of service to be ren- dered, or at least ought to afford the means of ascertaining or defining with some sort of precision the consideration which was to be given for the compen- sation. If this is not done, the law has no standard by which to measure the performance by the claimant of her part of the contract. Wliere such is the case, the alleged contract is hopelessly uncertain, and cannot be enforced." ^Talls's Appeal (1886) 111 Pa. 460, 56 Am. Rep. 288, 5 Atl. 220. An agreement by a railway company to employ a disabled servant the rest of his life at $1.50 per day is incapa- ble of enforcement. Ogden v. Philadel- pUa & W. G. Traction Co. (1902) 202 Pa. 480, 52 Atl. 9. In Parsons v. Trask (1856) 7 Gray, 473, 66 Am. Dec. 502, it was held that a contract made in a foreign country by an adult inhabitant thereof, with a citizen of the United States, to serve him, "his executors and assigns," for five years, without fixing the nature and extent of the services, or the place of their performance, in consideration of $10 and of being fed, clothed, and lodged, and, at the expiration of the contract, being paid "the customary free lom dues," even if valid where it is made, gives no right to the servant's services in Massachusetts. The court said: "The contract is uncertain and indefinite as to the nature and extent of the service to be performed. . . . It is nowhere said that the service is to be domestic service, or that she is to be a house servant. If any inference could be drawn from the plaintiff's position and business, that he would be likely to require such service, and none other, the inference would be controlled by the consideration that the service is not lim- ited to the plaintiff or his family. Not only is the contract wholly indefinite as to the nature of the service to be per- formed, but it is equally uncertain as to the place of performance. It cannot be limited to the place of the plaintiff's domicil. The nature of the service does not so restrict it. The service is not confined to the plaintiff. She is to serve him, or 'his executors or assigns.' If it be said that, because the master is described as a citizen of the United States, the place of performance would be within the United States, with so many states, differing so widely in their local laws and domestic pol- icy, and especially upon this subject- matter, the contract gains little certain- ty either as to the nature of the serv- ice, or the place of its performance. Again, the contract is uncertain and in- definite as to the compensation to be paid for the labor of the servant. There is no stipulation for her passage to this country. Upon what is meant by the giving 'of customary freedom dues,' no light or aid is furnished us. As applied to a minor, in an indenture of appren- § 92] FORMATION AND VALIDITY OF CONTRACT. 339 d. As to amount of remuneration. — The existence of an express contract of employment may sometimes be negatived on the ground of uncertainty in respect of the amount of the remuneration to be paid.* But the mere fact that the given agreement is in this ticeship, its meaning might possibly be ascertained by reference to an existing custom or provision of statute upon the subject. But this was a contract with an adult; and if, as the plaintiff as- sumes, the contract is to be performed in this commonwealth, and to be inter- preted by our laws, the provision is without meaning and senseless. It looks apparently to a state of things which, under our laws, cannot exist, a term of servitude, upon the expiration of which 'freedom dues' are to be paid." A contract of employment of an engi- neer "for service on steamer" which the employer may assign, is not indefinite or uncertain in respect to the steamer, but becomes clear and definite when the assignment is made. Campbell v. Jim- eties (1894) 7 Misc. (C. P.) 77, 57 N. Y. S. R. 480, 27 N. Y. Supp. 351, re- versing (1893) 56 N. Y. S. R. 900, 25 N. Y. Supp. 1143. In Schauh v. Arc Welding Go. ( 1900 ) 123 Mich. 487, 82 N. W. 235, a contract for the employment of a "general sup- erintendent" was held to be enforceable, the court being of opinion that the par- ties must be deemed to have used it in the sense in which it would be under- stood by persons engaged in the kind of business to which the contract re- lated. Under a statute providing that "any person who has attained the age of twenty years may bind himself or her- self, by written contract, to serve an- other in any art, trade, profession, or other employment, for any term not exceeding five years," a contract "to perform such labor for C. in the dis- trict of K. as the party of the first part shall direct," is not invalid as not being sufficiently specific regarding place and the labor to be performed. Coolidge v. Puaaiki (1877) 3 Haw. 810. 6 In Bluemner v. Garvin ( 1907 ) 120 App. Div. 29, 104 N. Y. Supp. 1009, defendant desired to obtain an appoint- ment as architect for a public building in New York, but, being unable to pre- pare plans acceptable to the municipal art commission, requested plaintiflF to make a successful plan, and agreed, if he did, and if defendant should get the appointment, to give plaintiff a fair share of his commissions. The contract did not fix the amount of the commis- sions, nor whether they should be the gross or net commissions, nor what would constitute a fair division. Plain- tiff drew plans, which were accepted, after which defendant repudiated the arrangement. Held, that the terms of the agreement were too vague to consti- tute an express contract for services. A contract to give another employ- ment, for a specified length of time, for the doing of work of a variant charac- ter, at a price to be agreed on from time to time, though the minimum price is stated, is not a binding contract, except in so far as the parties shall there- under agree from time to time on the price. W. J. Oliver Gonstr. Go. v. Reed- er (1910) 7 Ga. App. 276, 66 S. E. 955. An agreement whereby the servant was to have a commission upon profits, the method of computing the profits "to be agreed upon later," is unenforceable because of uncertainty, although the agreement provided for a fixed salary in addition to the commission. Petze v. Morse Dry Dock & Repair Go. (1908) 125 App. Div. 267, 109 N. Y. Supp. 328, affirmed in (1909) 195 N. Y. 584, 89 N. E. 1110. A contract of employment made by a corporation, whereby the employee was to receive, in addition to a fixed sal' ary, a certain percentage of the net profits after allowing for the annual dividend, is not invalid, on the ground of uncertainty, because the net profits could not be ascertained until the end of the year, nor because it was uncertain whether there would be any net profits, nor because the corporation failed to de- clare a dividend. Fraker v. A. G. Hyde & Sons (1909) 135 App. Div. 64, 119 N. Y. Supp. 879. A contract of employment for three years at a weekly salary of "not less" than $45 a week is not void for in- definiteness, since the employer is bound to pay $45 per week. Rosl)a<:h v. Sack- ett & W. Go. (1909) 134 App. Div. 130, 118 N. Y. Supp. 846. A mere agreement on the part of the decedent to leave the plaintiff a legacy 340 MASTER AND SERVANT. [chap. IV. regard open to more than one construction does not render it void." 93. Fraud as an invalidating element. — The purport of the cases in which fraud has been relied upon as a ground for rescinding contracts of service is stated in the subjoined note.^ It has been held that the rule by virtue of which the concealment of material facts vitiates a the interest da which would be sufficient to support the plaintiff for life is not a valid contract of service, inasmuch as the componsation is indefinite. Cald- Well V. Turner (1911) 129 La. 19, 55 So. 695. '' Wadii V. Robert Arthur Theatres Co. (1907) 24 Times L. R. 77. There the plaintiff, an actor, was engaged for the principal part in a pantomime at a salary of £130 per week for the first year, £140 a week for the second year, and £150 a week for the third year, op- tion being, in consideration of the en- gagement, reserved to the employer, of retaining his services "on the same terms and conditions as set forth in this agreement for the following pantomime season." In an action brought to have the option declared void, it was held that the contract meant that, if the option was exercised, the weekly salary payable would be that which was pay- able for the third year, and that the contract was not void for uncertainty. 1 The suppression by an applicant for a position, of the fact that he is carry- ing on a business similar to that of the employer, is a material concealment which will vitiate the contract and jus- tify the employer in terminating it. Robertson v. Jenner ( 1867 ) 15 L. T. N. S. 514, per Bramwell, B. The fact that a salesman concealed, at the time when he was hired the cir- cumstance that he had been dismissed from the employment of a former mas- ter as a result of a charge of embezzle- ment, was held to be a valid ground of dismissal. Jarret v. Morgan (1881) 12 Rev. Leg. (Monti. S. C.) 58. A master who hires a servant on the faith of his representations as to his capacity in that line of employment may terminate the contract before the expiration of the term, if such repre- sentations are untrue. Anstee v. Ober (1887) 26 Mo. App. 665; Jones v. Trin- ity Parish (1883) 19 Fed. 59; Ericin V. HollovMy (1896) 69 111. App. 458 (a man applying for position as travel- er exaggerated amount of sales previ- ously made by him ) . The fact that plaintiff, to induce his employment by defendant, falsely repre- sented that he had an office located and furnished equal to that of one of de- fendant's competitors, was held to fur- nish a sufficient ground for rescinding the contract. Hughes v. Toledo Scale & Cash Register Co. (1905) 112 Mo. App. 91, 86 8. W. 895. One who employs another "perma- nently" on a salary, to increase with the business, on the latter's representations that he can bring the employer a cer- tain amount of trade, and, on the em- ployee's failure to do so, offers to give him a commission on all business he shall bring in, is justified in dismissing him on his refusal to accept such offer. Lm-d v. Goldberg (1889) 81 Cal. 596, 15 Am. St. Rep. 82, 22 Pac. 1126. In BlaAr v. Lafivn, (1879) 127 Mass. 518, evidence offered to show that the plaintiff had falsely represented that he was a first-rate salesman" was held to have been rightly rejected as immate- rial. "Such a general statement, by way of self-commendation, unaccom- panied by affirmation of any specific fact, and without evidence that the words used had acquired a precise and definite meaning among men of business, was not a representation of fact on which the defendants had a right to rely." Where, in an action for a servant's wrongful discharge, defendant pleaded that the contract of hiring was induced by plaintiff's representations and prom- ises that business would be increased, evidence as to such promises was held to have been properly excluded, since a promise is in no sense a representation which could in any manner affect the validity of the contract. Estes y. Des- noyers Shoe Co. (1900) 155 Mo. 577, 56 S. W. 316. A person who hires a married woman, in reliance upon her statement that she is single, is entitled to dismiss her when 93] FORMATION AND VALIDITY OF CONTRACT. 341 contract of insurance is not applicable to a contract of employment, and that, to avoid the latter description of contract on the ground of concealment, something in the nature of fraud must be shown.^ he discovers that her statement was un- true. Pwrks V. Tolman (1905) 113 Mo. App. 14, 87 S. W. 576. A position procured upon condition that the employee will remain unmar- ried during a certain period may be rescinded upon failure to perform the condition. Guilford School Twp. v. Rob- erts (1902) 28 Ind. App. 355, 62 N. E. 711. In an old case decided in 1633, it was laid down that "if a woman, being with child, procureth herself to be retained with a master who knoweth nothing thereof, this is a good cause to discharge her from his service." See Dalton, Country Justice, 1697 ed. p. 165. Where the employee at the time when he enters into the contract does not mis- represent any existing fact, but merely entertains the intention of departing from it, and this intention is never car- ried in effect, the contract is not viti- ated. Hemingway v. Hamilton (1838) 4 Mees. & W. 115. A plaintiff who makes out his whole case on a valid verbal contract, without having to prove any fact showing any fraud or illegality, is entitled to suc- ceed in his action on that contract. It is no defense to that action, that evi- dence is adduced which shows that, after the contract was entered into, the plain- tiff agreed to sign and did sign arti- cles, not as a memorandum of a con- tract, but as a piece of machinery to be used for the purpose of deceiving others as to the nature and terms of the actual contract between the plaintiff and the defendant. Smith v. Haughn ( 1905 ) 38 Nov. Sc. 153. Russell, J., said : "It is the defendant that finds himself hampered in his defense by the fact that it in- volves an illegality to which he was a party. He must fail in that defense for the same reason that would cause the plaintiff to fail in his action if he could not prove his case without ex- posing an illegal transaction to which he was a party. The defendant has to admit that he was a deceiver. His de- fense, at the best, consists in proving that the plaintiff was as unconscien- tious as he was himself. But it never was a defense to an action on a con- tract to prove that the plaintiff was a wicked person." In one case the court doubted wheth- er equity would decree the cancelation of a contract of hiring on the ground that the employer had been induced to enter into it by the fraudulent misrep- resentations of the employee. The rea- son assigned for the doubt was that fraud was always a valid defense to an action at law. Barker v. Knioker- locker L. Ins. Co. (18G9) 24 Wis. 630. In this case plaintiff was shown to have made to defendant, before his employ- ment by the latter, a false representa- tion as to the amount of business he had procured for a previous employer, but there was also evidence that he had submitted to defendant's agent the book of accounts on which this representa- tion was based, and they had gone over it together. Held, tliat the jury would be at libefty to infer that defendant did not act on plaintiff's representation, but on the examination made by its own agent. By the Codes of two American states, it is provided: "A master may discharge any servant, other than an apprentice, whether engaged for a fixed term or not: . . . (2) If, being employed about the person of the master, or in a confidential position, the master dis- covers that he has been guilty of mis- conduct, before or after the commence- ment of his service, of such a nature that, if the master had known or con- templated it, he would not have so em- ployed him." Cal. Civ. Code, § 2015; S. D. Civ. Code, § 4975. By the Alabama Code of 1896, § 4730, it is provided that any person who, with intent to defraud his employer, enters into a contract for the performance of any act, and thereby obtains personal property "from such employer," and with like intent, and without refund- ing the property, refuses, without just cause, to perform the act, shall be pun- ished. An indictment under this pro- vision was held fatally defective for failing to allege that the property was obtained from the emplover. Hilliard V. State (1902) 137 Ala. 89, 34 So. 848. 2 Accordingly, in a case where the de- 342 MASTER AND SERVANT. [chap. IV. 93a. Invalid contracts of apprenticeship, relation of master and serv- ant not created by. — In the chapter relating to apprentices will be found a review of the cases which proceed upon the principle that, where the contract itself appears to have been intended as a contract of apprenticeship, and not as a contract of hiring and service as a servant, it cannot, if defective as a contract of apprenticeship, be converted into a contract of hiring and service, so as to give the party a settlement as a servant. 94. Assignment of the rights and obligations of contracts of service by the master. — A servant may by express agreement become bound to serve his master's assignee.^ But as a contract of service implies delectus personce, it cannot, as a general rule, be assigned, without the servant's consent, so as to give the assignee a right to compel the servant to perform for him the stipulated work.* The rule feudant pleaded to an action for dis- missing a governess contrary to a con- tract between them, that she, intending thereby to induce the defendant to en- ter into the contract, concealed from him a, fact material to her qualification as such governess, and material to be known by him in engaging her as such governess, and entering into such con- tract, lyiz., that she was a divorced wom- an; and she thereby induced the de- fendant to enter into the contract, — it was held that this plea was bad. Fletch- er V. Krell (1873) 28 L. T. N. S. 105, 42 L. J. Q. B. N. S. 55. The effect of this case has been said by the supreme court of New Brunswick to be this: A servant merely contracts to conduct himself properly while in the employment. It is no part of his contract that he never was guilty of misconduct in any previous employment. A master is not justified in dismissing a servant simply on the ground that he did not voluntarily disclose the fact that he had previously been guilty of misconduct. All that a servant is re- quired to do, when seeking employment, is to tell the truth concerning himself, when he is asked for information; and, so long as no inquiries are made of him regarding his previous conduct, he is not obliged to speak about it. Grove V. Domville (1877) 17 N. B. 48. A statement by one seeking employ- ment, to his prospective employer, that he could induce certain persons to give their patronage to the employer if he was employed, is only an expression of opinion, and not a fraudulent misrep- resentation, which will justify the avoidance of a contract of employment entered into in reliance thereon. Weilc V. WilliamsoryGunning Advertising Co. (1904) 109 Mo. App. 6, 84 S. W. 144. 1 See Benwell v. Inns ( 1857 ) 26 L. J. Ch. N. S. 663; Kessler v. Chappelle (1902) 73 App. Div. 447, 77 N. Y. Supp. 285 (corporation recognized by servant as his former master's successor) ; Grif- fin V. Brooklyn Ball Cluh (1902) 68 App. Div. 566, 73 N. Y. Supp. 864 (con- tract by which defendant reserved the right to assign the services of a pro- fessional baseball player). Where a laborer contracts to work for certain persons, "or for their assigns in case of the transfer of the W. planta- tion," the purchaser of the plantation may enforce the contract. Nott v. Kom- ahele ( 1877 ) 4 Haw. 14. 8 The doctrine in the text was also affirmed in Davenport v. Gentry (1849) 9 B. Mon. 427; Woodly v. Bond (1872) 66 N. C. 396 (man hired as overseer of a farm for a year, not bound to continue working for person to whom farm is transferred during the year). That the office of a servant is not assignable was laid down in the old case of Bedell V. Constable (1665) Vaugh. 182. That a servant is not bound to serve the executors of his deceased master wao declared in Rex v. Channel (1676) 3 Keble, 519. This rule, however, may be referred with equal propriety to the con- ception that the death of either of the § 94] FORMATION AND VALIDITY OF CONTRACT. 343 IS applicable even though the assignee carries on the same busi- ness.' In Scotland there seems to be a tendency to adopt the view that, in cases v?hich involve merely a partial change in personnel of an employing partnership, it is proper, at all events in respect to cer- tain kinds of occupations, to imply, as one of the terms of a servant's contract with the partnership, an undertaking on his part to continue working for it as long as it shall include any of the persons who be- long to it when the contract is entered into.* But no exception to parties operates so as to dissolve the contract. See § 215, post. sin Chapin v. Lonffworth (1877) 31 Ohio St. 421, the firm C. & D. agreed to employ the plaintiff for five years at specified daily wages, in consideration of his granting them certain rights in respect to the use of machinery invented by him. After having enjoyed the bene- fits of the contract for more than a year, the firm sold its factory to the defend- ant, vfho, in consideration of the as- signment to him of its right and inter- est in the contract v^ith the plaintiff, and its transfer to him of the rights vifhich had been granted to the firm, agreed with the firm that he would per- form the contract, which it had under- taken to perform. Thereafter the de- fendant operated the factory and paid the plaintiff in accordance with the terms of the original contract for sev- eral months. The plaintiff alleged that he was entitled to compensation for a further period during which he had each day tendered service, and that the de- fendant retained the machinery put into operation, and his patterns and models, but had not paid to him the sum of money so due, or any part thereof. The court held that the declaration was de- murrable on the ground that the contract, being executory and for the performance of particular personal sei'V- ices for the assignor firm, was not as- signable. The court conceded that, if the declaration had contained an aver- ment that the plaintiff had accepted the defendant as employer and released the firm, the contract disclosed would have assumed the character of a novation. A labor contract in the name of "the owners of the W. plantation" cannot be enforced by persons subsequently purchasing it. Waihee Plantation v. Ealapu (1877) 3 Haw. 760. A contract to work for "the owners of the W. Plantation" is not dissolved by a sale of the greater .part thereof, but the laborer is bound to work for the owner of the part retained. Widemann V. Lonoaea (1877) 4 Haw. 50. But laborers cannot be required to work on a plantation which the em- ployer has sold with the exception of an undivided 1/100 interest, which he has agreed to sell on demand for $1. Dreier v. Kuaa (1882) 4 Haw. 534. * In Fraser on Master & Servant, p. 123, it is stated that the question, "whether a master can, by the assump- tion of partners, give a right to a new master, along with himself, to the labor of his servant, depends on the nature of the service and the delectus personw it implies. For instance, he cannot as- sume partners who will have the rights of masters over domestic servants, gov- ernesses, or even perhaps over clerks. It is part of such agreements that the servant shall do the work of the master who hires him, and of him alone. With regard, however, to artisans, it has been found that they cannot consider themselves free, although their master assume a partner along with himself, who will have the rights of a master. This is a contingency to be looked for and expected, and it would often be productive of ruinous consequences if on such a common event the whole servants of a large establishment were freed from their contracts." The case cited by the learned author is one in which a master who had been conducting busi- ness alone assumed two partners. Har- hins V. Smith (1841; March) F. C. (Sc.) The court considered, however, that the result would have been differ- ent if the original master had not re- mained in the firm. An English text writer, in comment- 344 MASTER AND SERVANT. [chap. iv. the rule that an alteration in the membership of an employing firm constitutes such a material change in the conditions of the employ- ment as will entitle the servant to rescind the contract has, so far as the present writer knows, been admitted by any common-law court.* In a Scotch treatise it is laid down that, where a servant engages himself to a joint-stock company, no delectus personce will be pre- sumed, and that the contract will remain in force even though all the parties who were members of the company at the time of hir- ing should leave it, and entirely new persons be substituted in their room.® With regard to the correctness of this doctrine there can be no doubt. No court would listen to a contention that changes in the ownership of the stock of a company operate so as to relieve its servants of their contractual obligations. But the association in- volved in the cases cited in support of the doctrine were not joint- stock companies, — in the modern sense of that expression at least, — but ordinary partnerships.' A statute providing that a reorganization of a railroad company shall in no way affect any liability against the old corporation exist- ing at the time of the organization of the new one does not have the effect of making employment contracts of the old corporation binding on the new one.* As to the right of a father to assign the services of his infant child to another person, see § 99, post. 95. — by the servant. Delegatus non potest delegare.— In ordi- nary cases, one who contracts to execute a certain piece of work is entitled to accomplish it through the medium of subordinate agents and workmen.* But if the contract is founded on the personal quali- fications of the contractor, he impliedly undertakes to perform the ing on the above passsige, hag expressed it, if he had so desired, after the retire- the opinion that in English law it would ment, was not involved, generally be a question whether there spraser. Mast. & S. p. 123, citing was a novation under such circum- Campbell v. Baird (1827) 5 Sc. Sess. stances, and that, if there was no nova- Cas. 1st series, 311 ; DobUn v. Foster tion, the new partner would not have (]844) 1 Car & K 323 ^T^ /'I^'q °^q7 ^^sUt. Macdonnell, 7 Campbell v. BcUrd ( 1827 ) 5 Sc. Sess. Mast. & b. p. ^d7. Cag Ig^. ggj.j g ;^ J D obUn v. Foster ^ t^°,o^° *r ^.^°**«r (1844) 1 Car. (jg^^^ ^ ^^^_' ^ £ ^^^ & K. 323, where the plaintiff brought an g Keeler v. Atchison, T. & 8. F. R. Go. action on an agreement made with a ,,ono^ o,. n r^ a =00 no 17 j c^e partnership for which he had continued ^^99) 34 C C. A. 523, 92 Fed. 545 to work after the retirement of one of (contract with injured servant to re- the members, the ruling of Coltman, J., ^am him in the employment of a rail- was merely to the effect that this re- '^vay company). tirement did not per se put an end to ^ "Unless it appears by the mature or the agreement. The question whether terms of the employment that the serv- the plaintiff might not have terminated ices of a particular person were con- § 95] FORMATION AND VALIDITY OF CONTRACT. 345 work himself, and may not intrust it to an inferior agent.^ All con- tracts which have the effect of creating the relation of master and servant fall within the scope of the latter of these rules. Speaking generally, therefore, a servant cannot, by transferring the perform- ance of his duties ta another person, create the relation of master and servant between his employer and the transferee. Delegatus non potest delegare? But this rule is subject to one important qualifi- cation, viz., that if, at a certain conjuncture, the delegation of a traeted for, and no other person could Deering (1823) 4 Litt. (Ky.) 9 (prom- under the agreement fill the place of issory note to be partly discharged by the employee, he may, under the allega- personal services, not assignable) ; tion of services performed by him, prove Henry v. Hughes (1829 ) 1 J. J. Marsh. that they were performed by another 454 (agreement to pay a debt in car- person under him." Leet v. Wilson pentry work, not assignable) ; Marcum (1864) 24 Cal. 398 (held to be proper v. Hereford (1839) 8 Dana, 1 (contract in an action for work and labor, to per- for work and labor, not assignable under mit the plaintiff, under an item for the Kentucky statute which validates services as engineer, to prove for serv- assignments of "bonds, bills, and prom- ices performed by an assistant ) . issory notes for the payment of money 8 Addison, Contr. 9th ed. p. 813; or property"). Chitty, Contr. 14th ed. p. 723. 8 Where a, person employed by X to In two Missouri cases it has been carry goods to a foreign market dele- held that a contract for work to be done gated the performance to another person, on a highway might be assigned, as the who did the work with the knowl- work might be done as well by a third edge of X, it was held that the substi- person as by the contractor himself, tute could not recover compensation 8t. Lov/ls use of Sullivan v. Clemens from X for the services rendered. (1867) 42 Mo. 69 (grading of street); Schmaling v. Thomlinson (1815) 6 Leahy v. Dugdale (1858) 27 Mo. 437 Taunt. 147. (construction of road). It may be In a case where A was engaged by X doubted, hovrever, whether the principle as master of a ship, he procured B to of these decisions could be applied with act for him. Held, that B could not re- propriety to cases which involve a con- cover any wages from X, as the con- tract of service, as opposed to an in- tract contemplated personal service. dependent contract. Campbell v. Price (1831) 9 So. Sess. The rule applicable to public oflScers Cas. 1st series, 264. is that they may appoint deputies for See also HiW v. Lowden (1889) 33 111. mere ministerial purposes, that is, for App. 196 (employer held not liable for the performance of acts which do not the wages of a superintendent of the require the exercise of any discretion construction of a building) ; Crozier v. or judgment. Walsh v. 8outhworth Reins (1879) 4 111. App. 564 (agent (1851) 6 Exch. 150 (overseer) of having the supervision of an ofiSce build- parish could appoint a deputy to exe- ing cannot delegate to another person cute a warrant). his authority in respect to the hiring A contract for legal services cannot of an engineer to take charge of an en- be assigned by one party without the gine in the building) ; School Directors consent of the other. Corson v. Lewis v. Hudson (1878) 88 111. 563 (school (1906) 77 Neb. 446, 109 N. W. 735, teacher held to have been properly dis- 114 N. W. 281. charged for hiring a substitute to per- The doctrine as to the nonassigna- form her duties) ; Bank of California bility of a contract for personal serv- v. Western U. Teleg. Co. (1877) 52 ices was the rationale of the following Cal. 280 (court assumed that the office decisions: Force v. Thompson (1822) of the agent of a telegraph company at 2 Litt. (Ky.) 166 (obligation to collect a country town was confidential in its money due on certain orders and pay it nature, and that he had no authority to over to A, not assignable) ; HaXbert v. appoint a subagent to perform his own .346 MASTER AND SERVANT. [chap. IV. servant's duty appears to be the only available means for preserving the interests of his master from serious detriment, and it is im- possible for him to communicate with, and ascertain the wishes of, his master, he is deemed to be an "agent of necessity" for the pur- functions) ; Eariston v. Sale (1846) 6 Smedes & M. 634 (overseer of a planta- tion held not to be entitled to put an- other person in his place without the consent of his master, although the sub- stitute might be equal to him in capa- city) ; Jeter v. Perm (1876) 28 La. Ann. 230, 26 Am. Rep. 98 (overseer of plan- tation, being employed on account of his knowledge and skill, was held to have been properly discharged for delegating his trust to another without the con- sent of his employer, although he as- serted that the work was done under his directions, while he was confined to his house by sickness). In a, case where a, servant of a, real- estate broker made a contract with a third person, whereby the servant, on his own behalf, became the agent for the sale of such person's land, it was held that, as the contract was founded on personal qualities, an assignment of the contract could not be directed in a suit by the master, nor could the court decree that it should be held in trust for his benefit. Sumner v. Nevin (1906) 4 Cal. App. 347, 87 Pac. 1105. The conductor of a train on which a passenger has been carried past des- tination has no implied authority to constitute the proprietor of a hotel an agent of the carrier for the purpose of caring for such passenger until a return train comes, so as to render the com- pany liable for injuries to the passenger in consequence of the hotel-keeper's neg- ligence. Central R. Go. v. Price ( 1898 ) 106 Ga. 176, 43 L.R.A. 402, 71 Am. St. Rep. 246, 32 S. E. 77 (passenger injured by the explosion of a lamp in his bed- I oom ) . The court said : "We are aware that several of the courts have held that where a passenger is injured by the negligence of the railway company, such company is liable for the compensation of a surgeon employed by the conductor or station agent for attendance upon the injured passenger. [See §§ 2003, 2004, post.] These rulings are put upon the ground of humanity and public policy in case of such emergency; but, so far as we can ascertain, no court has ever "held that the company would be liable to the injured passenger for the negli- gence or malpractice of a surgeon so employed." Upon this latter point, see § 2005, post. In Arzt V. Lit (1901) 198 Pa. 519, 48 Atl. 297, plaintiflF was employed to paint defendants' elevator shaft. The work was to be done after business hours, while he was standing on the elevator cage, which was gradually lowered as the work progressed. When he went to commence work the elevator boy was going to supper, and, upon his objecting to wait until the boy's return, he was told by the boy that he might operate the cage himself, by pulling the ropes while on top. He got on the cage and started it upward, but could not stop it until it reached the top of the shaft and crushed him. Held, that the defendants were not responsible for the accident. The court said: "In the charge to the jury, the learned court below assumed that the elevator boy was the agent of the defendants, not only in the operation of the elevator from the inside, in the usual and ordi- nary manner, but that his agency ex- tended to the delegating of its operation to the plaintiff. This was error, for even if it be true that the plaintiff took possession of the elevator at the invita- tion of the operator, yet to hold the de- fendants responsible for the act of the plaintiff himself in assuming the opera- tion of the machine in a most unusual and unsafe manner would be to impose an unwarrantable burden upon them. . . . There was no occasion for sub- mitting to the jury the question as to whether or not the elevator boy was competent or trustworthy; for there is nothing in the evidence to sustain a finding that he was lacking in either of these respects. It is true that he was permitted to go to his supper; but the accident was not caused by the fact that he went to his supper; it was caused by the voluntary attempt upon the part of the plaintiff to operate the elevator for himself. The court was not justified, under the evidence, in al- lowing the jury to determine whether 4 95] FOKMATION AND VALIDITY OF CONTRACT, 347 pose of engaging another person to act as his substitute.* With this doctrine should be compared a similar one of which the effect is to •or not it was proper for the elevator boy to go at the time he did; neither had the jury any right to say that he was incompetent or untrustworthy for having done so." Where a contract is for personal serv- ices requiring a high degree of trust and oonlidence, without a definite limi- tation as to time, and free from any declaration therein to the effect that its terms shall be binding upon the heirs and assigns of the contracting parties, the contract is not assignable by one of the parties thereto without the con- sent of the other, and without such con- sent creates no estate which can be devised or descend to heirs of either of the parties. Harlow v. Oregonian Pui. Co. (1909) 53 Or. 272, 100 Pac. 7. That a contract by which one of the part owners of a ship was placed in com- mand of it did not create an assignable right to be transferred with his share, but was personal with the appointee, was laid down in Ward v. Ruckman (1861) 34 Barb. 419, aflfirmed in (1867) 36 N. Y. 26, 93 Am. Dec. 479. The maxim mentioned in the text, "when analyzed, merely imports that an agent cannot, without authority from his principal, devolve upon another ob- ligations to the principal which he has himself undertaken personally [to] ful- fil; and that, inasmuch as confidence in the particular person employed is ^t the root of the contract of agency, such authority cannot be implied as an ordinary incident to the contract." De Bussche V. Alt (1877) L. E. 8 Ch. Div. (C. A.) 310, per Thesiger, L. J. The act of a stableman in intrusting a horse to be led to water to another is a delegation of his personal duty and the substitution of another in his place, which is clearly beyond the scope of his authority and unauthorized by the ^employer. Raible v. Hygienic Ice & Refrigerating Co. ( 1909 ) 134 App. Div. 705, 119 N. Y. Supp. 138. As stated in Anson on Contracts, p. 361, the rule embodied in the maxim is really an illustration of the more .general rule, that a contract may not be assigned without the consent of the promisee. ♦ In Gwilliam v. Twist (1895) 2 Q. B. (C. A.) 84, 64 L. J. Q. B. N. S. 477, reversing (1895) 1 Q. B. (C. A.) 557, 64 L. J. Q. B. N. S. 474, the plaintiff was injured by the negligence of a man who had taken the place of the driver of an omnibus, after the latter had been ordered by a policeman, on account of his supposed drunken condition, to desist from driving. The court of ap- peal was unanimous in holding that the "doctrine of authority by necessity was" not applicable under the circumstances, as the place where the policeman's order was given was only a J of a mile from the yard where the owners of the omnibus carried on business, and there was nothing to show that the omnibus might not have safely remained where it was while the con- ductor or some other messenger went to the owners' yard to inform them what had happened, and to ask what what was to be done. The defendant was accordingly held not to be liable for the negligence of the substituted driver. Lord Esher, M. K., said: "In this case a question of great im- portance has been raised, namely, whether, if there were a necessity for a servant to delegate his duty to an- other person, that delegation would make that other person a servant of the master so as to render the latter responsible for his acts. It seems to me perfectly clear that a servant em- ployed for a particular purpose can have no authority to delegate the per- formance of his duty to another person, unless there is a necessity for so doing. If there is an opportunity to consult the master on the subject, I do not see how it can be necessary that the servant should act on his own view." He was of opinion that, under the cir- cumstances, the trial judge would be bound to direct a jury, if there were one, or, if trying the case without a jury, would be bound to find himself, that it had not been made out that there was any necessity for the servant to delegate his duty to another person without communicating with his master. He pointed out that "the doctrine of authority by necessity in the case of a ship only applies where the master can- not communicate with the owner." A. L. Smith, L. J., said: "Ordinarily a 348 MASTER AND SERVANT. [chap. iv. invest certain subordinate employees in case of emergency with the- temporary power of engaging third persons to act as their assistants^ or to perform services which may be beneficial to their principals- See §§ 2003, 2004, post. It is scarcely necessary to observe that the question whether the ordinary powers of a certain servant should be deemed, under the given circumstances, to have been temporarily extended by an exist- ing emergency, ceases to be material if it is apparent that the master acquiesced in the hiring of the substitute.* 96. Competency of evidence regarding: the formation and terms of the contract. — a. Oefierally.- — Where the alleged contract was not em- bodied in writing, any evidence, verbal or written, which tends tO' prove or disprove its existence, is competent.^ master is not responsible for injuries been in the habit of exercising such au- arising from an act of a servant when thority from time to time without ob- done not within the aeope of his em- jection from the master, or has made ployment. ... It is clear that it use of an assistant or substitute so is not prima facie within the scope of frequently or for such a period that a coachman's employment to delegate the fact may fairly be presumed to have the duty of driving to other persons, come to the knowledge of those in au- But it was argued that circumstances thority over him, and such practice has. might exist which would constitute the not been forbidden, then such acts on coachman an agent of necessity on be- the part of the servant may properly half of his master to employ someone be held to have been ratified, and ratifi- else to drive, and that under such cir- cation is equivalent to original author- cumstances he would have authority to ity." Aga v. Harbach ( 1905 ) 127 Iowa, do so. To constitute a person an agent 144 (147), 109 Am. St. Rep. 377, 102. of necessity he must be unable to com- N. W. 833, 4 Ann. Cas. 441. municate with his employer; he cannot The relationship of master and serv- be such an agent if he is in a position ant was held to have been created be- to do so. The impossibility of com- tween the defendant and a substitute municating with the principal is the engaged to take charge of an engine foundation of the doctrine of an agent room, the evidence being to the effect of necessity. . . . The mere fact that that the defendant's alter ego had known somebody must drive the omnibus home, that similar substitutes had been hired which is obvious, does not constitute • on several former occasions for days the driver an agent of necessity to em- and weeks at a time, and had performed ploy V. to do so," and under the services under the direction of the de- circumstances "there was an obvious fendant's foreman. possibility of communicating with the l In an action by plaintiff to recover employers and by a reasonable endeavor commissions as additional compensation, obtaining their directions as to what under an alleged verbal renewal of a was to be done." contract of employment, defendant was That an "unforeseen emergency" may not permitted to ask plaintiff if he had sometimes operate so as to invest an not right along, after the expiration agent with authority to delegate his of the original contract, been looking authority was recognized by Thesiger, for a partner with whom to go into- J., in De Bussohe v. Alt (1877) L. R. business another year. Held, that this 8 Ch. Div. (C. A.) 310. was error, as defendant was entitled tc> As to the effect of assignments of show the attitude of plaintiff to him claims for wages, see chapter xix, subd. and to an alleged contract. Sealer v. D, post. Bernstein (1903) 82 App. Div. 267, 81 6 "If, for instance, the servant has N. Y. Supp. 1082. An affirmative an- i'OEMATION AND VALIDITY OF CONTRACT. 349 h. Admissibility of pa/rol evidence in relation to written contracts. — When the parties, after conversation and preparation, have at last reduced their agreement to writing, the instrument so drawn up is regarded as the exact expression of their wishes, and oral evidence will not be received for the purpose of introducing new terms which will essentially change its meaning and effect* If the contract is one which is required by the statute of frauds to be in writing, such evidence is inadmissible for the additional reason that the statute would be driectly violated if it were used.^ But the fact that, by swer would have been entirely incon- sistent with the plaintiff's contention that the contract had been renewed. In an action by an employee for the employer's breach of a contract to en- gage him as a stage manager at a place of amusement, evidence as to steps taken, prior to the sale of the defend- ant's business, by the plaintiff to carry forward the business of the defendant during the following season, was held to be competent where, after the de- fendant had contradicted such evidence, the court instructed the jury that he was not to be prejudiced by the acts of the plaintiff in making engagements with authors or theatrical persons, un- less he had authorized or ratified his acts. Fuller v. Little (1871) 61 111. 21. On the issue whether plaintiff, who was employed by defendant, the owner of a mine, as a watchman, was re-en- gaged after having been discharged, evi- dence of the execution of a lease of the mine and entry of the lessee on the day of the discharge was held to be admissible as tending to show that plain- tiff's services were not required after the discharge. Rebecca Gold Min. Go. V. Baher (1906) 38 Colo. 289, 87 Pac. 1072. In Bennett v. Millville Improv. Co. (1902) 67 N. J. L. 320, 51 Atl. 706, a writing drawn up in the form of a contract of employment, and submitted by the employer's agent to the employee when negotiations with a view to his engagement were in progress, was held to be admissible for the purpose of showing the terms of the oral contract ultimately made. Many of the cases cited in § 88, ante, are also pertinent in this connection. 2 Anson, Contr. 10th ed. p. 279; 2 Parsons, Contr. p. 548. Where the mutuality of a contract by A to employ B is denied, extrinsic evidence is not admissible for the pur- pose of showing that there was an in- tention on the part of the employee to enter into a contract of employment. Senior v. Scaife (1884) New Zealand L. K. 3 S. C. 69. In Leavitt v. De Vries (1908) 127 App. Div. 721, 111 N. Y. Supp. 998, by a written contract between a theat- rical manager and an actor a prior contract between them was canceled, and as a condition thereof the actor agreed that he would pay the manager a speci- fied sum per week for a certain number of weeks, payable at the end of each week, out of the salary he might re- ceive; it was also stipulated that, in case the actor should not perform, no payment should be made to the manager, etc. The manager was represented by an attorney, present at the time of the execution of the contract. Held, that the contract embraced the entire obliga- tion of the actor with respect to weekly payments, and that it could not be varied in that respect by parol evidence as to a supplementary oral agreement by the actor to accept any engagements which the manager might obtain for him. Parol evidence cannot be introduced to show a contract between school direc- tors and a teacher different from a written contract authorized by a stat- ute providing that school directors shall make written contracts with teachers. Grig-gs v. School Dist. No. 70 (1908) 87 Ark. 93, 112 S. W. 215. 8 A entered the service of B under a written agreement, as follows: I agree to receive you as clerk in my establish- ment, in consideration of your paying me a premium of £300, and to pay you a salary at the following rates, namely. for the first year £70, for the second 350 MASTER AND SERVANT. [CHAP. IV. the direction of the parties, a third person made a memorandum of their agreement, will not prevent the introduction of oral evidence as to its terms, unless it is also shown that the memorandum was regarded by them, at the time when it was made, as embodying their contract, or that they afterwards recognized it as being their con- tract.* Moreover, in any case where the contract is not one of those to which the statute of frauds is applicable, it may be proved by oral evidence that, at some time after the date of the writings which em- bodied the intention of the parties, supplementary terms were added to it, * or that it was entirely superseded by a new contract,^ or that it was not the real contract between the parties.'' Parol evidence is admissible to show the actual date when the con- tract took effect.* 96a. Contracts induced by fraud of servant. — A contract is not ren- dered void ab initio by the fact that the master was induced by the servant's fraud to enter into it.* Such fraud merely constitutes a ground for dismissing the servant,* or a defense to an action for the £90, for the third £110, for the fourth £140, and £150 for the fifth and fol- lowing years that you may remain in my employment: — Held, that as there was a precise stipulation for yearly pay- ments, evidence was not admissible to show that, at or after the time the letter containing it was sent by B to A, it was verbally agreed that the salary should be paid quarterly; and that the fact of the payments having usually been made quarterly di_d not vary the rights of the parties under the agree- ment. Giraud v. Richmond (1846) 2 C. B. 835, 10 Jur. 360, 15 L. J. C. P. N. S. 180. *Rex V. Wrangle (1835) 4 Nev. & M. 375, 2 Ad. & El. 514, 1 Hurlat. & W. 41. 5 Johnson v. Appleby (1874) 30 L. T. N. S. 261 (parol evidence of supple- mentary terms agreed to at a meeting of the parties subsequent to certain letters, but prior to the plaintiflf's enter- ing on the service, held to be admis- sible). 6 Boggs v. Pacific Steam Laundry Go. (1901) 86 Mo. App. 616. 1 Smith V. Haughn (1905) 38 N. S. 153. The defendant agreed to pay plain- tiff the sum of $150 as wages or com- pensation for his services on a fishing voyage, and afterwards induced him to sign articles for the purpose of inducing other men to join the vessel as shares- men. Held, that the fact of his having signed articles did not preclude plain- tiff from showing that they were execut- ed for a purpose different from the ostensible one. The court rejected the contentions that evidence of any nego- tiations which took place prior to the written agreement ought not to have been received, that the articles signed by the plaintiff were the only evidence of the contract, and that, under any circumstances, the plaintiff should not be permitted to take advantage of his own wrong and fraudulent act in assist- ing defendant to deceive others. 8 Two instruments in writing, one of which is signed by the employer agree- ing to pay the employee a named salary for a given time, and the other signed by the employee agreeing to perform service for the employer for the same salary and for the same time, consti- tute one contract; and parol evidence is admissible to show that they were de- livered at the same time, though bear- ing different dates. Drennen v. Satter- field (1898) 119 Ala. 84, 24 So. 723. 1 Galveston, H. & S. A. B. Co. v. Har- ris (1908) — Tex. Civ. App. — , 107 S. W. 108. 2 See the case cited in the preceding note, and the authorities referred to in § 279, a, post. § 97] FORMATION AND VALIDITY OF CONTRACT. 351 wages stipulated.' But a mere unaccomplished intention on tli& servant's part to abandon his employment and set up a rival business is not such fraud as will vitiate the contract and preclude him from suing upon it.* 97. Conflict of laws. — Speaking generally, the question whether a contract of hiring made in one state is enforceable in another will, under a familiar rule of private international law, be determined with reference to the laws of the former state. ^ The three principal exceptions to this rule are as follows: (1) If the state in which the action is brought is also the state in which it was contemplated that the services were to be performed, the law of that state is controlling.^ (2) A contract of service made in one state is not binding upon the parties after they have removed to another state, if it is essen- tially inconsistent with the laws of the latter state. After the re- moval, the master will have merely the claim upon the labor of the servant, and merely the power over him, which those laws permit, and no more.* (3) A contract made in one state will not be enforced by the courts of another state, if in executing it the parties have failed to comply 8 See § 696, post. ant for enticement. "The validity of * Hemingway v. Hamilton (1888) the contract," said the court, "its con- 4 Mees. & W. 115. struction, the rights of the parties under 1 Galveston, H. & 8. A. R. Co. v. Har- it in this commonwealth, must be de- ris (1908) — Tex. Civ. App. — , 107 termined by our laws. . . . Our tri- S. W. 108; Brackett v. 'Norton (1823) bunals may afford a remedy upon an 4 Conn. 517, 10 Am. Dec. 179, where executed contract, lawful in the place the rule was applied that, as foreign of its inception and execution, though laws cannot be noticed judicially, but the contract is against the policy of must be proved as facts, it is for the our laws; but they will not permit par- jury, with the assistance of the court, ties to execute or enforce such contract to determine whether a contract of serv- upon our soil. For example, a note ice made in a foreign country is con- given for the price of a slave, in a coun- formable to its laws. try where slavery was tolerated, might ^Tumow V. Hoohstadter (1876) 7 be sued in our courts; but if the pur- Hun, 80 (holding that the New York chaser brought within our jurisdiction statute of frauds prevented the enforce- the subject of the purchase, he could ment of an oral contract made in a claim no rights under the contract of foreign country for a year's service to sale against him, because such a rela- commence at a future date). tion of the parties is in conflict with Sin Parsons v. Trash (1856) 7 Gray, our fundamental law." 473, 66 Am. Dec. 502, the facts of which For a discussion of the general rule are stated in § 92, note 5, ante, it was and the exception thereto which is here held that, as the servant was under no illustrated, the reader is referred to legal obligation to remain in the plain- works on Contracts and the Conflict of tiff's service, the plaintiff could not Laws. maintain an action against the defend- 552 MASTER AND SERVANT. [chap. r?. with a statutory provision pertaining to the remedy, which has been enacted in the latter state. This doctrine was the basis of a decision that an oral contract of service which was not to be performed within a, year, and which was therefore within the scope of the English statute of frauds, could not be enforced in England, although it had been made in France, where no similar law was in force.* But some high authorities disapprove of this particular application of the gen- eral principle.^ B. Capacity of the paeties to coitteact. 98. Generally. — The general rules which determine the extent to which the obligatory quality of a contract of service is affected by the personal capacity of one or both of the parties are, on the whole, the same as those which are controlling in the case of any other con- tract.^ But the decisions which are concerned with infants and married women as parties to contracts of employment are sufficiently numerous to warrant a statement of the doctrines which the courts have applied in this connection. The position of a servant who hires himself to another before the expiration of the stipulated period of his service will also demand specific notice. 98a. Contracts in excess of the powers of a corporation, — A cor- porate contract relating to services, which is in excess of the powers conferred by its charter, is plainly invalid.^ In an action against *Leroux v. Brovm (1852) 12 C. B. England, that the relation of counsel 801, 14 Eng. L. & Eq. Eep. 247. The and client renders the parties mutually alternative modes of reviewing the jurid- incapable of making any contract . of ical situation were indicated by the hiring and service as an advocate con- remark of Maule, J., during the argu- earning advocacy in litigation, see Ken- ment of counsel : "If the statute relates nedy v. Broun (1863) 13 C. B. N. S. to procedure, this action is not main- 677, 32 L. J. C. P. N. S. 137, per Erie, tainable; if only to the rights and Ch. J. (p. 146). merit of the contract, it is." This de- l The Board of Trustees of the State cision was followed in Kleeman v. CoU Reform School, being a corporation with lins (1872) 9 Bush. 460. special and limited powers and duties, B See the remarks of Willes, J., in has no power to make a contract with Williams v. Wheeler (1860) 8 C. B. N. an individual for the use of the services S. 299, 316, and Savigny, Syst. 8, 27D. of the inmates of that institution. 1 As to contracts with lunatics and Clement y. State Reform School (1876) drunkards, see Chitty, Contr. 13th ed. 84 111. 311. pp. 170-172; Addison, Contr. 11th ed. Under 1 Mills's Anno. Stat. (Colo.) p. 402; Pollock, Contr. »87-*94; Anson, 1891 pp. 411, 414, §§ 56, 74, 76, creat- Contr. p. 133. ing the State Board of Agriculture as a As to the contracts of aliens, luna- body corporate, providing that it should tics, drunkards, and spendthrifts, see have control and supervision of the Wharton, Contr. §§ 93-124; 1 Parsons, State Agricultural College and fix the Contr. *383 et seq. salaries of the professors, and empower- As to the doctrine which prevails in ing it to remove the president or sub- § 99] FORMATION AND VALIDITY OF CONTRACT 353 the employee for the breach of such a contract, its invalidity may be pleaded as a defense, as long as it has not been fully performed by him.* 99. Contracts for the services of infants, v?here the parents contract with the employers. — a. Contracts made hy fathers. — ^At common law a father may assign the services of his minor son to another for a consideration to enure wholly to the father.^ Such an assignment constitutes in effect a license by the father to undertake the custody of his son, and employ him in the manner stipulated, and gives the assignee a right, for the time being, to the services of the son.* An agreement of this description ceases to be binding on the minor when he arrives at full age.* It is also terminated by the death of the father,* unless it is made with reference to some statutory provision which allows parents to bind their children to service until they reach their majority;^ in which case the terms of the statute must be strictly complied with, in order to create a continuing obligation.^ Where a minor son is thus hired out by his father, the employer ordinate oflacers and supply all vacan- for wages stipulated to be paid to the cies, the board has power to make a minor when he became of age), valid contract employing a professor in In an early Pennsylvania case it was the college for a reasonable length of held that a parent had no power to time as, in this instance, a year. State bind his minor child as a servant, so Bd. of Agri. v. Meyers (1904) 20 Colo, as to render him subject to the penal- App. 139, 77 Pac. 372. ties imposed by a statute upon abscond- It is not ultra vires for a private ing servants. Bespublica v. Keppele corporation to employ a servant for a (1793) 2 Dall. 197, 1 L. ed. 347. Pre- fixed period. Hand v. Clearfield Gonsol. sumably the decision would have been Coal Co. (1891) 143 Pa. 408, 22 Atl. different if the effect of the contract 709. had not been to place the infant in a 2 Boipman Dairy Co. v. Mooney position in which he became liable to (1890) 41 Mo. App. 665. punishment. Whether this supposition 'i-Day V. Everett (1810) 7 Mass. 145; is or is not well founded, the case seems Ford! v. McVey (1870) 55 111. 119. In to be antagonistic to those in which the the former of these cases it was held English courts have held infants to be that the Massachusetts statute of 1794, amenable to the provisions of similar chap. 64, did not take this power from statutes. See § 102, post. the father. All contracts of service ^Campbell v. Cooper (1856) 34 N. legal at the common law remained legal H. 49. after the statute had been passed, but ^ Day v. Everett (1810) 7 Mass. 145. the only remedy which either party i Day \. Everett (1810) 7 Mass. 145; could have was upon the contract, and Campbell v. Cooper (1856) 34 N. H. 49. not under the statute, unless the pro- In the latter case this rule was ex- visions of the statute were complied plained as resting upon the principle with in forming the contract. that "the common law, then, while it It was stated as "undoubted law" imposes upon the father no obligation that, if a parent contract for the serv- to make provision for the support or ices of his minor child, in consideration education of his infant children after of a remuneration to the latter, the his decease, does not confer upon him contract is valid, and that the child the right correlative to it, to bind may maintain an action for the breach them to service after his decease." of it in his own name. Eubanks v. ^ See chapter XC, post. Peak (1831) 2 Bail. L. 497 (action e Campbell v. Cooper (1856) 34:}^. B.. M. & S. Vol. I.— 23. 354 MASTER AND SERVANT. [chap. iv. cannot, without the assent of the father, make a new contract with the minor himself, which will have the effect of superseding the original contract.'' This rule is applicable, although that contract provides that the employer may discharge the boy if he does not like him. It is not deemed to be a discharge according to the spirit of the contract, if he tells the boy that he cannot keep him under its terms, and then makes a new and different agreement, without the knowledge of the father.' A person to whom the employer of a minor has lent the latter's services has no concern with the efficacy or inefficacy of the contract between the father and the employer of the minor, and cannot set up the invalidity of such contract in an action by the employer to recover compensation for the services.* h. Contracts made by widowed mothers. — In an early Alabama case the court was strongly inclined to the opinion that the power of a vsddowed mother as natural guardian of her infant children did not extend to the making of a contract with a third person for the services of one of them during the residue of his minority. It was considered to be, at all events, clear that such a contract would not be valid unless it was in writing.*" But the unqualified language in which the courts have affirmed the right of a widowed mother to the services of her minor children (see § 637, post), would seem to be wholly inconsistent with this intimation of opinion, so far as it has relation to the want of power. The validity of an oral contract in such a case would seem to be merely a matter to be determined with reference solely to the provision of the statute of frauds under which contracts not to be performed in a year are nonenforceable unless they are reduced to writing. c. Contracts made hy mothers of illegitimate children. — From the doctrine that, as against the putative father of an illegitimate child, its mother is entitled to its custody, and is bound, as its natural guardian, to maintain it,** it would seem to be a necessary conse- quence, that a contract made by the child without her consent is in- valid. It has been explicitly so held with reference to § 2509 of the 49; Pray v. Gorham (1850) 31 Me. 241 9 Johnson v. Bicknell (1843) 23 Me. (parol contract held to be void, as 154. statute required indenture to be signed V> Morris v. Low (1833) 4 Stew. & by both parties). P. (Ala.) 123. t McDonald v. Montague (1858) 30 n 2 Kent, Com. pp. 215, 216; Ever- Vt. 357. sley, Dom. Rel. 3d ed. 595; Hudson v. 8/6id. mils (1836) 8 N. H. 417. § 300] FORMATION AND VALIDITY OF CONTRACT. 355 Georgia Civil Code, which provides that the mother of such a child "may exercise all paternal power." ^* 100. — ^where the services are to be rendered to the infant's father. — There is ample authority for the doctrine that it is competent for an infant to become the servant of his father under an express con- tract.^ This doctrine obviously holds, irrespective of the question whether the infant has or has not been previously emancipated; for ^i Perry y. State (1901) 113 Ga. 936, contract, to her father, by his emanci- 39 S. E. 315 (conviction for enticement pated daughter during her minority, are of minor from an employment which he a good consideration for a conveyance Jiad entered after running away from of land to her. Kain v. Larkin (1892) home, held to be unwarrantable). 131 N. Y. 300, 43 N. Y. S. R. 197, 30 liJea; v. Chillesford (1825) 4 Barn. & N. E. 105, reversing (1891) 42 N. Y. C. 94 (a case in which the infant was S. R. 571, 17 N. Y. Supp. 223. held to have acquired a settlement by A promise by a father to his infant his service). Littledale, J., argued daughter to pay her so much for labor thus: "There is by law a species of to be thereafter performed by her for service due from a son or daughter to him is not void. Fort v. Qooding the parent, whigh, as to the latter, is (1850) 9 Barb. 371. the foundation of the action of seduc- In Ball v. Hall (1862) 44 N. H. 293, tion, and there it is not necessary to it was laid down that, "under an agree- prove actual service; and if there ment to give a child his time, the father be any species of service due by law may contract to employ and pay him, from the child to the parent, why or to hire him to labor for himself; may not the obligation of serving the and he will be equally bound as a parent be extended by allowing him stranger, and the son may recover his to hire the child at certain wages for wages of him by a suit." a specific time? It is admitted that In Swartz v. Eaglett (1857) 8 Cal. an infant may hire himself to a third 118, it was conceded that the relation person, but it is said that, being already of master and servant may be created . under the control of the parent, and ow- by a special contract between a father ing some services to the parent, the and his infant son; but the conveyance child cannot make a contract with him; of property to the latter by the former but there is no reason why a child was held void as against creditors, for may not contract to render to a parent the reason that it was made without other services than those which are due consideration, the son being bound to in consequence of the relation of parent render the stipulated services, and child." Bayley, J., concurred, In a Canadian case it was doubted pointing out that the capacity for con- whether, if an infant hire himself for tracting clearly existed in the case of wages to his parent by an express con- emancipated children, or of natural tract, the contract is binding on the children, or of stepchildren {Rew v. infant. Perlet v. Perlet (1857) 15 U. St. Peter's Dorset, Burr. Sett. Cas. C. Q. B. 165. Robinson, Oh. J., inti- 515). If there was a bona fide con- mated strongly that, in his opinion, a tract, it produced new rights and mother is entitled to the labor of her new relations. It gave the father a infant children while they live with her new right of control, and the child a and are supported by her, and that an right to wages, which was beneficial to agreement by her infant son to labor him; and it also gave to him a settle- for her was a contract not sustained ment in that parish where he served by a valuable consideration. The Eng- under the contract. lish cases above cited were evidently That an emancipated daughter could not brought to the attention of the enter into a valid contract of service learned judge. Nor did he give due re- with her father was held in Rex v. gard to the circumstance that a parent Chertsey (1787) 2 T. R. 37; Missenden may emancipate his child, and so re- V. Chesham (1714) 2 Bott, Poor Law, linquish his parental right to the labor No. pi. 258 (p. 195). of the child. Services rendered under an express 356 MASTER AND SERVANT. [chap. iv. if the infant has not been emancipated before the contract is entered into, the mere fact of the father's agreeing to take him as a servant and pay him wages amounts in itself to an emancipation.* 101. — ^where the infant contracts in his own behalf with a stranger; general principles. — An infant who has been emancipated by his parent acquires, as a necessary result of the emancipation, the right to enter into contracts of service on his own behalf.^ But the au- thorities also show that an unemancipated infant is entitled to make such contracts without the actual concurrence of his parent.* Any contract which is thus entered into by the infant on his own behalf stands good until the parent asserts his paramount right to demand the services of his child,* or, supposing the contract to belong to the voidable class, until it has been disaffirmed by the infant himself. As infancy is a personal privilege, of which no one can take ad- 2 In Steel v. Steel (1849) 12 Pa. 64, ed States v. Bainlridge (1816) 1 Mason, an action by a. son against his father's 71, Fed. Cas. No. 14,497; United States executor for services rendered the father v. Blakeney (1847) 3 Gratt. 405, (de- in his lifetime and during the infancy daring that the infant would not be re- ef the son, the court said that the evi- leased, either on his own application, or dence showed that the peculiar relation on that of his father, or on that of hia of father and child had ceased, and that master, or on that of all three com- the parties had contracted on the basis bined) ; Com. v. Murray (1812) 4 Binn. of master and servant. 487, 5 Am. Dec. 412 (enlistment in 1 The cases which affirm or recognize Navy held binding, on account of its this doctrine will be reviewed in the beneficial and necessary character under ^subsequent chapter in which the right the circumstances), of an infant to recover the compensation The Military and Naval Discipline of owed for his services is discussed. See Victoria, 1870, No. 389, § 2, provides §§ 635 et seq. post. that the governor of the Colony may en- i Rex V. ChMlesford (1825) 4 Barn. & gage the services of any person to serve C. 95; NasJwille & G. R. Co. v. Elliott in the military and naval forces "of the (1860) 1 Coldw. 611, 78 Am. Dec. 506; Colony on certain specified terms. Held, Houston d O. N. R. Go. v. Miller (1879) that an infant is a "person" within this 51 Tex. 270; Texas & P. R. Go. v. Carl- section, and may enter into an engage- ton (1883) 60 Tex. 397; Texas & N. 0. ment to serve, without his father's con- R. Co. V. Crowder (1884) 61 Tex. 262; sent. Re Hayes (1873) 4 Austr. J. R. Rohinson v. Van Vleet (1909) 91 Ark. 34 (application by parent for infant's 262, 121 S. W. 288. discharge was refused). In one case it was laid down by Yates That the school law of Wisconsin and Willes, JJ., that the pauper in (Laws 1872, chap. 101) contemplates question, being an infant, could not hire that the contract by an infant to teach himself out for a year, so as to acquire in a school shall be made with the a settlement. Rex v. All Saints (1770) teacher, and not with the father, was Burr. Sett. Cas. 656. But this ruling the opinion of the court in Monaghan v. is contrary to that made in R&g. v. School Dist. No. 1 (1875) 38 Wis. 100. Ghillesford, supra. 3 Nashville & G. R. Co. v. Elliott The enlistment of an infant in the (1860) 1 Coldw. 611, 78 Am. Dec. 506 Army or Navy is binding on him at ( infant held to occupy the same position common law, the parental authority be- as an adult servant in respect to in- ing suspended, though not annihilated, juries received in the course of his em Rex V. Rotherfield Grays (1823) 1 ployment) ; Houston & G. N. R. Go. v. Barn. & C. 345, followed in Com. v. Miller (1879) 51 Tex. 270 (same point). Gamble (1824) 11 Serg. & R. 93; Unit- In United States v. Bwinbridge § 101] FORMATION AND VALIDITY OF CONTRACT. 357 vantage but the infant himself,* the employer, if himself an adult, continues to be bound by a voidable contract of service as long as the infant forbears to exercise his right of disaffirming it.' Nor is the voidable quality of the contract a good defense to an action (1816) 1 Mason, 71, Fed. Cas. No. 14,- 497, it was said, arguendo, that an in- fant's contract which is voidable by the common law cannot be confirmed or avoided by any assent or dissent of his parent, and that it is binding or not solely at the election of the infant him- self. But this statement is wanting in precision, as it ignores the superior right mentioned in the text, — a right which may be suspended by the emanci- pation of the infant, but which is sus- ceptible of revival at any time. * Bacon, Abr. Infcmcy (I) 4; Leake Contr. p. 476; Wharton, Contr. § 32; 1 Parsons. Contr. *330. 6 In Woolston v. King (1813) 3 N. J. L. 1049, where suit was brought by the plaintiff, after he had come of age, for the failure of the defendant to perform his agreement to teach him his trade, the court rejected the contention that there was no consideration for the agreement, as the plaintiff was an in- fant when it was made. A, while still a minor, contracted with B to work for certain wages, and to be instructed in a trade, till the age of twenty-one, if the parties should so long agree. Under this agreement he worked for B some time and then left him. After A became of full age, he brought an action to recover wages at the stip- ulated rate. Held, that a nonsuit based on the theory that, as A was under age when the contract was made, B was not bound by it, was erroneous. Voorhees V. Wait (1836) 15 N. J. L. 343. Where an agreement in writing, in- tended to be an indenture of apprentice- ship, was entered into with an adult, by an infant and his parent, but was not executed as prescribed by the statute (S. C. act 1740), it was held that, as a contract between the adult and the in- fant alone, it was binding on the former r,t common law; and that the infant, on performing the services stipulated on his part, might maintain an action for a breach of the agreement on the part of the adult. Eubanks v. Peak (1831) 2 Bail. L. 497. An infant who had rendered services for three years under a contract of ap- prenticeship was held entitled to main- tain an action for compensation, al- though the contract would not have been binding upon him, owing to the fact that the provisions of the statute as to apprentices had not been complied with. Davies v. Turton (1860) 13 Wis. 185. The theory advanced on behalf of the de- fendant was that the statute (Stat. 1849, chap. 81; Stat. 1858, chap. 113) was inconsistent with, and abrogated the rules of, the common law, and pre- scribed the only method by which con- tracts for the hire of infants covild be made, the result being that the agi'ee- ment sued upon was rendered void as to both the parties by their failure to comply with the statute. But the court said: "We cannot take this view of the statute. It appears very clearly to us that it was not the design of the legislature to interfere with the benign doctrines of the common law, but to add to the privileges of infants by enabling them, with the advice and consent of some experienced and discreet person of full age, to make contracts which should be completely obligatory in law. The intention was not to take away from them advantages which they al- ready possessed, but to add new ones; it was, by removing disabilities which existed at common law, to give them the benefits which would arise from pos- sessing the capacity of persons of full age, and not to destroy the liability of parties who dealt with them according to previous regulations. The legislature did not mean, any more than the au- thors of the common law, to confine them to any rigid or technical mode of proceeding, nor to leave them at the mercy of those who might desire to cheat or defraud them. The power, un- der certain circumstances, to bind them- selves during minority, for the purpose of being nurtured and educated and trained to the exercise of some useful trade or calling, was considered bene- ficial, and it was to confer it that the statute was enacted." 358 MASTER AND SERVANT. [chap. iv. against a third person who has wrongfully interfered between the master and the infant servant.* In an early Massachusetts case involving the right to a settlement, it was stated that the marriage of an infant, with the consent of his father, may remove him from the control of his father, and perhaps give him a right, as against his father, to apply all his, earnings to the support of his family, but that it does not give him a capacity to make binding contracts, beyond other infants, or any political or municipal rights which do not by law belong to minors.'' On the other hand, he does not, by marrying, lose the privileges of infancy in respect to the avoidance of contracts.* 102. English doctrine regarding the validity of contracts made by infants in their own behalf. — a. Geiieral statement respecting the classification of the authorities. — The present section and the two which immediately follow it are intended to be read in connection with those which relate to the capacity of an infant to bind himself as an apprentice. See chapter xc. -post. The principles with refer- ence to which the validity of an infant's contract of service is de- termined are to some extent the same as those which are controlling in cases which involve a contract of apprenticeship. But the points of difference between the two classes of contracts are suf&eiently num- erous and important to render it advisable to segregate entirely the authorities which relate to each of them. h. Contracts made hy infants of tender years. — In some of the older abridgments of the law we find passages reflecting the con- ception that the contract of an infant may, quite irrespective of the nature of the consideration, be treated as valid or invalid according as it was entered into after or before he had reached the age of dis- cretion.^ But this phase of the subject has apparently not been dis- ^ Keane v. Boycott (1795) 2 H. Bl. and an action upon the statute of labor- 511. ers is brought against him, it is a good 1 Taunton v. Plymouth (1818) 15 plea that he is an infant, per Paston, Mass. 203. This language was recently J., but per Markham, J., this is where approved in Burns v. Smith (1902) 29 he is under fourteen years, but per Ind. App. 181, 94 Am. St. Rep. 268, 64 Paston, J., all is one: Brooke says it N. E. 94. seems the law is with Markham, J.; for ^ Burr V. Wilson (1857) 18 Tex. 368; t^e statute is Potens in corpore. Viner, Burns v. Smith (1902) 29 Ind. App. Abr. Master and Servant, V., 9, citing 181, 94 Am. St. Rep. 268, 64 N. E. 94. Br. Laborers, pi. 30. 1 If an infant of seven or eight years In an action of trespass upon the stat- makes a covenant to serve one, he may ute of laborers for taking a servant re- depart at his pleasure. Viner, Abr. tained, one of the defenses was that Master and Servant, § 12, citing Br. the servant was under age; but it was Laborers, pi. 29. observed by Babb, J., that if a person If an infant be retained to serve, be of the age of discretion, and makes I 102] FORMATION AND VALIDITY OF CONTEACT. 359 cussed in any case decided since the definite adoption of the doctrine explained in the following subsection. c. Contracts in consideration of the furnishing of necessaries. — From a very early period it has been a well-established doctrine that "an infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his, good teaching or instruction whereby he may profit himself afterwards." * This doctrine is obviously broad enough to embrace a contract of service.* d. Beneficial contracts. — In a case decided in 1825, which pro- ceeded upon the doctrine that a settlement might be gained by serv- ice under a contract made by an infant, it was laid down by two of the judges (Bayley and Littledale) that such a contract was obligatory not only in this regard, but also to the extent that the summary remedies provided by the master and servant acts were available against the infant.* The actual position of the court, how- ever, is shown by the remark of Abbott, C. J., that "the contract of an infant made for his own benefit, according to general principles of law, is not void, but voidable only at his election." Similar pas- sages are found in judgments delivered in earlier cases involving the question whether a settlement had been gained by infant apprentices.^ Such language may reasonably be considered as showing that, up to the end of the first quarter of the nineteenth century, beneficial contracts were placed in the category of those which are voidable covenant to serve in husbandry, this himself to serve for five years as an in- shall bind him. Viner, Ahr. Master and dentured servant was, at most, only Servant § 10, citing Br. Laborers, pi. voidable by the infant himself, since 43. its effect might be his manumission 8 Co. Litt. 172a. The following gen- from slavery, and it was consequently eral statement by Lord Mansfield in for his benefit. But Eyre, Ch. J., re- Buckinghamshire v. Drury (1761) 2 marked that "if this question were be- Eden (H. L.) 60, 72, has frequently tween the master and the servant him- been cited by the courts: "Contracts self, the court would hardly hesitate to for necessaries, such as diet, education, say that a contract to serve for five etc., are good (Bacon, Uses versus years, having the effect of emancipation flnem), and the infant's body is liable from slavery, was a contract for neces- to be taken in execution for them." "I saries in the enlarged sense of the must also deny what has been advanced word." in the argument of the present case, i Rex v. Chillesford (1825) 4 Barn. & that either by the law of England, or C. 94. any other law, every contract made by 5 In one of these cases Lord Ellen- an" infant is void. ... By one law brough observed: "This indenture some agreements bind absolutely, some must be considered clearly as for the are void, and some are voidable." infant's benefit; and, not having been 3 In Eeane v. Boycott (1795) 2 H. vacated, it must be considered as bind- Bl. 511 (action against a third person ing so aa to confer a settlement on him for enticement), it was held that a con- by reason of his service under it. Rex tract by which an infant slave bound v. Arundel (1816) 5 Maule & S. 257. 360 MASTER AND SERVANT. [chap. iv. at the option of one of the parties, but which, so far as the other party and third persons are concerned, possess all the incidents of validity until the right of rescission has been exercised. But it would seem to be a necessary inference, from the phraseology used and the decisions rendered in more recent cases, that such contracts are now treated, for some purposes at least, as binding against the infant him- self also. In one of those cases. Fry, L. J., after quoting the state- ment of Lord Coke (see preceding subsection) which indicates one of the qualifications of the general rule regarding the incapacity of an infant to bind himself, observed: "There is another exception, which is based on the desirableness of infants employing themselves in labor ; therefore, where you get a contract for labor, and you have a remuneration of wages, that contract, I think, must be taken to be prima facie binding upon an infant." ^ Having regard to the context, it is difficult, if not impossible, to avoid the conclusion that fiDe Francesco r. Barnum (1890) L. indicates that in the view of the learned R. 45 Ch. Div. 430. This statement judge there is only a single description was quoted as good law by A. L. Smith, of obligatory contracts, — a theory in- L. J., in Clements v. London & N. W. R. consistent with the decisions already Co. [1894] 2 Q. B. (C. A.) 482. cited. The decision of Manisty, J., in Fel- As it is expressly provided in § 2 of lows V. Wood (1888) 59 L. T. N. S. 513, the infant's relief act of 1874, that the proceeded upon the broad principle that "enactment shall not invalidate any "an infant may enter into a contract contract into which an infant may, by which is beneficial to himself, and is any existing or future statute, or by bound by it." the rules of common law or equity, en- In Wood v. Femwich ( 1842 ) 10 Mees. ter, except such as now by law are void- & W. 204, where an infant was prose- able," the obligatory quality of a bene- cuted under the act of Geo. IV. chap. 34, ficial contract of service has not been § 3, for abandoning his contract, the affected by the passage of that statute, actual decision turned upon technical See Fellows v. Wood, ubi supra. points of procedure. But during the ar- In an English text-book the opinion gument of counsel. Lord Abinger, C. B., was expressed that the meaning of the remarked: "There can be no doubt supposed rule is not that an infant can that, generally speaking, a contract by bind himself by a beneficial contract an infant to receive wages for his labor as he may by a contract for necessaries, is binding upon him." In reply to the but that, if it becomes necessary to de- contention that an infant may at all cide the question, the court may decree events determine a binding contract at such an agreement to be binding. Simp- any time, he also said: "That would son. Infants, p. 100. But there is noth- be a contradiction in terms; because, to ing whatever in the reported cases to say that he may contract is to say that warrant this theory of the binding qual- he may bind himself by the contract; ity of this class of infants' contracts, how, then, can it be determined at his They are always treated as being obliga- election the next day?" tory in the same sense as the contracts In BirUn v. Forth ( 1875 ) 33 L. T. N. of persons of full age. S. 532, Amplett, B., is reported to have In Ontario it has been expressly pro- remarked that the essential question in- vided (Rev. Stat. 1897, chap. 161, § 5) volved was "whether this is a beneficial that a minor over sixteen years of age contract for necessaries," and that "the and having no parent or legal guardian beneficial contract must be one for the is bound by any engagement to perform supply of necessaries." This language services. § :02] FORMATION AND VALIDITY OF CONTRACT 361 the learned judge intended to take the broad position that, in cases where service is in question, the obligatory quality of beneficial con- tracts is virtually, if not absolutely, identical with that of contracts for necessaries.' Such a passage as the following also appears to require the same construction : "It has been clearly held that con- tracts of apprenticeship and with regard to labor are not contracts to an action on which the plea of infancy is a complete defense, and the question has always been . . . whether the contract, when carefully examined in all its terms, is for the benefit of the infant." * The mere fact that some conditions in the contract are adverse to the servant does not enable the court, on that ground only, to say that it is void. To have such an effect, the stipulation which is ob- jected to must be so unfair that it makes the whole contract, as be- tween the infant and the master, an unfair one to the infant.' This description is applicable to any stipulation which violates the rule of law under which "an infant is incapable of contracting himself out of his acquired rights, or subjecting himself to a penalty." ^* ' It has been asserted in a recent Eng- doctrine enunciated by Fry, L. J., in the lish treatise, that the rule which de- following passage of his judgment in Clares beneficial contracts of hiring to De Francesco v. Barnum (1890) L. R. be binding upon infants is, properly 45 Ch. Div. 430: "The question is this, speaking, an extension of that which Is the contract for the benefit of the prevails with regard to their contracts infant? Not, Is any one particular for necessaries. Everlsey, Dom. Rel. p. stipulation for the benefit of the in- 753. fant? Because it is obvious that the The historical evidence as to this contract of apprenticeship or the con- point is, it is apprehended, too scanty tract of labor must, like any other con- to warrant any positive statement. The tract, contain some stipulations for the present writer, however, ventures to benefit of the one contracting party, suggest that the evidence, so far as it and some for the benefit of the other, goes, rather points to the conclusion It is not because you can lay your hand that, whatever may have been the rule on a particular stipulation, which you as regards the contracts of infants re- may say is against the infant's benefit, specting other matters, their contracts that therefore the whole contract is not of service have always been viewed as for the benefit of the infant. The court binding except as against themselves; must look at the whole contract, having and that the modern decisions simply regard to the circumstances of the case, reflect the opinion of the courts that it and determine, subject to any principles is advisable to abrogate the exception of law which may be ascertained by to a certain extent. But it must be the cases, whether the contract is or is admitted that there is a somewhat per- not beneficial." plexing gap in the process of doctrinal In Wood v. Fenwick (1842) 10 Mees. evolution, and even now, it is not entire- & W. 195, Alderson, B., remarked, dur- ly certain whether beneficial contracts ing the argument of counsel : "The are deemed to be valid for all purposes, court must see that on the whole he de- See next section. rives a benefit under the contract. Here 8 Kay, L. J., in Clements v. London he is hired and receives wages. It is & N. W. R. Go. [1894] 2 Q. B. (C. A.) clear he derives a benefit [though], he 482, 491. ™^y S'lso be subject to some inconven- 9 Corn V. Matthetcs [1893] 1 Q. B. iences, but that is not necessarily so." 310, per Lord Esher, M. R., stating what l" Lush, J., in Leslie v. Fitspatrick he understood to be the effect of the (1877) L. R. 3 Q. B. Div. 229. He 362 MASTER AND SERVANT. [chap. iv. It has also been declared that, wherever "extraordinary or unusual stipulations" are found in a contract, either of apprenticeship or of service, the court at least must be "on the watch lest the infant should be held to be bound by a contract which is not reasonable, and which is not good in law, and which is not maintainable." ^^ But a con- tract will not be pronounced invalid merely because it contains some unilateral provisions in favor of the master. "Whether they are inequitable or not depends on considerations outside the con- pointed out that this was a second and service without leave was quashed, was distinct ground upon which the decision that the contract bound the infant not in Beff. v. Lord (1850) 12 Q. B. 757, 3 to engage in any other service or busi- Xew Sess. Cas. 246, 12 Jur. 1001, 17 ness during the whole term, while it re- L. J. Mag. Cas. (N. S.) 181, might be served to the master the right to stop regarded as resting, — viz., that the eon- the work and the wages whenever he tract in question rendered the infant pleased. Lord Denman, Ch. J., declared liable to be dismissed for any miscon- that such an agreement could not be duct or disobedience, and, upon dismiss- considered as beneficial to the servant, al, to forfeit all his wages which should but that it was inequitable and wholly then be due and unpaid. void. Compare also the following remarks In an action for damages caused by of Fry. L. J. : "It has been held from the infant's breach of his engagement, it the time of Lord Coke that an infant was held that an agreement which binds cannot bind himself to be liable to a an infant to serve for the space of five penalty, that the contract to impose a years, with a clause that, in case of ill- penalty on an infant is void. Again, it ness, or absence from any cause whatso- has been held that a contract by which ever, the stipulated payments should an infant renders his vested interest cease, is not a contract for the benefit of subject to forfeiture is void against the the defendant. Birkin v. Forth (1875) infant." De Francesco v. Barnum 33 L. T. N. S. 532. (1890) L. R. 45 Ch. Div. 430. In Leng v. Andrews (1908) 25 Times "Ordinarily an infant cannot be L. R. (C. A.) 93, reversing (1908) 24 bound by a contract which is not for Times L. R. 853, a minor, upon becom- his benefit." Collins, M. R., in Stephens ing a junior reporter, at a salary of £2 v. Dudbridge Ironworks Co. [1904] 2 a week, on the staff of a newspaper in K. B. (C. A.) 225, where it was held a, town where there was a rival news- that the acceptance by an infant of paper, agreed that he would not, after compensation for injuries, under the leaving the employment, be connected, workmen's compensation act of 1897 as proprietor, employee, or otherwise, (see chapter Lxxvii., post) was not a with any newspaper business carried on bar to a subsequent action for damages, in the town or within a, radius of 20 11 De Francesco v. Barnum (1890) L. miles. It was found as a fact that such R. 45 Ch. Div. 430, per Fry, L. J. a clause was unusual. Held, that the Compare the remark of Lush, J., that, agreement was invalid. Cozzens-Hardy, if "advantage was taken of him to ex- M. R., expressed the opinion that, even act conditions which were unusual and if the employee had been an adult, the unreasonable, or to secure his services agreement would not have been valid, for wages which were unreasonably low since there were no special circum- and inadequate, the infant is not stances given to show that the plain- bound." Leslie v. Fitzpatriok (1877) tiff's were in need of the protection L. R. 3 Q. B. Div. 229. which it would afford. But in the case In Reg. v. Lord (1850) 12 Q. B. 757, of an infant it was clearly invalid, as 3 New. Sess. Cas. 246, 12 Jur. 1001, the plaintiffs had not discharged the 17 L. J. Mag. Cas. N. S. 181, one of onus of proving that the contract con- the grounds on which a conviction of tained only clauses that were usual and the infant, under stat. 4 Geo. IV. chap, necessary. 34, § 3, for absenting himself from •§ 103] FORMATION AND VALIDITY OF CONTRACT. 363 tract. If such provisions were at the time common to labor contracts, ■or were, in the then condition of trade, such as the master was rea- sonably justiiied in imposing as a just measure of protection to him- self, and if the wages were a fair compensation for the services of the youth, the contract is binding, inasmuch as it was beneficial to him by securing to him permanent employment and the means of maintaining himself." ^^ In the reports we find some traces of the doctrine that the ascrip- tion of an obligatory quality to beneficial contracts of hiring is mere- ly one application of a broad principle embracing all beneficial con- tracts. If this doctrine was ever actually accepted, which is more than doubtful, — it has been definitely discarded; and the only con- tracts which the courts now treat as binding on the ground of their beneficial quality are those of hiring. ^^ 103. Same subject. To what extent the contracts of infants are treated as valid. — a. In settlement cases. — The poor law formerly in force contained a provision u:nder which a settlement could be ac- quired by sewing for a year in a parish. With reference to this provision, the courts adopted the doctrine that an infant gained a settlement by sewing under a beneficial contract.* A settlement may still be acquired by service under a beneficial contract of apprentice- ship. h. In special statutory proceedings for the enforcement of the con- tract. — It is well settled that, by entering into a beneficial contract of service, an infant renders himself amenable to the summary reme- 12 Leslie v. Fitzpatrick ( 1877 ) L. E. 3 field had laid down the principle that if Q. B. Div. 229, 232, per Lush, J. In an agreement be for the benefit of an that case an infant contracted to serve infant at the time, it shall bind him; shipbuilders as a plater and riveter for and had also stated that Lord Hard- flve years, at increasing weekly wages wicke had afterwards adopted this rule, mentioned in the agreement, provided In Bex v. Shinfield (1811) 14 East, that, if they should cease to carry on 541, this doctrine was relied on as a their business, or find it necessary to re- ground for holding a contract of service duce the operation of their works from to be binding. But in Martin v. Oale any cause over which they should not (1876) L. R. 4 Oh. Div. 431, it was ob- have any control, they were to be at served by Jessel, M. R., that "there liberty, on giving fourteen days' no- must be some mistake in the report of tice, to terminate the agreement and dis- what Buller, J., is stated to have said," charge the infant from their service, and that "no case can be found in which Held, that the agreement was not void Lord Mansfield or Lord Hardwicke had on the face of it, so as to prevent its laid down any such general principle." enforcement under the employers and This criticism is clearly well founded, workmen act of 1875, 38 and 39 Vict. The words actually used by Lord Mans- chap. 90. field are quoted in note 2, supra. 13 In Maddon ex dem. Bakery. White ^ Rex v. Chillesford (1825) 4 Barn. (1787) 2 T. R. 161, it was stated by & C. 94. The rationale of that decision Buller, J., that in Buckingham^fwre v. is discussed in subsec. 6 of the preced- Drury (1761) 2 Eden, 72, Lord Mans- ing section. 364 MASTER AND SERVANT. [chap. iv. dies provided by the various statutes relating to masters and serv- ants. (See chapter si. subd. B, post.) This doctrine has been ap- plied both in cases in "which the court viewed such a contract as being voidable at the option of the infant/ and in cases in which the judi- cial position in this regard was not defined.' c. In actions for wages. — There is explicit authority for the doc- trine that an infant is entitled to recover remuneration for services rendered under a beneficial contract.* But it seems clear that the enforceability of his claim does not depend upon whether the con- tract is beneficial or nonbeneficial. If the master accepts the serv- ices, he is bound to pay for them, though not necessarily at the stipulated rate. d. In actions against infants for breach of contract. — The broad question whether an action for damages lies against an infant who has violated the stipulations of a beneficial contract has apparently never been determined in England. In one case it was held that such an. action was not maintainable; but there the given contract was decided to be nonbeneficial, and the principal point discussed was whether it had been duly ratified by the defendant after he had passed his majority. None of the judges expressed any opinion with regard to the liability of the servant in a case where the contract is beneficial, and the action is brought while he is under age.* That such an action is not maintainable might seem to be indicated by the analogy of the doctrine which precludes a master from enforcing the covenants of an indenture against an infant apprentice.^ The opposite conclusion, however, is suggested by the decisions reviewed BRex V. Chillesford (1825) 4 Barn, applicable to infants. But a perusal of & C. 94, per Bayley and Littledale, the judgments in those oases shows that JJ. See subseo. d of preceding section, they were not decided on any such nar- SWood V. FenmcTc (1842) 10 Mees. & row ground. W. 204 (doctrine taken for granted); * "An infant may make a contract Leslie v. Fitzpatriok (1877) L. R. 3 for his own benefit; he may, therefore, Q. B. Div. 229, 232. make a contract for hiring and service. It has been held that the provisions of for that will be beneficial to him. It the masters and servants act of New- will give him a right to sue for wages." foundland (Consol. Stat. chap. 109) Bayley, J., in Rex v. Chillesford (1825) cannot be ingrafted on an infant's con- 4 Barn. & C. 94. tract of service, and that he was not ^ Birkin v. Forth (1875) 33 L. T. N. subject to the penalties imposed by that S. 532. act for breaches of it by servants, al- 6 In one of the American states it has though it was conceded that the contract been held that no action lies against a belonged to the beneficial class. New- minor who abandons a contract of serv- foundland Furniture Go. v. O'Reilly ice made in consideration of the supply (1874-84) Newfoundl. Rep. 435. The of necessaries. Francis v. Felmit English cases were distinguished on (1839) 20 N. C. 637 (4 Dev. & B. L. the ground that the employers and 498). workmen act was, by its express terms. f 103] FORMATION AND VALIDITY OF CONTRACT. 365 in the following subsection, as these clearly cannot be supported •except upon the assumption that the master had a legal remedy for the breaches of contracts in question. e. In suits to enforce restrictive stipulations. — The preponderance of authority is decidedly in favor of the doctrine that an infant may be restrained by injunction from violating a reasonable stipulation to refrain from hiring himself to another employer, or from fol- lowing a certain occupation.' VIn Fellows v. Wood (1888) 59 L. T. N. S. 513, an infant contracted with a dairyman to enter his employment at a salary of f 1 a week, and agreed that he would not serve for his own benefit any of his employer's customers during the time he remained in such employment, or for two years afterwards, and that two weeks' notice to leave was to be given on either side. Held, that this contract was beneficial to the infant, and could be enforced against him, and that § 1 of the infants' relief act of 1874 (37 & 38 Vict. chap. 62), does not apply to such a contract. Manisty, J., said: "I consider that this contract was decidedly beneficial to the defend- ant; the notice the plaintiflF was obliged to give was short, but the salary was reasonable, and the defendant had the opportunity of learning his business, and had plenty of time to get to know all the plaintiff's customers; so, for this reason, the plaintiff was justified in binding him not to serve them for two years after leaving him." In De Francesco v. Barnum (1889) L. R. 43 Ch. Div. 165, Chitty, J., said that he was persuaded from a careful exam- ination of the report, that the injunc- tion in the above case was not granted against an infant, but against a man of full age, who, to a certain extent, ap- peared to have acted upon the contract after the infancy had terminated. His conclusion, as regards the case before him, was that the plaintiff had no right which he could enforce by injunction against the defendant, — a person alleged to have enticed away the apprentice. This view was adopted by Fry, L. J., who subsequently tried the action for enticement. (1890) (L. R. 45 Ch. Div. 430). In Evans v. Ware (1892) L. R. 3 Ch. Div. 502, North, J., suggested that Chitty, J., had not in his mind the exact facts of the Fellows Case, and •confused it with Cornwall v. Hawkins (1872) 41 L. J. Ch. N. S. 435, 26 L. T. N. S. 607, where there actually was a ratification of the contract by the in- fant after he had reached majority. The present writer ventures to think that, whether this suggestion is well founded or not, there is nothing in the language used by Manisty, J., in the Fellows Case to justify its being ex- plained on the footing propounded by Chitty, J. In Evans v. Ware, ubi supra, it was held that an agreement by an infant in consideration of employment, that he would not compete in business with his employer for two years after leaving, within a radius of 5 miles, was for his benefit, and would be enforced upon his leaving and engaging in business in vio- lation thereof after attaining his ma- jority. North, J., distinguished De Francesco v. Barnum, supra, as being a decision relating to a contract of ap- prenticeship. But having regard to the very general statements found in the judgment of Fry, L. J., on the subse- quent trial of this case ( [1890] L. R. 45 Ch. Div. 430), it is perhaps unnecessary to rely on this circumstance as a means of reconciling the two decisions. In Leng v. Andreios (1908) 25 Times L. R. (C. A.) 93, reversing (1908) 24 Times L. R. 853, an injunction was re- fused, but merely on the ground that the restrictive stipulation was unreason- able. In Brovm v. Harper (1893) 68 L. T. N. S. 488, the defendant, while a minor, agreed to serve a firm of law account- ants, and, at the expiration of the agree- ment, not to seek employment from or do work for persons who might at any time up to the expiration of the agree- ment have employed the firm. After attaining twenty-one he continued in the service for over four years, and his wages were raised from time to time. He then left, and sought and obtained 366 MASTER AND SERVANT. [chap, iv., 104. — American doctrine. — a. ^yith respect to contracts for neces- saries. — In some jurisdictions it is held that a contract of which the specific and express purpose and object is to furnish an infant with necessaries is binding upon him, if it is on the whole reasonable and beneficial and free from fraud. ^ In others this doctrine has been employment from persons who, prior to otherwise incapable of performing any that date, were customers of the plain- labor, the defendant was nevertheless,, tiffs. Held, that it ought to be inferred by the terms of his contract, bound to from the conduct of the parties that a support him. These considerations new contract between them, containing might have rendered the contract equal a stipulation by the defendant in the and beneficial at the time, although in terms of the original agreement had the event, which could not then be fore- been entered into after the defendant seen, the plaintiff's labor may have been attained twenty-one, and that an in- of greater value than the subsistence- junction ought to be granted to restrain and education which he obtained as an the breach of such stipulation. From equivalent. The circumstance, also, that the fact that ratification was made the the contract was made with the consent basis of this decision it would seem to and approbation of the guardian, be a reasonable inference that, if that evinced by his becoming a party to it, element had not been present, the conclu- went strongly to show that the contract sion reached would have been different, was entered into deliberately and with a The foregoing decisions are at vari- just regard to the rights and security ance with the broad doctrine enunciated of the minor. The opinion was ex- in the New Brunswick case, Reg. v. Ear- pressed that it would be injurious, rath- ns (1848) 6 N. B. 100, that an infant er than beneficial, to minors to hold that is not bound by an agreement not to en- a contract thus made is of no legal force gage in a trade within certain limits of and effect. In this case the actual point time or space. But that case, it will decided was that the contract could not be observed, is earlier in date than any be repudiated after it had been fully of the English authorities. executed; but the language of the court 1 "Contracts made for maintenance is perfectly general. The court re- and education according to the degree of marked (p. 7): "The rule . . . the infant, if he have no parent or that a minor shall only be bound by guardian, are to be enforced from regard such a species of express contract, and to the infant himself; for if he may in such a form of action, as leaves the avoid such contracts, none will trust nature, terms, and consideration of the him, and he may be left to present want contract open to inquiry, and then only and without the means of providing a by such a contract as shall appear at the future living." Moses y. St eveiis (1824) time to have been fair, reasonable, and 2 Pick. 332. beneficial to the minor, affords a suiE- In a later case it was laid down that cient security to the rights of minors." a contract to serve until full age, in It is not amiss to point out that the- consideration of receiving subsistence, statement in the opinion, to the effect clothing, and education, was a contract "that a minor may bind himself by a for necessaries, and was one which, if contract for necessaries, if equal and reasonable and beneficial, would be sup- reasonable, and also that he may make ported by the law. Stone v. Dennison contracts which are beneficial to him," (1832) 13 Pick. 1, 23 Am. Dec. 654. is manifestly to be construed, in spite It appeared to the court that, taking of its apparent recognition of the theory into account the age of the minor — that all beneficial contracts are bind- namely, fourteen — when the contract ing, as being expressive of a rule ap- was made, and the circumstances attend- plicable only to beneficial contracts for ing it, it was reasonable and beneficial, necessaries. Upon any other supposi- The employer, it was observed, took up- tion it would be inconsistent with the on himself the risk of the health, life, language used In Moses v. Stevens and bodily and mental capacity of the (1824) 2 Pick. 334 (note 4, infra). plaintiff to labor. Had he been sick or which has never been overruled, and im § 104] FORMATION AND VALIDITY OF CONTRACT. 3G7 more or less explicitly repudiated.^ But there seems to be no satis- factory reason for predicating a distinction between contracts for Vent V. Osgood, infra, in which the rule laid down in Moses v. Stevens was again explicitly adopted. The same remarks are applicable to the following passage in the opinion in a case decided in the previous year: "The court does not mean to say that it is not competent for a minor over four- teen years of age, with the consent of his parents, and under many circum- stances by himself alone, to make a con- tract for his employment; and if such contract is reasonable and beneficial . . . it may Jje held to be valid and binding in law, on the ground that it is within a well-known exception to the general rule under which minors are held incompetent to bind themselves by their contracts." Nickerson v. Easton (1831) 12 Pick. 110, 112. If the contract of an infant be "clear- ly prejudicial to him, it is void. If it may be for his benefit, or to his damage, it is voidable at his election, and he may avoid it during his minority, or when he becomes of full age. If the contract be clearly beneficial to him, he is bound. And whether the contract comes within one or the other of these distinctions is to be determined by sound judicial discretion. Those contracts of a binding character are such as come within the description of necessaries; for example, for suitable food, clothing, education." Vent v. Os- good (1837) 19 Pick. 572. Stone V. Dennison was one of the au- thorities cited in a Rhode Island deci- sion, where it was held that an infant may, with the consent of his father, bind himself by a contract providing for his services in consideration of teaching him a trade and paying him reasonable wages. Pardey v. American Ship Windlass Go. (1897) 20 R. I. 147, 78 Am. St. Rep. 844, 37 Atl. 706, where an infant who had left the service vol- untarily after attaining his majority, and before the end of the stipulated term, was held not to be entitled to re- cover the sum which under the agree- ment was to be retained out of his wages until he had completely per- formed the contract. The court laid down the doctrine that an infant may bind himself by a contract for neces- saries, if reasonable, or by a contract beneficial to him. That contracts for necessaries are bind- ing was conceded, arguendo, in Burns V. Smith (1902) 29 Ind. App. 181, 94 Am. St. Rep. 268, 64 N. E. 94. In Wilhelm v. Eardman (1858) 13 Md. 140, where the minor agreed to work for seven years in consideration of nec- essary food, lodging, clothing, and schooling whenever school was available, the contract was held binding as being for "necessaries," although it contained a provision to the efi'ect that if the minor should serve the full term he was to receive a horse and bridle in addition. In Framcis v. Pelmit (1839) 20 N. C. 637 (4 Dev. & B. L. 498), an action against an infant who had withdrawn from the performance of a contract un- der which he was to work for a specified period in consideration of being boarded, clothed, and taught a trade, the mas- ter claimed in one count the value of the instruction given and the tools, board, and clothing furnished previous to the withdrawal. It was held that he could not recover, as the value of the services rendered exceeded that of the necessaries furnished; but the court re- ferred to the general rule that the con- tracts of infants are not binding unless they are for the supply of necessaries. In Voorhees v. Wait (1836) 15 N. J. L. 343 (hiring in consideration of being instructed in a trade), the point deter- mined was merely that the master could not allege the invalidity of an infant's contract, the court deemed it "unnec- essary to inquire" how far an infant can bind himself. 2 In Meeker v. Hurd (1859) 31 Vt. 639, where the infant was to receive for her services her support and cloth- ing, to be sent to school a portion of the time, and at her majority to re- ceive a certain sum of money, the court observed : "The plaintiff's contract . . . cannot be considered as a contract for necessaries. This is a contract for service, and the plaintiff could not, in the eye of the law, judge as to the value of those services, the time suitable for her to engage, or the proportion of time which she ought to go to school, nor what her compensation ought to be over and above her support and schooling." 368 MASTER AND SERVANT. [chap. rv. necessaries which are to be paid for by the infant's labor, and con- tracts for necessaries which are to be paid for by his money. b. With respect to merely beneficial, contracts. — Some traces of the English doctrine that an infant is prima facie bound by any con- tract of service which is beneficial to him are to be found in the American reports.' But, speaking generally, that doctrine has been In Locke v. Smith (1860) 41 N. H. tent to which judicial opinion in Amer- 346, where a father had, in pursuance ica has pronounced against the theory of a statutory power, bound out his that the merely beneficial quality of a minor son in consideration of his being contract renders it binding. The real supplied by the master with food, lodg- ground upon which its conclusion was ing, clothing, and schooling, the court based was that the given contract was remarked, arguendo: "Nor could the for service in consideration of neces- assent of the son make any difference, saries. because, if assented to by the son, so as In United States v. Bainhridge to make it his contract, the law does not (1816) 1 Mason, 71, Fed. Cas. No. 14,- hold him bound by it, on the ground of 497, Story, J., seems to' be disposed to infancy. He is only bound to pay for adopt the English rule (p. 82). But necessaries what they are worth, not the case was really decided on the spe- what he may foolishly have agreed to cial ground that the statute as to enlist- pay." ment in the Navy had rendered the in- 3 In Williams v. Hutchinson (1850) fant competent to bind himself without 3 N. Y. 312, 53 Am. Dec. 301, the de- the consent of his father. "Whenever," eision of the court that an infant who said the learned judge, "any disability is adopted as a member of a family can- enacted by the common law is removed not recover compensation for services by the enactment of a statute, the com- performed by him for his adopted par- petency of the infant to do all acts ents was put upon the broad ground within the purview of such statute is that, as it is clearly for the advantage as complete as that of a person of full of an infant that he should be provided age. And whenever a statute has au- with a home, any contract beneficial to thorized a contract for the public serv- himself which he may make for that ice, which, from its nature or objects, purpose is binding. The English author- is manifestly intended to be performed ities were cited. by infants, such a contract must, in In Tennessee Mfg. Co. v. James point of law, be deemed to be for their (:;892) 91 Tenn. 154, 15 L.R.A. 211, 30 benefit and for the public benefit, so Am. St. Rep. 865, 18 S. W. 262, a con- that, when bona fide made, it is neither tract made by a female minor and her void nor voidable, but is strictly obliga- father jointly, by which she was to re- tory upon them. I say bona fide made, ceive a certain rate of wages, "subject for if there be fraud, circumvention, or to all the specified conditions," one of undue advantage taken of the infant's which was that, if she should quit the age or situation, by the public agents, service without giving two weeks' no- the contract could not, in reason or jus- tice, she was to forfeit, out of her wages tice, be enforced. It would be strange, then due, a. certain sum as liquidated indeed, if courts of law could judicially damages, was held to be binding on the hold contracts to be void or voidable, minor. which the legislature should deem salu- In Pardey v. American Ship Windlass tary or essential to the public interests, Co. (1897) 20 R. I. 147, 78 Am. St. or pronounce them invalid because en- Rep. 844, 37 Atl. 706 (see note 1, su- tered into by the very parties who were pra), there was cited, among other au- within the contemplation of the law." thorities. Cooper v. Simons (1862) 7 Under the constitutional power of Hurlst. & N. 719. a case in which this Congress to provide and maintain a doctrine that a beneficial contract of ap- Navy, that body may authorize minors prenticeship is binding on a minor was to enter into contracts for service in afiirmed. But the court does not seem the Navy, although such contracts, if to have been aware of the decisive ex- made by infants, might not be binding § 104] FORMATION AND VALIDITY OF CONTRACT. 369 rejected in the United States.* The cases are quite numerous in which the courts have proceeded upon the ground that an ordinary contract of service from v^hich an infant is to derive no other spe- cific benefit than the stipulated compensation is voidable by him.* The radio decidendi of some cases is that an essentially prejudicial contract of service is not binding on an infant.® But, having regard to the fact that even beneficial contracts are commonly treated as non- obligatory, the position thus taken obviously represents, so far as most jurisdictions are concerned, merely an a fortiori conclusion. at common law. Com. \. Murray (1812) 142; Van Pelt v. Corwine (1855) 6 4 Binn. 487, 5 Am. Dec. 412. Ind. 363; Davenport v. Gentry (1849) The general question of the right of 9 B. Mon. 427; Judkins v. Walker a minor to enlist in the military or (1840) 17 Me. 38, 35 Am. Dee. 229; naval service vrithout the consent of his Derocher v. Continental Mills (1870) parent or master is not one which falls 58 Me. 217, 4 Am. Rep. 286; Vehue v. within the scope of this treatise. The Pinkha/m (1871) 60 Me. 142; Spicer v. decisions on the subject are conflicting. Earl (1879) 41 Mich. 191, 32 Am. Rep. See reporter's note to Caughey v. SnUth 152, 1 N. W. 923; Lufkin v. Mayall (1872) 47 N. Y. 259. (1852) 25 N. H. 82; Cam/plell v. Cooper 4 In Moses V. Stevens (1824) 2 Pick. (1856) 34 N. H. 49; Hoxie v. Lincoln 334, the position of the court was thus (1853) 25 Vt. 206; The Hotspur (1874) explained by Parker, Ch. J.: "If it 3 Sawy. 194, Fed. Cas. No. 6,720. were true, as alleged in the argument, Under the English doctrine, the con- that this contract for work and labor is tracts in all the above cases would, it binding on an infant because it is for seems, have been treated as binding to his benefit, then it ought to follow that the extent explained in the two pre- a violation of it should deprive him of ceding sections. the right to obtain compensation for a 6 In Nickerson v. Boston ( 1831 ) 12 partial performance. But we apprehend Pick. 110, a written agreement not that this contract is voidable by the in- under seal, signed by a minor, his fant, it not coming within the exception mother, and stepfather, of the one part, to the general rule of law that all con- and by the defendant, of the other tracts by infants may be avoided by part, recited that the minor had been them either before or after they arrive living with the defendant as an appren- at full age." In another part of his tice to learn the trade of a cooper, but opinion the learned judge observed that no indenture had been executed, "There is no case in which it is holden and stipulated that the minor should that an executory contract by an infant go on a whaling voyage, and should do . . . is binding." Virtually the "the duty he ships to perform," and same words are used in Whdtmarsh v. that the defendant should furnish him Hall (1846) 3 Denio, 375. outfits, and should receive all his earn- In Lowe v. Simklear (1858) 27 Mo. ings on the voyage, and that at the 308, contracts for personal services and end of the voyage the minor should be for necessaries are contrasted in respect free from his apprenticeship. It was to the ability of infants to avoid the held that, so far as the relation of former kind, but not the latter. master and apprentice subsisted de faoto ^ Breed v. Judd (1854) 1 Gray, 455; by the actual residence of the minor Vent V. Osgood (1837) 19 Pick. 572; with the defendant, it was waived and Murrell v. State (1870) 44 Ala. 367; terminated by the written agreement; Langham v. State (1876) 55 Ala. 114; that the written agreement itself did Whitmarsh V. Hall (1846) 3 Denio, 375; not constitute a contract of apprentice- Peters v. Lord (1847) 18 Conn. 337; ship; that, independently of the sup- Ray V. Haines (1869) 52 111. 485; posed relation of master and apprentice, Dallas V. Hollingsworth (1852) 3 Ind. the contract was not reasonable and 537 J Wheatly v. Miscal (1854) 5 Ind. beneficial to the minor, and not binding M. & S. Vol. I.— 24. 370 MASTER AND SERVANT. [chap. iv. 105. Conflict between English and American decisions discussed. — The American doctrine that contracts of service are not an exception to the general principle that only contracts for necessaries are bind- ing upon infants was laid down in Massachusetts at a date when the English rule as to the obligatory quality of all beneficial contracts had not yet assumed its present definite form, and rests, as it would seem, upon a passage in RoUe, Abr. Enfants, 729, in which it is stated that an infant is bound by a contract pro victu et vestitu} In view of the position taken by the English courts, it may reasonably be regarded as being at least open to question whether this passage is necessarily to be construed in the sense thus ascribed to it. But the- American doctrine has now been applied in so many cases that every court in the United States which may hereafter be called upon to de- termine the question, will probably feel constrained to follow the gen- eral current of the precedents. To discuss the correctness of that doctrine, therefore, and the regrettable conflict which its adoption has produced between the courts of England and America, might well be deemed a work of supererogation, if it were not for the fact that the growing frequency of those extensive compromise agreements which are now a common sequel of disputes between employers and work- men, and which purport to be binding on both sides for a certain specified period, has invested the subject with a highly practical in- terest which it has not hitherto possessed. Although it is impossible to ignore the circumstance that, under existing conditions, the legal remedies of employers for a breach of such agreements are seldom of much tangible value, it is certainly a serious consideration that, under the doctrine administered by the American courts, all the in- fants who are comprehended in these arrangements are left at liberty to disregard their engagements, under circumstances which render it particularly important to their employers that their obligations should be loyally fulfilled. Having regard to this novel and extremely prac- tical aspect of the matter, it may be advisable to examine briefly the considerations upon which, aside from ancient authorities of a dubi- ous significance, the American doctrine may be supposed to rest. upon him; and that he was entitled to Bacon, Abr. Infancy, I. 3, where the- recover his earnings on the voyage to statement in Rolle, Abr. is cited, were his own use. relied upon by counsel in Moses v. An infant is not bound by a stipu- Stevens (1824) 2 Pick. 332 (§ 104, lation as to the forfeiture of wages in a note 1, ante), and though the court doe& specified contingency. Tent v. Osgood not refer expressly to these authorities, (1837) 19 Pick. 52; Danville v. Amos- it seems sufficiently probable that they keag Mfg. Co. (1882) 62 N. H. 133. furnished the basis of the decision. 1 This passage, and also that in § 105] FORMATION AND VALIDITY OF CONTRACT. 371 It is asserted that a contract for the infant's services only, "al- though he is to receive wages, ought not to he binding, because he is not presumed to be capable of judging of the value of his services, nor of the kind of labor most suitable for him ;" ^ that the law, hav- ing regard to this presumption, gives him the privilege of judging whether the contract is beneiicial or not, and of avoiding it, if he should prefer to do so ; ^ that it would contravene the principle on which the main rule as to the voidability of an infant's contract is founded, — viz., the benefit of the infant, — if it were left to the court or jury to determine which contracts are beneficial and which are not* 2 Parker, Ch. J., in Moses v. Stevens Dike (1839) 11 Vt. 273, 34 Am. Dec. (1824) 2 Pick. 332. The learned judge 690. In this ease the contention that fortified his statement by the following the contract might be considered as additional remarks: "Even a contract binding because the infant might be of apprenticeship, by means of which he compelled to go out to work by his is to acquire a knowledge of some me- guardian or the overseer of the poor chanical or other business, is not, by the was also rejected. It was declared principles of the common law, obliga- that he could not have been compelled tory; certainly a contract by which he to make a contract of this nature, disposes of his personal lalwr without "This is a contract for service, and any stipulation for instruction is less the plaintiff could not, in the eye of the deserving of legal protection. The cases law, judge as to the value of those serv- cited to prove that this was a binding ices, the time suitable for her to en- contraet upon the plaintiff, because it gage, or the proportion of time which was for his interest, only show that she ought to go to school, nor what her it was not absolutely void, but only compensation ought to be, over and voidable. ... If the ground taken above her support and schooling." by the defendant could be maintained. Meeker v. Hurd (1859) 31 Vt. 639. that this contract could not be avoided, ^ Gaffney v. Hayden (1872) 110 because it is for the benefit of the infant, Mass. 137, 14 Am. Rep. 580, adopting then every loan of money of which he a conception put forward in Yent v. might make a profitable use, and every Osgood (1837) 19 Pick. 572. sale of goods upon which he might get * In Clark v. Goddard { 1863 ) 39 Ala. an advanced price, would form a eon- 164, 84 Am. Dee. 777, Stone, J., rea- sideration for a promise which he could soned as follows: "If we hold that never avoid; and in order to determine those contracts of infants which are his right of rescinding, it would be beneficial to them are binding, and necessary to look into the consequences that those which are not beneficial of his contracts. But the law has es- are inoperative, how is the question tablished the general rule from a re- to be determined which are, and gard to the general efl'ect of allowing which are not, beneficial? Can the minors to make valid contracts, not law lay down an unerring rule? and, with a view to the particular benefit or if it cannot, is this a question to be mischief which might result from them." decided by courts or by juries on the Compare also the following passages : particular circumstances which each "This cannot be considered a contract case may disclose? The statement of for necessaries and therefore binding, these questions, it seems to us, forces as an infant cannot judge for himself a negative answer to each. ... It as to the value of his services, the is certainly more conducive to his bene- time suitable to bind himself, or the fit to afi^ord him the opportunity of nature of the employment. An express afiirming, when of age, a contract which contract to pay for necessaries to be he may determine to be beneficial, than thereafter furnished for a length of for the court or jury to determine the time would not be valid." Thomas v. question for him. . . . The law can- 372 MASTER AND SERVANT. [chap. iv. The most serious objection to which all these arguments are open is that they proceed upon the assumption that the validity of infants' contracts of service is a question to be determined upon precisely the same footing as the validity of infants' contracts of other descrip- tions. This assumption is scarcely warrantable, for it may be main- tained with a considerable show of reason that, on account of their peculiar incidents and the purpose for which they are usually en- tered into, contracts of service may not improperly be assigned to a special category.* With respect to the presumption which is said to be entertained for the protection of infants, it undoubtedly constitutes a good rea- son for treating all contracts of service as voidable which, as a matter of fact, are not beneficial. But it is not at all apparent why it should be deemed to be an element of any greater significance than this. JSTor is it easy to see why the interests of infants should be more seriously endangered by the operation of a doctrine which should affirm the obligatory quality of every contract which a jury should find to be beneficial, than they are at present by the operation of the statutes which enable them, by complying with certain forms, to bind themselves absolutely to the performance of contracts of apprentice- ship. Furthermore, it is difficult to concede that there is not an essen- tial inconsistency in a conception of the rights of infants which at- taches a controlling importance to the express terms of the contract, and virtually excludes all evidence as to the real considerations which may have induced the infant to hire himself out. On principle it would seem that the courts should at least have admitted into the not lay down a rule for the decision of most ruinous results. Neither would this question, as the same arises on it do, in a case like the present, to hold this record; for some trades or occupa- that the infant should not be allowed tions might, and probably would, be to elect between the ratification and beneficial to the infant, while others repudiation of his contract, until he would be injurious, unprofitable, and, attained to lawful age. In most cases in some cases, degrading. Trades and the contract would have expended its arts well adapted to some capacities force at that time; and to establish and circumstances would be utterly in- such a rule would be to take from the eligible under other circumstances, infant all right to avoid the contract Neither would a rule which submitted until after it was executed." this question to the judgment of a 6 In the passage quoted in § 102, ante, court or jury be any more satisfactory from the judgment in De Francesco v. or uniform. No one could know or tell, Barnum (1890) L. R. 45 Ch. Div. 430, until the decision should be pronounced Fry, L. J., has mentioned one of the at the end of a litigation, whether the matters which may well furnish the particular trade or employment would basis of an exceptional rule on the sub- be beneficial or otherwise. A rule of ject, viz., "the desirableness of infants such uncertain operation would lead to employing themselves in labor." § 106] FORMATION AND VALIDITY OF CONTRACT. 373 class of obligatory contracts of service all those which are shown to have been, as a matter of fact, made for the purpose of procuring necessaries, and which are in other respects not inequitable or unrea- sonable. Granting that, in any case where the contract is not on its face one for necessaries, it may be proper to start with the presump- tion that the infant was incapable of forming a sound judgment as to the expediency of making the contract, it does not by any means fol- low that this presumption should be treated as a finally decisive ele- ment, and a basis for an unvarying rule of law. So far as can be seen, he would be quite sufficiently protected by a doctrine which should simply declare that he is not bound by such a contract, unless it is proved by satisfactory evidence that he could not have obtained certain necessaries in any other way than by making it, and that it was, on the whole, not inequitable or unreasonable. 106. Distinction, in respect to the right of avoidance, between executory and executed contracts of service. — In Massachusetts and Michigan it has been laid down that a contract to furnish an infant with necessaries, in return for his services during a certain period, cannot be repudiated by him after it has been executed, unless it is shown that he was in some way imposed upon by the employer.* But 1 If an infant of the age of fourteen minor had been sent to school, clothed, years enters into an agreement to labor his washing and mending done, etc. until he shall come of age, in considera- The jury might have found from such tion of being furnished with his board, evidence that the minor had given his clothing, and education, and he is not assent to the agreement, overreached, and the agreement is not In Spieer v. Earl (1879) 41 Mich, so unreasonable as to raise any suspicion 191, 32 Am. Rep. 152, 1 N. W. 923, of fraud, and it is sanctioned by his the same doctrine was applied in an guardian, and is fully performed on action brought while the plaintiff was both sides, he cannot, after attaining still a minor. The court refused to ac- his majority, maintain a quantum cept the special contention that the meruit for his services, merely on the fact of the contract's being only par- ground that, in the event which has tially for necessaries was sufficient to happened, his services were worth more distinguish the case from the one last than the stipulated compensation. Stone cited. Upon the more general question V. Dennison (1832) 13 Pick. D, 23 Am. the court expressed its views as follows: Dec. 654. "It is a harsh rule which permits the In the two following cases the action infant to repudiate his contract after was brought while the servant was still he has executed it, where no advantage a minor. has been taken of him, and where the In Squier v. Bydliff (1861) 9 Mich, party dealing with him was not aware 274, where the contract was exclusively of his infancy. Where only the infant's for necessaries, it was held that evi- services are in question, the rule should dence should have been admitted which not be extended beyond what is ab- tended to prove that the labor was per- solutely necessary to proper protection; formed under and with knowledge of it should not be allowed to become a an agreement between the defendant and trap for others, by means of which the an older brother of the minor (whose infant may perpetrate frauds. If a parents were dead), in pursuance of contract for service is apparently fair ■which and in payment for the labor the and reasonable under the circumstances. 374 MASTER AND SERVANT. [chap. IV. apparently the decisions in the cases cited would have been the same if the contracts involved had been executory. See preceding section. In New Hampshire an infant who had received the board, cloth- ing, etc., for which he agreed to work, was held to be entitled to avoid the contract and recover the value of his services, subject to a deduc- tion of the sum which the articles supplied were actually worth to the master.* In Massachusetts and Alabama the doctrine has been recognized that a merely beneficial contract, although it may be subject to avoid- ance by the infant as long as it remains executory, cannot be repudi- ated after it has been executed.^ In Vermont it has been declared that "the law makes no distinction between contracts executed and contracts not executed, as to their being voidable. Every personal contract to which an infant is a party, if not entered into for neces- saries which he has actually received, may be avoided by him, wheth- the infant who has performed it should be held to its terms, and if he attempts to repudiate it, the attention of the jury should be directed to the question whether or not an unfair advantage has been taken of him, instead of their being required to find a subsequent af- firmance. So long as the employer, who is acting in good faith, is not notified of any dissent, he has a right to under- stand that his responsibility is measured by his agreement. On the other hand, the infant may abandon the service when he pleases, or stipulate for any new terms he may see fit to demand and can procure assent to. He is bound by the terms of the contract so far as he executes it without dissent, but no fur- ther." B Locke V. Smith (1860) 41 N. H. 346, 354. 3 An infant, in consideration of an outfit to enable him to go to California, agreed, with the assent of his father, to give the party furnishing the outfit one third of all the avails of his labor during his absence, which he afterwards sent accordingly. The jury having found that the agreement was fairly made, and for a reasonable consideration, and beneficial to the infant, it was held that he could not, in an action brought after he reached full age, rescind tlie agree- ment and recover back the amount so sent, deducting the amount of the out- fit and any other money expended for him by the other party in pursuance of the agreement. Breed v. Judd (1854) 1 Gray, 455. The court said: "The plaintiif was desirous of engaging in this new field of labor. ... To carry out this purpose, certain necessary ex- penses of outfit and voyage must be incurred. Not having means of his own, he enters into an arrangement with the defendants to furnish them, upon a, special agreement, indeed, but reason- able and beneficial in its terms. View- ing the contract in this light, or as an agreement for the services of the plaintiff for a limited time, to be re- paid by the advancement and by retain- ing also two thirds of the fruits of his labor, it would, if fairly made and fully executed, be within the principles, if not within the direct authority, of Stone V. Dennison (1832) 13 Pick. 1, 23 Am. Dee. 654." In Waugh v. Emerson (1885) 79 Ala. 295, the court held that, if the minor received partial payment in goods dur- ing the time of the service, he could not insist on being paid over again as far as their value went, although they were not actually necessaries, provided no fraud had been practised on him, and he had not been overreached. It is worthy of remark, however, that this ruling was made with relation to an emancipated infant, whose father was dead, and whose mother had married again, and who had no guardian. § 106] FORMATION AND VALIDITY OF CONTRACT. 375 er it be fully executed or not, unless he has confirmed such contract by his acts or words after he arrived at the age of twenty-one years." * The doctrine here propounded, that the obligatory or nonobligatory quality of an infant's contract is a matter to be determined irrespec- tive of whether it is executory or executed, is strongly supported by the English cases, in which the immateriality of this circumstance has been affirmed in respect to the unsealed contracts of corporations. In Iowa the liabilities of an infant in regard to executed contracts of service are now defined by § 2240 of the Code, which provide that, where a contract for the personal services of a minor has been made with him alone, and these services have been performed, payment made to him in accordance with the contract is a full satisfaction for the services, and his parent or guardian cannot recover therefor a second time. The supreme court has declared that the object of this provision is to abrogate the common-law rule that only contracts for necessaries are binding upon infants under the circumstances speci- fied.« The question whether the position of the parties is different, ac- cording as the infant's contract is executory or has been executed, has not, so far as the writer is aware, been discussed in England with relation to contracts of service. But in one case involving another kind of contract, we find a decided expression of opinion by one of the judges, that the enforceability of an infant's contract does not so much depend upon whether the consideration has been executed as upon the manner in which his interests will be affected.® In any jurisdiction it would doubtless be held, as it has been held in Massachusetts, that a contract of service which is neither for neces- saries nor beneficial may be avoided by the infant after he has at- tained his majority, although it has been executed, and although he cannot put the employer in statu quo, or return the consideration re- ceived.'' * Abell V. Warren (1832) 4 Vt. 149, a decisive importance to the fact of the 154, where it was held that although consideration having been executed, the infant had received the article The view of Dampier, J., is in har- which, under the contract of hiring, mony with the similar doctrine as to constituted a part of his compensation, the unsealed contracts of corporations, he had a right to avoid the contract and See § 131, post. recover on a quantum meruit. i Dute v. Beaudry (1890) 150 Mass. SUurphi/ V. Johnson (1876) 45 Iowa, 448, 6 L.R.A. 146, 15 Am. St. Rep. 228, 57. 23 N. E. 222 (contract to work for a 8 Per Dampier, J., Warunck v. Bruce creditor of the infant's deceased father, (1813) 2 Maule & S. 205. In this case, and apply half the wages earned to however. Lord Ellenborough attached the liquidation of the debt), considerable, though not, it would seem, 376 MASTER AND SERVANT. [chap. iv. 107. Effect of the infant's avoidance of the contract.— The effect of the infant's disaffirmance of a voidable contract of service is to nullify and render the contract void ah initio, not prospectively. "It is a total, not a partial, destruction. If it were otherwise, the infant might and practically would be ruined by a part execution of the contract. A partial or prospective avoidance would afford no protec- tion at all. By the avoidance the contract was annihilated, and the parties are left to their legal rights and remedies, just as if there had never been any contract at all." * Under no circumstances does his abandonment of a voidable con- tract render him subject to an action for the damages caused thereby to his employer. The plea of infancy is a bar to such an action, even though he may have received the consideration of the contract, and does not offer to restore it.* In England it has been held that no action can be maintained by a master against a third person who induces an infant to abandon per- formance of an essentially nonbeneficial contract of service.' On the other hand, the position has been taken in two American cases that an infant's voidable contract of service should be deemed, so far as third persons are concerned, to be in force for an indefinite period, and that the master is consequently entitled to maintain an action for damages against anyone who entices away the infant from his em- ployment.* These antagonistic doctrines, it will be observed, repre- sent opposing views as to one particular phase of the general ques- tion whether it is legally wrongful to induce a person to abandon a contractual relation from which he has a right to withdraw at any time. This is a question which has recently been much discussed with reference to the liability of the members of labor organizations I Tent V. Osgood (1837) 19 Pick. Gampiell v. Cooper (1856) 34 N. H. 572. 49. "Any act done by the minor, clearly In the latter case, the court used the indicative of his intention not to be following language with respect to the bound by it [the contract], would avoid contract under review: "Such a con- it, and from the time of the avoidance tract on the part of the infant is not it becomes a nullity for all purposes." void except at his election. Until Camphell v. Cooper (1856) 34 N. H. avoided by him it is valid as between 49. the parties and as to third persons, in S Craighead v. Wells (1855) 21 Mo. the same manner as if made by an 404 (agreement to do work in another adult. The minor, having entered upon state in consideration of an outfit fur- its fulfilment, thereby created the re- nished by the employer). lation of master and servant between 8 Z)e Francesco v. Barnum (1890) L. the plaintiff and himself; and until he R. 45 Ch. Div. 430 (see § 102, note 9, chose to disaffirm the contract the mas- arete), ter may properly be said to have a legal '^ Peters \. Lord (1847) 18 Conn. 337; right to the services rendered." §§ 108, 108a] FORMATION AND VALIDITY OF CONTRACT. 377 for procuring the discharge of employees obnoxious to them. That subject will be dealt with in a subsequent chapter. In the present connection it is sufficient to remark that, under either doctrine, the effect of an actual avoidance of the contract by the infant is to de- prive the master of all claim to future services, and to incapacitate him from maintaining an action against a third person who subse- quently receives the infant into his employment.* 108. Ratification of voidable contract by infant after attaining^ majority. — In any jurisdiction where the matter is not regulated by some statutory provision which declares that an infant's ratification of his contracts must be in writing,^ or which absolutely debars him from ratifying a promise made during his nonage,^ the fact that the infant continued the performance of a voidable contract for a longer period after he reached full age than was reasonably necessary to enable him to decide what to do will ordinarily be regarded as con- clusive evidence that he had elected to affirm and be bound by it.* A contract made with a minor apprentice to serve beyond full age, although not obligatory upon him, is not against public policy ; and if it is for the minor's benefit, it may be ratified by him after ma- jority. The ratification, however, must be express. It cannot be im- plied from his continuing to work after full age.* 108a. Validity of infants' contracts of service in civil law juris- dictions. — a. Scotland. — In one case the judges were all of the B See cases cited in the last note. ise or ratification after full age." In- 1 See Pollock, Contr. *60, 61 ; 1 Par- f ants' relief act 1874, chap. 62, § 2. sons Contr *329. 3 Cornwall v. Hawkins (1872) 26 L. In Birkin v. Forth (1875) 33 L. T. T. N. S. 607, 41 L. J. Ch. N. S. 435 N. S. 532, it was held that a ratifica- (injunction granted to restrain a serv- tion in writing, in accordance with 9 ant who had continued in his employ- Geo. IV. chap. 14, § 5, could not be ment eighteen months after reaching inferred from the infant's continuing full age, from violating a stipulation in the service after he came of age, and not to set up business on his own ac- then giving notice of his intention to count within a certain distance of his quit the service. The case cited in sup- master's house) ; Forsyth v. Hastings port of this latter point was Harmer (1855) 27 Vt. 646 (servant who had V. Killing (1804) 5 Esp. 102, where it abandoned an entire contract without was held that no ratification can be sufficient cause, a month after reach- implied from a promise given after age, ing full age, held not to be entitled to unless the infant knows that he was recover the value of that part of his discharged by his nonage. services which was rendered during 2 In England it has been enacted that his minority); Spicer v. Earl (1879) "no action shall be brought whereby 41 Mich. 191, 32 Am. Rep. 152, 1 N. to charge any person upon any promise, W. 923 ( contract deemed to have made after full age, to pay any debt been affirmed in respect to the amount contracted during infancy, or upon any of the stipulated wages, the infant hav- ratification, made after full age, of any ing gone on working for two months promise or contract made during in- after he became of age). fancy, whether there shall or shall not i Walker v. Chambers (1850) 5 Harr. be any new consideration for such prom- (Del.) 311. 378 MASTER AND SERVANT. [chap. IV. opinion that, if a contract of apprenticeship entered into by a minor was not shown to be prejudicial to him, it was not avoided by the fact that his father had not given his consent to its execution.^ h. Quebec. — In one case it was stated, arguendo, that the binding of an infant to service is not valid without the consent of his parent ; ^ but more recently it has been laid down that an infant has the right to engage himself as a servant, that his contract is not void, but mere- ly subject to avoidance if shown to be prejudicial, and that, if the contract is not, as a matter of fact prejudicial, he is amenable to the penalties imposed by a statute or municipal by-law upon servants who are guilty of a breach of contract.^ 109. Contracts made by infants as employers.— The general rule as to the obligatory character of an infant's contracts for necessaries logically involves the corollary that a contract by him for the hire of a servant suitable to his station in life is binding upon him, to the extent at least of rendering him liable for the compensation earned by the servant. This is the doctrine of the English courts.^ But the position taken by the supreme court of New York is that such a con- tract is voidable.^ i Stevenson v. Adair (1872) 10 Sc. Sess. Cas. 3d Series, 919. The same doctrine was taken for granted in the earlier case of Campbell v. Baird (1827) 6 Sc. Sess. Cas. 1st Series, 335, where a plea of minority was held to be irrele- vant. The general rule of the Scotch law with regard to minors puieres, (i. e., males between the age of fourteen and twenty-one years, and females between the age of twelve and twenty-one years) is, that they are capable of managing their own affairs without the authority or assistance of any third party; their deeds are as valid as those of majors, except that they may be reduced, on the ground of minority and great lesion (i. e. prejudice), within four years after majority. Green's Enc. of Scots Law; Bell's Principles of the Laws of Scotland, §§ 2088 et seq. HEw parte Peletice (1880) 3 L. N. (Montreal S. C.) 331. iCoUeret v. Martin (1886) 9 L. N. (Montreal Rec. Ct.) 212. 1 In an early English case it was laid down that, if an infant contract to give a man so much for teaching him to read and write, this will bind him as being for his benefit. Clare and Dar- rell's Case, 2 Car. Ro. 521, cited in Manby v. Scott (1661) 1 Sid. 109, 2 Smith, Lead. Cas. 11th ed. 455. "A servant in livery may be allowed to a, rich infant, because such attend- ance is commonly appropriated to per- sons in his rank of life." Chappie v. Cooper (1844) 13 Mees. & W. 252, per Alderson, B., arguendo. The actual point decided in this case was that an infant widow is bound by her contract for work and labor done in furnishing the funeral of her husband, who has left no property to be administered. Such a, contract was regarded as being for her personal benefit, and, in a broad sense, reasonably necessary. In Hands v. Slaney (1800) 8 T. R. 578, Lord Kenyon refused to say that it was not necessary for a captain in the army to have a servant. ^Parsons v. Teller (1906) 111 App. Div. 637, 97 N. Y. Supp. 808. There the plaintiff had educated, cared for, and been the constant companion of a deceased woman from the time she was six years old until her marriage at the age of nineteen. Thereafter the de- ceased, while an infant joined her hus- band and father in the execution of a contract superseding a prior arrange- S 109] FORMATION AND VALIDITY OF CONTRACT. 379 In cases where the rule as to necessaries is not controlling, the effect of such a contract is somewhat obscure. Upon the analogy of the doctrine applied in respect to other contracts, it would seem that the contract of an infant for the hire of a servant should, if not clearly prejudicial, be regarded as being merely voidable at his own option, and that, until it has actually been disaffirmed by him, it should be deemed to subsist for all purposes, both as between himself and the servant, and with reference to third persons. This theory as to the juridical situation would involve the following consequences : That he will be liable for any wages earned while he has treated the con- tract as valid, — at all events for such wages as were already due and payable at the end of the last of the periods with reference to which their amount was measured; that a ratification of the contract after he has attained his majority will preclude him from repudiating it thereafter; that he will be entitled to maintain an action for dam- ages against a third person who interferes wrongfully with the con- tract by enticing away the servant, or otherwise ; and that he will be answerable for such torts as might be committed by the servant in the course of his employment. There is, however, a singular dearth of judicial authority respecting the points thus indicated. In the only case which has come to the notice of the present writer, the validity and effect of an ordinary contract by an infant for the hire of a serv- ant has been treated as being determinable not by the general rule which serves to differentiate his voidable from his void contracts, but by the more specific rule which defines the extent of his power to ap- point an agent. The decision referred to proceeds upon the theory, adopted by many American courts,** that an infant is incapable of making a valid appointment of an agent, this theory being considered to involve the corollary that his appointment of a servant must be treated as void in such a sense that he cannot be held liable for in- juries caused by the negligence of the appointee.^ ment, and providing that the plaintiff became of age, so as to render it en- should be paid for her services the forceable against her estate. sum of $1,800 per annum during the 2a Mechem, Agency, § 51. remainder of her natural life. The de- S Burns v. Smith (1902) 29 Ind. App. ceased had a large estate in her own ]81, 94 Am. St. Rep. 268, 64 N. E. 94. right, some of which was located in New The court refused to infer any higher York; and after she became of age pay- degree of liability from the fact that the ments were made from the income of her infant was married. The conclusion ar- estate to plaintiff, both by her husband rived at was fortified by a quotation and by her New York agent. Held, that from the following passage from a the contract was merely voidable, and standard treatise : "As the doctrine that such payments constituted a rati- respondeat superior rests -upon the re- fication of it by the deceased after she lation of master and servant, which de- 380 MASTER AND SERVANT. [CHAP. IV_ 110. Contracts made by married women as employees of third per- sons. — a. At common law. — A married woman may, with the con- sent, actual or implied, of her husband, assume the relation of serv- ant to a third person, and continue in the employment until he sees fit to terminate it.* If he gives her permission to hire herself out, he will be presumed to have given her the power to settle the terms of her employment.^ But unless he has consented to her engage- pends upon contract, actual or implied, it is obvious that it can have no ap- plication in the case of an infant em- ployer, and he therefore is not respon- sible for torts or negligence by those in his service." Cooley, Torts, 2d ed. p. 128. It should be observed, hovrever, that the only authority cited in sup- port of this statement is a decision by one of the lower courts of New York. BobUns V. Mount (1867) 4 Robt. 553, 33 How. Pr. 34. Moreover, the ratioc- ination of the learned author seems to be open to the objection that it assumes all contracts of employments made by infants to be veid, and not merely void- able. It is submitted that the liability of an infant for a tort must be deter- mined with reference to the situation existing at the time when the tort was committed, and that, if the contractual relationship between him and his serv- ant was allowed by him to continue up to that time, he cannot relieve him- self from responsibility for the servant's act by a subsequent repudiation of the contract. Moreover, even as respects the validity of appointments of agents by infants, it is impossible to state the rule in the unqualified form which is required to sustain the decision in the Indiana case which we are considering. It is unquestionable law, that an infant may appoint an agent to do an act which is clearly to his advantage. Story, Agency, § 6; Evans, Principal & Agent, p. 13; Mechem, Agency, § 54. On the whole, therefore, it is submitted that this case, and the authorities upon which it is based, have left the rights and liabilities of an infant master in many important respects an open ques- tion, which is sorely in need of further judicial discussion. iBarper v. Lujfkin (1827) 7 Barn. & C. 387. There the plaintiff's mar- ried daughter separated from her hus- band, and went to live with her father, for whom she performed various acts of service. In an action against the- defendant for debauching her, the court refused to grant a nonsuit, moved for on the ground that the relation of mas- ter and servant could not, under the circumstances shown, exist between the plaintiff and his daughter. Discussing the contention of counsel that a mar- ried woman living apart from her hus- band could not make a contract of serv- ice. Lord Tenterden, Ch. J., said: "In many instances, married women are in fact hired as servants. Such contracts are no doubt liable to be defeated at the- will of the husband. He may put an end to that relation of master and serv- ant; but, unless he interferes, it by no means follows that such a relation may not exist, especially as against third persons who are wrongdoers. It appears to me that such a relation might, and did in fact, exist in this case; and that, in the absence of any interference by the husband, it is not competent to the defendant to set up his rights as an answer to the action." In a note to Bex v. Eanbury (1753) Burr. Sett. Gas. 323, it is said that "a man may marry my servant, but he cannot take her out of my service." This statement is clearly inconsistent with the language used in the above case, unless it is to be taken in the sense that the man's action under such circumstances is wrongful in point of law. The existence of the marital pow- ers is undisputable. See § 207, post. As to the competency of a married woman to act as agent, see, generally. Story, Agency, 7th ed. §§ 7, 8; Mechem, Agency, § 61; Kelly, Contracts of Mar- ried Women, § 22. iEackman v. Flory (1851) 16 Pa. 196, where it was held that, in an ' action by a husband for services ren- dered by himself and also by his wife', the declarations of the wife, during service, as to the terms of her employ- § 110a] FORMATION AND VALIDITY OF CONTKACT. 381 ment, the de facto existence of the relation of master and servant be- tween her and her employer will not be recognized for any purpose. The respective rights of husband and wife in respect of the wife's earnings are discussed in § 621, post. b. Under the statutes relating to the property of married women. — The authorities with regard to the question whether these statutes have so far altered the common law as to enable a married woman to enter into a binding contract without her husband's consent are not harmonious. See § 626, post. c. Under the French law of the Province of Quebec. — That a mar- ried woman who is not separated from her husband as to bed and board cannot hire herself out as a servant without her husband's con- sent is a necessary result of the provision in article 175 of the Civil Code, that "a wife is obliged to live with her husband, and follow him wherever he thinks fit to reside." * This rule is applicable even in a case where she is separate as to property ; and the authorization of a judge is not sufficient to supply the want of her husband's con- sent.* On the other hand, there is little doubt but that a wife who is separate as to bed and board, or who has been abandoned by her husband, may hire her services without his consent.® 110a. — as employees of their husbands. — ^Apart from statute, a •contract by which a wife agrees, for a valuable consideration, to per- form services for her husband, is clearly invalid ; the invalidity being a necessary deduction either from the general rule that she cannot bind herself at all by a contract,^ or from the doctrine that she and her husband are but one person in the view of the law,* or from the notion that, as he has a right to her services by virtae of the matri- monial relationship, such an agreement is without consideration,' or ment, were admissible as against the laid down that the authority of the husband. husband, express or implied, to the ac- 8 It seems probable that the husband's ceptance of an engagement by his wife consent must be given in writing. See to perform services outside the house- § 147, post. hold, is so essential that, if he objects. The effect of the decision in Mawston no "consentement judiciarie" can sup- V. Burstall (1873) 1 Quebec L. Rep. ply its absence or validate her sole con- (C. C.) 317, 4 Rev. Leg. 686, is that a tract. Cited in Chitty, Contr., p. 186, man who marries a woman before the note 2. expiration of the stipulated term of 4 2 Goulllard, Louage, No. 702. her engagement is entitled, by virtue 6 See Civil Code, art. 207 ; Gouillard, of his marital power, to require her to ubi supra. live at home, but that he may waive i Pollock, Contr. p. 79 ; 1 Parsons, his right in this regard. Contr. p. 345. In Dallaz, Jurisprudence General, Re- 2 i Parsons, Contr. p. 359. pertoire. Theatre, art. 10, § 1, Des En- 3 See § 90, note 2, ante. gagements des Femmes Mariees, it is 382 MASTER AND SERVANT. [chap. iv. from the conception that, in view of the incidents of that relation- ship, such an agreement is contrary to public policy.* The extent to which her rights in this respect have been modified by the modern statutes which entitle her to claim her own earnings will be seen by referring to §§ 625 et seq., post. By some of those statutes, such earnings as may accrue to her from services rendered to her husband are expressly declared to be his property. But, as is shown by the cases cited under the section just mentioned, the ac- cepted doctrine is that they should be construed in this sense, even if they do not contain any explicit clause upon the subject. Accord- ingly, all contracts which are inconsistent with the proprietary right which he still possesses are invalid.^ 111. — as employers of third persons. — a. Commonrlaw doctrine.— That a married woman cannot, except in so far as her rights have been extended by statute, bind herself personally by a contract for the employment of a servant, necessarily follows from the general principle that, at common law, she is incapable of entering into con- tracts in her own behalf.^ But this disability does not affect her right to have a servant, if a person is willing to enter her employment* One of the special applications of the doctrine that a wife, while cohabiting with her husband, has implied authority to pledge his credit for such things as fall within the domestic department ordi- narily confided to her management, and are necessary and suitable to the style in which her husband chooses to live,* is found in the rule * See § 427, note 2, post. could not obligate herself to perform 6 A contract by a married woman with the covenants, her husband to cook in a lumbering In Marshall v. Button (1800) 8 T. camp for a crew of men engaged by her R. 54.5, it was laid down that a mar- husband to cut timber for a landowner ried woman cannot contract to be sued under an agreement at a fixed price per as a -feme sole, even when she is living thousand feet is not a valid contract separate from her husband and on an under the married women's property allowance. act of New Brunswick. Patterson v. As to the disability of a married wom- Bowmaster (1904) 37 N. B 4 (wife an in regard to the appointment of an held not to be entitled to . hen under ^gent, see Mechem, Agency, § 56. the woodmen's hen act. Con. Stat. 1903, g^^^ ^ j^^^„ ^glg ' ' t% '• n .• w>, • 30 Atl. 965. 1 For a collection ol the cases in -, j i x. ^ , which this principle is affirmed or taken ^"".^ declaration for trespass by a for granted, see Lush, Hush. & Wife, married woman, the averment that she 2d ed. p. 296; Chitty, Contr. 14th ed. committed the trespass by her servants 179; Kelly, Contr. of Married Women, and agents does not imply a contract p. 179, note 1. °f hiring which would prevent the plain- In Rex V. Chiildford (1820) 2 Chitty, tiff from recovering. Egers v. McNa- 284, an indenture purporting to bind mara (1895) 33 N. B. 46. an apprentice to a married woman was * Macqueen, Husb. & W. 3rd ed. p. held to be void for the reason that she 97; Lush, Husb. & W. 2d ed. pp. 346 § 111] rOEilATION AND VALIDITY OF CONTRACT. 383 that a husband is, generally speaking, bound by such contracts for the hire of servants as his wife may make in her capacity as mistress of his household.* In the absence of any specific decisions or dicta on the subject, it may perhaps be assumed, on general principles, that her implied agency does not extend beyond the hiring of such serv- ants as answer the description of "menial." A husband who turns away his wife is deemed to give her credit for necessaries, wherever she goes.* He is therefore liable for ex- penses incurred by her for the wages and support of such servants as are reasonably suitable to her social position.® h. Under the rules of equity. — Among the powers possessed by a married woman with regard to the making of contracts which shall bind her equitable separate estate should doubtless be included the power of engaging servants for the performance of work which has a relation to that estate. But the writer has not found any reported case in which this particular point was considered. et seq.; Eversley, Dom. Eel., p. 304; tion of the wife's authority is strength- Wharton, Contr. § 84. ened by proof of special circumstances. "The domestic arrangements of the Thus, the hiring of a domestic servant family being usually left to the control by a wife who is physically unable to of the wife, her authority extends to perform the work of the household alone, all those matters which fall within her while her husband is an invalid, nearly department." Phdllipson v. Hayter blind, and practically helpless, but hav- (1870) L. R. 6 C. P. 38. ing, besides other income, over $40 * Eversley, Dom. Eel. p. 827 ; 1 Par- monthly from the rent of buildings, and sons, Contr. *347. a homestead and other property, — If a feme covert without any express makes a valid charge on his property for written authority from her husband the payment of the services. Phillips contract with a servant by deed, the v. Sanchez (1895) 35 Fla. 187, 17 So. servant, having performed the service 363. stipulated, may maintain assumpsit ^ EtJierington v. Parrott (1704) 1 against the husband. White v. Cuyler Salk. 118, 2 Ld. Raym. 1006. (1795) 6 T. R. 176. In that case a, 6 "The wife of the richest subject in married woman, when about to leave the realm, when driven from her bus- England and join her husband in one band's roof, is not obliged to have serv- of the colonies, had engaged a waiting- ants or clothes suitable to her degree, maid, and stipulated, among other If she chooses to clothe herself econom- things, that the servant's passage mon- ically, and dispense with attendance, ey back to England would be paid, she may do so; yet I apprehend it will Held, that she was entitled to receive not be disputed that she may bind her the amount from her mistress's hus- husband by ordering clothes and hiring band. servants reasonably fit for her degree. Evidence that a wife while living with and, if her husband's station be high her husband employed a servant for enough to make it reasonable, ordering ordinary domestic work is competent liveries for those servants. All those against the husband, without showing expenses are voluntary in one sense, any express authority from the husband for if the wife chooses she need not to make the contract. Wagner v. Nagel incur them." Ba«eley v. Forder ( 1868 ) (1885) 33 Minn. 351, 23 N. W. 308. L. R. 3 Q. B. 559, 563, per Blackburn, J. In some cases the general presump- 384 MASTER AND SERVANT. [chap. iv. c. Under statutes relating to the separate property of married women. — In all the statutes regarding the separate property of mar- ried women, there are included provisions empowering them to make contracts, as if sole, with respect to that property.'' These provisions enable them to make valid agreements, binding upon their separate property, for the performance of all kinds of services, both those which have, and those which have not, a relation to domestic affairs.' But in order to charge their separate estate for services not rendered for its benefit, a specific agreement to create such a charge, must be included in the original contract of hiring. An agreement to charge upon it the value of past services of that description is insufficient for such a purpose.* There is also authority for the doctrine that the agreement of a married woman to remunerate an employee for a service of a merely personal character does not create any liability either against herself or against her separate estate, although it was contemplated by both parties that the remuneration should be paid out of that estate.^" In jurisdictions in which the statutory powers of women extend no further than to the making of contracts with regard to their separate property, it is obvious that, in respect of contracts of service which do not relate to that property, her powers are no larger than under the common law.^^ Tin Muzzey v. Reardon (1876) 57 N. pay for them. Elwell v. Roper (1904) H. 378, it was held, with reference to the 72 N. H. 585, 58 Atl. 507. New Hampshire enactment (Gen. Stat. ^ Eisenlord \. Snyder (1877) 71 N. Y. 164, § 13, Pub. Stat. 1891, § 2), that a 45. contract by a married woman for gro' 10 In Breed v. Breed (1905) 125 Wis. ceries sold to her upon a promise to 100, 103 N. W. 271 when the contract pay for the same out of wages to be alleged was that the plaintiflF should -earned under a subsisting contract with work and care for a woman and a third party was not a contract made her husband and for the survivor of ty her in respect to property held by them, in consideration of her promise to her in her own right. pay the reasonable value of the services i Button V. Higgims (1894) 5 Colo, rendered. The decision followed was App. 167, 38 Pac. 390 (rejecting the Stack v. Padden (1901) 111 Wis. 42, contention that contracts for household 86 N. W. 568, where a married woman services were not within the scope of was held not to be liable for the fee of such provisions). a physician engaged to treat herself. The fact that a woman's husband is although it was her intention to charge liable for necessary services rendered her separate estate, her does not preclude her from contract- ^^ In Flannery v. Chidgey (1903) 33 ing for services as a companion, nurse, Tex. Civ. App. 638, 77 S. W. 1034, a etc., to be compensated out of her own contract made by a wife for the nursing estate. Boneirake v. Tatter (1903) 67 of her husband was held not to be en- Kan. 827, 72 Pac. 521. forceable either as against herself or Notwithstanding the regular employ- her separate property. The court said: ment of a domestic servant in a, house- "Under the common law the existence "hold, the wife might employ her to per- of the wife was merged in her husband, iorm extra services, and bind herself to and she had no power to make contracts § 112] FORMATION AND VALIDITY OF CONTRACT. 385 d. Dociine of the French law, as administered in Quebec. — Where a married woman who is separate as to property engages a domestic servant, the transaction will ordinarily be viewed as one pertaining simply to the administration of the property, and there- fore within her power. Quebec Civil Code, art. 177. If a married woman is common as to property, it would seem that a contract for the hire of a servant is, like the other contracts of a woman in that position, invalid unless her husband has consented to its being en- tered into. Civil Code, art. 177. But if the servant employed was necessary to her, having regard to her social position or other deter- minative circumstance, his consent would, it seems, be presumed in the absence of evidence going to show that the hiring had been for- bidden by him. If the servant was engaged for the work about the common domicil, his tacit consent would more readily be inferred. A married woman cannot become a public trader without the authori- zation, express or implied, of her husband, but after she has received this authorization, she may, without any further authorization, obli- gate herself for all that relates to her commerce. Civil Code, art. 179. The latter part of this statement is doubtless applicable to cases in which she hires servants to assist her in carrying on her business. 113. — as employers of their husbands. — At common law a contract by which a man agrees to perform services for his wife is void.^ But a husband may become the servant or agent of his wife for the pur- pose of assisting her in the management of any separate business or property which she is entitled to carry on or hold, by virtue of the modern statutes which relate to the subject; and such an arrangement, if made bona fide, cannot be impugned by his creditors.^ •except through hia authority, or for her contracts not executed under the necessaries for herself and children, provisions of the statute. Magee v. That principle of the common law has White (1859) 23 Tex. 180; Haynes v. not been wholly abandoned in Texas, Stovall (1859) 23 Tex. 625. The neces- and in no instance, save in those ex- saries named in the statute are those for pressly prescribed in statute, is the the married woman and her children, married woman given the power to make and not for her husband." ■contracts. The only statutory authority i Isaacs v. McAndrew (1872) 1 Mont, given to a married woman to enter 437. into contracts is embodied in article ^ Arnold v. Talcott (1897) 55 N. J. 2970, Rev. Stat. 1895, as follows: 'The Eq. 519, 37 Atl. 891, reversing (1896) wife may contract debts for necessaries 54 N. J. Eq. 570, 35 Atl. 532, where it furnished herself or children, and for was held that, if a married woman bona all expenses which have been incurred fide employ her husband to devise and by the wife for the benefit of her sep- perfect mechanical inventions for her, arate property.' The autliority so she agreeing to pay all the expenses to granted is strictly construed, and no be incurred, and also to pay him a sa.1- appeal to the equitable powers of a ary, out of her separate estate, and in <;ourt can be made to bind the wife by pursuance thereof the patents for hia M. & S. Vol. I.— 25. 386 MASTER AND SERVANT. [chap. IV, In one case it was held that a general statute regarding the sepa- rate property of married women could not be construed in such a sense as to enable a husband to maintain an action at law against his wife to recover compensation for services rendered to her.* 113. Position of servants entering into a second contract of service before an existing contract has expired. — "One who has contracted a relation which disables him from serving any other vsrithout the con- sent of his iirst master is not sui juris, and cannot lawfully bind him- self to serve a second master." ^ Upon this principle it was held in cases arising under the English poor law (3 Wm. III. chap. 11), that a settlement could not be gained by a contract for a year's service, en- tered into by a deserter from the regular Army,^ nor by an invalided soldier having leave of absence.^ Conversely it was laid down that an apprentice who volunteered into the Navy with the consent of his master, but did not deliver up his articles, could not enter into a inventions are issued to or assigned to the wife, the patents and their proceeds are the separate property of the wife, and cannot, in equity, be reached by tlie creditors of the husband. The case was declared to fall directly within the prin- ciple applied in Taylor v. WoMds ( 1897 ) 55 N. J. Eq. 491, 62 Am. St. Rep. 818, 37 Atl. 315, that a married woman may invest her separate estate in any legiti- mate business, and employ her husband as her agent to carry it on for her, without rendering it, or the profits of it, liable for her husband's debts. For other cases embodying the same doctrine, see Knapp v. Smith ( 1863 ) 27 N. y. 277; Owen v. Cawley (1867) 36 N. Y. 600; AUey v. Deyo (1863) 44 Barb. 374, affirmed in (1871) 44 N. Y. 344; Aldridge v. Muirhead (1879) 101 U. S. 399, 25 L. ed. 1013; Tresch v. Wirtsi (1881) 34 N. J. Eq. 124; Kutcher V. Williams (1885) 40 N. J. Eq. 436, 3 Atl. 257; Mechem, Agency, §§ 56, 62; 1 Parsons. Contr. *347; Kelly, Con- tracts of Married Women, § 13. i Perkins v. Perkins (1872) 62 Barb. 531 (N. Y. law 1848). 1 Lord Ellenborough, in Rex v. Nor- ton (1808) 9 East, 206. ZBex V. Norton (1808) 9 East, 207. That a contract of hiring, made by an infant in the naval or military serv- ice, is inconsistent with the duties which he owes to the state, and therefore void, was laid down, arguendo by Ab- bott, Ch. J., in Reg. v. CUllesford ( 1825) 4 Barn. & C. 94. But it is evident that the abstraction of the element of in- fancy under such circumstances will not change the rule. SRex V. Beaulieu (1815) 3 Maule & S. 229. It may be remarked in this place that the validity of a claim for a settlement in the case of a yearly servant who was in the English Militia, or volunteer force, and so under an obligation to be absent during a portion of the year, wa& made to turn not upon the question whether he was sui juris, but upon the question whether he could prove a con- tinuous service for the year. He was held to have gained a settlement, if the fact of his obligations to the govern- ment had been communicated to his master at the time the contract was entered into, but not otherwise. Rex v. Holsworthy (1827) 6 Barn. & C. 283; Rex V. Taunton (1829) 9 Barn. & C. 831; Rex v. Westerleigh (1773) Burr. Sett. Cas. 753 ; Rex v. Winchcomb (1780) 1 Dougl. K. B. 391; Rex v. jEl- mey Castle (1832) 3 Barn. & Ad. 826; Rex V. St. Mary-at-tJie-Walls (1834) 5 Barn. & Ad. 1023; Rex v. Witnesham (1835) 2 Ad. & El. 648. As to the effect of the enrolment of a servant in the English Militia, see voluntary enlistment act 1875 (38 & 39 Vict. chap. 69), § 78. The position and rights of seamen § 114] FORMATION AND VALIDITY OF CONTRACT. 387 valid contract of service with another employer after he had quitted the Navy, but before the expiration of the apprenticeship.* C. AUTIIOEITY OF AGENTS IN EEGAED TO THE HIEING OF SEEVANTS. As to the power of agents to employ medical men to attend on in- jured servants, see §§ 2003, 2004, -post. 114. Generally. — As a general rule it is manifest that, if the alleged servant in any givea case was hired by a person who professed to be acting in behalf of the alleged master, the party whose success in the action depends upon his being able to establish the existence of the relation of master and servant has the burden of proving, either that the hirer was authorized to make the contract of employment under the circumstances,^ or that the hiring was ratified by the al- leged master himself,^ or by an agent who was empowered by the master to hire servants for the work in question.^ who volunteer into the English Navy are defined by the merchant shipping act 1894, §§ 195-197 (act of 1854, §§ 214-220). ^Rex V. Hindrigham (1796) 6 T. R. 557. The extent of a master's right to re- claim an apprentice who has enlisted in the English Army is not defined by the army act 1881 (44 & 45 Vict. chap. 58), § 96. 1 It is scarcely necessary to cite any authority in support of this obvious proposition. See, however, Eaton v. Granite State Provident Asso. (1896) 89 Me. 58, 35 Atl. 1015 ; Johnson, v. Pa- cific Mail 8. 8. Co. (1855) 5 Cal. 407, (action for remuneration held not to be maintainable upon the special contract alleged to have been made, there being no proof of the employing agent's au- thority to hire the plaintiff). In an action for the wages of a por- ter who had been hired without autlior- ity by a station master on a railway, an instruction was erroneous which, in- stead of stating to the jury that the right to recover depends upon the as- sent of the superintendent to the em- ployment of the plaintiff, or upon the fact of his work being done with the knowledge of that officer, placed the liability of the defendant upon the broad ground that, if the work per- formed was necessary to be done, and of benefit to the defendant, the station master had the right to employ the plaintiff, and the value of his services under the employment was chargeable against the railroad company. It was not for a jury to determine whether the work done by plaintiff, under the or- ders of persons who had no authority to contract for the railroad company, was necessary or beneficial to such com- pany. Willis V. Toledo, A. A. & N. M. R. Co. (1888) 72 Mich. 160, 40 N. W. 205. ^Wichtrecht v. Fasnacht (1865) 17 La. Ann. 166 (firm of brewers held lia- ble for the negligence of drivers hired by men employed to deliver the beer in wagons supplied by the firm, on the ground that they had made no objection to the hiring). 3 In Tennessee Coal, Iron & R. Co. v. Hayes (1892) 97 Ala. 201, 12 So. 98, where the question was whether the plaintiff was entitled to recover as a servant under the Alabama employers' liability act, it appeared that the plain- tiff's father was employed by the de- fendant to load its cars at so much a car, under the control and direction of defendant's superintendent; that plain- tiff and his brother were assisting their father in this work; that at the time of the casualty the father had gone off to dinner, leaving the boys to continue the work of loading cars; and that they were engaged in so doing when the plaintiff received the injuries now com- 388 MASTER AND SERVANT. [chap. iv. In one class of cases the possession or lack of authority is imma- terial, viz., in those discussed in § 1563, post, where it is shown that, in an action brought against a person for whom the plaintiff was do- ing work, to recover damages for injuries caused by the negligence of a servant of the person for whom the work was done, the doctrine of common employment constitutes a bar to the claim, whether the agent at whose request the work was undertaken by the plaintiif was or was not empowered to employ him. 115. Hiring by agent appointed ad hano vicem. — The authority of an agent alleged to have been appointed for the express purpose of engaging a servant for his principal may be established by any com- petent evidence.' In the absence of restrictive words as to the du- ration of the hiring, such an agent will be presumed to have the power to engage a servant for such a length of time as, under all the cir- plained of. The evidence also tended Richmond & D. B. Go. (1887) 97 N. C. to show that the defendant's superin- 46, 2 S. E. 374. tendent, who was in immediate charge See also Allen v. Ontario & B. River of the work, with power to employ and R. Go. (1898) 29 Ont. Rep. 510, where discharge hands, had told the father a contract of employment ( not, however, to bring his boys there and put them on of a servant) was declared obligatory the work, and that, when they were put on the ground that the directors of the to work there in consequence of this defendant company had held out as request, he had treated the plaintiff as their agent the party who made the con- being rightfully so engaged, and direct- tract, and were cognizant of all that he ed and controlled him as to the manner did. of doing the work. The court held that, ^ Evidence that the son of the defend- on this evidence, the jury were clearly ant, a farmer, on going to the plaintiff, warranted in finding that the relation said that "his father had sent him to of master and servant existed between hire a hand," is sufficient to show a gen- the defendant and the plaintiff. eral authority to engage a farm serv- A testified that he was appointed sub- ant. Decker v. Basset (1863) 26 How. agent by B, the agent of a corporation; Pr. 528. that the corporation had frequently Where the plaintiff alleged that he given directions in its business to him; had been hired by a committee of three that the railway officials had delivered persona appointed to engage an em- freight on the production of his re- ployee for certain duties, the admission ceipts; and that the superintendent and of evidence of a talk with one of them, president of the company knew of his in consequence of which he went to acts as agent. Held, that the evidence work, is not open to exception, where it was admissible to prove a ratification ^'s° appears that he received similar of his agency. Alabama & T. River R. directions from the other two members Go. V. KiM (1856) 29 Ala. 221. jointly The fair inference is that the Tn an action for services rendered to committee had come to an agreement in an action lor services renaerea to beforehand. Clarke v. Warniok Gycle a corporation under a contract of hir- ^^ p^_ (^ggg^ „^ j^^^^^ g/j^_ mg, a letter to the plaintiff from an jj §87 agent of the corporation, recognizing gut an employment agent authorized him as a. servant of the corporation, is to employ men to work at the town of competent evidence to establish the con- a has no implied authority to employ tract, and also to corroborate the plain- men to work at some other place. Wil- tiff, when his testimony has been con- Uams v. Kerrick (1908) 105 Minn. 254, tradicted by such agent. Porter v. 116 N. W. 1026. § 116] FORMATION AND VALIDITY OF CONTRACT. 389 cumstances, would be reasonable, considering the nature of the busi- ness, the season of the year in which it is prosecuted, and the length of time which it is likely to take to complete the stipulated work.^ 116. Hiring by a partner.— It is not disputed that one partner has, as a general rule, implied authority to hire servants to do such work as may be required in the course of the business of the firm.^ But there has been a noteworthy conflict of opinion between two English courts with regard to the question whether an express contract, not under seal, but in writing, is binding upon a partner who does not sign it.* z Drohan v. Merrill £ R. Lvmher Co. (1899) 75 Minn. 251, 77 N. W. 957 (employment agent in tliis case). The defendant was negotiating witli L., as the agent of the owners, for the purchase of a fruit store and business, and informed him that if he purchased he should need a clerk who understood the business. L. told him of the plain- tiff, and that he could be hired for $11 a week; and the defendant, having made the purchase, authorized L. to hire the plaintiff at that price. Nothing was said as to the time for which he was to be hired, but L. agreed with him for six months. Held, that in this he exceeded his authority, and that the defendant, having discharged him at the end of two months, was not liable for a breach of contract. Pasco v. Smith (1882) 49 Conn. 576. 1 That a member of a mining part- nership has authority to employ labor- ers to work in the mine and to bind the partnership for their wages, was held in Lyman v. Schwartz (1899) 13 Colo. App. 318, 319, 57 Pac. 735. In Cashman v. LaiC'Son (1902) 73 App. Div. 419, 77 N. Y. Supp. 142, affirmed in (1903) 175 N. Y. 488, 67 N. E. 1081, one Q., who was managing a hotel for the partnership of which he was a member, employed plaintiff as steward and manager of the restaur- ant, and required him to deposit $1,000 for the faithful performance of his duties; the money to be returned on thirty days' notice. Plaintiff did not know of the partnership until after en- tering his employment, and, on the decease of Q. and the giving of the re- quired notice, brought an action to re- cover the amount of the deposit. Held, that the defendants were liable to re- turn the money; the hiring of plaintiff being binding on the firm as within the scope of the business of the firm and the authority of Q. 2 A, B, and C, being in partnership to gether as type-founders (C as a dor- mant partner), an agreement was en- tered into between A and B of the one part, and the plaintiff of the other part, by which, after reciting that the plaintiff had been in the employment of A and B as foreman in carrying on the said trade of type-founders, the plaintiff covenanted and agreed with A and B and the survivor of them, to serve them and the survivor of them in their said trade for the term of seven years; and they covenanted and agreed to employ him as their foreman for the term of seven years, if they or either of them should so long live, and to pay him 3 guineas per week; and it was mutually agreed that if either party should not perform the covenants on their respective parts, the party so failing or making default should pay to the other £500 by way of specific damages. At the time the agreement was entered into, it was unknown to the plaintiff that C was a partner in the business. After two years the business was found unprofitable and discontin- ued, and the plaintiff brought an action for breach of the agreement. In Beck- ham V. Knight (1838) 5 Scott, 619, 4 Bing. N. C. 243, it was held by the court of common pleas that the plain- tiff could not sue C, for the reason that he was not a party to the agreement, Tindal, Ch. J., said : "The action is brought on an express contract between Knight and Surgey of the one part, and the plaintiflf of the other part. . . . The agreement is in writing, and inter partes; and it contains no intimation that Knight and Surgey 390 MASTER AND SERVANT. [chap. IV. The rule applicable to shipping partnerships has been thus stated by Judge Story in his work on Partnership (§ 432) : "The common law not only thus gives to the majority in interest of the part owners the right and authority to employ the ship upon any proper voyage or adventure, but also confers upon the majority the right and au- thority in all cases to appoint the master and officers and crew of the ships, and to displace them at their pleasure, even although the master should be a part ovmer." ^ 117. — ^by the directors of a corporation.— a. Acting as a hody. — A contract of employment which has for its object the performance of acts outside the scope of a company's powers is of course invalid, even though made by the board of directors. But as that body posses.ses the powers of a general agent, it undoubtedly has the right of ap- pointing, on such terms as in the exercise of a reasonable discretion it may think desirable, servants of all grades for the purpose of per- forming any kind of work which is not ultra vires} were carrying on business as members of a more extensive firm. I know of no authority for introducing the name of a dormant partner into such a con- tract. In implied contracts, where the benefit is equal, and the liability not limited, a dormant partner may be in- cluded; but there is no authority which extends the principle to express con- tracts. The only authorities in point are rather the other way." Bosanquet, J., said: "The plaintiff is precluded, by the form of the contract, from say- ing that any other person entered into it besides himself and Knight and Sur- gey." By the court of exchequer, on the other hand, it was held, in Beck- Jiam V. Drake (1841) 9 Mees. & W. 79 (affirmed on this point by the Exch. 'Oh. [1843] 11 Mees. & W. 315), that the law makes no distinction in eon- tracts, except between contracts which ■are and contracts which are not under seal; and that the doctrine stated by the court of common pleas in Beckham V. Knight, that where a contract is in writing between parties signing their names to it, it cannot be used against other parties than those who signed their names to it, could not be sup- ported either on principle or authority. 8 This passage was quoted with ap- proval in Ward v. Ruekman (1867) 36 K. Y. 26, 93 Am. Dec. 479. Judge Story mentions that the same rule prevails under the French law, the authority cited being Boulay-Paty, Droit Comm. torn. 1, title 3, § 5, p. 340. 1 In the absence of any prohibition in the corporate charter or by-laws, the directors possess the power of ap- pointing a treasurer. Waite v. Wind- ham County Min. Go. (1865) 37 Vt. 609. . In Pollok V. Bhultze (1874) 1 Hun, 320, a company was held to be liable for services rendered by a person em- ployed by the directors to give them advice with regard to a certain inven- tion serviceable for the company's busi- ness. In State Agricultural College v. Mudge (1878) 21 Kan. 223, the court refused to say that the governing body of a college had no power to employ a professor for any particular period of time. A company is liable to an action for damages at the suit of a servant who is employed by the manager of the com- pany in accordance with the verbal or- ders of the directors at an informal meeting, and who is discharged before entering upon his duties. Homeward B.ound Gold Min. Co. v. Anderson (1884) New Zealand, L. R. 3 S. C. 266. See also Smith v. Sinhad Devel- opment Go. (1911) 15 Gal. App. 166, 113 Pac. 701, § 117] FORMATION AND VALIDITY OF CONTRACT. 391 A person who has been employed by a conipany to perform duties which are of such a nature that he must be presumed to have read the by-laws is chargeable with notice of, and bound by, the limita- tions which they impose upon the powers of the directors in respect to the appointment of officers.^ But having regard to the extensive authority which is customarily delegated to directors, it seems not unreasonable to say that the rights of an employee who accepts any other kind of position should not be affected by such limitations, un- less it is actually known to him when he enters into his contract, or he is put upon inquiry as to its existence. h. Acting individually. — Where the by-laws of a given company by their express terms confer upon the president, or other individual member of the board of directors, the power of engaging employees, the only question which can arise is whether the power extends to the particular position to which the action has reference.^ But in many instances the validity of contracts of hiring must be determined with relation to the effect of by-laws or resolutions of the board which invest one of its members with a more or less extensive au- thority of a general description in respect to the making of such con- tracts as may be necessary in the transaction of the corporate busi- ness. Such an authority, even though the by-law or the resolution does not refer specifically to the appointment of employees, would, it is conceived, ordinarily be deemed to cover contracts for that purpose,* provided, of course, that the work to which they relate is within the 2 Where the by-laws of a corporation elect a general manager, and may select declare that all officials shall hold of- such other clerks and agents as may flee "during the pleasure" of the board be deemed necessary. ArkadelpMa of directors, one holding the position Lumber Go. v. Asman (1907) 85 Ark. of secretary and general manager is 568, 107 S. W. 1171. The ratio deci- bound to know that the board has no dendi was that the effect of the by-law power to employ him by the year. Fow- was to render the president the chief ler V. Oreat Southern Teleph. & Teleg. executive officer. <7o. (1901) 104 La. 751, 29 So. 271. The president of a corporation, hav- 3 Where the by-laws provide that the ing the power to hire employees to con- president has power "to appoint conipe- duct the business of the corporation, tent persons to act as servants and em- has authority to increase the salary of ployees of the company," it is proper such employees to retain them in the to refuse, in an action for services, employment of the corporation. Model an instruction based on the assumption Clothing House v. Eirsch (1908) 42 that the board of directors alone had Ind. App. 270, 85 N. E. 719. authority to manage its business. Ala- 4 A corporation was held to be bound bamn Securities Co. v. Dewey (1908) by a contract of employment made in 156 Ala. 530, 47 So. 55. its name and behalf by its president. Power to hire a general sales man- who largely controlled the management ager for a year is given the president of its business, and was apparently act- of a corporation by by-laws which pro- ing within his authority. Egbert v. Tide that the directors shall elect a Sun Co. (1903) 126 Fed. 568. president and other officers, and shall Where the minutes of the board of di- 392 MASTER AND SERVANT. [chap. IV. rectors of a corporation authorized its president "to malce any contract he saw fit, to employ whom he pleased," he could contract with a person to sell cor- porate stock for which he should re- ceive commissions, as the board could properly delegate such power to the president. Rvdeout v. 'National Home- stead Asso. (1910) 14 Gal. App. 349, 112 Pac. 192. Where a servant has performed the contemplated duties, and the corpora- tion has received the benefits thereof, the contract will not be held invalid merely because no record evidence was made of it at the time. Kropp v. Her- mann Brewing Go. (1909) 138 Mo. App. 49, 119 S. W. 1066. Where the charter and by-laws of a railroad corporation provided that the chief engineer could be appointed only by the president and directors, but the vice-president and superintend- ent were the officers who had the man- agement of the aff'airs. of the corpora- tion, it was held that they had implied authority to employ an engineer, — es- pecially when there was no chief engi- neer, and the services of an engineer were necessary for the proper conduct of the business of the corporation. Lewis V. Albemarle & R. R. Co. (1886) 95 N. C. 179. In an action for services rendered to a corporation under a contract made with the president thereof, it appeared that the corporation maintained its of- fice at the same place its president maintained his office; that he used the letter heads of the corporation in his correspondence with the employee; that contracts were entered into in the name of the corporation with the acquies- cence of at least three of the five trus- tees; that the employee was to act as civil engineer for the company at a pro- posed town; that the secretary of the corporation prepared a price list of the lots platted in the town; that the company dealt with the state with ref- erence to the purchase of lands at the place of operation. It did not appear that the acts were authorized at any formal meeting of the trustees. Held, that the corporation was liable for the services rendered by the employee. Rowland v. P. P. Carroll Loan d Invest. Co. (1906) 44 Wash. 413, 87 Pac. 482. On the ground that the president and manager of the defendant corporation had authority to employ and discharge workmen, evidence of plaintiflF's conver- sations with him, and of an agreement between them as to the compensation to be allowed plaintiff for his services as superintendent of defendant's mine, was held to have been properly admit- ted in an action by the plaintiff to re- cover for such services. Sandierg v. Victor Gold & 8. Min. Co. (1901) 24 Utah, 1, 66 Pac. 360. Where there was evidence going to show that the directors of a company delegated authority to one of their num- ber to negotiate with the plaintiff, and settle the terms of an agreement bind- ing him to undertake the duties of manager of one of the branch estab- lishments of the company, and that the agreement, after it was so negotiated, was ratified by the whole board of di- rectors, it was held that, although the agreement lacked the formality required by law to render it valid for more than one year, it would be binding on the company for the period during which he had actually served, and that he was entitled to recover on a quantum, meruit. Glough v. London & A. Agency Co. (1873) 4 Austr. J. R. 69. In Ellis V. Midland R. Co. (1882) 7 Ont. App. Rep. 464, it seems to have been assumed that the president of a railway company had power to appoint a captain on one of the steamers oper- ated by it in connection with its lines. But the only point actually discussed was whether a seal was necessary to validate the appointment. In another Canadian ease also, which turned upon the same point, Forrest v. Great Northwest C. R. Co. (1899) 12 Manitoba L. Rep. 472, — it was appar- ently assumed that the president of a railway company had power to appoint a chief engineer. In Norman v. Loomis-Manning Filter Co. (1908) 123 App. Div. 739, 108 N. Y. Supp. 261j the court took the posi- tion that a contract for the employment of a sales agent was presumptively binding upon a manufacturing com- pany, as it was one which the company had power to make, and the president had made it in the name of the com- pany. In another case it was held that the president of a manufacturing company may be presumed to have authority to employ agents to sell property owned bv it. Skinner Mfg. Co. v. Douville (1907) 54 Fla. 521, 44 So. 1014. § 117] FORMATION AKD VALIDITY OF CONTRACT. 395 corporate powers.® But it seems clear, on general principles, that except in so far as they may be acting by virtue of an authority given in this manner, the individual members of a board of directors have no power to engage persons to perform services for the company.® c. Ratification hy directors.- — Irrespective of whether the employ- 5 In George v. "Nevada C. R. Co. (1894) 22 Nev. 228, 38 Pac. 441, a contract for the employment of a per- son to report upon certain mines, made by the superintendent of a railway un- der the authority of the president of the company, was held not to be en- forceable, on the ground that it was outside the purpose and object of the company. A corporation was organized for the purpose of buying and platting a cer- tain tract of land. At a meeting of the directors a by-law was adopted giving the president general supervision of the business of the company, and the power to sign all contracts. Under such au- thority the president hired a surveyor to plat the lands. Held, in an action against the stockholders to recover for such services, that the president had authority to make the contract, the contract being within the general pur- poses of the corporation, and hence the corporation was bound thereby. Eeinze V. South Green Bay Land & Dock Co. (1901) 109 Wis. 99, 85 N. W. 145. The hiring was declared to be an act "directly in line with the general pur- pose and course of the business of the corporation, and necessary in order to carry out fully the corporate purpose." 6 In Missouri it has been held that the president of a railway company has not, as president merely, the power to employ a chief engineer. Nehon v. Kansas City, Ft. 8. & 8. R. Co. (1896) 66 Mo. App. 647. The first vice president of a railroad corporation has no authority to make a contract for a year for the employ- ment of one as general passenger and ticket agent, under a by-law of the cor- poration giving him general charge of the passenger and freight traffic, and providing that officers of such depart- ments shall be appointed by him, subject to the approval of the president, and may be removed by him at pleasure. Missouri, K. & T. R. Co. v. Faulkner (1895) 88 Tex. 649, 32 8. W. 883. The court said: "No statute of Kansas [the state in which the company was organized] nor provision of the charter of such corporation, granting such pow- er, has been produced. So far as this record shows, the by-law above quoted is the sole source of the authority of the first vice president of this company. It is clear that all persons appointed by him thereunder were removable by him or his successor at pleasure, and that, therefore, it conferred upon him no power to appoint or employ Faulk- ner for a fixed period of one year, with- out power of removal. ... It is contended that Faulkner had no notice of the limitation upon Waldo's power, and is therefore not bound by it. This contention cannot be maintained, be- cause (1) Waldo's power under said by- law did not extend to the employment of anyone, except subject to the power of the first vice president to discharge at pleasure; and (2) if that be not true, still, he, in dealing with this offi- cer of the corporation, was chargeable with notice of the limitation upon such officer's power, contained in the very by- law conferring the power to contract with him. As said by Cooley, J., in Rice V. Peninsular Club (1883) 52 > Mich. 87, 17 N. W. 708, 'a party deal- ing with the agent of a corporation must, at his peril, ascertain what au- thority the agent possesses, and is riot at liberty to charge the corporation by relying upon the agent's assumption of authority, which may prove, as it did in this case, to be entirely unfound- ed.' " The court also laid it down that the same official had no power to con- tract for the employment, for a year, of one as general passenger and ticket agent, under Tex. Eev. Stat. 1879, art. 4131, providing that the vice president shall perform such duties as the corpo- ration by its by-laws shall require, where the only by-law of such corpora- tion provided that the vice president should have such functions as lawfully appertained to such office, and as might be regulated from time to time by the by-laws. 394 MASTER AND SERVANT. [chap. iv. ment of a person to fill the position in question was or was not with- in the powers of the president or other individual member of the board of directors, the contract will, of course, become binding if the directors as a body assent to it,'' or, with knowledge of the facts, per- mit the employee to continue the performance of his duties for a considerable period.' So also a contract containing terms which the president or other appointing director had no power to insert in it may be validated by the subsequent ratification of the directors act- ing as a body. But in order to warrant the inference of such a ratifi- cation, notice of the unauthorized terms must be brought home to them. The mere fact that they knew the employee to be engaged in working for the company, and made no objection, is not sufficient.' d. Limitation of powers of president, etc., hy hy-laws; employee, how far affected by. — The question whether the appointee of a presi- dent or vice president of a company is bound by the special limita- tions imposed upon the authority of those officials by the enabling resolution or standing by-law, is determined with reference to the apparent scope of the powers customarily exercised by the appoint- ing officials, the means of knowledge which their appointee possessed with respect to the existence of the restrictive provisions, and the extent of his positive obligation to make inquiry regarding the nature of those provisions. The most important factor in the in- vestigation would seem to be the quality of the functions to which the given engagement had relation. Constructive notice of provisions of this character would, it is apprehended, be imputed in most in- stances to persons accepting positions of the higher grades. On the other hand, employees hired to perform merely subordinate duties would, it may be supposed, generally be warranted in assuming that the ostensible powers of the appointing official corresponded with those with which he was actually invested.^" 7 Legrand v. Manhattan Mercantile 32 S. W. 883, was held to have con- Asso. (1880) 80 N. Y. 638 (clerk hired struotive notice of the purport of the by vice president for work necessary to by-law there under discussion. (See advance the objects of the incorpora- note 6, supra.) tion). On the other hand, it has been laid 8 Nelson v. Kansas City, Ft. S. & 8. down that the president of a corpora- R. Go. (1896) 66 Mo. App. 647 (chief tion may be presumed to be authorized engineer appointed by president worked to employ a bookkeeper for the com- for several months). P^^ny, and that a person so employed is 9 Harrington v. First Kat. Bank not bound by any by-laws of the com- (1873) 1 Thomp. & C. 361. Compare pany restricting the powers of the presi- cases cited in § 122, post. dent, unless he had notice of them. 10 The employee, a general passenger Traicick v. Peoria & Ft. C. Street B. and ticket agent, in Missouri, K. & T. Go. (1896) 68 111. App. 156. R. Go, V. Faulkner (1895) 88 Tex. 649, Plaintiff was employed by a stock- "§ 118] FORMATION AND VALIDITY OF CONTRACT. 395 e. Employment to serve a company to be formed in the future. — Whatever powers the president of an existing company may possess in respect of contracts of employment, it is clear that, in the absence of circumstances going to show a ratification, a company is clearly not bound by a contract, made before its formation, by a person who became its president after its formation." 118. — ^by general managers and superintendents. — a. Under in- ■dividual employers. — In cases where the principal employer is an individual, the rule whieb furnishes the criterion by which the valid- ity of a hiring by a general manager or superintendent is determined may be stated thus : "A foreman intrusted with the general man- agement of a trade or business has an implied general authority from his employer to enter into all such contracts as are usually and neces- sarily entered into in the ordinary conduct and management of the business." ^ A person who offers his services to such a person is not bound to inquire into any special restrictions to which his powers may, as between himself and his employer, be subject; nor is he under any other duty, except that of seeing that he is being engaged to do what is usual in the business in question.^ h. Under corporations. — The extent to which a person is entitled, when accepting a position under a corporation, to rely upon the ap- parent authority which the appointing official is exercising as gen- holder and director of a company at i Addison, Contr. p. 626, adopted in $100 per month, but found his name on Williams v. Qetiy (1858) 31 Pa. 461, the pay roll entered at $75 per month. 72 Am. Dec. 757. See also Story, Agen- The evidence showed that this director cy, §§ 55, 56, 87, 97; 2 Kent, Com. 793, was general manager of the company and note. and was permitted to employ necessary In Little v. Neilson (1855) 17 Sc. help and to fix the wages, but if there Sess. Cas. 2d Series, 310, the defendant was a question as to the wages, the was held liable to a passer-by who executive committee, of which the di- was injured while engaged in the work rector was one, must approve; but this of removing a heavy boiler at the re- limitation was not known to plaintiff, quest of the defendant's manager. Held, that the director's authority as ^ Williams v. Oetty (1858) 31 Pa. general agent carried with it the power 461, 72 Am. Dec. 757, where the action to hire and pay or fix a price. Kelly was brought for the breach of a con- V. Jersey City Water Supply Co. (1907) tract by which the general manager 74 N. J. L. 734, 67 Atl. 108. of a contractor engaged in railroad 11 Horoioitz V. Broads Mfg. Co. work hired from the plaintiff the labor (1907) 54 Misc. 569, 104 N. Y. Supp. of a two-horse team and driver for a 988 where in an action against a cor- period of four or five months, the court poration on a contract for employment, approved a charge by the trial judge to ft was held to be error to admit evi- the effect that, '"if the principal holds dence of what B, its president, said the agent out to the world as a general before the incorporation to the plain- agent in the transaction of his busi- tiff in relation to the latter's employ- ness, any contract he would make with- ment and a writing containing the in the scope of that business would be terms of the contract, prepared by binding on the principal, although there plaintiff to be signed by B. might be, as between the principal and 396 MASTER AND SERVANT. [chap. IV. eral manager, was thus defined in a recent decision by the supreme court of New York : "In the absence of proof of what exact author- ity belongs to a person descriptively styled a general manager, there is no rule by which a court can be guided in determining what the powers of such an official really are, except such as the evidence in a particular case may furnish of what the person has done in the general course of the business of the corporation. That the words 'general manager' would import that the person bearing that title is a general executive officer for all the ordinary business of the cor- poration is all that may properly be inferred, and this would justify, in connection with proof of acts done, a conclusion that all ordinary contracts made by such an official are authorized by the corpora- tion." * So far as contracts of employment are concerned, it may perhaps be said that the effect of the decisions as a whole is that the presumptive authority thus ascribed to a manager will be taken, in the absence of countervailing testimony, to extend to the hiring of sub- ordinate employees of all grades upon such terms as may be custom- ary in the given business or in the particular establishment super- agent, a restriction upon the general authority of the latter, if the person with whom the contract was made had no notice of such restriction.' And that persons dealing with an agent carrying on a general business, such as a general manager of a railroad contractor, would not be bound to inquire into the par- ticulars of the agent's authority, when held out to the world as such general agent, . . . [especially] as the principal made no objections to his acts, and gave no notice of a restricted au- thority, although from time to time in- specting the progress of the work." Discussing the exception to this charge taken by the plaintiff in error, on the ground that, as it had been the prac- tice on that work to employ hands by the day/ it was an excess of authority in the agent to employ the plaintiff below by the month, the court said: "This raises the question whether the practice restricted the authority of the agent, or whether, being a general agent, he was within the scope of his authority in contracting for the usual and ordinary means of accomplishing tlie business. His business was to ad- vance to completion the work under his care, and this was to be done by the employment of laborers and teamsters. This was apparent and palpable to all, and being so, it is difficult to conceive of any duty resting on a party about contracting to assist in the accomplish- ment of what the agent had power to do, namely, to construct the portion of the road under his charge, other than to see that he was engaging to do what was usual in such business. The au- thority of a general agent to contract is implied in the nature and kind of business he has to do, and is only lim- ited to the necessary and appropriate means of accomplishing it. If it were such a business as it was apparent would last but six months, a contract for a year doubtless would not be bind- ing on the principal, because the party employed would be acting in bad faith, in undertaking when it was apparent he would not be needed; and besides, it would be equally apparent that such a contract was not necessary to the ac- complishment of the object. So, if the business were such as would apparently last for months, an employment for one or more months would seem to all to be covered by the agent's implied au- thority, and would bind." 3 Gamacho v. Hamilton Bank 'Note & Engraving Go. (1896) 2 App. Div. 369, 37 N. Y. Supp. 725. § 118] FORIVIATION AND VALIDITY OF CONTRACT. 397 intended by him.* But in Massachusetts it "would seem that the * In Goodwin v. Union Screw Co. (1857) 34 N. H. 378, it was held that a contract made by the general manager of a manufacturing corporation for the liire of a mechanic was valid. The general superintendent of a man- ufacturing company the by-laws of which provide that he shall perform such duties as the trustees may direct, who has had the general management of affairs left to him without instruc- tions, and has hired and discharged em- ployees, is impliedly authorized to make such ordinary contracts as custom and the necessities of the business justify or require, including the employment of a foreman for the term of one year, unless it is shown that such employ- ment is extraordinary or unwarranted by the requirements of the business. Peck V. Dexter Sulphite Pulp & Paper <7o. (1900) 164 N. Y. 127, 58 N. E. 6, reversing (1897) 19 App. Div. 628, 46 N. Y. Supp. 1098. Where C, a trainmaster of the de- fendant company, offered to employ plaintiff on certain terms, and sent him to the general superintendent to com- plete the agreement, which was consum- mated by the general superintendent and M., his clerk, the evidence of these three parties in a suit for wrongful dis- charge was not objectionable on the ground that their authority to make such contract was not proven, since, in the absence of evidence to the contrary, the general superintendent's authority will be presumed, and proof of author- ity as to C. and M. was unnecessary, as their testimony was admissible to show a knowledge and ratification by the superintendent of C.'s offer. Sax V. Detroit, G. H. & M. R. Co. (1900) 125 Mich. 252, 84 Am. St. Rep. 572, 84 N. W. 314. That the managing officers of cor- porations have power to employ attor- neys and counselors without express delegations of power, or formal resolu- tions to that effect, was laid down in Southgate v. Atlantic & P. R. Co. <1875) 61 Mo. 89. That "it was manifestly within the apparent authority of the general man- ager of a business to make contracts for labor," was laid down in Forked Deer Pants Co. v. Shipley (1904) 25 Ky. L. Rep. 2299, 80 S. W. 476, where the possession of authority to hire la- bor was held to have been conferred by a by-law providing that the general manager should have general manage- ment of the business, with authority to buy and sell. A manager having sole charge of the business at a branch factory, employ- ing the servants there, and customarily making an annual contract with a, trav- eling salesman, was held to have ap- parent authority to bind the corpora- tion by a renewal of such a contract. Thomas v. International Silver Co. (1905) 48 Misc. 509, 99 N. Y. Supp. 218. The secretary of a corporation, who under the by-laws has general super- vision and direction of the business af- fairs of the company, with full power to make contracts, may bind the cor- poration by a contract of employment. Parmelee v. Associated Physicians & Surgeons (1895) 11 Misc. (C. P.) 363, 32 N. Y. Supp. 149, reversing on re- hearing (1894) 9 Misc. 458, 61 N. Y. S. R. 118, 30 N. Y. Supp. 250, and (1894) 8 Misc. 679, 28 N. Y. Supp. 1139. But there is no presumption that the secretary of a corporation has power to appoint agents or ratify appoint- ments without authority. Carroll v. Manganese Steel Safe Co. (1909) 111 Md. 252, 73 Atl. 665. Nor that a treasurer has such power. Pollock V. Standard Steel Car Co. (1911) 230 Pa. 136, 79 Atl. 400. Where the authority of the sole man- ager of a grain business to employ so- licitors was not expressly limited, and there was a custom in the territory where the business was conducted to employ solicitors for one year or longer, it was held to be a proper presumption, in the absence of evidence to the con- trary, that the authority of the mana- ger was conferred in contemplation of the custom. Accordingly, a solicitor who was given a contract of employ- ment for a year by the manager would be entitled to be protected in such con- tract, if he entered into it in good faith and in the exercise of reasonable pru- dence. Reupke v. D. E. Stuhr & Son Grain Co. (1905) 126 Iowa, 632, 102 N. W. 509. It has been held that the general 398 MASTER AND SERVANT. [chap, iv, powers of a manager are determinable as an open question of fact, unaffected by any initial presumption.' manager of a corporation engaged in Wliere the servant has left his em- the business of purchasing and colo- ploynient, and afterwards returns, the nizing lands has authority to bind the authority of the superintendent to corporation by a contract with an em- make a new contract upon the same ployee under which he is to receive a terms as the original is not involved, certain sum per acre for all lands pur- The transaction is equivalent to grant- chased by the corporation through ne- ing him an indefinite leave of absence, gotiations opened by him with the own- his rights under the original contract ers. Chilcott v. Washington State being reserved. Steams v. Lake Shore Colonization Go. (1906) 45 Wash. 148, & M. S. R. Co. (1897) 112 Mich. 651, 88 Pac. 113. 71 N. W. 148. Evidence that a foreman of a foreign It was held that, under the facts^ corporation having no officers resident shown, — which negatived knowledge on at its works had complete control of the servant's part as to any limitation, the hiring and discharging of men, and — an instruction to the superintendent that many of them worked through the by the president of the defendant corn- season, although there is no proof that pany, limiting the power of the former any of the others were hired except by to employ only on condition that the- the day, is sufficient to warrant the person employed could be discharged at jury in finding that a contract with one will, was no defense. Saxonia Min. & of the men for the season was within Reduction Go. v. Cook (1884) 7 Colo, his authority. Tunison v. Detroit & L. 569, 4 Pac. 1111. a. Copper Co. (1889) 73 Mich. 452, 41 Where the plaintiff, engaged by the N. W. 502. general manager of a corporation, en- Evidence that a party had been man- tered upon the duties of the employ- ager of a hotel, and was then employed ment, and performed them until he was as assistant manager without any ap- discharged, the corporation is estopped parent restriction of authority, and at to invoke a by-law prov.iding that no the time in question was in the private contract should be entered into except office of the hotel, "giving orders to by resolution of the board of directors, clerks, drawing checks, etc., shows ap- Golden Age No. 2 Min. d Mill Co. v. parent authority in such party to make Langridge ( 1907 ) 39 Colo. 157, 88 Pac a contract for services of a detective 1070. upon business connected with the hotel. An employee rendering a company Grand Pacific Eotel Co. v. Pinherton services under direction of its general (1905) 217 111. 61, 75 N. E. 427, affirm- manager, though the latter took no- ing judgment (1905) 118 111. App. 89. active part in its business, may re- Where the secretary and treasurer cover therefor, where the company has of a corporation engaged in mercantile accepted the services, and the price business was also general manager of charged is not contested. Newport Ice the business, and answered letters writ- & Cold Storage Co. v. Lunyon (1901) ten to the company, a finding that he 69 Ark. 287, 62 S. W. 1047. had authority to employ a person to 5 In Dunion v. Derby Desk Co, assist in the management of a local (1904) 186 Mass. 35, 71 N. E. 91, the store operated by the company will be court, in approving an instruction sustained. Baker v. Jewel Tea Co. which embodied the theory that the (1911) 152 Iowa, 72, 131 N. W. 674. extent of a general manager's author- The general manager of a steamship ity is to be dealt with as a question of company, who was also secretary and fact, remarked: "In some corporations treasurer and a large stockholder, and it often happens that the whole power had full personal charge of the business of making contracts for the employ- which the company was organized to ment of subordinate officers and men is transact, with power to enter into and left practically with the general man- terminat* contracts in relation there- ager." The case cited in support of to, has prima facie power to hire em- this statement was Henderson v. Ray- ployees. Jenkins 8. S. Co. v. Preston mond Syndicate (1903) 183 Mass. 443 (1911) 108 C. C. A. 473, 186 Fed. 609. 67 N. E. 427, where it was held that § 118] FORMATION AND VALIDITY OF CONTRACT. 399 The limits of the operation conceded to the former of these doc- trines is indicated by the statement that "no presumption of law can be indulged in that, because a person acts as a manager, he has the power to bind his principal to contracts of an extraordinary na- ture and of such a character as would involve the corporation in enormous obligations and for long periods of time." ^ a vote of the directors was not neces- sary to validate the appointment of a brolier to carry out a sale of land which had been authorized. In Paige v. Barrett (1890) 151 Mass. 67, 23 N. E. 725, the validity of the contract was held to be a question for the jury, where the evidence was that one J. had general superintendence of the given business; that one P., whom the defendants declared to have been their general manager, having genr^ral authority to hire workmen, was under J., and subject to his orders in hiring workmen while J. was there; that J. hired workmen personally; and that he was habitualy dealt with by the defend- ants as having full authority. 6 Gamacho v. Hamilton Bank Note & Engraving Go. (1896) 2 App. Div. 369, 371, 37 N. Y. Supp. 725. Discuss- ing the contention that the manager had apparent authority to make a contract for services for a term of three years, by which it was provided that the com- pensation should be at the rate of $2,000 a year for the first three months, and be increased on a sliding scale, so that in the third year the employee should receive $4,840, the court said: "Upon this subject we have no evidence what- ever except the testimony given by the plaintiff himself. He states that Mr. Gray was in the habit of employing and discharging employees; but there is nothing whatever to show that any of the employees thus hired or discharged by Mr. Gray were more than ordinary servants of the company employed for short periods; and there is nothing to show that Mr. Gray ever made any con- tract with any employee for any fixed period of time, or involving any other than a temporary employment, subject to discharge at the volition of the agent or general manager, or of other officers of the corporation. That testimony is utterly insufficient to lay the foundation for an inference that the general mana- ger possessed an authority to make so extensive and unusual a contract as that which is set up by this plaintiff." In Carney v. New York L. Ins. Co. (1897) 19 App. Div. 160, 45 N. Y. Supp. 1103, affirmed in (1900) 16^ N. Y. 453, 49 L.R.A. 471, 76 Am. St. Rep. 347, 57 N. E. 78, the question to be decided was "whether an executive officer of a com- pany having general authority by the by-laws to appoint, remove, and fix the compensation of employees, has the power to make a contract of employment for the life of the person employed, thus limiting by his own act, not only his authority expressly granted to him by the by-laws, but also the power of the corporation itself to discharge its em- ployees," or, in other words "whether the making of such an unusual contract to last for an indefinite period, impos- ing upon the corporation obligations which cannot be measured at the time the contract is made, is within the au- thority granted by the by-laws, which authorize an executive officer to appoint, remove, and fix the compensation of an employee." It was held that this ques- tion should be answered in the negative. The supreme court reasoned as follows: "The meaning that attaches to the word 'appoint,' when used in connection with an office, is to designate or nominate a person to fill the position to appoint to which the power is given. Of itself the mere power of appointment does not in- clude a power to fix the term for which the person is appointed. The general use of the word is applied simply to the authority to designate a person to fill a, position; and a power to appoint could not include either a power to fix the term, or a power to fix the compen- sation to be paid to the person so ap- pointed. This was recognized by the by-laws in question, which gave to these two executive officers of the company the power to appoint and remove the employees of the company, and at the same time the power to fix the com- pensation to be paid to them. If it had been intended to give to these two ex- 400 MASTER AND SERVANT. [chap. IV. c. Limitation of powers of general manager of corporation by by- laws, etc.; employee, how far affected by. — The rule illustrated by ecutive oflBcera the power to make a contract by which an appointment should be continued for a definite term, it seems to me that such power would have been expressly conferred upon such officers, and it would not have been al- lowed to rest upon implication, — and implication which would have extended the meaning of the word 'appoint' much beyond the one usually given to it, or in the ordinary conception of the idea that is conveyed when the word is used. In construing the authority granted to ■an oflBcer or agent by a, corporation, it is always competent to consider the gen- eral object for which the corporation was created, the nature of the business carried on by it, the character of the offi- cer upon whom the power is conferred, and for what object the authority was conferred. Here was a corpora- tion organized for the purpose of insur- ing lives and granting annuities, doing an enormous business, employing a large number of clerks and other employees; and it is quite evident that the success- ful conduct of the business depended upon the energy and ability with which the employees of the company transact- ■ed its business. It would be manifest- ly impossible for the trustees of such a corporation to have a knowledge of the details of the business, and of the abil- ity of the various employees by whom it was conducted, so as to employ and ■discharge such employees, or to deter- mine just what compensation should be paid to each of them. Such knowledge must necessarily be confined to the chief executive officers of the company, who are daily brought in contact with the employees, and who understand the manner in which they do their work, so as to determine who it is advisable to promote or retain, and who to dismiss. To accomplish this purpose, these two officers were given authority to appoint, remove, and fix the compensation of the employees of the company. It was not thought safe to leave it to one, but the concurrence of these two officers was required. The object thus sought to be attained would be frustrated if perpet- ual contracts of the kind here attempted to be enforced were made by the officers of the company thus vested with this authority. These officers might, without consulting the board of trustees, fill every office with a person holding a life position, by which not only the power of the persons then holding the of- fice of president and actuary, but of all persons subsequently holdiiig such office, to remove an employee, would be taken away during the lifetime of the incumbent; and thus the officers themselves, acting under a power which gave the present incumbent of the office authority to remove, would so re- strict that power as to take it away from their successors, and to practically nullify it for an indefinite period." The court of appeals dealt with the validity of the contract upon a narrower basis, saying: "The by-law alluded to must be given a reasonable interpretation. We may assume that the power given to appoint was intended to include the power to employ and to agree upon the compensation that should be paid, but in assuming this, we cannot believe that the board of trustees in adopting the by-law .ntended to invest the execu- tive officers named with the power to enter into unreasonable contracts as to the term of employment. Under the statute the board of trustees consisted of twenty individuals, whose terms of office continued for four years, five being elected each year. The management and control of the corporation was given to tile trustees. In construing the action of the board in adopting the by-law in question, we must assume that they had in mind the provisions of the statute fixing their terms of office, and that, at the expiration of that period, other per- sons may be chosen in their places, upon whom would rest the responsibility of the conduct and management of the bus- iness of the company, and that they had no right to interfere with the powers of future boards of trustees by impos- ing upon them unreasonable contracts. This provision of the statute may prop- erly be. taken into consideration by the court in determining whether the con- tract is reasonable. Having in view the provisions for the election of new of- ficers, upon whom would be cast the responsibility of the management of the company, and the evident purpose of the statute that the hands of the future officers should not be tied or their ac- § 118] FOKMATION AND VALIDITY OP CONTRACT. 401 some of the cases under this head is that a by-law of the employing corporation, or a resolution of its directors, imposing limitations upon the authority of its manager, is not binding upon an employee, where he had no notice, actual or constructive, of its existence.' Whether, in a case in which actual notice is not proved, he is chargeable with constructive notice, is presumably determined upon the same foot- ing as the similar question which may arise with reference to ap- pointments by individual members of the board of directors. See § 117, subd. (d), ante.^ In one case the decision was based upon the considerations that the authority of the general manager of a corporation, like that of other agents, is restricted to the usual and ordinary means of accomplishing the business intrusted to him ; that he is not the alter ego of the corporation; and that he cannot bind it in transactions with third persons, unless the power which he ex- ercised was reasonably necessary and proper to carry into effect the main powers conferred upon him, and was not known to the employee tion unreasonably hampered, we think the contract in question must be held to be unreasonable and one not contem- plated by the by-law, and consequently one that should not be executed. In this case there is no dispute as to the facts, and consequently the question arising with reference to the meaning of the by-law, and as to whether the contract is reasonable, is for the court, and not for the jury." With reference to Mich. Comp. Laws, § 7040, providing that the business of every corporation shall be managed by directors chosen annually by the stock- holders, one acting as secretary, treas- urer, and manager of a corporation was held to have no authority to bind the corporation by a contract of employment for three years, there being no evidence of custom, or any holding out as pos- sessing such authority. Laird v. Michi- gan Lubricator Co. (1908) 153 Mich. 52, 17 L.R.A.(N.S.) 177, 116 N. W. 534. The court laid stress upon the consider- ation that the contract covered a period extending beyond the time when the en- tire management of the company's af- fairs might be changed by the election of a new board of directors. The rule that a manager of a cor- poration cannot engage employees for a long future period without express au- thority was also affirmed in Reupke t. D. B. Stuhr & Son Grwin Co. (1905) 126 Iowa, 632, 102 N. W. 509. M. & S. Vol. I.— -26. "> In Forked Deer Pants Co. v. ley (1904) 25 Ky. L. Rep. 2299, 80 S. W. 476, the evidence was held to be in- sufficient to establish notice. A limitation on the power of the secretary of a, corporation to make con- tracts, that they must be authorized by resolution and entered in the min- utes and signed by the president and secretary of the corporation, is not binding on one employed by the secre- tary, where the directors have permit- ted the latter to make contracts with- out such limitation, and the employee has no notice of it. Parmelee v. Asso- ciated Physicians d Surgeons (1895) 11 Misc. (C.P.) 363,32 N. Y. Supp. 149, 65 N. Y. S. R. 296, reversing on re- hearing (1894) 9 Misc. 458, 61 N. Y. S. R. 118, 30 N. Y. Supp. 250. 8 In Colpe V. Jubilee Min. Co. (1905) 2 Gal. App. 393, 84 Pac. 324, where the by-law of a corporation declared that its officers should be a president, vice president, secretary, general manager, superintendent, and treasurer, "which officers shall be elected by the board of directors," it was held that the mana- ger was without authority to appoint a superintendent, and that a superin- tendent appointed by him was charge- able with knowledge of the limitation of the power of the manager. 402 MASTER AND SERVANT. [chap. iv. to be prohibited, or was added by usage and custom to those main powers.' In another case the corporation was held, under the cir- cumstances, to be estopped by the action of its directors from rely- ing on a restrictive by-law.^" 119. — by managers of departments. — Where an employee is in control of an important department of an extensive business, and is intrusted with large discretionary powers in the discharge of his functions, it seems not unreasonable to say that, having regard to the customary conditions under which such a business is carried on, he should be presumed, in the absence of anything indicating the contrary, to have authority to enter into any ordinary contract for the hire of a subordinate to assist him in the necessary work of the employer. And this seems to be, on the whole, the effect of the de- cisions which bear upon the question.^ On the other hand, it is clear 9 Skene v. Union Casualty & Surety sation out of the profits of the indi- Go. (1901) 91 Mo. App. 120, citing vidual accident insurance department. Mechem, Agency, § 282, for the Ian- There is, therefore, an utter want of guage used. In that case, where the evidence to establish the fact that Gaty by-laws of an insurance corporation was authorized to make the contract." required that contracts of employment l' In Golden Age No. 2 Min. & Mill. of its general manager with agents Co. v. Langridge (1907) 39 Colo. 157, should be approved by the executive 88 Pac. 1070, where it was held that committee before they should become the employee was justified in presum- obligations of the company, a, contract ing that the manager was acting within with an agent by such manager, which his authority and rightfully exercising was not approved by the executive com- his power, the contention that a by- mittee, was held not binding on the law reciting that no contract or agree- company. The court said: "The con- ment involving more than a certain tract of plaintiff was an employment amount should be entered into by the of him as superintendent or general company, except by resolution of the manager of a separate and distinct de- board of directors, operated so as to partment of defendant's insurance bus- debar the employee from recovering for iness, — the individual accident depart- services rendered with reference to a ment. The nature of the plaintiff's contract made in contravention of its employment constituted him a general terms by a general manager, was re- agent of the defendant, with 'power to jected, on the ground that the manager do acts of a class.' Cross v. Atchison, had acted under special instructions T. & 8. F. R. Go. (1897) 141 Mo. 147, from the directors, and that the plain- 42 S. W. 675. The employment of a tiff had been permitted to enter upon general agent of a corporation is not an and perform his duties. A letter which incident to the power of the superin- had been written by a director and tendent, but it is the peculiar office treasurer of the company in answer to and duty of the board of directors as a letter from plaintiff, with regard to a body, or by a committee raised out the course taken by the company, and of it, to select and employ all general which stated that the directors had officers and agents of the corporation, left the matter of the employment to Besch V. Western Carriage Mfg. Go. the manager, was held to be admissible (1899) 36 Mo. App. 336. No custom as evidence to prove that the board had to the contrary was proven at the trial, authorized the manager to act in the and there is no pretense that the de- matter. fendant ratified the agreement made by 1 Prima facie, the employment of a. Gaty (if such an agreement was made) person as chief engineer of a railway to give plaintiff an additional compen- company, to "survey and establish" its § 119] FORMATION AND VALIDITY OF CONTRACT. 403 that such an employee cannot, any more than a general manager, be treated as having authority to make contracts of hiring which will siibject his principal to unusually onerous obligations.^ line, clothes him with apparent au- thority to employ on behalf of the company such subordinates as are rea- sonably necessary for that purpose. GilUs V. Duluth, N. 8. & 8. W. B. Co. (1885) 34 Minn. 301, 25 N. W. 603. In Wanamaker v. Megraw ( 1904 ) 92 App. Div. 616, 87 N. Y. Supp. 331, the conditions upon which employment was accepted were that the employee should be buyer of merchandise and the seller of merchandise after a specified date in a certain department, that he should have the hiring of the assist- ants, and that he should look after the general conduct of the business. Held, that the authority conferred by the con- tract extended to the hiring of assist- ants prior to the date mentioned, in order that the department might be organized and ready for business on tliat date. The head of the legal department of a railway company, and the president, acting together, have power to employ special attorneys to assist in legal pro- ceedings in which it is interested, with- out express delegation of power so to do. Dublin & 8. W. R. Go. v. Akerman (1907) 2 Ga. App. 746, 59 S. E. 10. 2 A division superintendent of a rail- road has no implied authority to bind the company by an agreement to give life employment to an employee of the company, in settlement of a claim for personal injuries. Maceson v. Michigan G. R. Co. (1898) 117 Mich. 218, 75 N. W. 459. There it was held to be error to submit to the jury the question whether the contract was authorized or ratified, as the defendant's evidence showed that the superintendent was not empowered to settle claims or to employ men for life, and the contract did not provide for the immediate pay- ment of money out of the company's treasury in settlement of damage, and there was nothing else to indicate that the plaintiff was to be employed in any other than the ordinary manner. In making such an extraordinary contract, the servant knew he was dealing with a subordinate agent, and was bound to inquire into and ascertain his author- ity, not from the agent with whom he dealt, but from the agent's principal. Discussing the earlier case of Brighton V. Lake 8hore & M. 8. R. Co. (1894) 103 Mich. 420, 61 N. W. 550, where the defendant was held to be bound by a contract entered into by two division superintendents of a railway company, the effect of which was that an em- ployee was to be furnished with em- ployment at a fixed monthly salary during his life, or during his ability and disposition to perform the duties pertaining to such employment, the court explained the decision as rest- ing upon the ground that it involved a written contract for the payment of money in settlement of the servant's claim for damages, and that, as money could not have been paid from the treasury without the authority of the company itself, there was evidence for the jury both as to original author- ity and as to ratification. The former of these decisions is in conflict with one in which it was held by the supreme court of New York that a contract whereby the division super- intendent of a railroad company agreed with an employee who had been seri- ously injured by its negligence, in con- sideration of a release of his claim for damages, to employ him for life as fiagman at a certain crossing, at about half the salary he had been previously able to earn, was not invalid in that it infringed on the powers of succeeding corporate officers. Usher v. New York 0. & H. R. R. Co. (1902) 76 App. Div. 422, 78 N. Y. Supp. 508. In the judg- ment of the majority of the court the position was taken that it is within common knowledge that such contracts are not unreasonable, and that, wliile the general employment of a servant for life would have been beyond the powers of the division superintendent, this was not a simple contract of em- ployment. Two of the judges, however, dissented from this conclusion, which seems difficult to reconcile with the reasoning and the decisions in the two New York cases cited in note 4 to the preceding section. But the case may be supported on the second ground men- tioned, im., that, assuming that such 404 MASTER AND SERVANT. [chap. IV. 120. — by superior employees of the lower grades. — The general ef- fect of the decisions concerning employees whose functions relate to a circumscribed sphere of operations which place them for certain purposes in control of a small number of persons may be said to be that no presumption will be entertained in favor of their possession of authority to hire subordinates, and that the questions whether they were in a given instance invested with such authority, and whether their authority, supposing it to be conceded or established, was suf- ficiently extensive to enable them to bind their principals by the contract in question, are to be determined from the specific evidence introduced.* a contract was beyond the scope of the division superintendent's authority, the company could not assert that fact in defense to an action brought against it to recover damages for the breach of the contract, inasmuch as it had retained the release executed by the plaintiff, and the claim released there- by was barred by the statute of limi- tations. Ibid, 1 Where the question was whether the boss of a mine had authority to em- ploy coal diggers, and it appeared from the testimony of certain witnesses that he had employed coal diggers and as- signed them to work, but it was also shown that he never employed diggers until after the approval of the super- intendent, and had no actual authority to employ them, it was held that the evidence did not show any implied au- thority on the part of the boss to hire diggers. Patterson v. Neal (1902) 135 Ala. 477, 33 So. 39. In Eahtptzok v. Great Northern R. Co. (1893) 55 Minn. 446, 26 L.R.A. 739, 57 N. W. 144, the court sustained a verdict finding the defendant liable for a personal injury caused by the neg- ligent manner in which a truck had been handled by a youth whom a sta- tion master on a railway had employed, without wages, to assist him in tele- graphing. The evidence was that the agent had, for over a year before the accident, been employing another per- son as an assistant under a similar ar- rangement, without, so far as appeared, any objection on the part of the de- fendant, although the length of time was such that its knowledge of the fact might be fairly inferred; that, after the accident, both assistants con- tinued, without objection, to perform these services for defendant; and that the nature of the duties of a station master at a place like the one in ques- tion were of such a multifarious nature as to render the employment of an occasional assistant not only conven- ient, but almost necessary. The facts that the consideration for the services of these assistants moved from the agent, rather than from the defendant, and that their aid was for his accom- modation or convenience, were, in the opinion of the court, not controling. No implication of authority on the part of a railroad station agent to em- ploy third persons to watch the station and catch burglars arises from the fact that he had authority to do such acts himself. lApscomb v. Houston & T. G. R. Go. (1901) 95 Tex. 5, 55 L.R.A. 869, 93 Am. St. Rep. 804, 64 S. W. 923. The court said: "That Moore was its servant, and had the authority to rep- resent and act for it in guarding the depot, and the property in it, may be conceded. It does not follow that he had authority to employ for it other servants, and substitute them in his place. No implication of such power of employment would arise from the mere fact that he himself could have done the things which he engaged them to do. On the contrary, it would have to be proved as a fact that he had re- ceived such power from his employer, and whether he had or not, was a con- troverted question, upon which the jury would have to pass." It was also held that opinions as to the authority of station agents to employ persons to § 120] FORMATION AND VALIDITY OF CONTRACT. 405 But the effect of this doctrine is to some extent qualified by an- other which has been applied by several courts, viz., that an em- guard against burglars, deduced from known duties of such agents, are not admissible in an action against the railroad company for injuries caused by such guards. In Barrell v. Wilmington & W. R. Co. (1890) 106 N. C. 258, 11 S. E. 286, it was held that a station agent had authority to employ persons to assist him in the work of weighing cotton. In Silver v. Missouri, K. & T. R. Go. (1907) 125 Mo. App. 402, 102 S. W. 621, it was held that, in the absence of specific evidence, it cannot be as- sumed that a station agent on a rail- way has authority to hire a person to carry the mail to the postoflBce. In Jackson v. Southern B. Co. (1906) 73 S. C. 557, 54 S. E. 231, it was held that where a station agent of a rail- road company calls in a bystander to assist in pushing cars from a fire, he discharges the duties of a superior agent or ofiicer of the company, and must provide a safe place for the by- stander to work, and that if he be in- jured because cars were negligently not uncoupled, the company is liable. This case was followed in one in which it was held that where a stran- ger, being in a cotton mill by permis- sion, is requested by a section boss to procure some oil from an oil pan, the stranger becomes an employee as to that particular work, so as to render the master liable if he fails to furnish a safe place in which to work. Tucker v. Buffalo Cotton Mills (1907) 76 S. C. 539, 121 Am. St. Kep. 957, 57 S. E. 626. In an action against a railway com- pany for work and labor done by a man under the orders of a civil engineer who had no special authority to em- ploy men, it was held to be error to submit the company's liability to the jury on the footing, that, if the work performed was necessary to be done and of benefit to the defendant, then either the agent at the station or the engineer had the right to employ plain- tiff, and the worth of his services under the employment was chargeable against the railroad company. The court said: "Neither Davis nor the station agent had any authority to employ plaintiflf. It is not for a jury to determine wheth- er the work done by plaintiff, under the orders of persons who had no authority to contract for the railroad company, was necessary or beneficial to such com- pany. The defendant, acting through its proper ofiicers, had the right to de- termine whether or not it wanted the services of a porter or assistant at this station." Willis v. Toledo, A. A. & N. M. B. Co. (1888) 72 Mich. 160, 40 N. W. 205. Where a man who was injured in cleaning out a boiler had, during the year preceding the accident, been fre- quently employed for that purpose by a foreman in full charge of a bridge and pumping station of the defendant railroad company, and had been paid a part of the time by the foreman per- sonally, and part of the time was placed on the pay roll, he was held to be in the employ of the railroad com- pany in such a sense that it owed to him the duty of a master. Illinois C. B. Go. V. Timmons (1907) 30 Ky. L. Rep. 1155, 100 S. W. 337. In an action against a corporation for the services of an attorney, it was held not to be necessary for plaintiff to show that the secretary by whom the attorney was employed was au- thorized by a by-law or a formal reso- lution of the corporation's board of di- rectors to make the contract on behalf of the corporation. Kelly v. Ning Tung Benev. Asso. (1905) 2 Cal. App. 460, 84 Pac. 321. The captain of defendant's yacht made a parol contract of employ- ment, it was held that the question that the engagement was for the season, but defendant contended that the cap- tain had authority only to make a con- tract from month to month. A written contract had been sent to the captain by defendant's attorney for plaintiff to sign, providing for his employment by the season, but it was never handed to plaintiff to sign. Defendant knew that plaintiff had been employed. Held, that the evidence showed suflficient author- ity of the captain to make the contract 406 MASTER AND SERVANT. [chap, iv, ployee who under normal circumstances is not authorized to engage assistants is impliedly invested with the power to do so whenever an for the season. Gerardo v. Brush no authority to employ a man to assist (1899) 120 Mich. 405, 79 N. W. 646. in operating it. Stalcup v. Louisville, An officer of the World's Columbian .V. A. d- C. R. Go. (1896) 16 Ind. App. Exposition having power to employ 584, 45 N. E. 802, relying on Cooper v. men had ostensible authority to employ Lake Erie & W. R. Go. ( 1893 ) 136 Ind. for six months, in view of his authority 366, 36 N. E. 272, where a man was to require a uniform to be furnished allowed by the conductor to ride on the by the employee at a cost of $30, to be train to a certain point, in considera- paid $5 monthly, a pass-book for six tion of his assisting the brakemen. months to be furnished the employee, The same doctrine was affirmed in and the fact that the Exposition was to Glarke v. Louisville & N. R. Go. ( 1908 ) continue six months. World's Golum- 33 Ky. L. Rep. 797, 111 S. W. 344. hian Exposition v. Richards (1894) 57 In Suydam v. Moore (1850) 8 Barb. 111. App. 601. 358, it was assumed by the court that The superintendent of the Bureau a locomotive engineer had power to of Admissions at the World's Fair in employ a fireman so as to create the Chicago, and his chief Inspector, being relationship of servant between him held out by the managers of the Fair and the railway company. But the as agents authorized to hire ticket- position, however warrantable it may sellers, were declared to have the power have been in view of the railway prac- to make binding contracts with such tice of the period when the case was employees for the whole period during decided, would, it is apprehended, not which the Exposition remained open, be taken at the present day. although those agents had been in- On the ground that there was no structed to hire such employees by evidence to show that one employed by the month. World's Golumhian Expo- a general insurance agent to act as sition V. Vrandall (1895) 59 111. App. manager of a state branch, and obtain 357. and submit applications to the head A person who witnessed an accident office, was in charge of all the com- on a street railway was asked, by an pany's business in that state, it was agent of the superintendent, to give a, held not to be permissible to infer that statement of what he knew. He re- the appointment of special agents for plied that he must first go to the place the company was within the apparent of the accident, and verify the facts, scope of his authority. Gore v. Ganada and the agent said, "All right." The Life Assur. Co. (1898) 119 Mich. 136, statement was made and used. In an 77 N. W. 650. action for services in going to the place A person who undertook a temporary of the accident and in making the state- job at the request of the foreman of ment, it was held, that the question a water company was held not to be of the agent's authority to employ a trespasser, but, for the time being, plaintiff was for the jury; that, if the servant of the company, and en- plaintiff was authorized to go to the titled to the same protection as any place of the accident, and believed it other of its servants. Johnson v. Ash- necessary to go there in order to make land Water Go. (1888) 71 Wis. 553, a correct statement, he could recover, 5 Am. St. Rep. 243, 37 N. W. 823. although in fact it was not actually In Barstow v. Old Colony R. Go. necessary. Love joy v. Middlesex R. Co. (1887) 143 Mass. 535, 10 N. E. 255, (1880) 128 Mass. 480. where plaintiff's intestate— a person A conductor is not, by reason of his who was permitted by a station agent position as conductor, authorized to to come to the station for the purpose hire men for his employer to do con- of learning telegraphy — was run over struetion work. Olson v. Great THorth- by a train, while running to see when em R. Co. (1900) 81 Minn. 402, 84 N. a certain freight train would be ready W. 219. to start, there was held to be evidence In the absence of any special emer- from which a jury would be warranted gency or necessity (see note 2, infra), in finding that the deceased was a the conductor of a, freight train has -lolunteer; that the agent assented to S 121] FORMATION AND VALIDITY OF CONTRACT. 407 emergency supervenes whieli, if one or more servants are not im- mediately engaged, will endanger the interests of his employer or the safety of the public.^ Whether in the given instance there was an emergency which will justify ascribing this temporary augmentation of authority to the given employee is primarily a question of fact for the jury. It is clear that no emergency can be said to have ex- isted, if the work in question could have been accomplished with the help of such other employees as were present and ready to render assistance.' 121. — ^by subordinate employees. — Having regard to the footing upon which the affairs of men are ordinarily conducted, the only reasonable doctrine seems to be that a servant whose functions arc •essentially subordinate in their nature should not be deemed to have power to bind his master by a contract for the employment of an- other person, unless he has been expressly authorized to make such a contract, or his authority to make it can be implied from the man- ner in which his master's business has previously been carried on. This is also the doctrine which is sustained by the weight of au- thority. The cases bearing upon the subject are divisible into three classes : (1) Those in which the point to be determined is whether the party hired is entitled to hold the employer of the party hiring liable his acting as such for the occupation; able person at hand to board a portion and that, at the time of his injury, of the train which has broken away he was voluntarily undertaking to per- from the other portion, in order to stop form service for the defendant, and it and prevent its impending destruc- accordingly he was not a trespasser tion. Louisville & N. R. Co. v. Gmley or a mere licensee. But as a volunteer, (1897) 100 Tenn. 472, 45 S. W. 348. he was subject to the operation of the A police officer, by responding to the doctrine of common employment. invitation of the regular agents of the For other cases illustrating this doc- company to aid in enforcing its regu- -trine, see §§ 1562, 1563, post. lations, becomes for that purpose a 2 Several cases exemplifying this rule special agent of the company; and for are cited iii §§ 1562, 1563, post. Other the conduct of such special agent, with- illustrative decisions are the following: in the scope of his employment, the The driver of a one-horse street car company is responsible. Jardine v. having a brake at only the front end Cornell (1888) 50 N. J. L. 485, 14 Atl. of the car has authority to employ an 590. assistant to drive the horse when it Cases of this type may be compared becomes necessary to draw the car with those in which the existence of 'backward. Marks v. Rochester R. Co. an emergency has been held to invest (1894) 77 Hun, 77, 59 N. Y. S. E. 848, employees with the power to make 28 N. Y. Supp. 314 (driver held to be contracts for medical attendance on in- vice principal of defendant in respect jured servants and other persons. See to the duty of keeping the place of § 2004, post. work safe while the employment con- » W. B. Conhey Co. v. Bueherer ( 1899 ) tinued). ^4 111. App. 633 (held to be error to A condiictor of a freight train has strike out of an instruction a sentence implied authority to employ any suit- to this effect). 408 PIASTER AND SERVANT. [chap. iv. for the remuneration accruing in respect of the services rendered.^ In this instance, if the subordinate employee had no authority to bind his employer, the liability, if any, ordinarily falls upon himself, in accordance with the general rule relating to the unauthorized con- tracts of agents.^ (2) Those in which the injured person is suing for damages on the theory that, at the time when the injury was received, the de- fendant owed him the characteristic duties which the law imposes upon masters in respect of the security, health, and welfare of their servants. The cases under this head are appropriately considered in connection with the subject of employers' liability. See § 1562, post. (3) Those in which the defendant in an action for personal in- juries seeks to establish a valid contract of hiring, for the purpose of protecting himself by the defense that the plaintiff was a fellow servant of the actual tort feasor. To this class of cases also, the remark made in the preceding paragraph is applicable. See §§ 1563, 1564, post. (4) Those in which the defendant is sued for injuries caused to a third person by the wrongful act of the party hired. As some of the cases under this head are based in part upon considerations in- dependent of the implied powers of the subordinate in this regard, it has been deemed preferable to deal with them as a whole in the subsequent chapters (lxxviii. to lxxxii.) in which the general ques- tion of a master's liability to strangers is discussed. It may, how- ever, be mentioned here that a doctrine analogous to that which 1 In Barlow V. Taylor Min. Co. {1896) persons to engage in the employment 29 Or. 132, 44 Pac. 492, the plaintiff of a company in a certain capacity has was permitted, in support of his con- no implied authority to make or modi- tention that he was in the employ of fy contracts of employment. Nielsen the defendant company and entitled to v. Northeastern Siberian Go. (1905) wages during a period when he was 40 Wash. 194, 82 Pac. 292. absent in Portland, to testify that the A sales agent whose duties are to defendant's bookkeeper at its mine had take orders for his principal's goods stated, in answer to his inquiry, that within a fixed territory, and who can it would not be necessary for him to delegate his authority only to the ex- seek another job while in that city, tent of employing his own salesmen, as the defendant might need his serv- cannot make a contract with a sales- ices at any time. Held, that, as there man which will bind the principal to was no evidence whatever to show, or pay the salesman for his services in tending to show, that the bookkeeper effecting sales. National Cash Register had any authority to bind the com- Co. v. Hagan (1904) 37 Tex. Civ. App. pany by any contract of hiring, or by 281, 83 S. W. 727. any such declaration as that given in 2 Story, Agency, §§ 264 et seq.; evidence, the admission of this testi- Mechem, Agency, § 550; Wharton, mony was error. Agency, §§ 524 et seq. A person employed merely to solicit § 122] FORMATION AND VALIDITY OF CONTRACT. 40» prevails witli regard to the effect of an emergency in enlarging the normal powers of superior employees of lower grades (see preceding section) has also been adopted in respect of employees who are not intrusted with any supervising functions.^ 122. Ratification of contracts made by employees in excess of their authority. — Under the general principles of the law of agency, a con- tract of hiring which was beyond the power of the employee who made it will ordinarily become binding upon the employer, if he him- self, or some agent authorized to make such a contract, has notice of the retainer of the servant, and accepts his services without objec- tion.-^ But the adoption of a contract which contains unusual terms will not be inferred, unless notice of those terms is imputable to the employer, or the agent who is alleged to have ratified it. The mere fact that the employer or the agent was aware that the servant was engaged in the performance of the stipulated work will not warrant such an inference.* sin Hollidge v. Dimcam, (1908) 199 in the performance of his duty in a Mass. 121, 17 L.E.A.(N.S.) 982, 85 N. sudden emergency, another hand, and E. 186, where a bystander, while assist- found it in the assistance given at his ing defendant's driver, at the driver's request by a stranger, and what was request, in repairing a dump cart which done by the stranger was as if done was out of order, pulled a blanket by himself. See Althorf v. Wolfe caught between the seat and the sweep (1860) 22 N. Y. 355; Campbell v. of the cart, and so caused the cart to Trimble (1889) 75 Tex. 270, 12 S. W. wheel around and the pole to strike a 863; Bucki v. Cone (1889) 25 Fla. 1, pedestrian, the defendant's contention 6 So. 160; Pennsylvania Co. v. Gal- was that he was not liable for the lagher (1884) 40 Ohio St. 637, 48 Am. bystander's act, because the driver had Rep. 689; James v. Muehlebach (1889) no authority to procure his assistance. 34 Mo. App. 512." But the court said: "We think that i Lewis v. Albemarle & R. R. Co, the act of the bystander must be re- (1886) 95 N. C. 179; Gathman v. Chi- garded as the act of the driver. The cago (1908) 236 111. 9, 19 L.R.A.(N.S.) cart was out of order, and the driver 1178, 86 N. E. 152, 15 Ann. Cas. 830; was trying to fix it, as he was bound Southgate v. Atlantic d P. R. Co. (1875) to do. For that purpose he asked the 61 Mo. 89 ; Huntington Fuel Co. v. Ifc- bystander to assist him, and in doing IlwaAne (1907) 41 Ind. App. 328, 82 N. so he used the assistance of the by- E. 1001; Silver v. Missouri, K. & T. R. stander as he would have used a tool Go. (1907) 125 Mo. App. 402, 102 S. or appliance which he had procured, W. 621; Colpe v. Jubilee Min. Co. and which he must be regarded as (1905) 2 Cal. App. 393, 84 Pac. 324. having implied authority to procure ■ 2 Camacho v. Hamilton Bank Note under the circumstances. The fact that ^ Engraving Co. (1896) 2 App. Div. the tool or appliance was an intelligent ggg^ 37 ^sr. y. Supp. 725. (see § 118, human being does not affect the mat- ^^^ g ^^^^j _ j^ ^^^^ ^^^^ j^ ^^^ ter any more than the fact that another ^^^^ ^^^^ ^^^^ ^^^ ^^^^ j ^^^^ ST. (^835 %Tar.t R e^^^e the letter book of a corporation of an ca^e Ts not one where the servant at- ""authorized letter by its general man- tempted to delegate his duty to another, ager making a contract of employment as in Gwilliam v. Tioist [1895] 2 Q. for three years, was not a ratification B. 84 (see § 95, ante) but a case of the contract by the corporation, where the driver needed, for a moment where such copying was directed by 410 MASTER AND SERVANT. D. SUBJECT-MATTEE OF THE CONTEACT. [CHAP. IV. 123. Agreements contrary to good morals. — a. Sexual immorality. — No legal rights arise out of a contract by whicli a woman agrees to become the servant of a man, if it is apparent that the real object of the parties was future illicit cohabitation. By such a contract the woman does not acquire a settlement as a servant.* Nor can she recover, on the ground of an implied promise, compensation for services rendered in the performance of the contract.* In other words, where the evidence in the case shows that the services for the general manager, and was not brought to the knowledge of the other officers. Compare Harrington v. First Nat. Bank (1873) 1 Thomp. & C. 361, as cited in § 117, note 9, ante. lln Bex V. Northwing field (1831) 1 Barn. & Ad. 912, a female pauper hav- ing proved that she was hired for a year by a contract in writing, which was lost, the appellants proposed to show by her cross-examination that she had agreed not only to serve, but to cohabit with, her master, it being already in evidence that she had in fact cohabited with him during her resi- dence in his family under the hiring. Discussing the rejection of this evi- dence, on the ground that no proof of a consideration which did not appear on the written agreement was admis- sible, Lord Tenterden, Ch. J., said: "This contract may have been either a contract for service, or for cohabita- tion, or for both. In the first case a settlement would clearly be gained by a service under it; in the second it would be clearly void, and no settle- ment could be gained. If it were for both, then it is said that the contract w divisible, and good for so much as is legal, but void for the residue. As to that it is unnecessary to say any- thing at present. The evidence should have been received to ascertain the nature of the contract, and the case must therefore be sent back to the sessions for that purpose." 2 In an action of assumpsit for serv- ices, the jury were thus instructed by Cresswell, J.: "If an express contract had been proved, and the defendant had attempted to set up that the con- tract was not only for service, but for •cohabitation, the defendant could not have set that up without pleading it; but in my judgment he is entitled to prove cohabitation here, as tending to show upon what terms the plaintiff re- mained in his house. The plaintiff en- deavors to show by acts of service that there was a contract. The defendant wishes the jury to infer that there was no contract of hiring and service; he is not seeking to discharge himself from any contract, but to show that there was no contract at all." Bradshaic v. Hayward (1842) Car. & M. 592. In Walraven v. Jones (1855) 1 Houst. (Del.) 355, the jury were in- structed that, if the plaintiff was the defendant's mistress, she could not re- cover for her services rendered in and about his house. A man and woman mutually agreed to live together as husband and wife without being married. They lived to- gether in that unlawful relation for about thirteen years, when the man married another woman. The woman then brought suit for services rendered in keeping house in that relation, and for money which was delivered to the defendant to be used towards paying their family expenses, to enable them to continue to live together as they had agreed to do. No express promise was made by the defendant to pay the plaintiff for her services, or to repay the money. The plaintiff did not ex- pect pay. Held, upon these facts the law will not imply a promise. Brown V. Tuttle (1888) 80 Me. 162, 13 Atl. 583. The court said: "The parties were living together in violation of the principles of morality and chastity, as well as of the positive law of the state; — a relation to which the court can lend no sanction. The services ren dered, as well as the money furnished, I 123] FORMATION AND VALIDITY OF CONTRACT. 41J ■which payment is claimed had no other motive than the pre-existing -concubinage of the parties, and were merely incidental to that rela- tion, the servant cannot claim remuneration therefor.* On the other hand, a court will not refuse to recognize and give effect to the express or implied terms of a contract of service, merely because it is shown that the parties were cohabiting unlawfully while the contract was in course of performance.* b. Other immorality. — In a case where it was held that the printer •of an immoral and libelous book could not maintain an action for the amount of his bill, the plaintiff seems to have been, strictly speak- were in furtherance and for the con- ^Stringer v. Mathis (1889) 41 La. tinuation of that unlawful relation. Ann. 985, 7 So. 229 ; McDonald v. Plem- The law will imply no promise to pay ing (1851) 12 B. Mon. 286; Baok- for either. If there had been an ex- staeder v. Kast (1907) 31 Ky. L. Rep. press promise for such a purpose, the 1304, 105 S. W. 435. •court would not enforce it. White v. 4 The fact that a woman, after under- Buss (1849) 3 Cush. 448; Qilmore v. taking the management of a boarding Woodcock (1879) 69 Me. 118, 31 Am. house for a man, cohabits with him, Eep. 255. But the evidence repels any does not, of itself, deprive her of the idea of a promise, either express or right of demanding compensation for implied." her services. Viens v. Brickie (1820) Services performed in aid of prostitu- 8 Mart. (La.) 11. tion, as mistress of a brothel, have no In Pereuilhet's Succession (1871) 23 value whatever in law. Williams v. La. Ann. 294, 8 Am. Rep. 595, where ■Gnarde (1876) 34 Mich. 82, holding it was alleged, as a defense to an action that, when the case is clearly and un- for compensation by a female servant, mistakably one which the plaintiflF is that she had been living with the de- seeking to recover for services per- fendant's decedent as his concubine for termed in an immoral and criminal busi- several years before he died, the court ness, there is no basis whatever for thus stated its conclusions: "The evi- instructions to the jury which leave dence on this point does not make the them at liberty to separate the services truth of the averment very clear; and from the business, and to render a in the second place, if it did, the fact judgment for their value, irrespective as alleged would not, in itself, vitiate of the purpose which they are to serve, the claim of opponent. An employer For other cases not relating to serv- cannot pay off a female employee by ice, but illustrating the general prin- robbing her of her virtue. Such a ■ciple that an agreement to pay money method of extinguishing an obligation in consideration of future illicit co- is not known to the law. If concubi- habitation is void, see B-obinson v. Cox nage had been alleged and proved to (1741) 9 Mod. 263; Walker v. Perkins have been the motive and cause of the (1764) 3 Butt. 1568; Ay erst Y. Jenkins parties living together in the same (1873) L. R. 16 Eq. 275, 282; Marks- house in the first instance, and the ■bury Y. Taylor (1874) 10 Bush, 519. services in question to have been mere- An agreement which recites that in ly incidental to such a state of living, consideration of the employment of our conclusion might have been differ- plaintiff, a divorced woman, by defend- ent; but such is not the allegation, ant, a widower, the plaintiff will not much less the proof; and we certainly accuse defendant of impropriety toward will not presume that such was the her, and that the agreement shall be fact." evidence that any such accusations, if An express contract for services to made, are false and fictitious, is void be rendered by a woman for a man as as being immoral and against public housekeeper and servant is valid, though policy. Lauer v. Banmng (1911) — the parties lived in a state of con- lowsi, — , 131 N. W. 783. cubinage while the services were ren- 412 MASTER AND SERVANT. [CHAP. IV. ing, an independent contractor. But the language used by Best, Ch. J., is broad enough to warrant the inference that his conclusion would have been the same if the plaintiff had been a mere servant.* dered, unless the contract was made in contemplation of such illicit relation- ship. Emmerson v. Botkin (1910) 26 Okla. 218, 29 L.E.A.(N.S.) 786, 138 Am. St. Rep. 953, 109 Pae. 531. In Rhodes v. Stone (1892) 63 Hun, 624, 44 N. Y. S. R. 17, 17 N. Y. Supp. 561, it was shown that plaintifif lived and cohabited with deceased, although she knew his wife was living, kept house for him, and worked on his farm, doing the same work as a laborer. On the trial of an action for such services, evidence was given of declarations of the deceased to the effect that plaintiff was of great assistance to him in his business, and was worth as much to him as an ordinary hired man, and that he intended to pay her for her services, thes-e declarations being sometimes made in her presence and hearing. Discussing this evidence, the court said : "The respondent cannot rely upon an implied agreement to pay for her labor ; unless the evidence proves an express promise of the intestate to pay her, the verdict cannot be sustained; and if the illicit commerce between the par- ties was any part of the basis of the promise to pay for respondent's labor, the agreement was void. The relations of the parties did not necessarily for- bid an express contract between them that the intestate would pay respondent for her labor. Cooper v. Cooper ( 1888 ) 147 Mass. 372, 19 Am. St. Rep. 721, 17 N. E. 892. There is no suggestion in the evidence that the illicit relations were to form any part of the considera- tion of the contract; notwithstanding the improper manner of her life with the intestate, she was at liberty to make an agreement with the intestate to perform labor for him for pay. There was suflBcient evidence of such an agreement to sustain the verdict of the jury." For another case in which a woman who had been criminally intimate with her employer was allowed to recover her wages on the ground that there was no evidence that such an intimacy had been contemplated when the con- tract of hiring was made, see Moore v. Davis (1869) 16 Grant, Ch. (U. C.) 222. In a Kentucky case the majority of the court considered that the circum- stances were such as to justify the con- clusion that a contract by which the plaintiff undertook to render services as defendant's housekeeper for a stipu- lated money consideration was valid and enforceable, though the parties lived together in a state of concubinage during much of the time the services were being rendered. Lytle v. Newell (1902) 24 Ky. L. Eep. 188, 68 S. W. 118. But a perusal of the evidence in this case will, we fancy, produce in most minds considerable surprise at the fact that only three of the judges were so uncharitable as to dis- sent from the judgment allowing the woman to recover for her services. The doctrine that an express promise to pay for services rendered under the circumstances involved in the two cases last cited is enforceable has been re- pudiated in Brown v. Tuttle (1888) 80 Me. 162, 13 Atl. 583. See note 2, supra. The assignment of a bond for the conveyance of land is not invalidated by the fact that the assignor and the assignee were cohabiting meretriciously at the time of the assignment, where it is shown that the consideration of the assignment was personal services. Wirkeltrin/ner v. Weisiger (1825) 3 T. B. Mon. 32. sPoplett V. Btockdale (1825) Ryan & M. 337. Discussing the work in ques- tion which professed to be the history of a common prostitute, and to detail her real or pretended amours, the learned judge said: "I have no hesita- tion in saying that no person who has contributed his assistance to the pub- lication of such a work can recover in a court of justice any compensation for labor so bestowed. The person who lends himself to the violation of the public morals and laws of the country shall not have the assistance of those laws to carry into execution such a pur- pose. It would be strange if a man could be fined and imprisoned for do- ing that for which he could maintain § 124] FORMATION" AND VALIDITY OF CONTRACT. 413 124. — to public policy. — a. Agreements to give or accept employ- ment for long periods. — Contracts which by their terms contemplate a continuance of the relation of master and servant for the life of one of the parties, or for a longer period than is customary, have been assailed on several distinct grounds, as being contrary to public policy, but none of these objections have prevailed in common-law jurisdictions.^ The accepted doctrine in Scotland seems to be still an action at law. Everyone who gives hia aid to such a work, though as a servant, is responsible for the mischief of it. No man can doubt the double object of this work: The corruption of youth, in the first place, by the ex- hibition of licentious scenes; and the extortion of money from exalted in- dividuals, by holding over them the fear of having themselves described as persons of immoral habits. I have no power here to punish these parties, but I will not consent that the plaintiff shall have the assistance of this court to obtain remuneration for labor direct- ed to such scandalous purposes. The defendant is equally guilty, but I will not, as Lord Kenyon once said, sit here to take an account between two robbers on Hounslow Heath." 1 An agreement by which one person agrees to serve another for the term of his natural life, in the same occupa- tion, is not invalid as being in restraint of trade. Such a contract merely limits the servant's action in respect to the manner of following the occupa- tion, viz., as assistant to the employer. Wallis V. Day (1837) 2 ]\Iees. & W. 273, Murph. & H. 222, 1 Jur. 73. In that case Lord Abinger, in answer to the objection that the contract was illegal, cited 15 Vin. Abr. 323 (N) 5, Master amd Servant, where it is laid down that, in order to maintain an action against a person who contracts to serve another for life, the contract must be by deed. It is somewhat re- markable that, in the Massachusetts case cited imfra neither counsel nor court referred to these authorities, which are quite in point, and uphold a contract of a much more restrictive character than the one there under dis- cussion. In a standard work we find it laid down that, "if a man is retained to serve during his life, it seemeth a good retainer." Dalton's Country Justice, chap. 58, p. 127, citing Br. 44, 2 Henry IV. f. 15. Blackstone seems to recognize the legality of such contracts; for, after referring to the rule that a slave be- comes a freeman the instant he lands in England, he remarks: "Yet with regard to any right which the master may have lawfully acquired to the per- petual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term." 1 Com. 425. An agreement by which one person obtains permanent employment from another is not deemed to be unlawful or against public policy, merely be- cause it has the eifect of restraining the servant from engaging in business as long as he continues in the employ- ment. Carnig v. Garr (1897) 167 Mass. 544, 35 L.E.A. 512, 57 Am. St. Rep. 488, 46 N. E. 117. A contract by a railroad company, in settlement of a claim for personal injuries, to give an employee permanent employment on a switch engine, is not void, as contrary to public policy, in that it binds the company to employ him, even if incapable of service, for it will not compel the company to em- ploy him in that event. Jessup v. Chi- cago & N. W. B. Go. (1891) 82 Iowa, 243, 48 N. W. 77. The court said: "The defendant insists that this con- tract is contrary to public policy, and void, for the reason that it does or may bind the defendant to employ the plaintiff when in fact he was not so skilful and otherwise capable as to be fit for service, thus obligating the de- fendant to employ the plaintiff when its duty and obligation to the public forbids it. The contract will not admit of a construction which will require the defendant to keep the plaintiff at 414 MASTER AJND SERVANT. [chap. IV. a matter of some doubt, as apparently this point has not been ex- pressly discussed and passed upon by any of the reported cases.* Under the Civil Codes of Trance and Quebec a contract to serve for an unlimited period is invalid. This provision embodies the doctrine of the civil law, Nemo potest locare opus in perpetuum.^ work as an employee when at any time he is not capable of doing such work. The contract would not compel the de- fendant to permit the plaintiff to take charge of an engine if he is or should be incapable of running it. The defend- ant is therefore not required by the contract to violate its duty to the pub- lic. We do not determine whether the plaintiff may recover compensation when he is unfit to run the engine. If the defendant should be at such times liable to the plaintiff, it would not be required to give the plaintiff work if he should not be fit for any reason to do it. If the contract so provides, or may be so interpreted, the defendant would be liable to plaintiff for wages when he may be unfit to work as an engineer." An agreement by a railroad company to give an injured employee "steady and permanent employment," as long as he is able, ready, and willing to perform such service as the company may have for him to perform, is not void as being against public policy on the ground that the company, being quasi public servant, cannot tie its hands by such an agreement. Pennsyl- vania Go. v. Dolan (1892) 6 Ind. App. 109, 51 Am. St. Rep. 289, 32 N. E. 802. The court merely said that "the rights of the public could not be in any man- ner impaired or made to suffer by hold- ing the company to the contract;" but as it was discussing a demurrer, and went on to remark that, if the com- pany intended to rely on the incapacity of the servant as a reason for escaping liability, that would be matter of de- fense for the answer, it may be pre- sumed that the view taken was virtual- ly the same as that explained in Jessup v. Chicago & N. W. R. Go. supra. In another decision rendered without any reference to the question of pub- lic policy, to the effect that a servant, who, in consideration of his releasing a claim for damages, is to be retained as long as he is able to do the work, may be discharged for any conduct in respect to the use of intoxicating li- quors, which would render the retention negligence on the part of the company towards its passengers. Smith v. St. Paul & D. R. Go. (1895) 60 Minn.. 330, 62 N. W. 392. A contract whereby the division, superintendent of a railroad company agreed that an employee who had been seriously injured by its negligence, in, consideration of a release of his claim for damages, should be employed for life as flagman at a certain crossing, at about half the salary he had been previously able to earn, was held not to be invalid as unreasonable, or as in- fringing upon the powers of succeed- ing corporate officers. Usher v. ifeiix York C. & H. R. R. Go. (1904) 179 N. Y. 544, 71 N. E. 1141, affirming (1902) 76 App. Div. 422, 78 N. Y. Supp. 508. The supreme court dis- tinguished such an agreement from- simple contracts of employment having a relation to a settlement of claims for injuries. In a Kentucky case the court could' conceive of no reason why a contract of employment as long as the employee does faithful work should not be valid. Louisville. & V. R. Go. v. Ofutt (1896) 99 Ky. 427, 59 Am. St. Rep. 467, 36 S. W. 181. 2 In Fraser on Master & Servant, all the Scotch cases which have a, direct or incidental bearing upon the question of the validity of contracts for service for life or for long periods are re- viewed. The conclusion of the learned author is that, although some of the older authorities seem to recognize, more or less definitely, the binding quality of such contracts, they are con- trary to the spirit of modern times, and would in all probability fail to obtain the sanction of a court at the present day, — at least so far as to admit of their enforcement against the servant. 8 "Services can only be engaged for- a term, or for a determinate under- § 124] FORMATION AND VALIDITY OF CONTRACT. 415 In some jurisdictions the length of the term for which a servant may lawfully engage himself has been specifically fixed by the legis- lature.* b. Agreements between husband and wife. — Under the various statutes which relate to the separate property of married women, they have the right, as we have already seen (see § 112 ante), to make contracts for services to be rendered by their husbands with regard to such property. But notwithstanding the great enlargement of their gowers under those statutes, some classes of contracts under which they assume the position of employees of their husbands are still deemed to be invalid on grounds of public policy. The cases dealing with such contracts, however, all have a specific relation to taking." French Civil Code, art. 1780; Quebec Civil Code, art. 1667. Commenting on this provision, Rog- ron observes: "It should not be per- missible for a person to bind himself to serve another person for his whole life. Such a stipulation would be void, since it is contrary to individual free- dom," cited in Chitty, Contr. 14th ed. 502. A hiring of services for life is a contract essentially void in such a sense that the nonperformance of it does not give rise to a right of ac- tion for damages; and the master, as well as the servant, may demand the rescission of it. 2 Duvergier, Nos. 285, 286; 3 Troplong, No. 855; 25 Lau- rent, Nos. 493, 494. If a contract of service for an inde- terminate period has been entered into, either of the parties may signify at any moment to the other his wish to annul it. 17 Duranton, No. 226; 2 Duvergier, Nos. 285, 286; 2 Troplong, No. 856. In order to invalidate a contract under this provision, it is not necessary that the term of service should be ex- pressly fixed, with reference to the servant's life. It is nonenforceable if the specified term is so long that it is practically of unlimited duration, or if it absorbs all that part of his life during which he is capable of useful labor. 17 Duranton, No. 226; 2 Duver- gier, Nos. 284 et seq.; 2 Troplong, Nos. 856 et seq. But according to some decisions and jurists, an agreement to serve another person as long as the promisor lives does not amount to a perpetual en- gagement of services within the mean- ing of the provision. 2 Guillouard, No. 711; 25 Laurent, No. 496; 2 Trop- long, No. 857; 2 Duvergier, No. 286. In Louisiana the above article of the Code Napoleon has been adopted. Civil Code, art. 2746 (2717). * Louisiana Civil Code, art. 167 (160). Persons who have attained the age of majority cannot bind themselves for a longer term than five years. Art. 168 (161). Engagements of service contracted in a foreign country for a longer term shall be reduced to five years, to count from the day of the arrival of the person bound in this state. California Civil Code, § 1980. A con- tract for personal services, other than a contract of apprenticeship, cannot be enforced, as against the employee, beyond the term of two years. This section cannot be relied on as a defense, unless it is specially pleaded; and, as it is intended for the benefit of the employee, and not the employer, it will debar the recovery of the salary payable under a contract for. a period exceeding two years. Stone v. Bancroft (1902) 139 Ca'l. 82, 70 Pac. 1017, judg- ment aflSrmed on rehearing in ( 1903 ) 139 Cal. 78, 72 Pac. 717. Ontario Rev. Stat. 1897, chap. 157 (master and servant act), § 2. No voluntary contract of service or in- denture shall be binding for more than nine years. The same provision is inserted in the Manitoba masters and servants act (Rev. Stat. 1902), and in the British Columbia master and serv- ant act (Rev. Stat. 1897, chap. 121), §2. 416 MASTER AND SERVANT. [chap. it. the rights of the parties themselves, or of third persons, in respect to the disposal of the money stipulated to be paid as compensation for the services to be rendered. It has been deemed preferable, there- fore, to deal with the subject in that part of the treatise in which the right to recover compensation is discussed.* c. Agreements directed to the procurement of a monopoly in a given commodity. — A person who engages an employee to assist him in selling a commodity in such a maimer as to "corner" the market oannot recover from the latter the moneys received by him in the course of the performance of the contract.* d. Agreements irwolving a breach of the servamJt's obligations. — An agreement by which an agent employed to supervise a work of construction is to give the party performing the work an interest in the proceeds of the work is invalid.'' But an employer who, with full knowledge of the circumstances, engages, as his superintendent of construction, one of the joint contractors for the work, cannot refuse to pay the value of his services, on the ground that, inasmuch as the duties of a superintendent conflict in some respects with the interests of a contractor, the agreement for his services as super- intendent was contrary to public policy.' A secret agreement by which A undertakes to leave the service of B, and enter that of C, the object of the transaction being to em- barrass B as a competitor of C, is clearly illegal and fraudulent.® e. Agreements for the sale of appointments. — The subject of cor- rupt agreements for the sale of appointments to public offices is be- yond the scope of this treatise. But the same principle which in- validates such agreements is applied to positions which, though not public offices, in the sense in which that expression is commonly used, are concerned with matters of public interest.^" 5 See §§ 427, 625, 627, post. the servant as a fiduciary agent, in 8 Samuels v. OUver (1889) 130 111. chapter rx. post. 73, 22 y. E. 499. It should be observed 9 Rhoades v. Malta Vita Pure Food that the lex loci contractus was that Go. (1907) 149 Mich. 235, 112 N. W. of Missouri. If the validity of the 940. transaction had depended on the law 10 Pollock, Contr. *287, citing Blaoh- of Illinois, it would have been illegal ford v. Preston (1799) 8 T. R. 89, 6 under Crim. Code, § 130, chap. 38, and Kng. Rul. Cas. 338, where it was held not merely void under the common law. that the practice, which had grown up "> MoGehee v. Lindsay (1844) 6 Ala. in the eighteenth century, of purchas- 16. ing commands of ships in the East s Shaw V. Andrews (1858) 9 Cal. India Company's service, was unlawful, 73. both on the ground stated in the text. Other cases involving the situation and because it was against the com- of a conflict of duties are discussed pany's regulations, from the standpoint of the duties of § 124] FORMATION AND VALIDITY OF CONTRACT. 417 /. Agreements to serve in a hostile army. — An agreement to serve as a substitute in the Confederate Army during the Civil War in the United States has been held void." Any contract made by some only of the part owners of a ship, which is cal- culated to have the effect of fettering their judgment, and of binding them to appoint, or to concur in the ap- pointment of, particular persons as masters and officers, is a violation of their duty 'to exercise a free and im- partial judgment in the choice of those officers, and is therefore "utterly void as against public policy and the true interest of commerce and navigation." Story, Partn. § 432, citing Card v. Hope (1824) 2 Barn. & C. 661, 24 Eng. Rul. Cas. 246, a case in which a deed con- taining the stipulations set out below was pronounced invalid. Card and Car- man, being the owners of nine six- teenth parts of a ship, covenanted with one Hope that they would sell him two sixteenth parts of the ship; that Hope should be appointed to the command of the ship; and that Card and Carman should continue to be the managing owners. It was further agreed that, in case Hope, from ill health or other cause, should retire from the command. Card should be at liberty to appoint his successor upon such terms as should be approved of by Hope or his execu- tors, and that, in case Card should decline to appoint such successor, Hope or his executors should be permitted to appoint in his stead a fit and proper person to command the ship, and that the person so appointed should be en- titled to all the privileges which Hope, by said covenant, was entitled to in right of such command. Lord Tenter- den, in delivering the opinion of the court, said: "It is impossible to read this deed without seeing that it is a bargain for a profit to be derived to the plaintiffs from the appointment of the defendant or his nominee to the command; the profit being either a greater price for the shares sold, or the continuance of the management and other powers and authorities in them- selves, or partaking probably of both. And we are of opinion that such a con- tract is void as being contrary to the interests of the charterers and of the other owners." He further observed: "It is a part of our national policy ir. & S. Vol. I.— 27. ■ to give every encouragement to the equipment and employment of ships. Upon this consideration the law enables a majority of the part owners (under guards, indeed, to the interest of the minority peculiar to itself) to employ their ship even against the will of the minority, that the ship may not re- main unemployed. A power of em- ployment vested in the majority seems to import a power of appointing oflS- cers, and in practice the majority cer- tainly exercise that power. But such a power carries with it a duty, the duty of exercising a free and impartial judgment in the choice of every person who is to be intrusted with the manage- ment of the outfit and with the naviga- tion of the ship, ut dentur digniori. And any contract which is calculated to have the effect of fettering the judg- ment and of binding the party to con- cur in the nomination of particular persons, at the peril of an action, is a violation of that duty. The violation of duty becomes greater and more odious if the contract be founded on motives of peculiar gain and advantage to the contractor. All the part owners ought to share ratably in every profit that may be made of the ship. And if such contracts could be allowed by law, they must operate as a discourage- ment to persons to become part owners of ships. The duty, however, is owing not only to the charterers and other part owners of a ship, but also to all whose life or property may be em- barked in her. And consequently a violation of the duty is contrary not only to the interest of the charterers and part owners, but also to another most important object, namely, the protection and safety of the lives and property embarked on the sea." This decision was approved in Ward v. Ruclc- man (1867) 36 N. Y. 26, 93 Am. Dec. 479, where it was laid down that it would not be competent for the owners of all the remaining shares to consent or agree that the owner of a particular share in a ship should forever have the right to command the ship. n Lance v. Hunter (1875) 72 N. C, 178. As to the general doctrine that 418 MASTER AND SERVANT. [chap. iv. g. Agreements relating to slaves. — See § 9, ante. h. Agreements hy which the servant is insured against the conse- quences of his own fault. — An agreement by an employer to pay an> employee a certain sum per month for his services, even if he should be discharged for incapacity or dereliction of duty, is not contrary to public policy. ^^ i. Agreements restricting the freedom of a third person. — Where the plaintiff hired a person of full age to the defendant, and re- ceived from him the note in suit for the services of the person so hired, it was held this was an illegal transaction, and that the note so given was void as being contrary to public policy and in violation of the 13th Amendment to the Constitution of the United States^ with regard to involuntary servitude.'* j. Agreements in restraint of trade. — Contracts whereby the serv- ant binds himself not to work for any other person than the em- ployer for a term of years or whereby the servant contracts not to^ reveal any of the trade secrets of his employer to any other person are generally held not to be invalid as in restraint of trade." k. Employment for the purpose of procuring contracts and fran^ chises from public officials. — Where a contract of this description does not necessarily call for corrupt practices on the part of the em- ployee, and there is nothing to show that he is expected to resort to- such practices, it will not be pronounced contrary to public policy merely because he may misconduct himself in that regard." it is not competent to any domiciled note 3, ante) ; Witkop <& H. Co. v. Boyce- British subject to enter into a con- (1909) 131 App. Div. 922, 115 N. Y. tract to do anything detrimental to Supp. 1150; McGall Co. v. Wright the interests of his own country, see (1910) 198 N. Y. 143, 31 L.R.A.(N.S.) Pollock, Contr. *277. 249, 91 N. E. 516 ; Eureka Laundry Co. 12 Edwards v. Crepin (1885) 68 Cal. v. Long (1911) 146 Wis. 205, 35 L.R.A. 37, 39, 8 Pac. 616. The court said: (N.S.) 119, 131 N. W. 412; Jeicel Tea "We do not understand this contract Co. v. y ovale (1911) 146 Wis. 224, 131 to have placed a premium upon mis- N. W. 415. conduct or incapacity, but to have 15 Kerr v. American Pneum,atic Serv- simply secured to the plaintiff's as- ice Co. (1905) 188 Mass. 27, 73 N. E. signor compensation for his time and 857, where the court sustained as valid energies while employed by the defend- a contract by which a servant was em- ants, even if they should discharge him ployed to attend to government and from their service for dereliction of franchise matters at a given salary, duty, or inability to carry out their to be increased when the amount of wishes and plans. contracts between the master and the 13 Pitts V. Allen (1883) 72 Ga. 69. United States government equaled a 11 Hartley v. Cummings (1846) 2 certain sum, and which also contem- Car. & K. 433, 5 C. B. 247, 12 Jur. plated the procuring of franchises from- 57, 17 L. J. C. P. N", S. 84, (see § 89, governmental bodies to permit the con- note 2, ante) ; Pilkington v. S(X>tt struction of pneumatic tubes for the- (1846) 15 Mees. & W. 657 (see § 89, carriage of mail matter, and the secur- § 125] FORMATION AND VAUDITY OF CONTRACT. 419 125. — to statutory provisions. — A servant who enters into a con- tract of employment which cannot be performed without rendering him a participant in the violation of a specific statutory provision cannot maintain an action for a breach of the contract.^ ISTor can he recover compensation for his services in an action brought on the contract itself.^ Whether he is entitled to sue for such compensation ing of contracts for the carrying of mail matter by means of a tube service. lln Gallini v. Lalorie (1792) 5 T. E. 242, it was laid down by Lord Ken- yon that, as the statute (10 Geo. II. chap. 28), provided that no entertain- ment, of which dancing is one, could be exhibited without the lord chamber- lain's license, and none had been ob- tained by the employer of the plain- tiff, a dancer, he could not "call upon the defendant for the breach of an agreement which, without such license, it was unlawful for him to execute." The learned judge added: "As to the circumstances of other performers hav- ing recovered on similar agreements against the plaintiff for their salaries, those verdicts are right, for, being en- gaged to the plaintiff and ready to execute the agreement on their part, they ought not to suffer because he did not obtain a license, which it was his business to have procured." On the ground that, in § 3 of the statute, it was enacted that a copy of the piece to be represented was to be sent to the lord chamberlain for his approbation previous to the acting, it was held in a later case that the legis- lature could not have intended that its provision should apply to "tumbling." Rex V. Handy (1795) 6 T. R. 286. Compare also De Begnis v. Armistead (1833) 10 Ring. 107, where it was held that money paid, at the request of the defendant, in conducting an unlicensed theatre, could not be recovered by a participant in the concern. 2 The effect of the act of Congress of August 30, 1852 (10 Stat, at L. 67, chap. 106), which declares it to be "unlawful for any person to employ or any person to serve as engineer or pilot on any such vessel, who is not licensed by the inspectors," and im- poses a penalty of $100 for each offense against the act, is that an offending employee cannot recover wages for a period during which he served without any license. The Pioneer (1864) Deady, 72, 79, 80, Fed. Cas. No. 11,177. Where a contract for the hiring out of convict labor for a term of years, the wages earned by them to be payable at the end of each month, is rescinded on the ground of illegality, before tlie expiration of the stipulated time, by the state authorities, an action cannot be maintained to recover for the labor performed under the contract prior to its rescission. Peck v. Burr (1851) 10 N. Y. 294; Lvmenhurg v. Smith (1892) 24 N. S. 104 (terms of contract were held to violate the provisions of Can. Rev. Stat. chap. 183, regulating the employment of prisoners outside of gaols ) . A printer is not entitled to recover for labor expended and materials used in printing a work, unless the pro- visions of the statutes applicable to such a transaction are complied witli. Bensley v. Bignold (1822) 5 Barn. & Aid. 33 (failure of printer to affix his name to a pamphlet in pursuance of Stat. 39 Geo. III. chap. 79, § 27); Marohant v. Evans (1818) 2 J. B. Moore, 14. An agreement for the erection of a building in contravention of a building act is nonenforeeable. Stevens v. Gour- ley (1859) 7 C. B. N. S. 99, 16 Eng. Rul. Cas. 516. A person not registered under the pharmacy act cannot recover for serv- ices rendered in taking charge of a drug store. Shattuck v. Watson (1910) 164 Mich. 167, 129 N. W. 196. A contract, of which the terms have already been stated (see § 92, note 5, ante ) , was held to be, in substance and effect, a contract for servitude, with no limitation but that of time, — leaving the master to determine what the service should be, and the place where and the person to whom it should be rendered, — and therefore inconsis- tent with Article I. of the Massa- chusetts Declaration of Rights, which, propria vigore, not only abolished every 420 MASTER AND SERVANT. [chap. IV. on a quantum meruit depends upon the wording of tlie statute which is infringed by the contract.* If the employer's object is to put the subject-matter of the stip- ulated work into a condition which will adapt it for an unlawful use, the question whether the servant's knowledge of that object will, of itself, be sufficient to debar the servant from recovering com- pensation, should, it seems, be decided upon principles analogous to those which are controlling in cases where the validity of contracts of sale is involved. Considered upon this footing, the rights of the servants would be differently determined in different jurisdictions.* Unless such a conclusion is demanded by the specific language used in the given enactment, the mere fact that a contract of hiring contains an unlawful stipulation will not render it entirely void.' So also, where a statute merely declares that contracts of a given vestige of slavery then existing in that commonwealth, but rendered every form of it thereafter legally impossible. Parsons v. Trask (1856) 7 Gray, 473, 478, 66 Am. Dec. 502. A contract to perform work with u. threshing machine not boxed, as re- quired by a statute, is invalid. Inger- soll V. Randall (1869) 14 Minn. 400, Gil. 304. In Birlcett v. Ohatterton (1881) 13 R. I. 299, 43 Am. Rep. 30, where it was held that no action could be main- tained for wages earned by a minor employed before he had attained the age specified in R. I. Gen. Stat. chap. 155, §§ 21, 22, 24. It was said: "The contract was one which could not be executed without violating the stat- ute, and the plaintiff therefore, in su- ing to recover for having executed it, was suing to recover for a violation of the statute. The law, of course, will not stultify itself by maintaining such an action." Wages cannot be recovered on a contract to serve as a marker at an illicit billiard table. Badgley v. Beale (1834) 3 Watts. 263. Compare also the decisions that an unlicensed apothecary cannot recover for work done (Allison v. Bay don [1828] 4 Bing. 619 ) ; that an un- licensed physician cannot maintain an action for slandering him in his pro- fession (Collins v. Carnegie [1834] 1 Ad. & El. 695) ; that a physician can- not recover for services rendered be- fore he received his certificate, where there is a statute which declares prac- tising without a certificate to be a misdemeanor (Gardner v. Tatum [1889] 81 Gal. 370, 22 Pac. 880); and that a peddler who sells goods without a license cannot recover the price (Bnll V. Earragan [1856] 17 B. Mon. 349). A suit upon an account annexed, containing two claims, one for per- sonal services, and the other for mer- chandise sold, may be maintained as to the former item, although the latter item represents an illegal demand. The claims thus sued upon are not an en- tirety, for each of the items would sup- port a separate action by itself, and they have no other connection than that they are embraced ia the same ac- count in a single suit. Goodwin v. Clark (1876) 65 Me. 280 (illegal sale of liquor). 8 See § 570, post. 4 See Pollock, Contr. *323, note (t), and the cases cited in Wald's American edition. The reader may also consult 1 Parsons, Contr. *456. In Michael v. Bacon (1872) 49 Mo. 474, 8 Am. Rep. 138, the plaintiff was held entitled to maintain an action for services rendered and materials fur- nished in fitting up a, house, although he knew at the time that the house was to be used for gambling purposes. 5 In Kearney v. Whitehaven Colliery Co. [1893] 1 Q. B. (C. A.) 700, 17 Eng. Rul. Cas. 194, the contract con- tained a, provision which contravened the provision of an act regarding the manner in which wages are to be com- § 125] FORMATION AND VALIDITY OF CONTRACT. 421 class shall be subject to a certain legal incident, and that a stipula- tion to that effect shall be inserted in all such contracts, and neither states that any contract in which such a stipulation is omitted shall be void, nor imposes a penalty for such omission, its noninsertion will not entail a forfeiture of the rights of the parties under the con- tract.^ But in some instances the object and phraseology of the statute may be such as to compel a court to hold that a contract of hiring which is illegal as regards one of its provisions is not only nonenforceable, but also incapable of giving rise to any right what- ever, or of being vouched as an authority for any act done under it.'' puted in mines where the amount de- pends on the amount of mineral gotten by the miners. Lord Esher, M. E., thus disposed of the contention that the result of this unlawful provision was to vitiate the whole contract of employment, which included a pro- vision that the servant should not leave without giving fourteen days' noHce. "I take it that the rule is properly enunciated and stated in Maxwell on Statutes, 2d ed. p. 491. If the con- sideration, or any part of it, is illegal, then every promise contained in the agreement becomes illegal also, because in such a case every part of the con- sideration is consideration for the promise. But suppose there is nothing illegal in the consideration; then upon that valid consideration may be several promises or liabilities. If any one of those be in itself illegal, then it cannot stand, not because the consideration becomes illegal, but because the promise itself is illegal. It is a bad promise, which cannot be supported by the con- sideration. But the other promises which are good and legal in themselves remain, and can be supported by the good consideration. That rule of law has long been acted upon, and it was applied by the House of Lords in Netherseal Colliery Go. v. Bourne (1889) L. R. 14 App. Cas. 228, 59 L. J. Q. B. N. S. 66, 61 L. T. 2Sr. S. 125, 54 J. P. 84. Now the contract here is a contract of employment. The con- sideration on the one side is, 'If you will enter into my employment I will make you one, two, or more several promises.' The consideration on the other side is; 'If you will take me into your employment, I will make you one, two, or more several promises.' There- fore on both sides there is considera- tion which stands without any blemish whatsoever. On the one side there is the consideration, 'I will take you into my employment;' on the other, 'I will enter into your employment.' There is a stipulation in the contract which is illegal in itself, and cannot, there- fore, be supported by the good con- sideration; but there are other prom- ises not illegal in themselves, which can be supported by the consideration, which is perfectly good." Lopes, L. J., said: "The law is clear that where the consideration for a promise or promises contained in the contract is unlawful, the whole agreement is void. The rea- son is that it is impossible to discrim- inate between the weight to be given to different parts of the consideration, and therefore you cannot sever the legal from the illegal part. But where there is no illegality in the consideration, and some of the provisions are legal and ethers illegal, the illegality of those which are bad does not communicate itself to, or contaminate, those which are good, unless they are inseparable from and dependent upon one another. Here the consideration moving from the master to the men is the employ- ment and the payment of wages. The consideration moving from the men to the master is the services rendered by them. Both are good and lawful con- siderations." 6Ba6cocfcv. Goodrich (1874) 47 Cal. 488, construing Cal. Pol. Code, § 245, which prescribes that eight hours shall be the duration of a day's work in all cases where the state or a municipal corporation is a party to the contract. T In the English truck act, 1831, § 1, it is expressly provided that if, in any contract of hiring, the whole or a part of the wages are made payable other- 422 MASTER AJiD SERVANT. [chap. IV, The servant himself is, of course, not bound by an illegal contract, and is entitled to abandon it at any time.* "In the absence of proof that the plaintiff performed acts of serv- ice which were expressly prohibited by law or public policy, it will not be conclusively presumed that he did so, because he was in the employ of one who might have contemplated or performed such acts ; nor will it be presumed, in the absence of proof of the terms of his contract of employment, that by its stipulations he was to perform illegal and unauthorized acts." ^ 126. Same subject further discussed. Sunday laws. — a. Contracts made on Sunday. — The question whether a contract of hiring made on Simday is valid or not must be determined with reference to the phraseology of the particular statutory provision upon which the rights of the parties depend.^ In jurisdictions where such a contract wise than in current coin, such contract shall be illegal, null, and void. As ob- served by Bowen, L. J., in Hewlett v. Allen [1892] 2 Q. B. (C. A.) 662, 667, the effect of this provision is that "when such illegal contract has been made, an offense against the act has been committed, and the other doctrines of English law applicable to illegal, as distinct from merely voidable, con- tracts, follow." 8 Under United States Eev. Stat. § 4523, U. S. Comp. Stat. 1901, p. 3075, providing that all shipments of seamen made contrary to any act of Congress shall be void, and that any seaman so shipped may leave the service at any time, a contract for service on a Brit- ish ship, made in an American port, by which the seamen were paid a month's wages in advance, in violation of act Dec. 21, 1898, chap. 28, § 24, 30 Stat, at L. 763, U. S. Comp. Stat. 1901, p. 3080, is void, and the seamen may leave the service at any time. The Troop (1902) 117 Fed. 557. s Riggs v. Adams (1859) 12 Ind. 199. 1 For a summary of the various pro- visions in the English and American statutrjs, see 3 Parsons, Contr. *757- *760, and Story, Contr. § 753, note 4. In Bex V. Whitnash (1827) 7 Barn. & C. 596, it was held that a settlement was gained by a contract made on Sun- day for the hire of a laborer. Bayley, J., thus stated his views: "It has been argued that the words 'worldly labor, business, or work of their ordinary callings,' are to be construed disjunc- tively. The true construction of the clause appears to me to be that the persons there mentioned shall not, on the Lord's Day, do or exercise any labor of their ordinary calling, any bus- iness of their ordinary calling, or any work of their ordinary calling. The hiring of a servant seems to fall prop- erly within the meaning of the word 'business.' And if the true construc- tion of the act be that every description of business is prohibited, all contracts whatever made on a Sunday will be void. I think that that was not the intention of the Legislature. Religion and piety do not require that every moment of every Sunday should be de- voted to the performance of religious exercises. To a reasonable degree, a, man may on that day consider his own condition and that of his neighbor, and may do acts beneficial to himself and calculated to promote the comfort of his neighbor. I am of opinion that this act of Parliament does not pro- hibit labor, business, or work of every description; and that the hiring of a servant by a farmer on a Sunday is not work or business within the meaning of the act of Parliament. I also think that it is not labor, business, or work of the ordinary calling of the farmer. He, like every other person who re- quires servants, must hire them. The true construction of the words 'ordi- nary calling' seems to me to be, not that without which a trade or business cannot be carried on, but that, which the ordinary duties of the calling bring 5 126] FORMATION AND VALIDITY OF CONTRACT. 423 is treated as illegal, there seems to be some difference of opinion as to the question whether it is susceptible of ratification, in the proper sense of the word.* But in any event the employee can recover on a quantum meruit for the actual value of his services.^ &. Contracts for worh to he done on Sunday. — Unless the excep- tion which these statutes make in favor of works of necessity and charity is applicable, a contract which clearly imports that the serv- ant is to render the whole or a part of the stipulated services on Sunday is void.* But if a contract may be construed in either of into continued action. Those things which are repeated daily or weekly in the course of trade or business are parts of the ordinary calling of a man exercising such trade or business, but the hiring of a servant once in the year does not come within the meaning of those words. For these reasons, I am of opinion that the con- tract of hiring in this case was valid." The fact that a recruiting officer en- listed a soldier on a Sunday does not render the enlistment invalid. Wolton V. Gavin (1850) 16 Q. B. 48 (not an exercise of the officer's "ordinary call- ing"). In Riohmcmd v. Moore (1883) 107 111. 429, 47 Am. Rep. 445, it was held that a contract made on a Sunday, by which the plaintiff agreed to sail the defendant's vessel as its master, was not void either at the common law, or under § 261 of the Illinois Criminal Code, forbidding the disturbance of the peace and good order of society by "labor," etc., on Sunday. The court applied the presumption that, in the absence of qualifying circumstances, the language of a contract is to be con- strued in its ordinary sense, and ar- rived at the conclusion that the word "labor" did not include mere business transactions. In Johnson v. Brown (1874) 13 Kan. 529, a contract made on a Sunday for the performance of work on another day was declared valid. In Swann v. Swxmn (1884) 21 Fed. 299, a case decided by a Federal court sitting in Arkansas, this doctrine was said to prevail in Tennessee also; and a contract made in that state was sus- tained, although if made in Arkansas it would have been invalid. In SpahM V. Wilhnan (1897) 1 Penn. (Del.) 125, 39 Atl. 787, Meriwether v. Smith (1871) 44 Ga. 541, and Shepley V. Henry Siegel Co. (1909) 203 Mass. 43, 88 N. E. 1095, contracts made on Sunday for the performance of labor were declared to be illegal. 2 In Delaware it is held that a specific Sunday contract cannot be ratified, and that there can be no action for damages for nonperformance of it sustained. Spahn V. Willmaii (1897) 1 Penn. (Del.) 125, 39 Atl. 787. In Georgia on the other hand, the right of the plaintiff to recover for services rendered on a week-day, in pur- suance of such a contract, was put up- on the ground that the defendant had reaffirmed the contract by afterwards accepting the services. Meriwether v. Srmth (1871) 44 Ga. 541. S Spahn v. Willman (1897) 1 Penn. (Del.) 125, 39 Atl. 787. * The employment of a band for a week of seven days for each man dur- ing specified months is an entire one, on which no recovery can be had, under the Massachusetts statute for the ob- servance of Sunday. Stewart v. Thayer (1897) 168 Mass. 519, 60 Am. St. Rep. 407, 47 N. E. 420. Discussing a contract by which it was in effect agreed that for the work of every seven days constituting a week, from a certain time to a certain time, the plaintiffs should be guaranteed and receive a certain compensation, the court said: "This was to be paid week- ly, and therefore it must necessarily have been the intention that every day in the week should be occupied. It was seven days' work in a week, the earn- ings of which were guaranteed at a cer- tain amount, and to be paid for week- ly. In this view the contract could not, consistently with the intent of the parties, be construed to give an option to plaintiffs to work on Sunday or not, 424 MASTER AND SERVANT. [chap. IV. aa they chose. The number of days that the machine ran was a material element in the guaranty, and effect should be given to the vpords 'seven days.'" McClanathan v. Friedel (1895) 85 Hun, 175, 177, 32 N. Y. Supp. 588. No damages can be recovered for the breach of a contract to play music at a beer-garden on Sunday. Bernard v. hupping (1862) 32 Mo. 341. A contract to perform labor on Sun- day as an attorney's clerk is void, and no compensation can be recovered there- on. Watts V. Ywn Ness (1841) 1 Hill, 76. An agreement by which one person undertakes to manage for five years another's advertising of a certain kind, in the week-day, Sunday, and weekly editions of a newspaper, is an entire contract, and void. Handy v. St. Paul Globe Puh. Go. (1889) 41 Minn. 188, 4 L.R.A. 466, 16 Am. St. Eep. 695, 42 N. W. 872. An employee who has contracted to work as fisherman or otherwise as the employer's agent may direct at all times, at any place, Sundays and holi- days not excepted, cannot recover upon such contract for a time after his dis- charge for refusal to fish on Sunday, whether Sunday fishing is illegal or not, since if it is not, he was bound to fish on Sunday when directed, and if it is illegal the contract is illegal and void. Xelson v. Pyramid Earior Packing Go. (1892) 4 Wash. 689, 30 Pac. 1096. To examine in detail the question, what kind of works answer the de- scription of works of charity or neces- sity would carry us beyond the scope of this treatise. But a few oases in which contracts of service were involved may with advantage be referred to. In a district where maple sugar is manufactured, it has been held that a farm laborer may recover for work done which was necessary to prevent a great waste of the sap. Whitcomb v. Oilman (1862) 35 Vt. 297. "The ne- cessity of the work," said the court, "is established, unless in the eye of the law it never can be necessary to work on Sunday to prevent a great waste of sap. In the business of making maple sugar, it is extremely difficult to tell when there will be an abundant flow of sap, and to provide fully for it. Perhaps there is nothing in ordinary farm work more uncertain. When the weather is just right and the advance of spring, the frost, the snow, the air and the sunshine, are propitious, there will sometimes be an extraordinary flow of sap, calling for much extra labor to save it, though lasting per- haps only one, two, or three days. The opportunity, well improved, secures to the farmer an abundant reward, and constitutes the chief profit of the sea- son; neglected, a great loss is incurred. We cannot say that it would be un- necessary in all cases to prevent such waste. A religious man would, by gathering his sap on Saturday, and by furnishing ample storage for it, pro- vide as far as possible against such necessity. Still, unavoidable circum- stances may produce the necessity. In- deed, the individual condition and ne- cessities of each man may go far to determine whether it is his duty to la- bor on Sunday to save property from destruction. The saving of a piece of property to one man might prevent great misery and suffering to him- self and family; to another it might be of no consequence. It is easy to sup- pose cases where everyone would recog- nize the duty of working on Sunday to prevent the immediate destruction of property, — as in the case suggested by counsel, of the burning of a dwelling- house. But it is needless to dwell on the point." In McGatrick v. Wason (1855) 4 Ohio St. 566, a regular employee of the defendant was held entitled to recover for injuries caused by defective ma- chinery while he was engaged on Sun- day, at the special request of his master, in loading freight on the only steamer obtainable, and at a season of the year when a short delay was hazardous, ow- ing to the fact that navigation was about to close on account of the sever- ity of the weather. The court was of opinion that the plaintiff was not en- gaged in the commission of an unlawful act when the injury occurred, as he was performing a "work of necessity." This phrase, it was considered, could not be limited to those cases of danger to life, health, or property which are beyond human foresight or control. "On the contrary," said the court, "the neces- sity may grow out of, or indeed be incident to, a particular trade or call- ing, and yet be a case of necessity within the meaning of the act. For it is no part of the design of the act to destroy, or impose onerous restrictions § 126] FORMATION AND VALIDITY OF CX)NTRACT. 425 two senses, one of which will render it invalid, while the other will take it out of the operation of the statute, the latter meaning will, in accordance with a familiar rule, be preferred.^ upon, any lawful trade or business; and by the ice. Pate v. Wright (1868) 30 hence, under a similar statute, it has Ind. 476, 95 Am. Dec. 705. been held, in a sister state, that it is The clearing out of a wheel-pit on the lawful to keep a blast-furnace at work Lord's day, for the purpose of obviating on Sunday, because it is a work of the stoppage, on a week-day, of a mill necessity. So, too, it has been held which employs many hands, is not a that, under special circumstances, a work of necessity or charity under the mill may grind on that day; and I Massachusetts act. McGrath v. Mer- think it will hardly be questioned that toin (1873) 112 Mass. 467, 17 Am. Rep. a gas company may supply gas, a water 119 (plaintiff held not to be entitled to company, water, and a dairyman, milk, recover damages for a personal injury — to their respective customers, on that while assisting in the work). It was day. Other illustrations might be also held that the fact that the plain- given, but these are quite sufficient to tiff worked gratuitously and as a mat- show that the necessity spoken of in ter of kindness did not make this work the statute is not an absolute, un- a work of charity. controllable necessity only; but may be The employment of a physician on a necessity created by the exigencies of Sunday is valid. Smith .v. Watson society or trade. ... In using the (1842) 14 Vt. 332. expression 'exigency of trade,' I have 6 In Alfree fr. Gates (1891) 82 Iowa, been speaking of trade generally, and 19, 47 N. W. 993, an action was held to not of a necessity created by a particu- be maintainable on an agreement by lar contract a man may have made. It which the plaintiff was employed to is true, that a man might be ruined go into another state to look after the by a failure to deliver an article he sale of certain lands of the defendant, had contracted to deliver, if he could and which provided that he should re- not ship it upon a Sunday, and this ceive the sum of $2 a day "for every might be without any fault of his; in day consumed in said service, until his which case it would become the duty of return, Sundays and all." The court u court to consider whether he could said: "While it is possible that the save himself only by a violation of the parties to the agreement intended law. And when that question shall thereby that plaintiff should labor on arise, it may possibly be found diffi- Sunday, yet, in the absence of proof, cult to say that a man may lawfully we cannot presume that their intent labor all day to drag a sheep out of a was illegal. ... It was entirely pit, and yet cannot perform one tenth competent for the parties to provide of that labor to save himself and his that, for the services required by the family from pecuniary destruction; agreement, the compensation to be paid that he may lawfully work to save one should be at the rate of $2 per day for dollar's worth of property in the shape all days plaintiff was absent from of an animal, but that he violates the home, including Sundays; and that was law if he save all his property by ful- all that was done in this case. It was filling his contract. In the case before a means adopted to ascertain the eom- us, however, we are not limited to a pensation plaintiff should receive for necessity arising out of a particular the days of labor he performed under contract; but we have, in addition, a the agreement. He did not labor on necessity resulting from natural causes Sunday, and is not asking pay for any- and the general course of trade and thing he did on Sunday." The prin- commerce." ciple involved was declared to be simi- This case is directly opposed to one lar to that with reference to which in which it was held that a contract Porter v. Sanderson, 37 Wis. 41, was which provided for the loading of a decided. There a steam wrecking pump, ship on a Sunday was not valid, al- hired at the rate of $20 for each day it though the object of the parties was to was kept, was retained seven and one avoid the risk of the river being closed half days, including one Sunday, on 426 MASTER AND SERVANT. [chap. iv. E. FoEMAL PEEEEQUISITES TO THE VALIDITY OF A CONTEACT OF EMPLOYMENT. 127. Scope of subtitle. — In this subtitle it is proposed to discuss the circumstances under which a contract of employment is invali- dated by the failure of the parties to comply with some formal re- quirement. The cases under this head, which relate to the appointment of public officers and civil servants, are regarded as not being within the scope of this treatise, and will not be reviewed. It has also been deemed unnecessary to deal with the appointment of teachers in schools supported by the public funds, except in so far as the cases illustrate the doctrine as to the use of a corporate seal. (See §§ 129 et seq. post.) The validity of the contract of hiring in this instance, and the rights of the parties thereto, are usually de- termined with reference to the provisions of the local statutes by which the school system in question is regulated, and the decisions in which those statutes are construed are hardly of sufficient general interest to require that their effect should be stated in a work of this character. 128. Necessity for affixing a seal, considered with reference to the subject-matter of the contract. — In one of the older epitomes of Eng- lish law, it is stated that an action cannot be maintained against a person who contracts to serve for the residue of his life, unless the agreement is under seal.* But this doctrine does not appear to have «ver received the sanction of a specific judicial indorsement. 129. Appointment of servants by corporations; generally. — a. Public corporations. — Where the requirements of the law prevailing in the state where a contract of hiring was entered into by a municipal corporation were in other respects satisfied, its validity cannot be impugned on the mere ground that it was not authorized by a formal which it was not used. It was held man v. Rosenstein (1909) 120 N. Y. -that the agreement did not necessarily Supp. 58, and Lippert v. Garrick Theatre contemplate the use of the pump on Co. (1911) 144 Wis. 413, 129 N. W. Sunday, and that it was lawful to re- 409. quire pay for that day. 1 15 Vin. Abr. 323, Master and Ser- Compare also the decision that a vant (n) 5. The citation of this pas- contract to pay a demurrage will, in sage by Lord Abinger in Wallis v. Day -the absence of any proof to the con- (1837) 2 Mees. & W. 274, was in an- trary, be deemed to intend to mean de- swer to an objection that a contract to murrage for working days, and to ex- serve for life was illegal. No opinion ■elude Sundays. Rigney v. White was expressed as to the necessity of (1873) 4 Daly, 400. See also ScJml- a seal. ■S 129] FORMATION AND VALIDITY OF CONTRACT. 427 -ordinance, by-law, or resolution,* unless there is a statutory pro- vision requiring that the appointment of employees shall be made in this manner.^ The relation of master and servant in such a case may arise by implication, or from ratification of acts done by a per- son assuming to act for the corporation.* A statute providing that all "oiEcers" not required to be otherwise elected shall be elected by the general council does not apply to mere •clerks, employees, or laborers; and they may be appointed in any manner that may be designated by the council.* b. P^-ivate corporations. — Contracts for ordinary services required in the business of a corporation may be made so as to render the corporation liable for their value, without a formal meeting and vote of the board of directors.^ Nor is it necessary that the appoint- ment of an employee should be evidenced by the written vote of its officers. The appointment may be inferred from the adoption of his acts.^ 1 Logansport y. Dykeman (1888) 116 Ind. 15, 17 N. E. 587. The appointment of a rate collector is valid as being made by a chairman of the roads board, he liaving testified that he had authority to malce it on the terms alleged, and that his author- ity in that regard was recorded in the minutes, although in point of fact no such record was found in the certified copy of the minutes. Bayswaier Roads Board v. Stone (1910) 12 West. Austr. L. R. 133. 2 In Brouffhton v. Brantford (1869) 19 U. C. C. P. 434, the appointment of a manager of property, owned by the defendant municipality was held valid on the ground that it was made under sea], and that no special formality had been prescribed by the legislature. 3 Wilt V. Red Key (1902) 29 Ind. App. 199, 64 N. E. 228. thowry V. Lexington (1902) 113 Ky. 763, 68 S. W. 1109 (construing Ky. Stat. § 3049). 5 Bradstreet v. Bank of Royalton (1869) 42 Vt. 128. e Alabama & T. River R. Co. v. Kidd (1850) 29 Ala. 221 (station master), •cited with approval in Alabama G. S. R. Co. V. Hill (1884) 76 Ala. 303. In the latter case, the court adopted as ••correct the following statement in Ar- gell & A. Priv. Corp. § 84: The vote of appointment may, as an appointment • of an agent by a natural person, be .implied "from the permission or ac- ceptance of his services, from the rec- ognition or confirmation of his acts, or, in general, from his being held out as an authorized agent of the corporation. . . . If a person be employed for a corporation by one who professes to act for it, and renders service under the agreement, with the knowledge of the corporate officers, without notice from them of the employer's want of authority, payment for the services can- not be evaded by the corporation. Where, in an action for services ren- dered a corporation, the evidence did not show tliat the corporation as such accepted the services, or that they were of value to it as a corporation, it was held not to be estopped to dispute plaintiff's employment. li'hrlich v. Chevra Agudas Achi/n Aushi Wizna (1904) 86 K. Y. Supp. 820. In the same case it was held that parol evi- dence that a resolution was passed au- thorizing plaintiff''s employment was inadmissible, as no foundation had been laid, by showing that the corporation's minutes had been called for and not produced, or that the minutes failed to contain any record of the resolution which had in fact been passed. The rule stated in the text is of course not applicable without consider- able qualification in jurisdictions where some contracts are not valid unless au- thenticated by a seal. See §S 130. 131. post. 428 MASTER AND SERVANT. [chap. iv. Where a person accepts employment, relying upon the minutes of a meeting at which his engagement was sanctioned, and without any notice, actual or constructive, of any illegality in that meeting, the fact that the meeting was not regularly called is clearly not a defense to a claim for services performed in pursuance of the con- tract.'' Where a corporate officer has been duly appointed, and permitted to act in his office for several years, under the sanction of the direct- ors, it is not necessary that his official bond should be accepted by the board of directors as satisfactory, according to the terms of the charter, in order to enable him to enter legally on the duties of his office, or to make his sureties responsible for the nonperformance of those duties. The charter and the by-laws are to be considered as being, in this respect, directory to the board, and not as creating con- ditions precedent.' Where a person is appointed by the promoters of a company to manage a business which is to be conveyed to the company when it has been organized, and the company, however informally, recognizes the appointment, and permits the appointee to act as its manager, it is liable for his services, even though the business is ultimately not transferred to it.® A misnomer of a corporation which is employing a servant will not operate so as to avoid the contract, if the identity of the cor- 7 JVyss-Thalman v. Beaver Valley 9 Browning v. Great Central Min. Co. Breunng Co. (1907) 219 Pa. 189, 68 (1860) 5 Hurlst. & N. 856. In that Atl. 187. case a quorum of the directors, at their 8 Bank of United States v. Dandridge first meeting after the registration of (1827) 12 Wheat. 64, 6 L. ed. 552 (ac- the company, approved a prospectus is- tion on cashier's bond). Referring to sued by the promoters in which A was the concession of the defendant's coun- described as captain and local manager sel, that the bank would be bound by of the mine which was to be taken the cashier's acts, in favor of third per- over by it. The result of this action sons acting upon the faith of his pub- was stated thus by Bramwell, B.: ">f<> lie character, the court said: "If he formal mode of appointment or election could legally perform the duties of the being necessary, and a sufficient num- oifice for any purposes, he could for all. ber of directors having done an act He was either an agent, capable of bind- which, being communicated to the ing the bank in all his official acts, or plaintiff, led him to understand that those acts were void as to third per- he was manager of the mine, that was sons as well as the bank. If he was an election or appointment; and the held out as an authorized cashier, that fact that he acted under it, and not character was equally applicable to all under R. [the vendor], was a matter who dealt with the bank, in transac- for the jury to determine." tions beneficial as well as onerous to the bank." i§ 130] FORMATION AND VALIDITY OF CONTRACT. 429 poration is unmistakable from the face of the instrumeBt, or from the averments and proof." 130. Use of corporate seal, how far necessary for the authentication of contracts. — The general rule is that a body corporate is not bound by any contract which is not under its corporate seal.^ But this rule has, from the earliest traceable periods, been subject to certain ex- ceptions ; and various decisions in the older reports show conclusively that one of these exceptions had relation to the hiring of inferior servants.* "The principle to be collected from . . . [those de- cisions is] that an appointment under seal was not necessary in the 10 Atheam v. Independent Dist. (1871) 33 Iowa, 105, citing Angell & A. Priv. Corp. § 234. See also 1 Thomp. Corp. § 294. 1 Lindley, Companies, 5th ed. p. 220 ; Addison, Contr. 11th ed. p. 345. "The rule of law is clear that prima facie and for general purposes a cor- poration can only contract under seal, for the proper legal mode of authenti- cating the act of a corporation is by means of its seal." Austin v. Bethnal Green (1874) L. R. 9 C. P. 91, per Coleridge, Ch. J. For a general review of the author- ities as to the rule requiring the aiBx- ing of the corporate seal to corporate contracts, see Story, Agency, 9th ed. § 53, last note. Even a resolution of the members of the body corporate is not equivalent to an instrument under its seal. Lindley, Companies, p. 221. 2 A corporation may have ploughmen and servants of husbandry, butlers, cooks, and such like, without retainer by deed. 4 Henry VII. 17, cited in Arnold v. Poole (1842) 4 Mann. & G. 860, 876. A dean and chapter may retain a bailiflf, receiver, or other servants with- out writing (i. e., writing under seal). 4 Henry VII. 6, cited in Arnold v. Poole, uhi swpra. In Angell & A. Priv. Corp. § 281, the following authorities are cited as show- ing that it was established at an early period that a corporation might ap- point agents of little importance, as a cook, a butler, or a bailiflf to take a distress. 4 Henry VI. 7, 13, 17; 7 Henry VII. 9; 13 Henry VIII. 12; Plowd. 91b; 12 Edw. IV. 10a; 4 Henry VII. 15, 26; 26 Henry VIIL 8b; Bro. Corp. 51 ; Bro. 182b. In Comyns, Dig. Franchises (F. 13) it is said: "A corporation which has a head may give a personal command, and do small acts without deed; as it may retain a servant, a cook, butler, etc." In one of the older cases it has been laid down generally that "one may jus- tify in trespass as bailiff to a corpora- tion without deed." Panel v. Moore (1553) 1 Plowd. 91. So also it seems to have been laid down without any qualification in Maniy v. Long (1684) 3 Lev. 107, 2 Wms' Saund. 305; Anony- mous (1702) 1 Salk. 191 (where a de- cision to the same eflfect by the Ex- chequer chamber, Carey v. Mathews, is mentioned in a note of the reporter), that a corporation may appoint a bail- iff to distrain without deed. But in East London Waterworks Co. v. Bailey (1827) 4 Bing. 283, 288, the right of making a parol appointment for this purpose is instanced by Best, Ch. J., as being an exception to the general rule, which was justifiable on the ground of the necessity of 'acting immediately, as the cattle might have escaped befoi-e the seal could be affixed; and he lays it _down that "it is only in cases of neces- sity, occasioned by the hurry of the proceedings" that such an appointment may be made. In Arnold v. Poole (1842) 4 Mann. & G. 860, 877, the va- lidity of such an appointment is based by Tindal, Ch. J., upon a similar consid- eration. These glosses upon the earlier decisions indicate the extent to which they are to be accepted as authorities. 430 MASTER AN'D SERVANT. [CHAP. IV. case of officers or servants required to perform acts of trifling im- port or immediate necessity." * The rationale of this, as well as all the other recognized exceptions to the general rule has been declared to be "convenience amounting almost to necessity. Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed; hence the retainer by parol of an inferior servant, the doing of acts very frequently recurring, or too insignifi- cant to be worth the trouble of affixing the common seal, are estab- lished exceptions." * In Borne v. Ivie (1670) 1 Vent. 47, 2 Keble, 567, 1 Mod. 18, the defendant justified a trespass for a seizure of a ship under the patent of the Canary Company, as servant of the company; and it was held, on demurrer, that he siiould have shown in his plea that he was authorized by deed. But this de- cision was said by Littledale, J., in Smith V. Birmingham <& 8. Gaslight Co. (1834) 1 Ad. & El. 526, to have proceeded on the ground that the serv- ice was an extraordinary one. In East London Wateneorks Co. v. Bailey (1827) 4 Bing. 283, Best, Ch. J., observed that one exception to the gen- eral rule is admitted, "where the acts done are of daily necessity to the cor- poration, or too insignificant to be worth the trouble of affixing the com- mon seal." This statement, in which "necessity" is adverted to, merely as one of two considerations upon which the rule is based, and not as the fun- damental and only one, with reference to which all others are to be regarded as derivative and subsidiary, seems to be indicative of a logical standpoint somewhat different from that which is adopted in the cases just cited. STindal, Ch. J., in Arnold v. Poole (1842) 4 Mann. & G. 860, 877. In a subsequent sentence he designates the excepted contracts as those which "re- late either to trivial matters of fre-' quent occurrence, or such as from their nature do not admit of delay." Other statements of a similar tenor have been made by various modern judges. By the ancient common law, a cor- poration was at liberty to do little mat- ters without seal, namely, to appoint a servant and the like; but there is no case which goes the length of deter- mining that they might contract not under seal, unless for small matters, or by virtue of the terms of their act of Parliament. Parke, B., in Finlay v. Bristol & E. R. Co. (1852) 7 Exch. 409. "At an early period there were ex- ceptions to the rule; for instance, in those matters in which, from their very nature, or necessary frequent occur- rence, it would be difficult to execute the contract with the formality of a seal. Those were matters of trifling importance, such as the appointment of a servant by a corporation having a head, — for whether the exception ap- plied to a corporation without a head has not yet been determined." Parke, B., in Cope v. Thames Haven Dock & R. Go. (1849) 3 Exch. 841. One of the exceptional cases enu- merated by Best, Ch. J., in East London Waterworks Co. v. Bailey (1827) 4 Bing. 283, is "where a corporation has a head, as a mayor, or a dean, who may give commands which a partj' may obey without the sanction of a com- mon seal {Randle v. Deane [1692] Lutw. pt. 2, p. 1497), or may bind the corporation by record (Vin, Abr. Corp. K. 7, 21)." The exceptions to the general rule which were gradually introduced had for a long time reference only to "mat- ters of trifling importance and frequent occurrence, such as the hiring of serv- ants, and the like." Bovill, J., in South of Ireland Colliery Go. v. Wad- dle (1868) L. R. 3 C. P. 463. 460, 6 Eng. Rul. Cas. 315, affirmed in (1869) L. R. 4 C. P. (Exch. Ch.) 617, 6 Eng. Rul. Cas. 322. See also opinion ot Mon- tague Smith, J. (p. 474). *Lord Denman, Ch. .J., in Church v. Imperial Gaslight & Goke Go. (1837) § 130] FORMATION AND VALIDITY OF CONTRACT. 431 From an examination of the subjoined note, in whicli are cited all the English and colonial cases in which the validity of contracts of employment made by corporations of the classes specified has been determined without any reference to the doctrine adverted to in the following section, it will be apparent that modern judges have on the whole shown no disposition to depart from the ancient rule that a binding contract of service cannot be created by parol, unless the position to be filled is one of a comparatively unimportant char- acter. In order to make the collection of authorities as complete as possible, the effect of some cases relating to employees who were agents or independent contractors, rather than servants, has been stated.* 6 Ad. & El. 846, 861. This statement of the law was cited with approval by Coleridge, Ch. J., in Austin v. Bethnal Green (1874) L. R. 9 C. P. 91, 94, and by the same judge in Wells v. Kingston- upon-Hull (1875) L. R. 10 C. P. 402, 409, holding that, as "the admission of a ship into the dock was a matter of frequent, ordinary occurrence, and in some cases it might be a matter of urgency admitting of no delay," a con- tract by a municipal corporation which owns a graving dock to let a ship use it need not be under the corporate seal. Referring to the exceptions which, as the exigencies of the case have re- quired, have from time to time been admitted to the rule, Patteson, J., drew attention to the fact, that they "are not such as the rule might be supposed to have provided for, but are in truth inconsistent with its principle and jus- tified only by necessity." Beverley v. Lincoln Gaslight & Coke Go. (1837) 6 Ad. & El. 829, where it was held that, for a matter of such constant require- ment to a gas company as gas meters, and to so small an amount as £15, the company, whether with or without a head, might contract without affixing the common seal. In Diggle v. London & B. B. Go. (1850) 5 Exch. 442, 451, 19 L. J. Exch. N. S. 308, Rolfe, B., after referring to several earlier cases said: "Whether in all these cases I should have come to the same conclusion — that the acts there done were acts of necessity — it is immaterial to consider, as in all of them the court proceeded on the ground already stated, and adopted the general rule that those were cases of urgent necessity within the exception, which is a rule as much as the rule itself, and has been established by several au- thorities, namely, that corporations cannot be sued on simple contract, un- less the act be one of necessity. I say necessity, for that really embraces all the excepted cases, — that is, mat- ters too trivial or of too frequent oc- currence, or, in the case of trading corporations, drawing bills, without which they could not carry on their trade, etc. With these exceptions, the old law remains as it did in the time of Henry VIII., and the earlier times before it." That a corporation is liable for the tortious act of its agent, though not appointed by seal, if such act is an ordinary service, such as a distress, professedly made under a statute, for a debt due to the corporation, was iield in Smith v. Birmingham & S. Gaslight Co. (1834) 1 Ad. & El. 526, 3 Nev. & M. 771. 5 (a) Municipal corporations. — No municipal corporation (except that of London) can appoint an attorney ex- cept under the corporate seal. Arnold v. Poole (1842) 4 Mann. & G. 860 (at- torney appointed by the mayor and town council to conduct suits, but not under seal, held not entitled to recover his costs against the corporation). In Reg. v. Stamford (1844) 6 Q. B. 433, it was held that a, resolution, on the reappointment of a town clerk by a corporation after Stat. 5 & 6 Wm. IV., chap. 76, to increase his salary in compensation for the loss of former emoluments, is not valid unless execut- ed under seal. Such reappointments. 432 MASTER AND SERVANT. [chap. iv. therefore, cannot be proved by an entry by the corporation, are annexed, and of it in the minutes of the town coun- he sues for a disturbance of his right cil. to that office. If he had performed the An unsealed contract for the employ- duty, he must have claimed the pre- ment of an agent to promote a bill in scribed fee as due to himself. Now Parliament for the enlargement of the this right to discharge certain duties powers of a municipal corporation was in regard to the property of third per- held not binding in Clemenshaw v. sons (although against their will), and Dublin (1875) Ir. Rep. 10 C. L. 1. demand payment for so doing, must In Broughton v. Brantford (1869) be by reason of his having an office; 19 U. C. C. P. 434, Hagarty, Ch. J., and he is not a mere servant of the expressed the opinion, obiter, that if corporation, but an officer appointed the appointment of a manager of prop- by them; therefore he must have an «rty which had passed by foreclosure appointment under seal. And we do into the possession of a municipal cor- not think that the tenure of his office, poration had been made under the cor- which is said to be during the pleasure porate seal,- — as it had been in fact, — • of the corporation, can make it unneces- the corporation would not have been sary that he should have such an ap- bound by the contract, whatever might pointment, or convert him from an of- be the rule in the case of a trading ficer into a mere servant." corporation in a, matter within the By the supreme court of British Co- scope of their ordinary business. lumbia it has been held that a person A distinction is taken between cases duly elected, at a meeting of a munic- where the appointee of a municipal cor- ipal council, to municipal office, pur- poration is a mere servant, and those suant to a statute empowering the mu- in which he is an officer. While in nicipal council so to appoint its of- some instances the former kind of ap- ficers, becomes thereby the servant of pointment may be good without a seal, the corporation without further evi- an appointment to an office is invalid dence or ratification of the contract of without a seal, unless it is made in hiring under the corporate seal, or accordance with immemorial custom; otherwise, and can maintain an action and in any action founded upon the for damages, if not received into the right of the appointee to hold his office, employment in pursuance of the con- the existence of the custom must be tract of hiring implied by such appoint- alleged and proved. In Smith v. Cart- ment. Tuck v. Victoria (1892) 2 B. Wright (1851) 6 Exeh. 926, an action C. 179. It seems quite doubtful, how- by a coal meter for disturbing him in ever, whether the statutory provision the exercise of his privilege, the dec- upon which the council acted was such laration claimed the right in the cor- as to justify the court in assuming poration "by the persons by them in that that the case was not within the scope hehalf from time to time deputed and of the principle which is ordinarily appointed as thereinafter mentioned," controlling in this connection, viz., that and alleged that the corporation had even a resolution of the members of duly and in the exercise of their a body corporate is not equivalent to said right in that behalf deputed and an instrument under its seal. See note appointed certain meters, of whom the 1, supra. The designated method of plaintiff was one. Commenting upon appointment seems to have been in no the averments, the court said: "The essential respect different from that corporation claim a right to measure which, upon general principles, an of- by persons appointed by them. That flcial body, like a municipal council alone would make the appointment is presumably authorized, or rather merely that of a servant, and might bound, to follow, whenever it is acting well be without seal. But the payment iu its corporate capacity, even though in respect of the measurement is for it may not have been expressly em- the benefit of the meter only; the cor- powered or directed by the legislature ])oration takes no part of it. The meter to do so. Assuming this view to be is the plaintiff, and complains of be- correct, the statutory provision in ques- ing disturbed in the exercise of his tion must be construed as one which privilege. This shows that the meter was merely declaratory of the common claims an office of which certain profits, law. Under such circumstances a de- to be fixed indeed from time to time cision which seems to involve the § 130] FORilATION AND VALIDITY OF CONTRACT. 433 hypothesis that the provision in ques- tion had abrogated' by implication the necessity for a formality which, if the provision had not been enacted, would indisputably have been necessary to create a binding contract of employ- ment, cannot be accepted without much difficulty. It is conceived that the re- ported cases, so far as they have any bearing on the subject of the presumed intention of the legislature under such circumstances, aflford some general sup- port to this criticism. See Cope v. Thames Baven Dock & R. Co. (1849) 3 Exch. 841 (see subd. (c) of this note, infra), and Hughes v. Canada Permanent Loan £ 8av. 8oc. (1876) 39 U. C. Q. B. 221 (see § 131a, note (b) Other public corporations estab- lished for specific purposes. — The parol appointment of an assistant or clerk to the master of the workhouse, whose duties were principally the keeping of accounts of a somewhat complicated nature, requiring some amount of skill and capacity, was held not to be bind- ing on the defendants. Austing v. Beth- val Green (1874) L. E. 9 C. P. 91 ( notion for wrongful dismissal, not maintainable). On the ground that it was not a case of necessity, and not made under seal, it was held that the appointment of a salaried "medical officer" for a fixed and definite period was not binding. Dyte V. St. Panoras (1872) 27 L. T. N. S. 342. That the appointment, by the guard- ians of an union, of a collector of the poor rate, must be under seal, was de- cided by Parke, B., in Smith v. West Ham Union (1855) 10 Exch. 867, af- firmed in (1856) 11 Exch. (Exch. Oh.) 867 (validity of appointment not dis- cussed in the higher court). It was suggested by Willes, (afterwards Jus- tice), in his argument as counsel in Henderson v. Australian Royal Mail Steam Nav. Co. (1855) 5 El. & Bl. 409, that this case probably proceeded on the distinction taken in Smith v. Carticright (1851) 6 Exch. 928 (see subd. (a) of this note, supra), that the appointment of a servant for the benefit of the corporation, being an incident to their every-day existence as a corporation, may be by parol; but that the appointment of an officer for his own benefit, not being incident to M. & S. Vol. I.— 28. such every-day existence, must be under seal. But this theory does not seem to be applicable to the circumstances of the case. That an agreement for the hire of a teacher by a body of school trustees is invalid, if not under seal, was held in Quin v. School Trustees (1850) 7 U. C. Q. B. 130. But it seems that, where public- school trustees have entered into an agreement for the hire of a teacher, and have directed the officer who has the custody of the seal to affix it, and both parties have for two years acted on it as a binding agreement, the fact that the seal was not actually affixed will not invalidate the agreement. Mc- Pherson v. Usborne School Trustees (1901) 1 Ont. L. Eep. 261. In Paine v. Strand Union (1846) 8 Q. B. 326, a parol order for making a survey and map of the ratable prop- erty in one of the parishes forming the union was held not to be binding on the union, for the reason that such a plan was not incidental to the purposes for which the guardians of the union were incorporated. They had nothing to do either with making or collecting rates in the several parishes of the union, nor had they power to act as a corporation in a single parish. (c) Business corporations. — As a general rule an attorney at law cannot be retained by parol. Sutton v. Spec- tacle Makers Co. (1864) 10 L. T. N. S. 411. But after an attorney has ap- peared and acted for a corporation in legal proceedings, the corporation can- not, as against the other party to the litigation, dispute his authority on the ground that he was not appointed under the corporate seal. Thames Haven Dock Co. V. Hall (1843) 5 Mann. & G. 274. Nor can the other party dispute it on this ground, after taking steps in the proceedings. Faviell v. Eastern Counties R. Co. (1848) 2 Exch. 344. In Reg. v. Cumberland Justices (1847) 17 L. J. Q. B. N. S. 102, 5 Eng. Ry. & C. Gas. 332, Wightman, J., con- struing the effect of a statute which gave the directors power to "appoint and displace any of the officers of the company," said their appointment of an attorney without seal was clearly good. Sir F. Pollock apparently is of opin- ion that the controlling consideration in the case is the fact that the ap- pointment was not one to a continuing 434 MASTER AJsI) SERVANT. [chap. iv. office. See his comments (Contr. p. relation to the principle relied upon 164) on Cope v. Thames Haven Dock by the Canadian court, although they <& R. Co. (referred to infra). With have not been entirely consistent (see all deference to the learned judge who next section), afford no support to the decided this ca&e, it may be suggested theory that the principle may operate that this question is not so easy of so as to validate a parol appointment solution as he here assumes. See the of a permanent official of high rank. comments on Tuck v. Victoria, in subd. For other Canadian cases see § 131a, (a) of this note. Is it a reasonable note 7, post. inference that a legislature, when it A railway company was incorporated simply names the board of directors by an act of Parliament, one section as the appointing power, intends there- of which enacted that the directors by to empower them to make appoint- should have power to use the common nients without using the corporate seal on behalf of the company, and seal? that all contracts relating to the af- It has been held that, assuming that fairs of the company, signed by three a contract with attorneys for obtaining directors, in pursuance of a resolution tlie passage of an incorporating act of a court of directors, should be bind- should have been under seal, the omis- ing on the company. The following sion to set out a deed in a declara- section enacted that the directors tion by them for work and labor was should have full power to employ all a mere matter of form, and therefore such managers, officers, agents, clerks, ground for a special demurrer only, workmen, and servants as they should Tilson V. WaruAck Gaslight Co. (1825) think proper. By a resolution of the 4 Barn. & C. 962. board of directors, signed by their In Washiv/rn v. Canada Car Co. chairman, the plaintiff was appointed (1875; U. C. Q. B.) an unreported case agent to negotiate with anotlier rail- cited by the court in Bughes v. Canada way for the lease of the line. Held, Permanent Loan & 8av. Soc. (1876) that the contract was not binding on 39 U. C. Q. B. 229, it was held that a the company, since it had not been corporate seal was necessary to validate sealed, or executed with the required the appointment of a general manager formalities. Cope v. Thames Haven of a car company. Dock & R. Co. (1849) 3 Exch. 841 In another Canadian case a similar Parke, B., said: "The rule must be ruling was made by Street, J., as to the absolute, on the ground that this is appointment of a manager of a milk a contract by which the company can- company. Birny v. Toronto Milk Co. not be bound, unless made in the form (1902) 5 Ont. L. Rep. 1. required by the 119th section, which A person appointed as provincial gives a power of binding the company engineer of a railway company at a by an instrument under seal, or in monthly salary of $300 was held to be writing signed by three directors, in an important official whose engagement pursuance of a resolution of the board, must be under seal. Armstrong v. jSTeither of those requisites have been Portage, W. & N. W. R. Co. (1884) 1 complied with. ... We ought not Manitoba, L. Rep. 344. This case is to extend the exception to cases where, in direct conflict with an earlier one i^om the act incorporating the com- (which strange to say, was not re- it j^ the obvious intention of the ferred to), m which the appointment legislature that the contracts of the tu vnltl o'J,^Vr'.rn,^^rtb%'f^ Tf ^""P^^y should be made with certain held valid on the ground that the ap- , f ,.r. „, i- j.^ • i j, pointment of such an officer was not fw^i^l'ties. The question then is wheth- only within the scope of the corporat- "" ,Y^ "^^f collect from this act of ing act, but that it was essential and Parliament that a contract of this de- absolutely necessary for the purposes scription — that is, for the employment connected with the objects of the cor- of an agent, not in the course of the poration. Murdoch v. Manitola 8. W. ordinary concerns of the company — Colonization R. Co. (1881) Wood, 334. can be binding on the company without In the opinion of the present writer, a formal instrument. I am clearly the earlier of these two cases shows a of opinion that the case does not fall clear departure from the doctrine of within the 120th section. . . . The English judges, whose decisions with section may be explained as pointed § 131] FORMATION AND VALIDITY OF CONTEACT. 435 131. Same subject discussed in relation to corporations created for special purposes.— An important exception to the general rule, as stated at the beginning of the last section, is "that a company, which is established for the purpose of trading may make all such contracts as are of ordinary occurrence in that trade, without the formality of a seal, and that the seal is required only in matters of unusual and extraordinary character which are not likely to arise in the ordinary course of business." ^ A similar doctrine, to tlic out by my Brother Eolfe, by saying a case already cited it was remarked that it intended to give the directors that from very early times exceptions power to do certain acts for which, to the general rule "have been allowed by the 114th section, they are to be in the case of municipal and ecclesias- indemnified out of the funds of the tical corporations, to enable them, with- company. But if not, it only extends out the formality of a seal, to transact to the employment of managers, of- matters of minor importance and of fleers, agents, clerks, etc., on the ordi- daily occurrence." IMontague Smith, J., nary works of the company. If they in South of Ireland Colliery Co. v. may, without any formality, appoint Waddle (1868) L. E. 3 0. P. 463, 6 servants for the management of their Eng. Eul. Cas. 315. In the absence affairs at the different stations, we of specific authority to the contrary, cannot from that collect that they shall this passage may he taken as indicat- be bound bj' contracts out of the ordi- ing that, in respect to the extent of nary course, and for the employment of the duty of using the corporate seal, every description of servant." Piatt, ecclesiastical and municipal corpora- B., said: "I am of the same opinion, tions are placed by the law upon the and for the same reasons. Take the same footing. case of a surveyor employed to survey 1 Montague Smith, J., in South of 200 miles of railway, — is it not im- Irelc^d Colliery Co. v. Waddle (1868) portant that the company should not L. E. 3 C. P. 463, 474, 6 Eng. Eul. Cas. be bound by a mere verbal arrange- 315, affirmed by Exch. Ch. (1869) L. E. ment?" With all respect for the opin- 4 C. P. 617, 6 Eng. Rul. Cas. 322. In ion of so eminent an authority as Sir the same case Bovill, Ch. J., made the F. Pollock, the present writer ventures following remarks: "It seems to me to think that the doubts which he has that the exceptions created by the expressed as to the correctness of this recent cases are now too firmly estab- decision (Contr. p. 154) are scarcely lished to be questioned by the earlier warranted. The ground upon which his decisions, which, if inconsistent with criticism is based is that no "appoint- them, must, I think, be held not to be ment to a continuing oflace" was in- law. These exceptions apply to all volved. But it is submitted that, hav- contracts by trading corporations en- ing regard to the fact that the meaning tered into for the purposes for which of a certain statutory provision was they are incorporated. A company can the only point to be determined, the only carry on business by agents, — permanent or temporary character of managers and others; and if the con- the office was not an element which tracts made by these persons are could with propriety have been treated contracts which relate to objects and as material, and that the case was purposes of the company, are not in- correctly viewed as one which was consistent with the rules and regula- governed by the familiar principle that tions which govern their acts, they are powers granted to a corporation for valid and binding upon the company, specific purposes cannot lawfully be though not under seal." In this case, exercised with reference to a subject- the actual point decided was that a matter which does not by a reasonable company incorporated for the working intendment fall within the scope of the of collieries was entitled to maintain grant. an action against an engineer for a (d) Ecctesiastical oorporations. — In breach of an unsealed contract in re- 436 MASTER AND SER-\'AXT. [CHAP. IV. effect that contracts necessary and incidental to the purposes for which the corporation exists may be made without seal, has been ap- plied in actions for goods supplied to, or work done for such statutory bodies as the boards of poor law unions, boards created for the pur- pose of making local improvements, municipal councils, and trus- tees of state schools.* The effect of the doctrine thus established is fusin<; to deliver an engine and ma- chinery which he had agreed to erect for the plaintiff. The defendant's plea was tliat there was no mutuality in the contract, as he was not bound. In Australian Royal Mail Steam Nav. Go. V. Marzetti (1855) U Exch. 228, 24 L. J. Exch. N. S. 273, Pollock, C. B., remarked that "a corporation may, with respect to matters for which they are expressly created, deal without seal." In Henderson- v. Australian Royal Mail Steam Xav. Co. (1855) 5 El. & Bl. 409, 24 L. J. Q. B. N. S. 322, Wightman, J., observed that the general result of the decision was that, "when- ever the contract is made with relation to the purposes of the corporation, it may, if the corporation be a trading one, be enforced though not under seal." The same contracts are adverted to by Erie, J., as those which are "incidental and necessary to the purposes for which the corporation was created," and in another passage as those "made for a purpose directly connected with the object of the incorporation." Cromp- ton, J., laid down that a trading cor- poration "may make binding contracts in furtherance of the purposes of their corporation, without using their seal." In that case a company incorporated for the purpose of trading as ship- owners was sued on a contract, not \inder seal, made by the directors to pay remuneration in consideration of exertions to bring home a disabled ves- sel. On demurrer, it was held that, the corporation being a trading one, and incorporated for a special purpose, the company was bound by the contract as being made in furtherance of the purpose of their incorporation, though not under seal. In Renter v. Electric Teleg. Co. (1856) 6 El. & Bl. 341, a parol agree- ment to send messages for a year over the defendant's telegraph line was held to be enforceable. The defendant, it was observed, was "a corporation for carrying on a particular business; and the services done by the plaintiff were in the direct course of the business which by their charter they were to carry on." In London Dock Co. v. Sinnott ( 1857 ) 8 El. & Bl. 347, 27 L, J. Q. B. N. S. 129, an action was held not to be maintainable against a contractor for refusing after tender to sign a con- tract for scavenging the plaintiff's docks for the reason that the contract was not one of a mercantile nature, nor with a customer. But having re- gard to the more recent decisions, this case seems to be one of very dubious authority. In Copper Miners of England v. Fox (1850) 16 Q. B. 230, it was held that the plaintiffs could not recover on a parol executory contract for the supply of iron rails, as their charter only au- thorized them to deal in copper as miners thereof. See also the Canadian cases cited in § 131a, note 7, post. 2 The effect of Sanders v. St. Neot's Union (1846) 8 Q. B. 810, and CUrke V. Cuckfield Union (1852) 21 L. J. Q. B. N. S. 349, 16 Jur. 686, 1 Lownd. & M. 81, is that an action will lie against the guardians of a union to recover for goods supplied and work and labor done, though the defendants had not contracted under seal. The grounds of this doctrine were thus stat- ed by Wightman, J., in the latter case: "Wherever the purposes for which -a. corporation is created render it neces- sary that work should be done or goods supplied to carry such purposes into effect, — as in the case of the guardians of a poor law union, — and orders are given, at a board regularly constituted and having general authority to make contracts, for work or goods necessary for the purposes for which the corpora- tion was created, and the work is done or goods supplied and accepted by the corporation, and the whole considera- tion for payment executed, the corpora- § 131] FORMATION AXD VALIDITY OF COXTEACT. 437 to abrogate, with regard to certain classes of corporations, the doc- trine formerly prevailing, under which the exceptions to the general tioji cannot keep the goods or the benefit, and refuse to pay on the ground that, though the members of the corporation who ordered the goods or work were competent to make a contract and bind the rest, the formality of a deed or of affixing a seal is wanting, and there- fore that no action lies, as they were not competent to make a parol contract, and may avail themselves of their own disability." (There is a considerable difference in the words of this passage, as reported in the Jurist. But the general effect is the same). In Diggle v. Loivdon & B. R. Co. (1850) 5 Exch. 442, ]4 Jur. 937, Eolfe, B., remarked that he had been told by Parke, B., that there is an error in the report of Sanders v. St. beat's Union (1846) 8 Q. B. 810, and that the real point was not on the record. But the error, if there la really one which is material to the present dis- cussion, is rendered less important by the fact that the principle applied in it, as well as in Ciorfce v. Ouckfield Union, supra, was fully approved in the cases cited below. In Eaigh v. North Bierley Union (1858) El. Bl. & El. 873, 28 L. J. Q. B. N. S. 62, an accountant was held en- titled to recover for work done in ex- amining the books of the defendant. The grounds upon which the decision proceeded were stated as follows by Erie, J.: "The work and labor had been performed, and was performed at the request of the guardians; and was, in my opinion, incidental to the pur- poses for which the guardians were created. They had appointed a proper officer to manage the union accounts : they had reason to suspect that he had been guilty of fraud and embezzlement; and, by their first resolution, they ap- pointed the plaintiff as an accountant to give them information upon this point. Such an appointment was clear- ly for a purpose within the general scope of their functions as guardians, namely, that of protecting the funds of the union." Crompton, J., stated his views much more guardedly than his learned brother: "If the contract were, as has been contended, a contract from hour to hour, it might be impossible for the guardians to affix a seal. But if, on the other hand, the work was distinct and specified work, done under three several resolutions, I should doubt very much whether the contract should not have been under seal." His doubts as to the correctness of the conclusion at which the court lias arrived were sufficiently strong to induce him to re- serve leave for the defendants to appeal. In Nicholson v. Brad field Union (1866) L. R. 1 Q. B. 620, the plaintifl was held entitled to recover the prico of coals supplied to the defendants under a parol contract, — these being as Blackburn, J., observed, goods "sucli as must necessarily be from time to time supplied for the very purpose for which the body was incorporated." In Lawford v. Billericay Rural Dist. [1903] 1 K. B. (C. A.) 773 an engineer was allowed to recover compensation for services in preparing a plan and reports relating to a contemplated sys- tem of sewers, and for other work done in connection with the aff'air, although he had not been employed by an instru- ment under seal. Stirling, L. J., re- marked that "the essential question was whether the work in respect of which the plaintiff sought to recover was work necessary for the corpora- tion in carrying out the purposes for which it was created. The court of ap- peal condemned the doctrine applied in a series of discussions in which tlip court of exchequer had held the want of a seal to be a bar to the action. Lamprell v. Billericay Union ( 1849 ) 3 Exch. 283, 18 L. J. Exch. N. S. 28'2 (claim for compensation for extra work done in erecting a workhouse) ; Diggle V. London & B. R. Co. (1851) 5 Exch. 442, 19 L. J. Exch. N. S. 308 (claim for work done and materials supplied in respect of taking up old rails and substituting new ones) ; Homersham v. ^Yolverhampton Waterworlis Co. (1851) 6 Exch. 137, 20 L. J. Exch. N. S. 193 (claim for extra work performed in respect to the erection of machinery, with the approval of the company's engineer, and accepted by the com- pany ) . In his judgment referred to at the commencement of this note, Wight- man, J., had admitted that these cases were undoubtedly adverse to the plain- tiff's claim in the case before him, and 438 MASTER AND SERVANT. [CHAP. IV. principle as to the necessity of using the corporate seal were "limited to matters of frequent occurrence and small importance." * As it was the superseded doctrine which supplied the rationale of the rule that only inferior servants could be retained by parol (see last section), there would appear to be sufficient grounds upon which to base a strong argument that some relaxation of that rule is a natural and permissible, if not a necessary, consequence of the adop- tion of the more modern doctrine. It seems difficult to deny that, taking the words in their ordinary sense, the engagement of servants of all grades, even the highest, may without impropriety be de- that he found it difficult to draw any- substantial distinction between them in respect to the point to be determined. He suggested, however, that a possible basis for a distinction was obtainable by adverting to the fact that, in the earliest of the three cases, the court of exchequer had merely relied upon certain decisions in which the general rule as to the necessity of a seal had l)een applied, and had not been given due weight to a circumstance which, ac- cording to other authorities, should have treated as an important and dif- ferentiating element, viz., that in none of them was tlie subject matter of the contract necessary to the purposes for which the corporation was created. In the light of the later decisions, it may be said with some confidence that this is the true and adequate explanation of the conflict of doctrine which is dis- closed by these cases. By 38 & 39 Vict. chap. 55, § 174, it is enacted that "every contract made by an urban authority, whereof the value or amount exceeds £50, shall be in writing and sealed with the common seal of such authority." This provision being mandatory, it has been held that, where a local board verbally directed its surveyor to employ an architect to prepare plans for new offices, the con- tract could not be enforced, although the jury found that the board had au- thorized the surveyor to procure the plans, and ratified his acts, that the new offices were necessary for the pur- poses of the defendants, and that the architect's plans were necessary for the erection of the building. Hunt v. Wimhledon Local Board (1878) L. R. 4 C. P. Div. (C. A.) 48, 16 Eng. Rul. Cas. 637. Bramwell, L. J., observed that, so far as he knew, the doctrine that, where a person has done work for a corporation under a contract not under seal, and the corporation have had the benefit of it, the person who has done the work can enforce the contract, was "confined to cases in which it could be said that the work was such as was necessary." It must have been work such that, if they had not ordered it they would not have done their duty, or such that, if they had not given the order for its exe- cution, they would not have been able to carry out the purposes for which the corporation had been created. See also 'the Canadian cases cited in § 131a, note 7, post. 3 The phrase used by Bovill, Ch. J., in South of Irelatid Colliery Co. v. Waddle (1868) L. R. 3 C. P. 463, 6 Eng. Rul. Cas. 315 (see note 1, supra). Other cases in which the doctrine has been explicitly recognized, that, where certain classes of corporations are concerned, there is this third ex- ception to the general rule, are Hender- son V. Australian Royal Mail Steam Nav. Co. (1855) 5 El. & Bl. 409, 24 L. J. Q. B. N. S. 322; Laioford v. Billericay Rural Dist. [1903] 1 K. B. (C. A.) 773. The effect of these decisions, especial- ly the last mentioned, which, as will be observed, was rendered by a court of error, is to discredit the authority of all those cases which rest upon the assumption that this third exception does not exist. One such case is Diggle v. London & B. R. Co. (1850) 5 Exch. 442, where Rolfe, B., relied on the consideration that the work was done "neither on a great necessity, nor is it a matter of frequent occurrence, nor is it one of a trivial nature." § 131] FORMATION AND VALIDITY OF CONTRACT. 439 scribed as a matter which is "incidental and necessary" to the pur- poses for which business and other corporations are created. In fact, the methods of a corporation which carried on its business by means •of independent contractors, instead of servants, would be so abnormal that in discussing general rules such arrangements may warrantably be left out of account. Yet an examination of the cases collected in note 5 to the preceding section will show clearly that in England there has been no distinct tendency to modify the law with reference to this consideration. In none of those cases — most of which, it may be remarked, belong to the period during which the doctrine re- viewed in the present section has been fully accepted — have the courts countenanced the idea that that doctrine is essentially incompatible with the one which declares the corporate seal to be requisite to the validity of all appointments of superior servants. It can scarcely be regarded as a satisfactory juridical situation that, where certain classes of corporations are concerned — corporations which constitute, it should be observed, the great majority of those bodies — the practi- cal effect of allowing the two doctrines to operate concurrently and separately is that an independent contractor may in many instances be able to enforce a parol contract for the performance of work, al- though such a contract would confer no right of action on a person engaged to perform the same or similar work as a servant.* It is true that one of the ordinary incidents of service is the formation and subsistence of a more or less permanent relation, and the dis- charge of prescribed functions from day to day under the control of the master, while the essence of the undertaking of an independent contractor is merely that he will produce the stipulated results by any methods which he deems expedient. But in the present con- nection this distinction cannot, as it would seem, be relied upon as a differentiating element which will enable us to evade the difficulty just adverted to. That the character of the relation in the point of view here indicated may serve to determine whether a parol con- 4 This statement, it is apprehended, is in Cope v. Thames Eaven Dock & R. fully justified by a general eompaiison Co. (1849) 3 Exch. 841, 845, that the of the decisions cited in this and the appointment of a surveyor to survey preceding sections. Sufficient proof of a considerable section of a railway line its correctness will be obtained by con- must be made under seal ( § 130, note 5, trasting the decisions in Austin V. BeiA- subd. (c), ante), with the decision in nal Green (1874) L. R. 9 C. P. 91 Lawford v. Billericay Rural Dist. [190S] (§ 130, note 5, subd. (b), ante with 1 K. B. (C. A.) 773, where an engineer Haigh v. North Bierley Union (1858) was allowed to recover for services in El. Bl. & El. 873 (note 2, supra) ; and preparing a plan for a system of sew- the declaration of Parke B., arguendo, ages. Note 2, supra. 440 MASTER AND SERVANT. [chap. iv. tract is valid or not is a theory which has never been recognized, either expressly or impliedly, by any English court. In all the cases belonging to the class with which we are concerned in this sub- division, the rights of the parties have been discussed with refer- ence to the importance or the frequency or the subject-matter of the contract. 131a. Same principles applicable whether unsealed contract was executed or not. — The fact that the parol contract in question had been executed at the time when the action upon it was brought ha.s sometimes been viewed as a differentiating element which ojDerated so as to enable the contractee to recover for services rendered or goods supplied in pursuance of its terms, although it would not have been enforceable while it remained executory.' This theory, how- ever, has now been definitely discarded in England, the accepted doc- trine being that the validity of a contract made by a corporation with- out using its seal is to be tested by the same criteria, whether it is executory or executed.* It is true that in some cases of later date than the one in which this doctrine was first propounded, we find that judges have, with characteristic caution, declined to express any decided opinion as to the correctness of this doctrine.^ But in others its soundness has been taken for granted.* That it still remains un- 1 In East London Waterioorks Co. v. are not available between them." In Bailey (1827) 4 Bing. 283 (action for this case the court explicitly disap- nondelivery of pipes for the plaintiffs' proved the doctrine laid down in East works), one of the grounds upon which London Waterworks Go. v. Bailey the right of recovery was denied was (1827) 4 Bing. 283. that there was a distinction between The decision in Church v. Imperial contracts executory and executed. Gaslight <& GoTce Co. has been referred See also the Canadian cases reviewed to by text writers of the highest emi- in note 7, infra. nence as having settled the law upon 2 Church V. Imperial Gaslight & Coke the subject. See Lindley, Companies. Co. (1837) 6 Ad. & El. 846, Lord p. 221, Pollock, Contr. 150. Denman Ch. J., reasoned as follows : 3 In 'Nicholson v. Bradfield Union "The same contract which is executory (1866) L. R. 1 Q. B. 620, Blackburn, to-day may become executed to-morrow; J., remarked in the course of his judg- if the breach of it in its later state ment that it was unnecessarj' to ex- may be sued for, it can only be on press any opinion as to what might the supposition that the party was have been the case if the plaintiff had competent to enter into it in its former ; been suing on a breach of the contract and if the party were so competent, for a refusal to accept the goods on what ground can it be said that ordered, or any other breach of the the peculiar remedy which the law contract while still executory, gives for the enforcement of such a In Bunt v. Wimbledon Local Board contract may not be used for the pur- (1878) L. R. 4 C. P. Div, 48, Cotton pose? It appears to us a legal solecism and Brett, L. JJ., expressed, arguendo, to say that parties are competent by strong doubts as to the doctrine that law to enter into a valid contract in a there is an essential difference between particular form, and that the appro- executed and executory contracts, priate legal remedies for the enforce- * In Young v. Leamington (1882) L. ment or on breach of such a contract R. 8 Q. B. Div. (C. A.) 579, where a § 131a] FORMATION AND VALIDITY OF CONTEACT. 441 impugned is also indicated hj these considerations : That there is no recent English decision in which the nonenforceability of an execu- tory parol contract has been affirmed on the mere ground that it was executory ; ^ that the parol contract which was declared to be en- forceable in a leading case already cited was, as a matter of fact, executory ; ^ and that none of the judgments delivered in the English cases in which plaintiffs have been held entitled to recover upon executed parol contracts (see preceding section, notes 1, 2,) contain any language which can reasonably be construed as indicating an adoption of the theory that the rights of the plaintiffs were enlarged by the circumstance that the contract had been executed by them. It is manifestly not permissible to argue that cases in which it was simply held that certain parol contracts were enforceable after they had been executed may be taken as denying by implication that the contracts in question would not have been enforceable if they had still remained executory. The conclusion seems to be unavoidable, therefore, that in several Canadian cases which evince more or less distinctly an acceptance of the theory that the enforceability of a corporate contract may sometimes depend upon whether it has been executed or is still executory, there has been, in so far as the judg- ments are founded upon that theory, a divergence from the main current of the English authorities. It is worthy of observation, how- ever, that the facts presented in at least a portion of these cases were mandatory statute prescribed that a (1857) 8 El. & Bl. 347 (§ 131, note 1, seal should be used in making any ante), where, although the executory contract involving the payment of more character of the contract might have than a certain amount of the corporate been put forward as a plea by th<' funds, Brett, L. J., remarked (p. 586) : defendant, or assigned as a reason for "The fact that the defendants had the the judgment against the plaintiff, this benefit of the contract will not pre- element was not adverted to. vent them from setting up the statute 6 South of Ireland Colliery Co. v. in answer to the plaintiff's claim." It Waddle (1868) L. E. 3 C' P. 463, is apprehended that the mere fact that 6 Eng. Eul. Cas. 315, affirmed by Exch. the obligation of the corporation in this Ch. (1869) in L. E. 4 C. P. 617, 6 instance was imposed by any express Eng. Eul. Cas. 322. words of a statute does not weaken the In Copper Miners of England Co. v. significance of this remark, as indioat- Fox (1850) 16 Q. B. 230, where the ing the opinion of the learned judge right of the corporation to recover on that the rights of the party claiming an executory contract for the supply under a parol contract are in no respect of iron rails was denied, for tlie rea- cnlarged in consequence of its having son that such a contract was beyond been executed. the scope of its charter, Lord Camp- See also South of Ireland Colliery Go. bell remarked, arguendo, that, if the v. Waddle (1868) L. R. 3 C. P. 468, 6 contract had been shown in any way Enf. Eul. Cas. 315, where the decision to be incidental or ancillary to carry- in East London Waterworks Co. v. ing on the business of copper mines, it Bailey (note 1, supra) was condemned would have been binding though not by Montague Smith, J. (p. 475). under seal. 6 See London Dock Co. v. Sinnott 442 :\rASTER AND SERVAXT. [chap. IV. such that, even if no significance whatever had been ascribed to this element, the decisions might well have been the same as those which were actually rendered.'' 'In Dempsey v. Toronto (1849) 6 U. C. Q. B. 1, where a municipal cor- poration was held to be liable in as- sumpsit for services actually rendered, it was laid down that there was no general principle, applicable to all classes of corporations, that they are not liable to be sued because they have never promised under seal that they would give a recompense. In Pirn v. Ontario (1860) 9 U. C. C. P. 304, the plaintiff was allowed to re- cover for work done under a parol con- tract for the erection of a court house and gaol for a municipality. The chan- cellor, who delivered the judgment, laid much stress upon the fact that the dis- tinction between executory and executed contracts had been recognized in East London Watertmrks Co. v. Bailey (note 1, supra), and attempted to minimize the effect of the decision in Church v. Imperial Gaslight d Coke Co. (note 2, supra), on the ground that it was not intended to be of general application to all classes of contracts. The present writer ventures to think that it is quite possible to agree with the learned judge in his views as to the actual scope of the decision, without assenting to the conclusion drawn by him. The remarks of Lord Denman undoubtedly have ref- erence merely to contracts of the kind discussed in the preceding section. But manifestly a decision which declares that, where the validity of such a con- tract to be determined, the question whether they are executory or executed is immaterial, is of sufficiently wide application to cover any case which in- volves a contract of that description; and this was really the only aspect under which it was necessary to con- sider the import of the decision. It should be observed that this Canadian case antedates South of Ireland Colliery Co. V. Waddle supra, by several years, and that the learned chancellor had not the advantage of the guidance afforded by the very explicit statements of the law which are found in the later case. In Clark v. Hamilton & G. Mechanics' Institute (1854) 12 U. C. Q. B. 178, an architect was held entitled to recover for his services in connection with the construction of a building for the use of the defendants. The broad prin- ciple was applied that a corporate body cannot avail itself of the property or labor of others, and accept and apply such property for the purpose for which it was organized, and then refuse, on the ground that its contract was not sealed, to pay for what has thus bene- fited them. Robinson, Ch. J., relied up- on the consideration that the contract was one within the scope of the corpo- rate charter, and in the course of its business. Burns, J., was of opinion that the contract was enforceable on the ground that it was made to carry out the very thing for which the corpo- ration had been created. There is no little difficulty in accepting this de- cision simply as a legitimate applica- tion of the doctrine here referred to. Certainly that doctrine is subjected to an exceedingly severe strain, where it is invoked to support contracts for carying out an important work of con- struction which, in spite of what was said by the judges, seems not to have been not so much a contract made in the course of the corporate business, as one made with a view to obtaining a convenient place of business, which might, for aught that appears, have been procured without undertaking the erection of a building. Such a contract seems to fall within the scope of the qualifying remarks of Montague Smith, J. (as quoted at the beginning of the last section), that a seal "is required only in matters of unusual and extra- ordinary character, which are not like- ly to arise in the ordinary course of business." If these views are correct, it is clear that the decision cannot be supported without the aid of the doc- trine which treats executory and exe- cuted contracts as being upon a differ- ent footing. It may be observed that the dissent of Draper, J., was put upon an untenable ground, viz., that the claim was not one for "small and ordinary services" that might frequently be re- quired. The theory thus relied upon is discredited by the more recent English decisions. See the judgment of Bovill, Ch. J., in South of Ireland Colliery Go V. Waddle (1868) L. R. 3 C. P. 463, 6 Eng. Rul. Gas. 315, (note 4, supra)'. f 131a] FORMATION AND VALIDITY OF CONTRACT. 4i3 In Perry v. Ottaim (1864) 23 U. C. Q. B. 391, a man employed by a munic- ipal committee to make plans was held entitled to recover for his work, though no contract under seal had been made. The last-cited case was followed as a controlling authority. In Marshall v. School Section No. 11 (1855) 4 U. C. C. P. 376, where the de- fendants were held not liable for the cost of a sohoolhouse erected for them under a parol contract, and accepted after its completion, the rationale of the decision apparently was that the contract had reference to a matter of unusual importance. This case is at variance with the general current of the authorities cited in this note, — more especially Clark's Case, supra, — but in the opinion of the present writer it is in harmony with the English decisions. In Bernardin v. North Dufferin (1891) 19 Can. S. C. 581, where a parol contract for the building of a bridge was made in pursuance of a. resolution passed by a municipal council, the ma- jority of the court (Ritchie, Ch. J., and Strong, Ch. J., dissenting) proceeded upon the theory that the rule requiring the use of a corporate seal is subject to an exception in cases where the con- tract has been executed and the benefit of the stipulated work has been re- ceived by the corporation. All the earlier English and Canadian authori- ties were discussed in very elaborate judgments by Gwynne and Patterson, JJ. In Wood V. Ontario & Q. R. Co. (1874) 24 U. C. C. P. 334, it was held, under 34 Vict. chap. 48, the act in- corporating the Ontario & Quebec R. W. Co. and the railway act of 1868, § 14, subs. 13 (which provides that "directors shall make by-laws for the appointment of all officers, servants, and artificers"), that the defendants were empowered to appoint an agent to nego- tiate for and obtain municipal aid, and that for that purpose a resolution of the board of directors, or any entry or minute in their record of proceedings, would have been sufficient, without the formality of a by-law or the seal of the company. The court laid it down, arguendo, that, if the plaintiff had been appointed a clerk or bookkeeper, he would on the same principles have been entitled to recover the value of his serv- ices, a corporation being liable, in any event, for the value of services which have actually been performed and ac- cepted by its authorized agent, provided the contract was within its charter powers. In a case where a question arose as to the validity of the appointment of a clerk, it appeared that, under the stat- utes incorporating the defendants, (U. C. Consol. Stat. chap. 53, § 19, 37 Vict, chap. 50, D. ), the directors of the de- fendant company were empowered from time to time, at any of their usual meetings, to appoint such persons as they thought proper to be officers of the society, and from time to time to discharge such persons, and appoint others in the room of those who vacated, died, or were discharged, but nothing was said as to the mode of appoint- ment, whether under corporate seal or otherwise. The conclusion of the court was thus stated: "Looking at the stat- ute under which the defendants are in- corporated, the duration and character of the employment of the plaintiff, and the circumstances attending his appoint- ment, this case does not, under the au- thorities, fall within any of the well- recognized exceptions to the general rule; and therefore that the contract, so far as executory, must be evidenced by the seal of the defendants." Hughes V. Canada Permanent Loan d Sav, Soc. (1876) 39 U. C. Q. B. 221. In Ellis V. Midland R. Co. (1882) 7 Ont. App. Rep. 464, an action on a verbal contract of employment by which the plaintiff had been appointed master of a steamer, a nonsuit on the ground that a seal had not been used was held to be erroneous, as such a contract might pos- sibly be binding, and a further inquiry into the facts was necessary. But as this case related to the hire of an em- ployee of a superior grade, it stands in direct antagonism to the cases cited in § 130, ante, which, in England at all events, have not been restricted in their eff^ect to any perceptible extent by those discussed in § 131, ante. The same remark is applicable to For- rest V. Great Western C. R. Co. (1899) 12 Manitoba L. Rep. 472, where the chief engineer of a railway company, who had performed his duties for a certain period, under a parol agreement by the president, was held to be entitled to re- cover at the rate agreed upon. The court proceeded upon the ground that the rule as to the use of a seal had been relaxed in cases of executed con- 444 MASTER AXD SERVANT. [CHAP. IV. 131b, Permanent or temporary character of the employment. — The length of the period covered by the contract of hiring might, as it would seem, reasonably be regarded as a circumstance of material importance in determining whether the iise of the seal was a pre- requisite to its validity. But there is no sufficient ground for as- serting that this element has ever been recognized as a proper cri- terion of the liability or nonliability of a corporaton.' 132. Common-law rule, legislative modifications of. — The chaotic condition of the authorities, which is disclosed by the review of the cases in the three preceding sections, indicates that there is an urgent necessity for the enactment of statutes which will put this branch of law upon a more rational footing. It is satisfactory to be able to note that the process of simplification has already been commenced in Canada.'' 133. American doctrine as to use of corporate seal. — The doctrine established in the United States is that a corporation can make sinj- ple contracts of all kinds, including, of course, those of hiring and service, without authenticating them by its seal.^ tracts, where the work done or the goods supplied were necessary for the purpose of the corporation, and the corporation had accepted them and received the benefit thereof. In an action for the breach of an agreement by preventing the perform- ance of certain worlc, it was held that a plea simply stating that the contract was not under seal did not set forth a good defense, for the reason that there was nothing to show that tlie contract was not within the scope of the plaintiff company's powers, and within the ordi- nary course of its business, or for pur- poses connected with it. The court de- clined to assume that it was a contract which, although executory and not un- der seal, was not valid and binding. Ontario Go-op. Stone Cutters' Asso. v. Clarke (1880) 31 U. C. C. P. 280. 1 It may be observed however, that the grounds assigned for the decision in Dyte v. St. Pancras (1872) 27 L. T. N. S. 342, are somewhat suggestive of a theory which would ascribe a control- ling importance to the permanent or temporary character of the employment. That this theory is favored by Sir F. Pollock may perhaps be inferred from the language which he used (Contr. p. 154) in criticising the decision in Cope V. Thames Earen Dock & R. Co. (1840) 3 Exch. 841, 18 L. J. Exch. N. S. 34.5 (§ 130, note 5, subd. (c), ante.) 1 By the Dominion companies act, § 70. it was enacted as follows: "Every con- tract, etc. . . . made, etc., . on behalf of the company, by an agent. ofBcer, or servant of the company, in general accordance with his powers as such under the by-laws shall be binding on the company, and in no case shall it be necessary to have the seal of the com- pany affixed to any such contract. . . . or to prove that this same was made . . . in pursuance of any by-law, or special note, etc." The effect of this provision apparently is that an unsealed contract of hiring entered into by a duly authorized agent of a company, for a purpose within the scope of its char- ter, is binding upon it, whatever may be the character or grade of the position to which the contract relates. This provision constitutes § 24 of the joint stock companies act of 1902. In Quebec a similar provision has been adopted by the Provincial Parlia- ment. Rev. Stat. § 4746. 14 Thomp. Corp. §§ 5046-5048: Story, Agency, §§ 52, 53; Angell & a'. Priv. Corp. § 210; Clark & M. Priv. Corp. § 190. In Beverley v, Lincoln Gaslight <{■ Coke Co. (1837) 6 Ad. & El. 829, Patte- § 134] FORMAT] OX AXD VALIDITY OF CONTRACT. 445 The law was thus laid down by Story, J., as long ago as 1813 : "It would seem to be a sound rule of law that, wherever a corpora- tion is acting within the scope of the legitimate purposes of its in- stitution, all parol contracts made by its authorized agents are ex- press promises of the corporation; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises for the enforcement of which an action may well lie." * The doctrine here enunciated, indicates, as will be observed, a point of view somewhat similar to that which has been applied in the cases cited in § 130, ante. But the American doctrine is obviously much wider in its scope than the one adopted by English judges. 134. Requirements of the statute of frauds in respect to contracts not to be performed within a year; generally. — By the English stat- ute of frauds (29 Car. II., chap. 3, § 4) it is provided that "no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof, . . . un- less the agreement upon which such action shall be brought, or some son, J., alludes to the well-known fact mercial Bank (1839) 8 Dana, 114, 33 "that the ancient rule of the common Am. Dec. 481; Board of Education v. law, that a corporation aggregate could Greenebaum ( 1864 ) 39 111. 609 ; Wolf speak and act only by its common seal, v. Qoddard (1840) 9 Watts, 544. has been almost entirely superseded in It is not even necessary that the practice by the courts of the United authority of an agent who is to execute States." a deed for the conveyance of the realty The present writer has found only a of a corporation should be under seal, single decision in which the validity of Authority for this purpose may be con- a parol appointment of a servant was veyed by a vote of the managing offi- directly affirmed, viz., one by which it cers of the corporation. Mechem, Agen- was held that the appointment of a cy, § 98. bank clerk without a seal was so far ^ Bank of Columbia v. Patterson valid as to enable him to recover the (1813) 7 Cranch, 299, 306, 3 L. ed. 351, stipulated compensation. Waller v. 353. A perusal of the judgment in this Bank of Kentuolcy (1830) 3 J. J. case discloses the interesting fact that Marsh. 201. Mr. Justice Story supposed himself to be But unsealed appointments of at- rendering a decision which was in torneys and other agents have frequent- strict conformity with English doc- ly been held binding. Osborn v. Bank trine. That the learned judge was mis- of United States (1824) 9 Wheat. 738, taken, as to this point is amply demon- 829, 6 L. ed. 204, 226; Pleckner v. strated by the later English decisions Bank of United States (1823) 8 Wheat, cited in the preceding sections. But in 338, 357, 5 L. ed. 631, 636 (holding that view of the circumstance that the there was nothing in the Louisiana American doctrine is not uncommonly Code, title 10, chap. 2, art. 13, to regarded as one which has been adopted indicate that a seal was necessary) ; in consideration of the exigencies cre- Hooe V. Alexandria (1802) 1 Cranch, ated by the social and commercial con- C. C. 90, Fed. Cas. No. 6,666; American ditions in a new country, it is worth Ins. Co. V. Oakley/ (1842) 9 Paige, 496, noting that, in this leading case, there 38 Am. Dec. 561 ; Fitch v. Leiciston was no intention on the part of the Steam MM Co. (1888) 80 Me. 34, 12 court to break away from the older Atl. 732; Savings Bank v. Davis authorities. (1830) 8 Conn. 191; Lathrop v. Com- 440 MASTER AND SERVANT. [ciiap. iv. memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." In all of the British Colonies and in most of the American states a form of words similar to that which is found in the English act has been adopted. But by several of the Ameri- can legislatures a contract has been declared specifically to be "void." ^ This difference is apparently of no material consequence in actions for the direct enforcement of the contract; but in other actions involving the rights of the contracting parties, it sometimes assumes considerable importance. See §§ 143, 144, post. For a general review of the cases in which this provision has been construed, the reader will consult the variovis text-books which deal with the subject.^ In this treatise it will merely be necessary to discuss it with relation to the rights and liabilities of the parties to contracts of service. In the present chapter we shall confine our attention to its bearing upon those rights and liabilities in actions for the direct enforcement of contracts. Its effect in other classes of actions, — as, for example, those upon a quantum meruit, — will be considered in another place. Broadly speaking, the result of a failure to comply with the re- quirements of the statute are these: (1) The servant cannot recover damages for a breach of the contract, where the master refuses to allow him to render any serv- ices, or discharges him before the termination of the stipulated period.' Nor can the servant claim the stipulated wages, his remedial rights in respect to compensation being limited to the maintenance of an action on a quantum meruit for the actual value of the services rendered.* Under the doctrine accepted by many courts, however, 1 This statement is applicable to New to the classes of employment to which York since 1829, and also to the fol- that statute applies shall not exceed lowing states : Alabama, California, the term of one year. Colorado, Michigan, Montana, Nebras- 2 See Browne, Stat. Fr. §§ 272 et ka, Nevada, North Dakota, Oklahoma, seq.; Pollock, Contr. *160; 3 Parsons Oregon, South Dakota, Utah, Washing- Contr. *36-39; note to Peter v. Comp'- ton, ATiseonsin, and Wyoming. ion, 1 Smith, Lead. Cas. 9th Am. ed. The Georgia statute declares that, to pp. 586 et seq. make the obligation binding on the S Shumate v. Farlow (1890) 125 Ind. promisor, it must be in writing. In 359, 25 N. E. 432; Spinney v. Hilt Iowa, it is enacted that, except when (1900) 81 Minn. 316, 84 N. W. 116 otherwise specially provided, no evi- and cases cited passim in the notes to dence of such a contract is competent, the following sections, unless it be in writing. 4 A party who elects to sue on a In addition to the general provision parol contract for services, which is in Ontario, it is declared by the master within the statute of frauds,' cannot re- and servant act (Rev. Stat. 1897, § 5) cover for a balance due for services that a verbal agreement having reference performed before his discharo-e. Bill- § 134] FORMATION AND VALIDITY OF CONTRACT. 447 the effects of this incapacity are considerably qualified by the opera- tion of the rule which permits the servant to adduce the terms of the contract as evidence bearing upon the value of the services. (2) The master cannot recover damages for the refusal of the servant to enter upon the performance of his duties/ or for his abandonment of the service without sufficient cause.® At common law, the defense of the statute could be raised under the general issue, and without its being specially pleaded.'' The same rule prevails in some of the American states where the forms of pleading are regulated by Codes.' In others the defense of the statute must be specially pleaded, when it does not appear from the complaint that the contract declared on is one required to be in writ- ing, and is not in writing. Otherwise the defense is deemed to have been waived.' Where the declaration in an action upon a contract which the statute of frauds requires to be in writing fails to show that the con- tract is in writing, it is defective ; and the defect may be reached by demurrer, or, if judgment is rendered on the petition by default, it will be reversed.^" Where the statute of frauds is pleaded in an action for the breach of a contract of employment for one year from and including the day on which it was made, the onus is on the plaintiff to show, either that the contract was to commence on the day on which it was made, or that it was in writing; either that the contract was not within house V. Jennmgs (1900) 60 S. C. 373, 268, citing Amiurger v. Marvin (1855) 38 S. E. 599. 4 E. D. Smith, 393. See, however, Bow- S Spinney v. Hill (1900) 81 Minn, dish v. Brig gs (1896) 5 App. Div. 592, 316, 84 N. W. 116. 39 N. Y. Supp. 371, where a contrary ^ Drummond v. Burrell (1835) 13 doctrine seems to be favored, though Wend. 307. not specifically adopted. But the master, although he cannot 9 See, for example, Jonas v. Field maintain an action for a breach of the (1887) 83 Ala. 445, 3 So. 893 (Ala. contract by the defaulting servant, can Code, § 2121, subd. 1); Brigham v. recover, on a count for money had and Carlisle (1884) 78 Ala. 243, 56 Am. received, the balance of the year's sal- Rep. 28. ary, which had been paid before the W Smith v. Theobald (1887) 86 Ky. servant abandoned the service. This 141, 5 S. W. 394. claim is not founded on the void con- By S. C. Code, § 174, an answer tract of hiring, but on the considera- which on its face does not constitute tion of a specific sum of money paid a counterclaim may be demurred to. in advance for a few weeks' services With reference to this provision it was which were never rendered. Wier v. held in Mendelsohn v. Banov (1899) 57 Letson (1878) 12 N. S. 299. S. C. 147, 35 8. E. 499, that a demurrer 1 Jonas V. Field (1887) 83 Ala. 445, was the proper mode of meeting a 3 So. 893; Steams v. Lake Shore & M. counterclaim which alleged a "verbal 8. R. Go. (1897) 112 Mich. 651, 71 N. 'agreement" which by its terms was not W. 148; 2 Chitty, PI. 16th Am. ed. 394. to be performed in a year. 8 See Blanch v. Uttell (1880) 9 Daly, 448 MASTER AND SERVANT. [chap. IV. the provisions of the statute, or that the requirements of the statute were complied with.^^ 135. To what contracts the statutory limitation of time is ap- plicable. — The specific words of the statute indicate that it applies to contracts belonging to any of the following classes : (1) Those by which the continuance of the employment for more than one year is either specifically provided for/ or is deducible, as a matter of necessary implication, from the subject-matter.^ H Jonas V. Field ( 1887 ) 83 Ala. 445, 3 So. 893. 1 Giraud v. Richmond ( 1846 ) 2 C. B. 835, 15 L. J. C. P. N. S. 180, 10 Jur. 360 (agreement to receive plaintiff as a clerk, and to pay him a salary in- creasing by specific amounts for the first four years of the employment, and a certain sura continuously thereaft- er) ; Tatterson v. Suffolk Mfg. Co. (1870) 106 Mass. 56 (contract could not have been enforced if it had been one for two years) ; Hill v. Hooper (1854) 1 Gray, 131 (service for five years) ; Barrett v. Riley (1891) 42 111. App. 258 (apprenticeship for three years) ; Banibell v. Hamilton (1835) 3 i)ana, 501 ^ apprenticeship for three years); Davenport v. Gentry (1849) 9 B. Mon. 427 (agreement by a slave that, if another person would procure his freedom, he would serve that person five years) ; Wonsettler v. Lee (1888) 40 Kan. 367, 19 Pae. 862 (agreement to engage jointly with another person in raising live stock and grain for five years); Tuttle v. Swett (1850) 31 Me. 555 (service for three years) ; Freeman v. Foss (1887) 145 Mass. 361, 1 Am. St. Rep. 467, 14 N. E. 141 (service for two years) ; William Butcher Steel Work's V. Atkinson (1873) 68 111. 421, 18 Am. Rep. 560 (service for three years); Spinney v. Hill (1900) 81 Minn. 316, 84 N. W. 116 (service for three years) ; Bethel v. A. Booth d Co. (1903) 115 Ky. 145, 72 S. W. 803 (con- tract to give employment for ten years) ; Games v. Frazier (1909) — ky. — , 118 S. W. 998 (contract for hire for a term of four years and for the use of a house, garden, and orchard for that period) ; Seymonr v. Oelriclis (1910) 156 Cal. 782, 134 Am. St. Rep. 154, 106 Pac. 88 (contract of employ- ment for ten years) ; Rosen v. M. Phil- ipslorn Go. (1909) 135 App. Div. 499, 120 N. Y. Supp. 486 (contract of em- ployment for three years) ; Wagniere V. Bunnell (1909) 29 R. I. 580, 73 Atl. 309, 17 Ann. Cas. 205 (contract for a definite term longer than a year is within the statute of frauds) ; Pitcher V. Wilson (1837) 5 Mo. 46 (service for five years) ; Emery v. Smith (1865) 46 N. H. 151 (service for two years) ; Drummond v. Burrell (1835) 13 Wend. 307 (service for two years) ; Galvin v. Prentice (1871) 45 N. Y. 162, 6 Am. Rep. 58 (service for several years) ; Jones v. Hay (1868) 52 Barb. 501 (service for several years). In an action by a minor to recover for work and labor up to the time of his abandonment of a five years' term of service, it was held that the defend- ant could not avail himself of an oral contract with the plaintiff's mother, which secured to him the plaintiff's services, on certain terms, until he be- came of age. The contract, not being in writing, was not a valid contract of apprenticeship, and was void by the statute of frauds as not to be per- formed within a year. Tague v. Hay- ward (1865) 25 Ind. 427. 8 As, where a contract is entered into, by or on behalf of a minor of less than twenty years, that he will serve until he is of full age. Shute v. Dorr (1830) 5 Wend. 204 (child of sixteen) ; Van Valkenburg v. Croffut (1878) 15 Hun, 147 (child of eleven); Bristol v. Sutton (1897) 115 Mich. 365, 73 N. W. 424 (child of fifteen). An agreement to maintain a child aged five years, till she is able to do for herself, cannot be, in contemplation of anybody, performed within a year, and is therefore within the statute, though the child may die within the year. Far- ringto-n v. Donohoe (1866) Ir. Rep. 1 C. L. 675. Where a servant whose salary is in arrear leases land from his employer. § 135] FORMATION AND VALIDITY OP CONTRACT. 449 (2) Those which provide for a term which is less than a year in ■duration, but which will not expire until more than a year has elapsed after the hiring.^ (3) Those which provide for a year's service which is to begin on a future day.* xind a verbal agreement is at the same time made between them, that the rent •of the land is to be retained by the servant, and applied in payment of what is already owing to him and of whatever may hereafter become due on account of his wages, the agreement is not enforceable, if it appears that the amount of the rent so set apart is such that several years must elapse before the arrears of wages can be paid off. Tierney v. Marshall (1857) 7 Ir. C. L. Rep. 308, (1852) 3 Ir. Jur. N. S. 78 (arrears were flOO, while the rent was only £17). The possibility of the contract of service being determined within a year was held not to be ma- terial. In White v. Fitts (1906) 102 Me. 240, 15 L.R.A.(N.S.) 313, 120 Am. St. Rep. 483, 66 Atl. 533, an agreement to •cut timber for staves on 350 acres of land, as fast as the employer needed ■them for his mill, was held to be in- valid, the testimony of expert witnesses being to the effect that three or four years would be required for the com- pletion of the contract. 3 Shumate r. Farlow (1890) 125 Ind. 339, 25 N. E. 432 (contract made on November 10, 1887, for nine months' service to commence on March 1, 1888 ) ; Fanger v. Caspary ( 1903 ) 87 App. Div. 417, 84 N. Y. Supp. 410 (con- tract made December 30, 1900, to work from January 8, 1901, to the following January). iBracegirdle v. Heald (1818) 1 Barn. & AH. 722, 17 Eng. Rul. Cas. 177 (contract was made on the 27th of May for a year's service to commence on the 30th of June following) . Lord Ellen- borough, said: "If we were to hold that a case which extended one minute be- yond the time pointed out by the stat- ute did not fall within its prohibition, I do not see where we should stop ; for in point of reason an excess of twenty years will equally not be within the act. Such difficulties rather turn upon the policy than upon the construction •of the statute. If a party does not re- M. & S. Vol. I.— 29. duce his contract into writing, he runs the risk of its not being valid in law; for the legislature has declared in clear and intelligible terms that every agree- ment that is not to be performed with- in the space of one year from the mak- ing thereof shall be in writing." To the same general effect, see Le- roux V. Brown (1852) 12 C. B. 801; Dohson V. Collis (1856) 1 Hurlst. & N. 81; Britain v. Rossiter (1879) L. R. 11 Q. B. Div. 123, 48 L. J. Exch. Div. N. S. 362. 40 L. T. N. S. 240, 27 Week. Rep. 482; Dickson v. Jacques (1871) 31 U. 0. Q. B. 141; Harper v. Davies (1880) 45 U. C. Q. B. 442; Wier v. Letson (1878) 12 N. S. 299; Strong v. Bent (1898) 31 N. S. 1; Fordyce v. Westport Coal Go. (1884) New Zealand L. R. 3 S. C. 63; Scoggin v. Blackwell (1860) 36 Ala. 351; Horton v. WolVner (1882) 71 Ala. 452; Comes v. Lamson (1844) 16 Conn. 246; Clark v. Terry (1856) 25 Conn. 395; Kelly v. Terrell (1858) 26 Ga. 551; Saynes v. Mason (1888) 30 111. App. 85; Clark County v. Hoirell (1898) 21 Ind. App. 495, 52 N. E. 769 (employment to take effect after the expiration of another person's term of service) ; Kleeman v. Collins (1872) 9 Bush, 460 (services to commence at a certain city situated at such a dis- tance that it could only be reached by a journey of several davs) ; Smith v. Theobald (1887) 86 Ky.' 141, 5 S. W. 394; Gulf port Cotton Oil, Fertiliser & Mfg. Co. V. Eeneau (1909) 94 Miss. 904, 48 So. 292; Lally v. Crookston Lumber Go. (1902) 85 Minn. 257, 88 N. W. 846; Marks v. Davis (1897) 72 Mo. App. 557; Kansas City, W. & N. W. R. Go. V. Conlee (1894) 43 Neb. 121, 61 N. W. Ill; McElroy v. Ludlum (1880) 32 N. J. Eq. 828; Nones v. Ho- mer (1858) 2 Hilt. 116; Amburger v. Marvin (1855) 4 E. D. Smith, 393; Oribble v. Raymond Van Praag Supply Go. (1908) 124 App. Div. 829, 109 N. Y. Supp. 242; Duckett v. Pool (1890) 33 S. C. 238, 11 S. E. 689, Mendelsohn V. Banov (1899) 57 S. C. 147, 35 S. E. 499; Hillhouse v. Jennings (1900) 60 450 MASTER AND SERVA^TT. [chap. IV. In England it has at length been definitely settled that a con- tract for a year's service, to commence on the day next after that on which the contract is made, is not a contract which is not to be performed within a year, within the meaning of the statute.^ S. C. 373, 38 S. E. 599; Milan v. Rio Grande & E. P. R. Co. (1896) — Tex. Civ. App. — , 37 S. W. 165; San An- tonio Light Puh. Go. v. Moore (1907) 46 Tex. Civ. App. 259, 101 S. W. 867; /.■ee V. mil (1891) 87 Va. 497, 24 Am. St. Rep. 666, 12 S. E. 1052; Cohen v. Stein (1884) 61 Wis. 508, 21 N. W. 514; Draheim v. Evison (1901) 112 Wis. 27, 87 N. W. 795. It has been decided, somewhat super- fluously, that the statute is not appli- cable to an agreement to render a year's service, to commence at its date (Aiken v. Nogle [1891] 47 Kan. 96, 27 Pac. 825) ; nor to an agreement en- tered into about the middle of a cer- tain month, to serve as superintendent for a company for one year from the first day of said month [Franklin Su- gar Go. V. Taylor [1887] 37 Kan. 435, 15 Pac. 586). 5 Smith V. Gold Coast & A. Explor- ers [1903] 1 K. B. 285, aifirmed by the court of appeal at p. 538. The grounds of the decision in the lower court were thus expalined: "In one sense the con- tract may be said to be one which is not to be performed within the space of one year from the date when it was made. It depends upon whether the period of service is to exclude or in- clude the day next after that on which the contract was entered into. It is contended for the defendants that a year's service 'from' December 7, 1901, would commence on December 8; that is to say, that the year would exclude December 7, 1901, and would include December 7, 1902. If that is the contract, then it is clear, on the authority of Brittain v. Rossi- ter (1879) L. R. 11 Q. B. Div. 123, that the contract is within the statute, for It was there decided that where the service is to commence on the sec- ond day after that on which the con- tract is made, the contract is one which is not to be performed within a year. But if the contract in this case was for a year's service commencing on December 7, 1901, — that is, on the day next after that on which the contract was made, — and terminating on De- cember 6, 1902, there is authority for holding that such a contract is not within the statute. In Cawthorne v. Cordrey (1863) 13 C. B. N. S. 406, it had been ruled at the trial that ait agreement made on a Sunday for a year's service to commence on the Mon- day was not within the statute. In the course of the argument on a rule for a new trial, Willes, J., said: 'If a build- er undertakes to Ijuild a house within a year, that means a year from the next day;' and Byles, J., said: 'If you adopt the reasonable rule which excludes fractions of a day, taking the receipt to define the duration of the contract, there would be only three hundred and sixty-five days.' These dicta are an ex'pression of opinion in favor of the view that the statute does not apply where the service is to commence on the day next after the agreement." The- ruling of the trial judge, that the con- tract was not enforceable, was accord- ingly declared to have been erroneous. In the court of appeal it was not con- tended by counsel that, upon the view taken by the divisional court as to the facts, their decision was wrong in point of law, but merely that such evidence as had been adduced tended to show a contract for an employment to begin on the second day after the contract was made. The court declined to ac- cept this contention. This case destroys the authority of Dollar V. Parkington (1901) 84 L. T. N. S. 470 (agreement for the hire of horses), in which Darling, J., (sitting^ alone) refused to accept the doctrine favored by Willes, J. In Brittain v. Rossiter (1879) L. R- 11 Q. B. Div. 123, it was argued that to hold the statute to be applicable t» a contract made on a Saturady for services to begin on the following Mon- day would contravene the decision in Cav:thorne v. Gordrey (1863) 13 C. B. N. S. 406. This contention was thus; disposed of by Brett, L. J.: "It seems to me that that case contains two things, — one a decision, and the other a dictum. The decision is not against, our judgment; for it was that, al- § ]35] FOEJIATION AND VALIDITY OF CONTRACT. 451 In the United States there is a conflict of opinion as to this point.* The validity of a parol contract of service is tested with reference to the date when the agreement was entered into, and not the date when the services actually began.'' On the one hand, therefore, a contract for a year, which is made on the same day as the performance of the services is begun, is not though the parties spoke to each other on a Sunday, there was evidence upon Viihich the jury might find that the contract was made on the Monday, and that that contract was for service for a year from that Monday, and that the service was to be performed within a year from that time. That decision was in accordance with all the other cases. If the contract was made on the Monday, and if the service was to com- mence on the Monday, it is obvious that the service was to be performed within one year from the mailing of the con- tract There was, however, a dictum of Willes, J., which seems to be sup- ported by the opinion of Byles, J.; these are great authorities; and that dictum seems to have been that if a contract is made on a day, say Monday, for a service for a year to commence on the following day, say a Tuesday, the service is to be performed within 365 days from the making of the con- tract; but that, inasmuch as the law takes no notice of part of a day, and the contract was made in the middle of the Monday, the service to be performed within 365 days after that, the law did not count that half day of the Monday, and therefore the contract was to be performed within 365 days after it was made, and that was within a year. This view was founded upon a fiction; namely, that the law does not take notice of part of a day. I am not prepared to say that under like circumstances one might not follow that dictum, and carry it to the length of a, decision. It is not necessary to say so here, because the case has not arisen. This contract was made on the Saturday, and the service was not to begin until the Monday, that is, not the next day to Saturday, but the day save one after. The dictum does not apply. To say that the Sunday is not to be counted in the year's service would not do, because if one Sunday is not to be counted, no Sunday is to to be counted." 6 The New York doctrine, so far as it can be said to be settled by the de- cisions of inferior courts, is adverse to that which was propounded by Willes, J., in Cawthorne v. Gordrey (see last note). See Levison v. Stiie (1881; C. P.) 10 Daly, 229; Blanch v. Littcll (1880; C. P.) 9 Daly, 268; BilUngton V. Gahill (1889) 51 Hun, 132, 20 N. Y. S. E. 615, 4 N. Y. Supp. 660; Jonap V. Preger (1908) 59 Misc. 187, 110 N. Y. Supp. 483, second trial (1908) 113 N. Y. Supp. 519. In Nebraska also such a contract has been held to be nonenforceable. liiif V. Riile (1903) 68 Neb. 543, 94 N. W, 517, 4 Ann. Cas. 462. On the other hand the doctrine of Willes, J., has been accepted in Ala- bama. Dickson v. Frisiee (1875) 52 Ala. 165, 23 Am. Rep. 565. "! Snelling v. Hunting-field (1834) 1 Cromp. M. & R. 20, 4 Tyrw. 606. The mere fact that the agreement was for one year, and that the em- ployee did not go to work until the next day does not show that the agree- ment was within the statute of frauds, so as not to terminate in a year. Sheingold v. Baer (1911) 145 App. Div. 493, 129 N. Y. Supp. 924, rehearing denied in (1911) 145 App. Div. 943, 130 N. Y. Supp. 1131. Where it had been expressly stipu- lated, while the negotiations preceding the formation of a contract for a year's services were in progress, that the con- tract was not to talce effect until the arrival of the servant at the place where the services were to be rendered, and the servant had actually begun to discharge his duties before the contract was finally executed, the statute was held not to be applicable. Lajos v. Eden Musee Americain Co. (1894; C. P.) 10 Misc. 148, 62 N. Y. S. K. 494, 30 N. Y. Supp. 916. 452 MASTER AND SERVANT. [chap. iv. invalid.' On the other hand, a contract for services to be commenced on a future day is not taken out of the statute by the fact that it ex- tends only one year from the time when performance is to begin.® The word "performed" implies a performance which is full, effec- tive, and complete, not one which is merely inchoate or partial. Merely entering the employment, or tendering one's services, within a year from the making of a parol contract for a year's services to commence on a subsequent day, will not enable the contractee to main- tain an action on it.*" 136. Special circumstances which do not take the contract out of the statute. — The mere fact that the compensation is to be paid at specified intervals less than a year apart will not take out of the stat- ute a contract which provides, expressly or by implication, for a term of service extending over several years, or over one year commencing m futuro} It is also well settled that "a contract which, according to its terms, is prima facie not to be performed within a year, is not the less with- in the statute because it is made defeasible by a contingency which may occur within that period." ^ This rule has frequently been ap- plied in cases where there was an express provision in the contract that it might be terminated by notice.^ The obvious consequence of ^ Bell Bros. v. Aiken (1907) 1 Ga. strued, is one whicli may be performed App. 36, 57 S. E. 1001. within the year, and is therefore not ^ Embrey v. Eargadine-McKittriok within the statute. Moore -v. Fox, Dry Goods Co. (1905) 115 Mo. (1813) 10 Johns. 244, 6 Am. Dec. 338. App. 130, 91 S. W. 170; Chase v. z Hawkins, J., in Davey v. Shannon nimkley (1905) 126 Wis. 75, 2 L.R.A. (1879) L. R. 4 Exch. Div. 81. (N.S.) 738, 1]0 Am. St. Rep. 896, 105 A contract at so much per week for N. W. 230, 5 Ann. Cas. 328. three years, or for such a length of V> Bracegirdle v. Eeald (1818) 1 time as the servant exhibits the ability Barn. & Aid. 722, 17 Eng. Rul. Cas. 177, \vhich he claims to possess, is within followed in Hinckley v. Southgate. the statute. Wagniere v. Bunnell (1839) 11 Vt. 428. (1909) 29 R. I. 580, 73 Atl. 309, 17 IGiraud v. Richmond (1846) 2 C. Ann. Cas. 205. B. 831, 15 L. J. C. P. N. S. 180, 10 S Dobson v. Collis (1856) 4 Hurlst. Jur. 360 (quarterly payments); Tuttle & N. 81, 25 L. J. Exch. N. S. 267; V. Swett (1850) 31 Me. 555 (provision Booth v. Prittie (1881) 6 Ont. App. for a daily payment of wages); Kan- Rep. 680; Biest v. Ver Steeg Shoe Co. s(M City, W. & N. W. R. Co. v. Conlee (1902) 97 Mo. App. 137, 70 S. W (1894) 43 Neb. 121, 61 N. W. Ill 1081; Meyer ^. Roberts (1855) 46 Ark. (stipulation that the year's services 80, 55 Am. Rep. 567. were to be paid for "at the rate of $150 In tlie last-cited case, doubts, which a month"). _ _ appear to be well founded, were ex- But where a contract is silent as to pressed as to the correctness of a rul- the periods at which a salary is to be ing by the supreme court of New York paid, and merely promises a certain to the eflfect that a verbal agreement yearly amount, the fact that it has entered into in October, 1876, to teach been paid half yearly for several years a school for the year ending October is evidence from which the jury may 1, 1877, also for a further term of one presume that the promise is to pay year at the same salary, if no notice half yearly. The promise, as thus con- to the contrary be given at least two § 136] FORMATION AND VALIDITY OF CONTKACT. 453 adopting a different doctrine would be that "contracts for any num- ber of years might be made by parol, provided they contained a de- feasance which might come into operation before the end of the first year. It is also clear that the operation of the statute is not excluded merely because the performance of the contract may possibly be pre- vented by the death of one of the parties.* Otherwise all purely per- weeks prior to that date, was not to be terminate it within a year {Bill v. within the statute of frauds, as it Hooper [1854] 1 Gray, 131) — a ruling might be fully performed within one which in Doyle v. Dixon (1867) 9f year. Smith v. Oonlin (1879) 19 Hun, Mass. 208, 93 Am. Dec. 80, was dis- 234. In that case Learned, P. J., dis- tinguished from Peters v. Westborough sented, saying that he was unable to (1837) 19 Pick. 364, 31 Am. Dec. 142 "see how the privilege of annuling the (agreement to support a child for agreement by a notice two weeks be- several years, held not to be within fore performance was to commence the statute, inasmuch as the death of makes the agreement one which can be the child would leave it completely performed within one year from mak- performed), and from Lyon v. Kitiff ing it." (1846) 11 Met. 411, 45 Am. Deo. 219, An agreement by which a laborer and Worthy v. Jones (1850) 11 Gray, agrees that he will not leave the serv- 168, 71 Am. Dec. 696 (statute held not ice of his employer for two years, nor to be applicable to agreements not to in the summer, nor without two weeks' carry on a business at a particular notice, is within the statute. In con- place, because, being only personal en- struing the second and third of these gagements to forbear doing certain acts, stipulations, the first cannot be dis- not stipulating for anything beyond regarded. Bernier v. Caiot Mfg. Co. the promisor's life, and imposing no (1880) 71 Me. 506, 36 Am. Rep. 343. duties on his legal representatives. In Hanau v. Ehrlich [19111 2 K. B. they would be fully performed if he 1056, 105 L. T. N. S. 320, affirmed in died within the year). The distinc- [1912] A. C. 39, 106 L. T. N. S. 1, tion thus taken, however, has not met Ann. Cas. 1912 B. 730, it was held that with acceptance outside of Massaehu- an agreement to employ a servant for a setts. See the note of the American term of two years, subject to six Editors to Peter v. Compton, 1 Smith, months' notice on either side during Lead. Cas. 599. that period to terminate the employ- In Murphy v. 0' Sullivan (1866) 18 ment, is an agreement that is not to Ir. Jur. N. S. Ill, it was expressly held be performed within the space of one that an oral agreement for the support year. of a person for a term of years was In Reeve v. Jennings [1910] 2 K. B. nonenforceable, and this ruling, whicli 522, 102 L. T. N. S. 831, 26 Times L. is directly opposed to Peters v. West- R. 576, 79 L. J. K. B. N. S. 1137, 54 borough, supra, was approved by the Sol. Jo. 653, it was held that a verbal English court of appeal in McGregor contract whereby the defendant entered v. McGregor (1888) L. R. 21 Q. B. the employment of the plaintiff, and Div. 424. This Irish case, strange to which provided that the contract might say, is cited together with Peters v. be terminated by either party giving Westborough, supra, as one of the au- to the other one week's notice, and thorities sustaining the rule applied that the defendant should not, within in Carnig v. Carr (1897) 167 Mass. thirty-six months after leaving the 544, 35 L.R.A. 512, 57 Am. St. Rep. plaintiff's service, carry on a similar 488, 46 N. E. 117, that "if an agreement business within a specified area, was whose performance would otherwise ex- within the statute. tend beyond a year may be completely * Alderson, B., in Dobson v. Collis performed within a year on the hap- (1856) 4 Hurlst. & N. 81, 2r, L. J. pening of some 'contingency, it is not Exch. N. S. 267. within the statute." See S 137, note 8 An oral contract of apprenticeship 9, post. for five years is invalid, although, the Compare also Roberts v. Tucker death of the apprentice may possibly (1849) 3 Exch. 632 (nonsuit was held 454 MASTER AND SERVANT. [CHAP. IV. sonal contracts for any term of years, however long, would be en- forceable without any writing.® The mere fact that it is within the range of possibility that the stipulated services may be completely performed within a year will manifestly not exclude the operation of the statute, where the terms of the contract show that it was the express understanding of the parties that the performance was to extend over more than a year.' 137. Statute not applicable to contracts whicli may be completely performed within a year. — The statute extends only to those contracts which are "specifically agreed not to be performed within the year." ^ to have been properly granted in an action by a curate against the incum- bent of a parish, to recover upon an al- leged promise made by the defendant to the plaintiff to take all necessary meas- ures for obtaining the payment of an annual grant from a certain society) ; Sweet V. Lee (1841) 3 Mann. & G. 452 (contract for an annuity for life held to be within statute ) . In Eley v. Positive Government Secur. Life Assiir. Co. (1875) L. E. 1 Exch. Div. 21, the articles of association of a company contained a clause to the effect that the plaintiff should be the solicitor of the company and tran- sact all its legal business. Held, that the parties contemplated that the con- tract should continue binding, at least as against the company, during the whole professional life of the plain- tiff, or as long as the company subsisted, and that the 'operation of the stat- ute was not excluded by the fact that the contract might be determined with- in the year by the death or retirement or misconduct, or at the will, of the plaintiff. A parol agreement by a servant that, it he left his master's service, he would not enter the employment of any other person carrying on the same business within a certain radius, was held to be within the statute. Davey v. Shannon (1879) L. R. 4 Exch. Div. 81. There is some difficulty in ascertain- ing the precise ground upon which the two cases last mentioned are to be dis- tinguished from those collected in § 137 note 9 post. It should be observed, however, that the former case was relied upon in the latter, and that the authority of the Jatter has been much shaken, if not destroyed, by the condemnatory remarks which in Mc- Gregor V. McGregor (1888) L. R. 21 Q. B. Div. 424, were made by the Lords Justices with regard to the theory of Hawkins, J., that an agreement is within the statute, although perform- ance may take place within the year, if at the time when the agreement was entered into the parties contemplated that it could or might have been per- formed beyond the year. Under these circumstances, it is doubtful whether either decision is to be regarded as au- thoritative. For other cases in which the fact that a contract might be terminated by the death of one of the parties was held not to take it out of the statute, see White v. Fitts (1906) 102 Me. 240, 15 L.R.A.(N.S.) 313, 120 Am. St. Rep. 483, 66 Atl. 533; Chase v. Einkley (1905) 126 Wis. 75, 2 L.R.A.(N.S.) 738, 110 Am. St. Rep. 896, 105 N. W. 230, 5 Ann. Cas. 328 citing Browne, Stat. Fr. 5th ed. §§ 282, 282-6. e Doyle V. Di^on (1867) 97 Mass. 208, 93 Am. Dec. 80. TSerrim v. Butters (1841) 20 Me. 119. ^Fenton v. Emblers (1762) 3 Burr 1278, per Denison, J. The language used by Wilmot, J., in the same case was: "The statute only extends to such promises, when by the express ap- pointment of the party the thing is not to be performed within a year." "In order to bring a contract within the statute, it ought to be expressly stipulated not to be performed within a year." Wells v. Horton (1826) 4 Bing. 40, per Park, J. Referring to the decision in Peter v. Compton (1694) Skinner, 353, 1 Smith, Lead. Cas. 9th Am. ed. p. 586, the same judge re- marked : "Here is the express dis- tinction, that the postponement be- § 137] FORMATION AXD VAT.IDITV OF CONTRACT. 455 It is not applicable where the executory promise is one which, ac- cording to "the intention of the parties, founded on a reasonable ex- pectation," was to be performed within a year ; ^ or which "may or yond the year ought to appear on the be performed, nor yet one which is face of the contract, in order to bring simply not expected to be performed, it within the statute." within the space of a year from the The meaning of the provision "is making; but that it means to include confined to contracts which by agree- any agreement which, by a fair and rea- ment are not to be carried into execu- sonable interpretation of the terms used tion within a year, and does not ex- by the parties, and in view of all the tend to such aa may by circumstances circumstances existing at the time, be postponed beyond that period; other- does not admit of performance, accord- wise there is no contract which might ing to its language and intention, with- not fall within the statute." Wells v. in a year from the time of its making." Borton (1826) 4 Bing. 40, per Best, In Peters v. Westhorough (1837) 19 Ch. J. Pick. 364, 31 Am. Dec. 142, the court. The provision does not extend to cases after citing the earlier decisions, said : in which the performance may, by pos- "From these authorities it appears to sibility or accident, be extended beyond be settled that, in order to bring a that period; it ia to be "confined to parol agreement within the clause of cases where the agreement is not to be the statute in question, it must either performed and cannot be carried into have been expressly stipulated by the execution within that space of time." parties, or it must appear to have been Ridley v. Ridley (1865) 34 Beav. 478. so understood by them, that the agree- The statute includes merely those ment was not to be performed within a contracts which "within their terms, year. And this stipulation or under- and consistently with the rights of the standing is to be absolute and certain, parties, cannot be performed within a and not to depend on any contingency, year." Kent v. Kent (1875) 62 N. Y. And this we think is the clear meaning 560, 20 Am. Rep. 502. of the statute." "Where the agreement is to be per- A sales agency contract to be per- formed upon a contingent, and it does formed within one year was not within not appear within the agreement that the statute. De Laval Separator Co. it is to be performed after the year, v. Sharpless (1909) 142 Iowa, 60, 120 there a note in writing is not neces- N. W. 657. See also Singer v. Meyer sary, for the contingent might happen (1909) 117 N. Y. Supp. 134. within the year; but where it appears The correctness of the construction by the whole tenor of the agreement thus put upon the statute has been that it is to be performed after the doubted, some judges being of the opin- year, there a note is necessary; other- ion that, as "the policy of the act is wise not." Peter v. Compton (1694) to prevent perjury with respect to Skinner, 353, Smith, Lead. Cas. 9th contracts entered into at a distant in- Am. ed. p. 586. terval of time, ... it ought to "The expression 'is not to be per- appear on the face of the contract that •formed' points to such affirmative terms it will be performed within the year, in the contract as exclude performance because there is no contract which within the year." Bishop, Contr. may not by accident be delayed beyond § 1273. the year." See Wells v. Horton (1826) An oral agreement to live in another's • 4 Bing. 40, 12 J. B. Moore, 177. family and work for him till he and In McGregor v. McGregor (1888) L. his wife died admits of full perform- R. 21 Q. B. Div. 424, it is noticeable ance within a year. Heery v. Reed that the lords justices all used language (1909) 80 Kan. 380, 102 Pac. 846. which ahowa that in following the pre- In Browne on Statute of Frauds, 5th vailing doctrine they did so rather out ed. § 273, the general result of the of deference to precedent than from authorities' is thus stated : "The stat- any conviction that it was sound. ute does not mean to include an agree- 2 Donellan v. Read ( 1832 ) 3 Barn, ment which is simply not likely to & Ad. 899, per Littledale, J. 456 MASTER AND SERVANT. [CHAP. IV. may not be performed within one year ;" ^ or which "merely may not be performed within one year ;" * or which is "capable of entire per- formance within one year;" ^ or which "may, by its terms, be fully performed within the year, although in some contingencies it may extend beyond a year ;" ^ or which "may be completely performed within a year on the happening of some contingency ;" '' or which "can by any possibility be fulfilled or completed in the space of a year, although the parties may have intended its operations should extend through a much longer period." ' An oral contract therefore, is enforceable, if the termination of the employment is dependent,, either specifically or by implication, on some occurrence which may happen before the expiration of a year; — such as the death of one of the parties to the contract,® or of a third person with respect to a Kent v. Kent (1875) 62 N. Y. 560, 20 Am. Rep. 502. See also Russell v. Slade (1838) 12 Conn. 455; Ellicott %-. Turner (1853) 4 Md. 477. A contract of hiring for a year at a stipulated salary is not invalid, simply because the dates at which the service is to begin and end are left blank be- cause of the uncertainty as to whether the servant will be able to begin the service upon the date of the contract; and the fact that he does not begin such service until a later day does not bring the contract within the statute. Baltimore Breweries Co. v. Callahan (1895) 82 Md. 106, 33 Atl. 460. A contract of employment for "thirty- five or forty weeks, perhaps a year," is not within the statute. Haines v. Thompson (1893; C. P.) 2 Misc. 385, 51 N. Y. S. R. 221, 21 N. Y. Supp. 991, affirming (1892) 46 N. Y. S. R. 285, 19 N. Y. Supp. 184. i Walker v. Johnson (1877) 96 U. S. 424, 24 L. ed. 834. iBlaheney v. Ooode (1876) 30 Ohio St. 362, adopting the language of 3 Parsons, Contr. p. 35. The same phrase is used in Brigham v. Carlisle (1884) 78 Ala. 246, 56 Am. Rep. 28. 6 Roberts v. Rocklottom Co. (1843) 7 Met. 46. 1 Camig v. Carr (1897) 167 Mass. 544, 35 L.R.A. 512, 57 Am. St. Rep. 488, 46 N. E. 117. The similar lan- guage used in Peters v. Westborouffh (1837) 19 Pick. 364, 31 Am. Dec. 142, is that "an agreement by parol is not within the statute, when by the happen- ing of any contingency it might be per- formed within a year." 8 Cole V. Singerly (1883) 60 Md. 348: Baltimore Breweries Co. v. Callahan (1895) 82 Md. 106, 33 Atl. 460: Hnrner V. Frazier (1885) 65 Md. 1, 4 Atl. 133. "If the agreement may, consistently with its terms, be entirely performed within the year, although it may not be probable or expected that it will be performed within that time, it is not within the condemnation of the stat- ute." Kent V. Kent (1875) 62 N. Y. 560, 20 Am. Rep. 503. The applicability of the statute in this point of view is a matter which "does not seem to depend entirely upon the understanding or intention of the par- ties. They may contemplate as probable a much longer continuance of the con- tract, or a, suspension of it and revival after a longer period; it may in itself be liable to such continuance and revival; and it may in this way be protracted so far that it is not in fact performed with- in a year; but if when made it was in reality capable of a full and bone fide performance within the year, without the intervention of extraordinary cir- cumstances, then it is to be considered as not within the statute." 3 Parsons, Contr. 9th ed. *35, — statement adopted in Blakeney v. Goode (1876) 30 Ohio St. 362. 9 The statute is not applicable to agreements of the following tenor: To bequeath or devise property in consideration of services to be per- formed. Fenton v. Emhlers (1762) 3 Burr. 1278; Frost v. Tarr (1876) 53 Ind. 390; Kent v. Kent (1875) 62 N. Y. 560, 20 Am. Rep. 503; Sword v. Keith (1875) 31 Mich. 247; Jilson § 137] FORMATION AND VALIDITY OF CONTRACT. 457 whom the stipulated services are to be performed ; ^^ or the time when an injured servant shall recover his normal physical condition; ^^ or the time when a season which in the given employment is of un- certain and varying length may come to an end ; ^* or the time when the employer or the employee may decide to discontinue their re- V. Oilbert (1870) 26 Wis. 637, 7 Am. Rep. 100. To perform services to be paid for after the death of the employer. Rid- dle V. Backus (1874) 38 Iowa, 81; Updike V. Ten Broeck (1866) 32 N. J. L. 105. To serve during the natural term of the servant's life. Kent v. Kent (1875) 62 N. Y. 560, 20 Am. Rep. 502 (approving Dresser v. Dresser (1862) 35 Barb. 573) ; Boggs v. Pacific Steam Laundry Co. (1901) 86 Mo. App. 616. To give an injured employee "steady and permanent employment." Penn- sylvania Go. V. Dolan (1892) 6 Ind. App. 109, 51 Am. St. Rep. 289, 32 N. E. 802. To give a servant "steady" employ- ment. Kiene v. Shaeffing (1891) 33 Neb. 21, 49 N. W. 773; Bohbs v. Brush FAectric Light Go. (1889) 75 Mich. 550, 42 N. W. 965 (contract valid for one year at least). Or "permanent" employment. Gar- nig V. Garr (1897) 167 Mass. 544, 35 L.R.A. 512, 57 Am. St. Rep. 488, 46 N. E. 117. To retain an injured servant in the employment of the master until he gets well, and to pay him so much per day, whether he is able to work or not. East Tennessee, Y. & G. R. Go. v. Staub (1881) 7 Lea, 397. To pay a weekly sum to the obligor's wife for the support of his and her children. McGregor v. McGregor (1888) L. R. 21 Q. B. Div. 424. To support a pauper child for a term of years, in return for her ser- vices. Peters v. Westhorough (1837) 19 Pick. 364, 31 Am. Dec. 142. The express mention of the term of years in this case seems to place it in con- flict with Murphy v. O'Sullivan, and other cases cited in § 136, note 5, ante. The Massachusetts court based its con- clusion simply on the ground that if the child "had continued in the plain- tiff's service, and he had supported her, and she had died within a year after the making of the agreement, it would have been fully performed." To support and maintain a given person during his lifetime, in con- sideration of certain services to be performed by him. Eiseman v. Schnei- der (1897) 60 N. J. L. 291, 37 Atl. 623. Compare Dresser v. Dresser (1862) 35 Barb. 573 (agreement to board a person for the term of his natural life). To take care of the aged father of the employer, Smalley v. Mitchell (1896) 110 Mich. 650, 68 N. W. 978. To leave a woman a support after the death of the promisor, in consider- ation of services to be rendered during the remainder of her life. Thomas v. Armstrong (1889) 86 Va. 323, 5 L.R.A. 529, 10 S. E. 6. To work for a person up to the time of the latter's death. Bell v. Hewitt (1865) 24 Ind. 280. To assist another in the sale of a certain article. Hill v. Jamieson (1861) 16 Ind. 125, 79 Am. Dec. 414. 10 Farrington v. Donohoe (1866) Ir. Rep. 1 C. L. 675 (agreement by which the father of an illegitimate child about five years old agreed with her mother to support the child until she was able to do for herself). llEast Tennessee, V. & G. R. Go. v. Staub (1881) 7 Lea, 397 (contract to continue during such time as the ser- vant may remain disabled as a result of certain injuries received by him). 12 Where a contract for the hire of a master for a tug on Lake Michigan was made November 14th for the en- suing season, the season for the cur- rent year having closed by the freez- ing of the lake the previous day, and counsel agreed that the term "season of navigation" defines a period com- mencing April 1st and ending December 5th, the contract was held not to be within the statute. De Land v. Hall (1903) 134 Mich. 381, 96 N. W. 449. See also Haines v. Thompson (1892; N. Y. City Ct.) 46 N. Y. S. R. 285, 19 N. Y. Supp. 184 (actress told that theatrical season might last for a year from a future date). 458 MASTER AND SERVANT. [chap. IV. lation, ■whether the right to do so be derived from the general law,^' or from some express stipulation in the contract ; ^* or the time when IS An oral agreement to pay a boy thirteen years old a specified sum per month for his services, so that when he is of age he will have money enough to start business for himself, without any agreement as to the length of time the services shall continue, is not with- in the statute. Jagau v. Goetz (1895; N. Y. C. P.) 11 Misc. 380, 65 N. Y. S. R. 292, 32 N. Y. Supp. 144. In Knowlman v. Bluett (1873) h. R. 9 Exch. 1, affirmed by the Court of Appeal at p. 307, where the contract was for the payment of an "annuity" by the defendant to the mother of his seven illegitimate children for their education and support, but no time was specified during which the under- taking was to continue in force, it was held that the contract, being sub- ject to termination at any time, was not within the statute, and that this conclusion was not affected by the facts that the compensation was described as an annuity, and that the parties expected the payments to continue for more than a year. It should be ob- served, however, that in McGregor v. McOrggor (1888) L. R. 21 Q. B. Div. 424, Bowen, L. J., said that he felt some difficulty in understanding the precise effect of this decision. In Wilhelm v. Hardman (1858) 13 Md. 140, it was laid down that an agreement by an infant to work seven years for his board was not within the statute. As the contract here dis- tinctly contemplated a service of sev- eral years, the case seems rather to belong to the class mentioned in § 136, notes 4, 5, ante, and, if so, the decision clearly cannot be sustained on the mere ground that the infant was entitled to repudiate the contract at any moment. The case is regarded as a doubtful one by Mr. Browne. (Stat. Ft. § 276). 14 The following contracts have been held enforceable. One giving either party the option of terminating the relation within the year. Blake v. Toigt (1892) 134 N. Y. 69, 45 N. Y. S. R. 606, 30 Am. St. Rep. 622, 31 N. E. 2.56. The ruling in the lower court, that an unsigned con- tract to "take effect" at a certain time after Its date, and to run for one year, is to be performed within a year from "the making thereof," and therefore valid, was disapproved. See (1890) 34 N. Y. S. R. 295, 11 N. Y. Supp. 716. One by which a child is to be main- tained, at the obligee's request for so long as the obligee shall think proper. Souch V. Strawbridge (1846) 2 C. B. 808. One by which the defendant agreed to employ plaintiff as long as his services were satisfactory. Sax v. Detroit, G. 3. & M. R. Co. (1900) 125 Mich. 252, 84 Am. St. Rep. 572, 84 N. W. 314. One which is "to continue as long as the parties are mutually satisfied." Greene v. Harris (1870) 9 R. I. 401 (not a case of service). One by which the employee agrees to keep books for one year at a specified salary per month, and to work for one month to see if both parties will be satisfied. A. B. Smith Co. v. Jones (1897) 75 Miss. 325, 22 So. 802. One for a term of service which to commence in the following month, and to continue at least eight months, and longer if "mutually desirable" at the end of that time. Brigham v. Carlisle (1884) 78 Ala. 246, 56 Am. Rep. 28. One by which a person is to be em- ployed as long as he shall properly do the work assigned to him. Harring- ton V. Kansas City Cable B. Co. (1894) 60 Mo. App. 223. One which is to remain in force as long as the employee shall perform faithful and honest work. Louisville & N. R. Co. V. Offutt (1896) 99 Ky. 427, 59 Am. St. Rep. 467, 36 S. W. 181. One covering eight months, which may be extended at the end of that time "by mutual agreement." Brigham v. Carlisle (1884) 78 Ala. 243, 56 Am. Rep. 28. One which gives a person an option to be employed as engineer so long as he desires to be employed. East Line & R. River R. Go. v. Scott (1888) 72 Tex. 70, 13 Am. St. Rep. 758, 10 S. W. 99. One by which a person is employed at specified wages so long as the works of the employer are kept running, or until the employee shall see fit to § 137] FORMATION AND VALIDITY OF CONTEACT. 459 the transactions to which the services are to be incidental will take place ; " or the time when the employer will be able to pay his out- standing obligations, and put his business on a remunerative basis ; " or the time when a third person shall cease to hold certain contractual relations to the employer ; " or the time when the employee can in- duce a third person to do something for the benefit of the employer ; " or the time when something shall be done with regard to the prop- erty which is the subject-matter of the services ; ^^ or the time when a certain piece of work the magnitude of which cannot be precisely foreseen will be concluded.^" quit. Garter White Lead Co. v. Kin- Un (1896) 47 Neb. 409, 66 N. W. 536. In Retzer v. Jacob Dold Packing Co. (1894) 58 Mo. App. 264, the court de- clined to express an opinion as to the question whether a provision in a com- promise agreement, that a master should employ an injured servant for such length of time as the latter should desire, was within the statute; but the more recent ruling by the same court, in Harrington v. Kansas City Cable R. Co. (1894) 60 Mo. App. 223, would appear to bring the views of that court into conformity with those adopted in the cases already cited in this note. A contract of employment consum- mated by the employee's assent to the remark of the employer that he wanted his services, and would pay him a specified amount a year, and would do better for him the following year so far as salary was concerned, if possible, is not within the statute. Woodall v. Davis-Creswell Mfg. Co. (1897) 9 Colo. App. 198, 48 Pac. 670 (second year was "left open to future consider- ation"). "A contract to serve another for two years would be within the statute; but a contract to serve for an indefinite period, subject to be put an end to at any time, upon a reasonable notice, is not within the statute, though it may extend beyond the year." Souch V. Strawbridge (1846) 2 C. B. 808, per Tindal, Ch. J. {^arguendo). iSMoPherson v. Cox (1877) 96 U. S. 404, 24 L. ed. 746 (contract to pay for services in prospective lawsuits, there being nothing to show at what time it was intended that these suits should be brought). IBDupignac v. Bernstrom (1902) 76 App. Div. 105, 78 N. Y. Supp. 705, af- firming (1902) 37 Misc. 677, 76 N. Y. Supp. 381 (person given charge of aif airs of a company which was in difficulties ) . 17 A subcontract to employ a person as salesman so long as the employers' contract with third persons might re- main in force, that contract being ter- minable at any time, is not within the statute. Olenn v. Rudd (1902) 3 Ont. L. Eep. 422 (decision by a single judge). An agreement to labor for a company "for the term of five years, or so long as A shall continue to be agent of the company," was held not to be within the statute, in Roberts v. Rockbottovi Co. (1843) 7 Met. 46. The legal eflfect of the agreement was said to be that A shall serve B so long as shall con- tinue to be the agent of B, not ex- ceeding five years. But the decision seems to be a rather strong one. 18 An agreement by which A under- takes to give or procure for B a situ- ation as clerk at $1,000 a year, in con- sideration for which B is, for a certain stipulated sum, to give A a deed of his interest in certain lands, and to "use his influence with the other heirs" to procure deeds to the defendant, is not within the statute. Bennett v. Peck (1874) 15 N. B. 316. A contract to pay for personal ser- vices in selling land when the land shall be sold is not within the statute. Bart- lett V. Mystic River Corp. (1890) 151 Mass. 433, 24 N. E. 780. i9Lavalette v. Riches (1908) 24 Times L. E. (C. A.) 336 (agreement ap- pointing a person agent until a cer- tain patent right should be sold.) 20 A contract employing a physician to remain with a lumber company at a certain place until it "cut out" cer- tain timber, and reciting that the com- 460 MASTER AND SERVANT. [chap. iv. A contract which would otherwise be outside the opersrtion of the statute is not brought within its purvieAv by the mere fact that the employee has actually continued in the service more than a year.^* 138. Rule as to contracts of hiring for an indefinite period. — The question whether, under the English rule by which a hiring, with- out mention of any specific term, is presumed to be for a year, a con- tract for such a hiring to commence at a future date is within the statute, does not seem to have been discussed by any court in England itself. That the general words "not to be performed within the space of one year," are susceptible of the construction that the legislature intended such a hiring to be invalid, cannot well be disputed; and, as there is nothing in the statute to show that its operation is re- stricted to contracts by which the length of the term is specified that construction may reasonably be regarded as the correct one. This is the doctrine adopted in New Zealand and Nova Scotia.* Whatever may be the correct doctrine upon this point, it is well settled that, where there is a general hiring in the first instance, and the employ- ment is continued from year to year by the mutual consent of the- parties, the contract under which the employment is so continued is not within the statute, the reason assigned being, that the contract is in this instance merely implied from the circumstances.^ Any American court which repudiates the English rule as to the- presumed duration of a general hiring will obviously regard such a hiring as being outside the purview of the statute. Being terminable- at the will of either party, it must necessarily belong to the class of contracts which may be performed within the year.* pany -would be there only about two Exch. Div. 81, to the effect that this years, was held to be expressive of a case is an authority for the doctrine contingency which might happen within that a general hiring terminable iy one year. Texarkana Lumber Co. v. 7wUce is not within the statute, ap- Lennard (1907) 47 Tex. Civ. App. 116, pears to be due to a misconception as 104 S. W. 506. See, however, White v. to its real effect. Filts (1906) 102 Me. 240, 15 L.R.A. 9 See Jagau v. Goetz (1895- C P ) 11 (N. S.) 313, 120 Am. St. Rep. 483, 66 Misc. 380, 65 N. Y. S. R. 292, 32 N. Y. Atl. 533 (§ 135, note 2, ante). Supp. 144 (cited in § 137, note 13,. SlJSTiene v. Shaeffing (1891) 33 Neb. sii-pra) ; Legrand v. Ma/nhnttan Mercan- 21, 49 N. W. 773 (servant had worked tile Asso. (1880) 80 N. Y. 638 (hiring for three and a half years under a for indefinite time at a certain salary per parol contract to give steady employ- annum) ; "Niagara F. Ins. Co. v. Greene ment. See note 9, supra. (1881) 77 Ind. 590 (contract to be- iFordyce v. Westport Coal Co. performed in a reasonable time) • (1884) New Zealand L. R. 3 S. C. 63; Mathews v. Wallace (1903) 104 Mo' Wier V. Letson, (1878) 12 N. S. 299. App. 96, 78 S. W. 296. ZBeeston v. Collyer (1827) 4 Ring. In Harper v. Harper (1877) 57 Ind. 309. 547, a demurrer to a paragraph of a The statement of Hawkins, J., in complaint which claimed the value of Davey v. Shannon (1879) L. R. 4 land conveyed under an oral agreement,. 5 139] FOEMATION AND VALIDITY OF CONTRACT. 4G1 139. When the term of service is deemed to begin. — In most in- stances the time when the period of service covered by a given con- tract of hiring for a year is to begin is provable by direct testimony which shows that a certain date had been agreed upon by the parties. If no such date has been specified, the presumption is that the stipu- lated work was to begin on the day when the contract was made.^ This presumption is subject to rebuttal by evidence which shows that it was the understanding of the parties that the term, of service was to begin at a future date.* ISTor, as a general rule, will it be inferred that the services are to begin on the day of the making of the con- in consideration of the grantor's being supported during his lifetime, and al- leged that such support had not been furnished, was overruled, on the ground that the period covered by the stipula- tion regarding the support was indefi- nite, and that the contract was conse- quently not within the statute of frauds. Compare also Fain v. Turner (1895) 96 Ky. 634, 29 S. W. 628 (which, how- ever, was not a case of service). lA. B. Smith Go. v. Jones (1897) 75 Miss. 325, 22 So. 802; Bearne v. Chad- ioiirne (1876) 65 Me. 302; Troup v. Aulsebrook (1891) 10 New Zealand L. E. 637. In Russell v. Slade (1838) 12 Conn. 455 (contract to work in a factory for a year at $1 a day, held not to be with- in the statute, as the servant had a right to go to work at once), it was declared that the "legal effect" of such an agreement is that the service is to begin immediately. But it would seem that the court did not mean to lay down a rule different from that em- bodied in the other cases cited in this section. In Embry v. Bargadine-McKittrick Dry Ooods Go. (1905) 115 Mo. App. 130, 91 S. W. 170, where a previous contract of employment terminated on the loth day of December, and on the 23d day of that month the employee, in conversation with . his employer, re- ferred to the previous contract and re- quested to be employed for "this year" it was held that his request should not be interpreted as a proposal for employment from the 23d to the close of the year. The unmistakable inference was that he wished to be hired for another year running either from the expiration of bis first contract, or from the date of the conversation, and that the contract was therefore not within the statute. An employee, on the day his previous engagement terminated, informed his employer that the contract expired that day and that he wished to know about the future. The employer replied that he was satisfied, and that the contract would be renewed "from to-day for an- other year." Held, that the contract was within the statute of frauds, for the new term did not begin on that day, as it did not rescind the old con- tract. Jonap V. Preger (1908) 59 Misc. 187, 110 N. Y. Sapp. 483. 2 In Bearne v. GhaMourne ( 1876 ) 65 Me. 302, where an oral contract was made on a Friday, that the plaintiff, who was then in the employment of the defendant, should work a year for him, at an increase of wages, and was silent as to the time when the year was to commence, it was held that the fact that the defendant credited the plaintiff with wages at the increased rate from the subsequent Monday only, and that partial settlements were made by the parties on that basis, was admissible in evidence, and sufficient to warrant the inference that the understanding was that the year was to commence on Mon- day, and not on Friday, and that the contract, therefore, being one not to be performed within a year from the mak- ing thereof, was within the statute. In regard to the admissibility of the evi- dence, the court distinguished Williams V. Jon^s (1826) 5 Barn. & C. 108. where the contract was in writing, and it was held, agreeably to the general rule, that parol evidence was not admissible to rebut the presumption that the con- tract was to take effect forthwith. A, on the 20th of July, made pro- posals in writing (unsigned) to B, to 462 MASTER AND SERVANT. [chap. IV. tract, where it is expressed in words Avhieh indicate that some appre- ciable period will elapse before the servant can enter upon his duties.* The mere fact that no work is to be done under a verbal contract until a future day will not render it nonenforceable, if it was the in- tention of the parties that the relation of master and servant should exist between them from and after the day when the contract was en- tered into.* The term of the contract is deemed to begin on the day when the offer of one of the parties was accepted by the other, — not on the day when the offer was made.^ 140. Substitution of a second contract made at such a time as to be enforceable, when inferred. — If an independent contract of the same tenor as that which was entered into before the day when the servant began to perform his duties was made on or after that day, the second contract is of course enforceable.' But where a verbal enter his service as bailiff for a year. B took the proposals and went away, and entered into the service on the 24th of July. Held, that thiS was a con- tract on the 20th, not to be performed within the space of one year from the making thereof. Snelling v. Hunting- field (1834) 1 Cromp. M. & R. 20, 4 Tyrw. 606. Plaintiff testified that defendant, through T., having offered him a posi- tion at $1,000 a year, he (probably on June 23d, the date after his school closed) went to T. ; that the offer was renewed, and he accepted it, and went to work July 5th ; that he never iiad any other conversation in reference to the employment till he was discharged; that he told defendant he was tired from his work in school, and would like a few days between the close of the term and the commencement of his work; that he was paid from July 1st; that this conversation was the latter part of June. Held, that the evidence did not show a contract to begin work immediately, which was changed by subsequent arrangement, but a contract which could not be performed within a year. Davis v. Michigan Mitt. L. his. Co. (1901) 127 Mich. 559, 86 N. W. 3021. 3 As, where the year's service is to begin as soon as the employee can get readv. Sutcliffe v. Atlantic Mills (1882) 13 E. 1 480, 43 Am. Rep. 39. The court distinguished Russell v. Slade (note 1, supra), on the ground that, in the earlier case, nothing had passed between the parties which in- dicated that they regarded the com- mencement of the services as an oc- currence which could not take place immediately, and relied on the analo- gous case, Snelling v. Huntingfleld (1834) 1 Cromp. M. & R. 20 (note 2, supra), where the plaintiff, although he might, so far as it appears from the report, have begun work at once, did not enter on his duties for four days. It would appear, however, that the con- clusion here drawn from the fact that some time for preparation would be required by the servant is not to be regarded as one which is necessarily applicable to all classes of cases, but that it is rather one which is merely for the consideration of a jury, its sig- nificance varying according to the na- ture of the work to be done, and any other elements which indicate the in- tention of the parties. * McAleer \. Coming (1884) 18 Jones & S. 63. There the complaint and let- ter of the plaintiff showed that he be- lieved that his contract was operative only from the day when his services actually began; but the court said that it might be proved by testimony what tiie real fact was, and that the plain- tiff had made a mistake in his asser- tion?. s MoUle, J. & K. G. R. Co. v. Hayden (1906) 116 Tenn. 672, 94 S. W. 940. iBillington v. Cahill (1889) 51 Hun, § 140] FORMATION AND VALIDITY OF CONTRACT. 463 agreement is entered into for the work and labor of one of the par- ties for a year to commence in futuro, the mere fact of the servant's having entered upon the employment, with the acquiescence of the employer, but without a new contract, does not take the case out of the statute.^ Nor will the formation of a new contract be inferred from evidence which goes no- further than to show that the terms of the contract were stated a second time by the parties on the day fixed for the commencement of the services.^ In order to enable an employee to maintain an action for compen- sation, on the theory that it was earned in the performance of a new contract which had been substituted for a non-enforceable verbal con- tract for a year's service, he must declare specifically upon the sec- ond contract.* No new agreement can be inferred from the fact that 132, 20 N. y. S. R. 615, 4 N. Y. Supp. 660; Fish v. Glass (1894) 54 111. App. 655. The plaintiff agreed on a Sunday to serve the defendant for a year, the serv- ice to commence on the Monday. On the Monday, the plaintiff, with the knowledge and consent of the defend- ant, commenced the service, and re- ceived £20 on account. Held, in an ac- tion for a wrongful dismissal within the year, in which an objection was taken that this was a contract for a year's service to commence on a future day, that the jury might infer a new implied contract on the Monday for a year's service from that day. Caw- thorn V. Cordrey (1863) 32 L. J. C. P. N. S. 152, 13 C. B. N. S. 406. Plaintiff was employed under a void oral contract made November 20, 1905, to serve defendant from January 1, 1906, to December 31st of that year. On January 10, 1906, defendant's presi- dent and manager, in answer to plain- tiff's inquiry as to how a rumored sale of defendant's plant would affect his contract, told him that there was noth- ing in the rumor, and requested him to go ahead and work under the contract as he had previously done. With this request plaintiff complied, and contin- ued to work under the agreement until June 9th, when he was discharged. Held, that such new' arrangement con- stituted a new enforceable contract, which was not within the statute of frauds. San Antonio Light Pub. Co. V. Moore (1907) 46 Tex. Civ. App. 259, 101 S. W. 867. iOddy V. James (1872) 48 K. Y. 685 (held that there was no evidence to justify finding that a new contract liad been made ) . In Turnoio v. Hochstadter (1876) 7 Hun, 80 (action for services rendered under a contract within the statute), the court charged that, by coming to the United States and commencing work, the plaintiff virtually said to the defend- ants, "If I work for you, it must bo for a year, at $2.50 per day," and that the defendants, by their silence, accept- ed the offer. Held, that this was error ; that the most that could be claimed was that it was a partial performance of the contract, which did not take it out of the statute or furnish satisfac- tory evidence of a renewal thereof. ^Odell V. Webendorfer (1900) 50 App. Div. 579, 64 N. Y. Supp. 451. In BilUngton v. Gahill (1889) 51 Hun, 132, 20 N. Y. S. E. 615, 4 N. Y. Supp. 660, the court had previously expressed a doubt as to whether a mere restate- ment of the contract would have been sufficient to take it out of the statute, but no express ruling was made upon the point. i Strong v. Bent (1898) 31 N. S. 1 (new trial ordered for the purpose of determining whether a new agreement had been entered into, after the firm of employers had been reorganized). In Dale v. McCiMoch (1883) 9 Vict. L. R. (L.) 136, the plaintiff declared on a contract of hiring for a year. He proved an oral hiring in Xovember as manager for a year, to commence in December. In the February following 464 MASTER AND SERVANT. [chap. iv. the master had threatened to discharge the servant, but had after- wards allowed him to remain.* 141. Continuance of service after the expiration of the stipulated period. — Where an employee originally hired for a year is allowed to go on working after the end of the term, he is deemed to be serving imder a new contract for another year, which results by operation of law from the continuance of the employment, and does not come into force until the beginning of the second year. An implied con- tract of this description, therefore, does not fall within the terms of the statute.^ But where an express verbal contract is made which purports to renew an existing engagement for another year, the pre- sumption of an implied contract is necessarily excluded ; and the sec- he received a letter from his employer charged her, but informed her that she containing these words, "D. appointed could stay until January 1st; that she manager, you remaining on as travel- continued to v\rork as before until De- er," and he remained accordingly. Held, cember 30, 1901, when one of the de- that this did not constitute a new con- fondants directed her to go to a given tract of hiring for a year, but a new place and obtain some goods; that the contract to continue for the residue of plaintiff said, "Mr. Mahler, I am leav- the year as traveler, insteal of mana- ing here the 1st of January," and that ger, and that there was a variance be- Mahler replied, "That is off. You can tween the contract declared on and go down town and get these goods, and that proved; but leave to amend was come back, and take a few days' vaca- given and a new trial granted. Held tion, and then come back the next also that, though the original contract week for the ensuing year." The plain- was void under the statute, the new tiff continued in the employ of the contract was not affected by it, even defendants until the 2d of January, though some of its terms might have when another member of the firm said to be ascertained by reference to the that he expected that she was going to original contract. leave, to which she replied that she i Berrien v. Southack (1889) 26 N. "was going to stay," and he said, "That Y. S. R. 932, 7 N. Y. Supp. 324. is all right, I am glad you are stay- ^Beeston v. Collyer (1827) 4 Bing. ing." On June 14, 1902, she was dis- 309; Smes v. Wayne County (1885) charged. After this testimony had been 58 Mich. 503, 25 N. W. 485; Bennett v. given without objection, the court Mahler (1904) 90 App. Div. 22, 85 granted the motion of defendant's coun- N. Y. Supp. 669. sel to strike out the testimony as to In the New York case last cited the the employment in December, 1901, complaint alleged that on or about the upon this ground among others, that it 1st of January, 1902, the parties en- tended to establisfh a contract void un- tered into an agreement whereby the der the statute of frauds, and that the plaintiff agreed to work for the defend- form of the complaint was such that ants during the calendar year 1902, the defendants were not called upon to upon the trial the plaintiff testified plead the statute of frauds as a defense, that she was first employed by the Held, that this ruling was erroneous; defendants in September, 1896; that that the contract as proved did not, upon the 1st day of January following however, fall within the statute of lier employment was continued upon frauds, for the reason that the only the same terms for the ensuing calen- contract which the plaintiff could en- dar year, and that she continued there- force was the contract created by oper- after to work from year to year under ation of law, resulting from the con- a renewal of the contract, until about tinuance of the employment under the the middle of December, 1901; that at yearly renewals; that such contract that time one of the defendants dis- was entered into on January Ist, and § 142] FORMATION AND VALIDITY OF CONTRACT. 465 ond contract is invalid, if entered into before the termination of the first.* 142. Memorandum required by the statute.— A writing is not deemed to be a "memorandum" of a contract within the meaning of the statute, unless the party whom it is sought to charge signed it with the intention that it should be a record of the contract ; ^ nor un- less it contains sufficient particulars to enable the court to make out from it a binding contract.* It must state the date of the commence- hence was not within the statute; that the conversation had on December 30, 1901, did not constitute a new contract, but simply served to indicate the de- fendants' desire that the relations theretofore existing between them and the plaintiff should not be interrupted. HHorton v. Wollner (1882) 71 Ala. 452. In Booker v. Eeffner (1904) 95 App. Div. 84, 88 N. Y. Supp. 499, the plain- tiff testified that her contract was for a year's service, beginning in the month of June, and on cross-examination she admitted that the conversation with her employer upon which she relied as evidence of a renewal of the contract took place in February of the following year. She then testified that all the defendant told her at the end of the year was "not to be uneasy," that she was "safe for a year." The court was of opinion that this remark was not sufficient to take the case out of the statute, as it did not import the formation of a new contract. 1 A subscription by the directors of the articles of association of a limited company, as required by the English companies act of 1862, one of those articles being to the effect, that A shall be the company's solicitor and not be removable except for misconduct, does not create a contract between the com- pany and the solicitor. Eley v. Posi- tive Government Secur. Life Assur. Co. (1875) L. R. 1 Exch. Div. 20. "The articles," said Amphlett, B., "merely regulated the internal affairs of the company, and the signature of the di- rectors was for the purpose of binding them to such regulations." "The signa- tures," said Kelly, C. B., "affixed to the articles were alio i/ntuity, and it can hardly be suggested that the directors had any idea that, in signing the arti- cles, they were signing a note of this contract." M. & S. Vol. I.— 30. As to the general rule that there is a sufficient compliance with the stat- ute if the agreement is signed by the party who makes the engagement which it is sought to enforce, see Browne, Stat. Fr. § 366. 2 See, generally. Pollock, Contr. *162 et seq.; Anson, Contr., pp. 77 et seq.; Chitty, Contr. 14th ed. pp. 80-84; Addison, Contr. 10th ed. pp. 34-40; Leake, Contr. 4th ed. pp. 174^188; 3 Parsons, Contr. *13 et seq. In Crane v. Powell (1868) L. R. 4 C. P. 123, 38 L. J. Mag. Cas. N. S. 43, 20 L. T. N. S. 703, 17 Week. Rep. 161, A being in want of workmen, applied to the Free Labor Registration Society, and filled up and signed a form sent by them to him, containing the particulars of the employment and terms offered by him, and his address at S. This form was read over to B by the secretary of the society, and B then signed an" agree- ment headed "Free Labor Society," by which he stated that he had accepted employment at S., and agreed that one half-day's wages, "being the fee to the society for obtaining him the employ- ment," should be deducted from his wages, and that he would not quit the service of his employer without just cause. Held, that the documents suffi- ciently referred to one another, and constituted a contract in writing signed by both parties. In Tuttle V. Swett (1850) 31 Me. 556, the court refused to hold that a contract was proved by the following words in three letters sent by the mas- ter to the servant: "June 12, 1847. I have concluded to hire you at your offer; shall depend on you, as you talked. October 10, 1847. I have talked with Jones about your coming; have concluded to keep on a year long- er, without you. January 31, 1848. I received yours. If anything is wrong and of damage to you, let it stand till 466 ilASTER AXD SERVANT. [CHAP. IV. ment of the service ; * the character of the work to be performed ; * and, under some statutes, the amount of the compensation to be paid.* It must also be signed by the party whom it is sought to charge.^ In England it has been settled by numerous decisions that the memo- randum is incomplete unless the consideration is expressly men- tioned.'' In some of the American states this rule has been adopted ; in others it has been repudiated ; * in at least one it has been formally embodied in the statute itself.® I come, and I will endeavor to do right." Where the contract is evidenced liy certain correspondence vv'hich is vague, and has to be "supplemented by conversations," or aided by oral tes- timony to supply defects or omissions, the writing is insufficient as a mem- orandum. Ballantine v. Yung Wing (1906) 14G Fed. 621. »Re Alexander's Timber Co. (1901) 70 L. J. Ch. N. S. 767. Where a letter offering the employ- ment contains nothing. which shows the date at which the hiring is to take effect, and its language is inconsistent with the construction that the hiring is to commence at once, a material part of the contract remains undefined, and the memorandum is not sufficient. Troup V. Aulseirook (1891) 10 Xew Zealand L. E. 637. 4 It is not necessary that the actual duties should be set out in detail, but the agreement should contain some- thing definite. For example, it should show whether the person employed is to give all his time or not. Re Alex- ander's Timler Co. (1901) 70 L. J. Ch. N. S. 767 (employment as managing director of a company). A written contract which purported to employ plaintiff "as a traveling salesman in the territory agreed upon [a list of these towns is hereto at- tached], "but which was never com- pleted by making out a list of the towns and attaching it to the contract, was held not to be a sufficient mem- orandum to take the agreement out of the statute of frauds, for the reason that the territory to be traveled by the plaintiff was not noted in writing. Biest v. TerSteeg Shoe Go. (1902) 97 Mo. App. 137, 70 S. W. 1081. 5 It is not sufficient that the contract should state that a salary is to remain the same as that received for the pre- vious year, as this renders it necessary to resort to verbal evidence in order to prove its amount. Horton v. M'ollner (1882) 71 Ala. 452. 6 In Bank of British N. A. v. Simp- son (1874) 24 U. C. C. P. 354, the defendant entered into a written agree- ment whereby, in consideration of a certain salary and allowances to be paid to him by the plaintiffs, he agreed to serve them in their business as bank- ers for three years, and, if he should leave within that period, to pay them $400 as liquidated damages. The agree- ment was signed by the defendant, but not by the bank. Held, that defendant was bound by it, and, having left without excuse, was liable for the .$400. ' See text-books referred to in note 2, ante. This doctrine was assigned as one of the grounds upon which a written agreement by which A was "to remain with a" a specified period for the pur- pose of learning a trade was held to be nonenforeeable. Lees v. Whitcomh (1828) 5 Bing. 34. It is sufficient "if the memorandum is so framed that any person of ordi- nary capacity must infer, from the perusal of it, that such, and no other, was the consideration upon which the undertaking was given." Tindal, Ch. .J., in Hawes v. Armstrong (1835) 1 Bing. N. C. 761. 8 See 3 Parsons, Contr. *15, *16. 9 See Baltimore Breweries Co. v. Callahan (1895) 82 Md. 106, 33 Atl. 460, where it was held that the con- sideration might be collected from the document in question, and that it was not necessary that the agreement should formally set forth that the servant agreed to render the stipulated service in consideration of the payment of the salarv. § 143] FORMATION AXD VALIDITY OF CONTRACT. 467 The requirements of the statute being peremptory, "it makes no difference whether the want of a writing was accidental or inten- tional, and, so long as the effect of a fraud or mistake extends no further than to prevent the execution, or withhold from the other party written evidence, of the agreement, it does not furnish ground for the court to disregard the statiite, and enter into the investigation of the oral agreement, for the purpose of enforcing it."' " A verbal agreement to adopt a memorandum previously signed as a final contract is, of course, valid in any case where the contract is not within the statute of frauds. ^^ 143. Complete or partial performance of the contract; effect of. — a. Complete performance on both sides. — The general rule applicable to all descriptions of oral contracts which are required by the statute of frauds to be in writing is that, after they have been completely performed on both sides, then invalidity cannot be alleged by either party. In the note is cited a case in which this rule was affirmed with regard to a contract not to be performed within a year.^ h. Partial or complete performance hy servant. — In England it has been unsuccessfully contended that the equitable doctrine of part performance is applicable to contracts of service, in such a sense as to enable a servant who has done some work under a contract within the statute to maintain an action for its breach.^ An eminent text ^0 Caylor v. Roe (1884) 99 Ind. 1. high court of justice, under the English Adopting this passage as expressing the judicature act of 1873, § 24, subs. 4, 7, correct doctrine, the same court, in beyond the limits to which it had been Galdwell V. Huntington (1892) 132 confined by the courts of equity before Ind. 92, 31 N. E. 566, sustained a de- the passage of that act, and is there- murrer to a complaint charging that fore applicable only to contracts for the the secretary of a school board "wilful- sale and purchase of lands, and not to ly and purposely failed and refused, as a contract of service. But as much of such secretary, to make the record of the reasoning of the lord justices is the resolution appointing a. school general in its character, and applica- teacher." This averment was consid- ble in any court which combines an ered to fall far short of charging that equitable with a legal jurisdiction, it the defendant fraudulently prevented will be useful to give some extracts the contract from being reduced to writ- from the judgments. "It is well known" inw and signed. said Brett, L. J., "that where a contract "iiWalton V. Mather (1896) 16 Misc. for the sale of land had been partly 546, 38 N. y. Supp. 782. performed, courts of equity did in cer- i'schrader v. Fraenckel (1907) 117 tain cases recognize and enforce it; App. Div. 97. 102 N. Y. Supp. 335, af- but this doctrine was exercised only firmed in (1908) 191 N. Y. 545, 85 N. as to cases concerning land, and was E. 1316. never extended to contracts like that 1 Britain v. Rossiter (1879) L. R. 11 before us, because they could not be Q. B. Div. 123. In that case the actual brought within the jurisdiction of point decided was that the doctrine as courts of equity. Those courts could to part performance taking contracts not entertain suits for specific per- out of the operation of § 4 of the stat- formance of contracts of service, and ute of frauds cannot be. extended by the therefore a case like the present could 468 MASTER AND SERVANT. [chap. IV. writer has justly remarked that this limitation of the equitable doc- trine seems somewhat arbitrary ; ' and it is deserving of notice that, in the case just cited, Thesiger, L. J., although he did not actually dissent from the judgment of the court, was not altogether satisfied with the conclusion reached.* Viewing the question from a different standpoint, the supreme not come before them. As to the appli- cation of the doctrine of part perform- ance to suits concerning land, I will merely say that the cases in the court of chancery were bold decisions on the words of the statute. The doctrine was not extended to any other kind of con- tract before the judicature acta. Can we so extend it now? I think that the true construction of the judicature acts is that they confer no new rights; they only confirm the rights which previous- ly were to be found existing in the courts, either of law or of equity; if they did more, they would alter the rights of parties, whereas in truth they only change the procedure. Be- fore the passing of the judicature acts no one could be charged on this con- tract, either at law or in equity; and if the plaintiflE could now enforce this contract, it would be an alteration of the law. I am of opinion that the law remains as it was, and that the plain- tiff cannot maintain this action for breach of contract." Cotton, L. J., said: "It has been said that the princi- ple of that doctrine is that the court will not allow one party to a contract to take advantage of part performance of the contract, and to permit the other party to change his position, or incur expense or risk under the contract, and then to allege that the contract does not exist ; for this would be contrary to conscience. It is true that some dicta of judges may be found to support this view, but it is not the real explanation of the doctrine; if it were, part pay- ment of the purchase money would de- feat the operation of the statute. But it is well established, and cannot be denied, that the receipt of any sum, however large, by one party under the contract, will not entitle the other to enforce a contract which comes within the 4th section. What can be more contrary to conscience that that, after a man has received a large sura of mon- ey in pursuance of a contract, he should allege that it was never entered into? The true ground of the doctrine in equi- ty is that, if the court found a man in occupation of land, or doing such acts with regard to it as would prima facie make him liable at law to an action of trespass, the court would hold that there was strong evidence, from the nature of the user of the land, that a contract existed, and would therefore allow verbal evidence to be given to show the real circumstances under which possession was taken. Does this doctrine, when so explained, apply to tlie present case? I will first mention the provisions of the judicature acts 1873, § 24, subs. 4, 7. These provisions enable the courts of common law to deal with equitable rights and to give relief upon equitable grounds; but they do not confer new rights; the different divisions of the high court may dispose of matters within the jurisdiction of the chancery and the common law courts; but they cannot proceed upon novel principles. Could the present plaintiff have obtained any relief in equity before the passing of the judica- ture acts? I think that he could not. The doctrine as to part performance has always been confined to questions relating to land; it has never been ap- plied to contracts of service, and it ought not now to be extended to cases in which the court of chancery never interfered." The dicta as to the effect of part per- formance in Garrington v. Roots (1837) 2 Mees. & W. 248, and Beade v. Lomft (1851) 6 Exch. 130, were then noticed, and shown to be unnecessary for the decisions. Leroux v. Brown (1857) 12 C. B. 801, was cited as sup- porting the rule stated in the text, and Snelling v. Huntingfield (1834) 1 Cromp. M. & R. 20, was also approved. 3 Anson, Contr. p. 83. * His remarks were as follows : "If we turn to equity, we find that it has been held, as regards a sale of land, that when there has been an entry by one party to the contract, that is an § H3] FORMATION AKD VALIDITY OF COXTRACT. 469 court of Vermont, in an early case in which a master brought an ac- tion for damages against the father of an apprentice who had aban- doned the service when he came of age, laid down the doctrine that "part performance may take the contract out of the statute when of itself it affords some degree of evidence of what the nature of tlu- contract was." ' This qualified theory regarding the probative sig- nificance of partial performance does not seem to have been advanced in any other case. Although there is some conflict between the decisions, and their precise scope is not always clear, the doctrine sustained by the weight of authority seems to be that the operation of the statute is not ex- cluded either by complete or by partial performance on the side of the employee ; but that he is entitled to recover the value of his ser\- ices in an action on a quanium meruit.^ The objection to the op- overt act apparently done under a con- tract, which entitles the court to look at the contract to see to what contract the overt act is really referable. I confess that on principle I do not see why a similar doctrine should not be applied to the case of a contract of service, and as the doctrine of equity is based upon the theory that the court will not allow a fraud on the part of one party to a contract on the faith of which the other party has altered his position, I do not see why a similar doctrine should not comprehend a con- tract of service." i Squires v. Whipple (1826) 1 Vt. 69. It was considered that, in the case be- fore the court, the performance of the contract up to the time when the ap- prentice arrived at full age afforded no evidence that the contract was that he should further serve several months afterwards. The fact that he was so to serve, being contrary to common usage, was in itself highly improbable, and nothing could be presumed in its favor. If, on the other hand, the breach alleged had been that the ap- prentice had left his master's service before he had arrived at full age, then a performance of the alleged contract would have afforded presumptive evi- dence that he was to serve till he arrived at full age, because such a con- tract would coincide with common us- age and custom; and the court in such a case might perhaps be justified in admitting parol evidence to make out the proof within the rule. 6 The English case usually cited in support of the opposite view is Souch V. Strawlridge (1846) 2 C. B. 808, which was an action to recover money spent in the maintenance of a. child which the defendant had agreed by parol to support. Tindal, Ch. J., ob- served, in the course of his opinion, that the meaning of this section of the statute is, that "no action shall be brought to recover damages in respect of the nonperformance of such con- tracts as are therein referred to. . . It has no application to an action in the present form, founded u^on an exe- cuted consideration." These words arc somewhat ambiguous, but their veal meaning, as well as the actual footing upon which the learned judge consid- ered that the claim of the plaintiff was sustainable, is made reasonably clear by another passage in his judgment. "There was evidence enough to show that the child was placed under the care of the plaintiff at the charge of the defendant, with his assent, and that he had made payments on account of its maintenance. That is equivalent to the proof that is ordinarily given in an action for goods sold and deliv- ered, whence the law implies a prom- ise on the defendant's part to pay for them." Under the circumstances, how- ever, it is clear that the plaintiff was able to establish his claim without such evidence. Coltman, J., felt some diffi- culty in saying that the plaintiff might rely upon an executed consideration, when he was obliged to resort to the 470 MASTER AND SERVANT. [CHAP. IV. posite view, that it opens the door to the very mischiefs which the statute was intended to prevent, seems to admit of no satisfactory executory contract to make out hia case. It seems safe to say, therefore, that the case is really not in conflict with the statement in the text; and this view as to its effect is sustained by the remark made in Green v. Saddington (1857) 7 El. & Bl. 503, that the rea- soning of Tindal, Ch. J., in Souch v. drawbridge only recognizes the prin- ciple that the provision of the statute relating to contracts not to be per- formed within a year "has no applica- tion to an action of indebitatus as- nampsit on an executed consideration." In 1864 Bigelow, Ch. J., remarked that "it may be still an open question whether any case in England goes fur- ther than to hold that a party may recover the value of a consideration of which the defendant has received the benefit." Marcy v. Marcy (1864) 9 Allen, 8. There is nothing in any later case to weaken the force of this criti- cism. In Knowlman y. Bluett (1873) L. R. 9 Exch. 1, Bramwell, B., while declining to discuss the correctness of the opin- ion expressed by Tindal, Ch. J., in .SoMcTi. V. Strawbridge (1846) 2 C. B. 808, that the statute does not apply to an executed consideration, considered that in the case before him, where cer- tain payments to be made under a con- tract which was held not to be within the statute had fallen into arrear, the plaintiff could have recovered on a count alleging that at the defendant's request she had performed the services to be compensated by the payments. In McGregor v. McGregor (1888) L. R. 21 Q. B. Div. 424, Lindley, L. J., in referring to the case last cited, re- marked that he felt some difficulty in saying that, when the consideration is partially executed, the case is taken out of the statute, and preferred to rest his decision upon the ground that the contract was not within the statute. But an examination of the judgment of the exchequer chamber (L. R. 9 Exch. 307) shows that the claim was allowed for the reason that the action was vir- tually for money had and received, though it was in form on the special contract. From this brief summary of judicial opinion in England it seems not un- warrantable to say that the ' following passage puts the right of action upon the correct basis: "If the contract has been performed on one side, in such a manner that the performance goes to the benefit of the other party, whether this was done within the year or not, it undoubtedly lays the foundation of a recovery against the party benefited by such performance. But when the contract on the part of this party was not to be performed within one year from the time it was made, the recov- ery is not upon the contract, but upon tlie quantum meruit or valebat, or upon the money counts." Redfield, Ch. J., in Pierce v. Paine ( 1855 ) 28 Vt. 34. In Comes v. Lamson (1844) 16 Conn. 246, the contention that the jury should have been instructed that from the fact of the plaintiff's having entered the service on the day contemplated by the arrangement previously made, it might be inferred that the parties had recog- nized the contract and considered it as then perfected and completed, was thus dealt with: "We have already shown that a part performance of the con- tract has no effect in relieving it from the operation of the statute. If there can be any foundation for the defend- ant's claim, it must be that the recog- nition was made within the last year in which it was to be performed. Suppose this contract had been that the plain- tiff should serve the defendant two years; the plaintiff serves the first year only, and then leaves the defendant; the contract is still within the statute, and no action can be sustained upon it. But suppose he serves a year and a day; is the effect of the contract entire- ly changed? Such an absurdity we think cannot possibly follow. We can- not believe that the construction of the statute is such that, if the plaintiff serve but one year, he may collect of the defendant what those services are reasonably worth; but if he serves a year and a day he can recover nothing. But the claim is that the entering into the defendant's service recognizes the contract. What contract? Clearly the one made in October preceding — invalid by reason of the statute. No new con- tract is claimed to have been made. The jury, from a part performance of a contract falling within the statute, can- ■S 143] FORilATIOX AND VALIDITY OF CONTRACT. 471 answer. Nevertheless, that view has in Georgia been embodied in a statutory provision (Civ. Code 1895, § 2694) to the effect that the statute shall not apply when the contract has been fully executed, or there has been performance on one side, accepted by the other, in accordance with the contract. The accepted construction of this pro- vision is that, in order to take a ease out of the statute, the part per- formance must be the doing of something required by the statute.' not infer another contract not affected iby the statute. In a case involving a contract of service, the supreme court of New Hampshire held, after a lengthy survey ■of the authorities, that "the execution of the agreement upon one side, vrheth- er partial or complete, does not take it out of the statute, and that a note or memorandum is necessary if any part of the agreement is not to be per- formed within a year." Emery v. Smith (1865) 46 N. H. 151 (error to admit evidence of contract price of services, in an action to recover bal- ance of sum due ) . The effect of the decision in White v. Fitts (1906) 102 Me. 240, 15 L.R.A. (N.S.) 313, 120 Am. St. Rep. 483, 66 Atl. 533, was that the death of a party to a contract would not take it out of the statute, since in that event it would not have been fully performed. That the act of moving the servant's family and household effects on to the •employer's premises, with a view to carrying out the contract, is not such a performance of a substantive part of the contract as will take an agree- ■ment out of the statute, was held in Shumate v. Farlow (1890) 125 Ind. 359, 25 N. E. 432. For other cases in which the doctrine that a contract is not taken out of the statute by partial performance of the services, see Scoggin v. Blackwell (I860) 36 Ala. 351; IJall v. Rowley (1794) 2 Root, 161; Kleeman v. Col- lins (1872) 9 Bush, 460; Davenport v. ■Gentry (1849) 9 B. Mon. 427; Broad- u-ell v. Getman (1846) 2 Denio, 87; Kling v. Bordner (3901) 65 Ohio St. 86, 61 N. E. 148; San Antonio Light Pub. Co. V. Moore (1907) 46 Tex. Civ. App. 259, 101 S. W. 867; Chase v. Binhley (1905) 126 Wis. 75, 2 L.R.A. (N.S.) 738, 110 Am. St. Rep. 896, 105 TSr. W. 230, 5 Ann. Cas. 328. In a Missouri case, on the other ■hand, the rule established in that state was declared to be "that a full and complete performance of a contract by one of the contracting parties takes the contract out of the statute of frauds, and that the party so perform- ing his contract may sue upon it in a court of law, and that he is not com- pelled to abandon the contract and sue in equity or upon a quantum, meruit." Maries v. Davis (1897) 72 Mo. App. 557. The decision in Stone v. Dennison (1832) 13 Pick. 1, 23 Am. Dec. 654, proceeded upon the ground that the contract was controlling in respect of the amount of compensation recover- able. But the authority of that case seems to have been shaken by the lan- guage used in Marcy v. Maroy (1864) 9 Allen, 8. For a general discussion of the Amer- ican decisions regarding the effect of the statute in this point of view, see 3 Parsons, Contr. *37-*39; Browne, Stat. Fr. §§ 286-291; 1 Smith, Lead. Cas. Am. ed. p. 143. T Bentley v. Smith (1907) 3 Ga. App. 242, 59 S. E. 720, citing Barnett Line of Steamers v. Blackmar (1873) 53 Ga. 98. In the Bentley Case it was held that the fact that the employee entered upon the service and served six weeks would not avail as part performance ; nor did the fact that the plaintiff in error moved his family to the place where he was to work, at an expense to himself, suffice to take the case out of the statute. "It was, at best," said the court, "a mere preliminary act (if connected with the contract in any way), — a mere getting ready to per- form. Acts which are merely prepara- tory or preliminary to the performance of the contract in question are not sufficient as part performance. 26 Am. & Eng. Enc. Law, 2d ed. p. 60. The part performance referred to in the statute is something substantial, and is generally essential to the performance 472 MASTER AXD SERVANT. [CHAP. IV. As to the effect of partial performance of oral contracts for the payment of services by the conveyance of land, see § 462, post. 144. Legal consequences of a failure to comply with statute. — a. Under statutes the effect of wJiich is to render the contract non- enforceahle. — The English statute, as quoted in § 134, ante, and the other enactments, American and colonial, in which similar phrase- ology is used, merely have the effect of disabling the contracting par- ties from maintaining an action upon an oral contract for services- not to be performed within a year. Such an agreement is not wholly void.^ Accordingly, although the servant cannot maintain an action for damages for the breach of such a contract, he is entitled to re- cover from the master upon a quantum meruit any compensation which may be justly due for work performed while the contract was treated by both parties as a subsisting obligation.* The contract can- not be set up as a defense in such an action, any more than it can be made the basis of a direct claim.' But there is a considerable body of the contract." Two cases cited in favor of the view rejected by the court were thus distinguished: In Fontaine V. Baxley (1892) 90 Ga. 416, 17 S. E. 1015, "It was one of the express stip- ulations of the contract that Fontaine should go to New York, and there se- cure contracts for the furnishing of ties to be supplied by the plaintiffs. The very terms of the contract required him to go to New York and incur expense for the benefit of the plaintiffs." In Bamett Line of Steamers v. Blackmar, supra "it was mutually agreed between the parties that a clerk was necessary, and the amount of his salary was agreed upon as essential to the exe- cution of the contract between the par- ties, and upon this ground it was held that the employment and payment of the clerk amounted to sucli part per- formance as would prevent the defend- ant from setting up the statute of frauds." It appeared, therefore, that ''the part performance was something originally contemplated and agreed to as a part of the oral contract, and was essential to its existence and complete- ness." ^ Stone V. Dennison (1832) 13 Pick. 1, 23 Am. Dec. 654. In Britain v. Rossiter (1879) L. R. 11 Q. B. Div. 123, 130, it was observed by Cotton, L. J., "To hold that this enactment makes void verbal contracts falling within its provisions would be inconsistent with the doctrine of the courts of equity with regard to part performance in suits concerning land. If such contracts had been rendered void by the legislature, courts of eq- uity would not have enforced them ; but their doctrine was that the statute did not render the contracts void, but re- quired written evidence to be given of them; and courts of equity were- accustomed to dispense with that evi- dence in certain instances." 8 SnelUng v. Buntingfield ( 1834 ) 1 Cromp. & R. 20, 4 Tyrw. 606; Britain V. Rossiter (1879) L. R. n Q. B. Div. 123; Merrel v. Loft (1895) 13 New Zealand L. R. 739; Rose v. Winters (1900) 4 Terr. L. Rep. 353; Eartwell V. Jewett (1838) 9 N. H. 249; Won- settler v. Lee (1888) 40 Kan. 367, 19 Pac. 862. See also cases cited in the- following notes to this section. 8 King v. Welcome ( 1855 ) 5 Gray,, 41. The court argued as follows: "Up- on the reason of the thing, and looking at the object and purpose of the stat- ute, the result is clear. So far as it concerns the prevention of fraud and perjury, the same objection lies to the parol contract, whether used for the- support of, or in defense to, an action. The gist of the matter is that, in a^ court of law, and upon important in- terests, the party shall not avail him- self of a contract resting in words only, as to which the memories of men are so- § 344] FORMATION AND VALIDITY OF CONTRACT. 473 of authority for the doctrine that, so far as the parties have vohm- tarily acted under and performed the contract, it is to be treated, for some purposes at least, as defining and measuring their rights and liabilities.* Thus, in cases where the servant has been discharged imperfect and the temptations to fraud only so far as it ia executed, but so far and perjury so great. . . . Looking as it is still executory. He seelcs first at the mere letter of the statute, the to establish the parol agreement as a suggestion is obvious, that no action is valid subsisting contract, and then to brought upon this contract. But the charge the plaintiff with a breach of it. defendant seeks to 'charge the plaintiif A construction of the statute which therewith,' to establish it by proof, to would sanction this use of the contract enforce it in a court of law, and to would lose sight of the obvious pur- avail himself of its provisions. And if P°®^^ °^ ^''^ statute. It would adhere the defense succeeds, the plaintiff is in *". *'"= '^"^'' ^* ^^'^ expense of the effect charged with and made to suffer spirit. It would operate unequally up- for the breach of a contract which he ?" ^.''^ Parties. The weight of author- could not enforce and which could not "^ "^„^S^'"^* '*• ,,„^,^ ,^ ^ be enforced against him. The differ- /^ Oomes v. Lamson {18U) 16 Conn. ence, it is clear, is not one of principle, ^ffj, ^\T.n T M "Tf""' """" ?'^ T -11 4. 4. j-i • 1 i i, i plied, the court said: "It is conceded To Illustrate this, let us suppose that (.i.^t the plaintiff labored for the de- in the contract which the defendant fe^^^^t for a period of more than six seeks to set up in defense there had months; that the defendant has re- been a provision for the payment of the ceived the full benefit of those services, wages stipulated, by the semiannual ^nd is bound to pay for them what thev instalments. If, upon the expiration are reasonably worth, unless protected of the six months, the plaintiff had from such, payment by the contract un- brought an action upon the contract to der consideration. To permit the de- recover the instalment, the action could fendant so to use the contract and not be maintained; the statute of frauds prove it by parol testimony would open would be a perfect defense. This is a door to the very perjury against settled in the recent case of Hill v. which the legislature by that statute Hooper (1854) 1 Gray, 131. But if in intended to guard." an action brought for money lent or The rule in the text is also affirmed goods furnished to himself or family, ii\ Bernier v. Oaiot Mfg. Co. (1880) 71 he may avail himself of the instalment Me. 506, 36 Am. Rep. 343 (wages of by way of set-off or payment, the differ- servant not forfeited by his abandon- ence is merely one of form, and not of ment of the service) ; Freeman v. Fosa substance. Still further, upon the con- (1887) 145 Mass. 361, 1 Am. St. Rep. struction of the statute contended for by 467, 14 N. E. 141 ; Murphy v. DeHaan the defendant, the laborer in the contract (1902) 116 Iowa, 61, 89 N. W. 100. stated would be without remedy. For i Spinney v. Hill (1900) 81 Minn, if he brought his action upon the con- 316, 84 N. W. 116, where, however, the tract for the instalment, the statute of court felt compelled to admit that the frauds would be a bar; if upon a reasoning on which this doctrine is quantum meruit, the express contract based is neither satisfactory nor logi- to labor for a year would be a bar. cal, because, although the statute de- . . . In the case at bar, the defense nounces such agreements and deprives fails because the contract upon which them of all legal validity, the doctrine the defendant relies is not evidenced as itself validates them to some extent, the statute requires for its verification Where the servant had been hired un- and enforcement. For it is the whole der an oral agreement at a yearly rate contract, of which the defendant seeks of wages, and had entered upon a second to avail himself. His defense is not year's service without a new bargain, that, as to so much as is executed, as it was held that, in an action to recover to so much time as the plaintiff has his wages for the second year, the origl- labored, he labored under the contract, nal negotiations between the parties and the price stipulated is to govern, were competent evidence to show the But he relies upon the contract, not terms of the contract, express or im- 474 JIASTER AND SEKVANT. [CHAP. IV. during the stipulated period of his employment, the terms of the agreement are, in the view of some courts, competent evidence for the purpose of proving the actual value of his services ; * or that the suit has been prematurely commenced ; ® or that the contract is en- plied, under which the parties continued their relation, and that the statute of frauds was no bar to the action. Tat- terson v. Suffolk Mfg. Go. (1870) 106 ilass. 50. Commenting upon the con- tention of the defendant that the jury liad been improperly instructed that the statute did not apply to the con- tract upon which the plaintiff relied, the court said: "The position of the de- fendants would be correct, if the plain- tiff relied upon the original negotiations as the contract upon which his action was founded. The written evidence does not show any contract which binds the defendants to employ the plaintiff for the whole of a second year. That obli- gation, if it exists, must be found in some agreement into which the parties had entered within the year. They did enter into some agreement, by the mere fact of continuing their relations of em- ployment and service. It was a rela- tion of contract. The terms of the con- tract, in the absence of express words, are to be ascertained not alone by what occurred within the year, but also from all that had transpired previously. From all the evidence the jury must de- termine, as an inference of fact, what was the understanding with which the parties entered upon the second year of employment and service. That, when found, constitutes their contract. The contract which resulted from the origi- nal negotiations did not by its terms, and could not by reason of the statute, extend into the second year. But those negotiations were competent evidence from which to infer what were the terms of the new contract under which the parties continued their relations.'' In Murphy v. De Eaan (1902) 116 Iowa, 61, 89 N. W. 100, the contract was held to be admissible for the pur- pose of showing that the services were not rendered gratuitously. If the employee abandons without cause a contract by which the employer agrees to teach him u, trade in consider- ation of service for three years as an apprentice, the employer may maintain assumpsit against the employee to re- cover a reasonable compensation for his teaching and for advances made by him. Hamhell v. Hamilton (1835) 3 Dana, 501. 6 The decisions to this effect are dis- cussed in § 574, post. 6 ClarJc V. Terry (1856) 25 Conn. 395, where it was held that a servant who had agreed to work for a year at a speci- fied price per daj', payable at the end of each half year, could not, upon aban- doning the employment after working for less than three months, recover any compensation until the end of the cur- rent half year. The court said: "It is true that if the plaintiff can recover at all, it must be for a qtiantumi meruit, or so much as he deserves to have for the service performed. But this is not to be measured by the value of such services alone, as if no contract had been made between the parties. Nor can the time of payment for the service, as it was agreed to in the contract, be disregarded. It would obviously be un- just for a party to contract to labor for a year and a day, at a stipulated rate of wages, to be paid at the end of the term, and, after he had labored half the time, refuse to go on, and demand imme- diate payment for wages earned, be- for the expiration of the time. The case of Comes v. Lamson (1844) 16 Conn. 246, shows that a just and legal claim cannot be resisted on the ground that the service was performed under a contract which is inoperative by reason of the statute; but this does not imply that services performed under such a contract stand upon the same footing, in respect to the compensation to bp paid therefor, as if no such contract had been made. On the contrary, it is said in that case that where a person has en- tered into a contract for service, and has made the performance on his part a condition precedent to his right to recover, he cannot enforce payment till he has performed the service. And it may be added that, so long as there is nothing illegal in the condition, it does not become void merely because it con- stitutes part of the terms of a contract which cannot be enforced by action. . . . That decision, then, does not go to the extent claimed for it on the part •% 144] FORMATION AND VALIDITY OF CONTRACT. 475 tire, in such a sense that the plaintiff, having abandoned his employ- ment without suiKcient cause, cannot recover any compensation at all.' But if a servant who has only partially performed an entire con- tract which is within the scope of the statute has a right, under the circumstances in evidence, to recover compensation for the time dur- ing which he was actually working, the existence of the invalid con- tract will not prevent him from enforcing payment immediately after he has left the employment.* The original oral contract is also recognized for the purpose of ex- plaining anything done in pursuance of it; and anything so done may, in some cases, be a good consideration for a new obligation un- der a subsequent and distinct contract.® But where a servant con- tinues in his employment after the end of a year during which he of the plaintiff, — that the terms of such a contract are to be wholly disregarded in a suit for wages earned under it, and they cannot be shown for any purpose. On the contrary, the reasoning, of the court is based on the assumption that, for the purpose of showing that the claim for wages is unjust, the contract may be proved. Now in respect to the question whether wages have been earned which ought to be paid for, and, if so, to what extent or amount, and when the payment ought to be made, it appears to us that all the circumstances under which they are claimed to have been earned, including the contract un- der which the service was performed, al- though it may be one that cannot be enforced by any action directly vipon it, may and ought to be considered." "! Kriger v. Leppel (1889) 42 Minn. 6, 43 N. W. 484. The court said: "The proposition that, though not actionable, they [i. e., oral contracts within the statute] are to be regarded as in force to define the rights of the parties with re- spect to what tliey do under them, dis- poses, if logically followed, of the claim of one who, under an agreement for services, within the statute of frauds, renders part of the services, and without cause refu'^'is to complete them. If, by the terms of the agreement, he would be entitled to pay for the part perform- ance, the rate fixed by it must be the measure he is to receive ; and, if entitled by its terms to pay only on condition of performing the whole, then he cannot recover unless he performs the whole, or shows some legal excuse for not doing so. . . . Assuming that there was in this case such a contract as defend- ant alleges, then, had it been fully per- formed, — had the plaintiff worked the agreed time, and defendant paid the agreed price, — no one would suppose that plaintiff could have sued and recov- ered on the quantimi meruit more than had been paid him." See also to the same general effect, Swanzey v. iloore (1859) 22 111. 63, 74 Am. Dec. 134; Philhrook v. Belkiiap (3 834) 6 Vt. 383; Mack v. Bragg (1858) 30 Vt. 571. S Comes V. Lanison (1844) 16 Conn. 246, 252. The court said: "Where a person has entered into a contract to perform certain service at a stipulated price, and has made the performance of the contract on his part a condition precedent to his right to recover, ho cannot enforce the payment until he has performed the service. This rule oper- ates to give effect to the agreement as the parties have made it. But can we say in this case, because the parties have made an agreement upon which no action can be sustained, which is by statute declared to be invalid, that it was the understanding and agree- ment of the parties that the plaintiff should receive nothing unless he served the full time specified in the agreement ? We cannot think such was the meaning and intention of the parties." 9 The rule as to nonenforceable eon- tracts generally is stated in this form by Sir Frederick Pollock (Contr. *608) : 476 MASTER AXD SERVANT. [chap. it. has been working under a parol contract to which the statute is ap- plicable, it is not permissible to imply the existence of a new and en- forceable contract for another year.*" The statute, being one of general application, controls the rights and liabilities of masters and servants in proceedings taken under enactments which impose a penalty on certain classes of servants for a breach of their contracts. Any other construction of the stat- ute would involve the anomalous result that a man could be treated as a criminal for not performing a contract which could not be en- forced against him by civil process.** As the statute only limits the remedial rights of the parties to the contract, it is held that a settlement under the poor laws may be ac- quired under a parol contract not to be performed within a year.** h. Under statutes declaring the contract to be void. — ^Where the statute makes the parol contract absolutely void, it will furnish nei- ther a ground of action in favor of the plaintiff, nor a basis upon which to found a defense. The parties stand in the same relation to each other as though no express contract existed between them.*' On the one hand, therefore, if a person rendering services under the void contract receives at the end of each stipulated period the agreed com- pensation, and each payment is at the time considered by both par- ties to the contract to be a full discharge of the amount due for serv- ices rendered during the period, he cannot afterwards, although dis- charged before the time fixed by the contract, recover any further A parol contract has been made be- forceable contract, . . . the rights tween A and B's minor son, for the were limited and determinable by ei- serviees of the latter'a son, thereafter ther party; and it seems plainly to fol- to be performed, during a period of low that under such an agreement a several years. Subsequently it was legal term of service could not be creat- agreed between the parties that if the ed by implication upon one that was son would enlist as a soldier he should invalid. Sucli implication could create be discharged from further service un- nothing more than what legally existed der the original agreement, and tliat and was enforceable. In other words, A would pay B the amount before if such implication could create another agreed to be paid, the same as if he term by continued services without a had continued to labor for the full new contract, it could enlarge the origi- term, and the son thereupon enlisted nal agreement. To accomplish this, a under such arrangement. Held, that new and valid contract would have to the second agreement was valid and be made." binding on the parties; that A's prom- H Banks v. Grassland (1874) L. R. ise had a good consideration, viz., the 10 Q. B. 97, 32 L. T. N. S. 226, 23 liquidation of an existing claim, and the Week. Rep. 414. enlistment of B's son. Jones v. Hay ii Bracegirdle v. Heald (1818) 1 (1868) 52 Barb. 501. Barn. & Aid. 722. 10 Lally V. Croolcston Lumber Co. ^^ Salb v. Campbell (1886) 65 Wis. (1902) 85 Minn. 257, 88 N. W. 846. 405, 27 N. W. 45. The court said: "Under the nonen- ^ 144] FORMATION AND VALIDITY OF CONTRACT. 477 sum for services rendered prior to the last payment." On the other hand, if a servant is permitted to enter upon the performance of the contract, he becomes entitled to recover the value of such vi^ork as may be done by him up to the time when he leaves the employment voluntarily, or is dismissed. ^^ On principle it would seem that, in an action to recover for serv- ices performed under a contract declared by the statute to be void, the contract itself cannot be adduced as testimony for any purpose. But there is authority for the doctrine that the existence of the ex- press contract is a fact which is competent to rebut the presumption that the services were rendered gratuitously ; ^® and under the de- cisions as they stand, it seems to be still an open question whether the terms of the contract are admissible to show the true value of the services rendered." ii Cohen v. mem (1884) 61 Wis. 508, 21 N. W. 514. 15 Botwiis7i V. Briggs (1896) 5 App. Div. 592, 39 N. Y. Supp. 371; Little v. WiUon (1855) 4 E. D. Smitli 422; Shute V. Dorr (1830) 5 Wend. 204; Vones V. Eomer (1858) 2 Hilt. 116; Soheuer v. Monash (1901) 35 Misc. 276, 71 N. Y. Supp. 818; Lapham v. Oshorne (1888) 20 Nev. 168, 18 Pac. 881; Salb V. Campbell (1886) 65 Wis. 405, 27 N. W. 45. In Hartwell v. Young (1893) 67 Hun, 472, 22 N. Y. Supp. 486, where the court laid it down that so long as the servant "voluntarily with the per- mission of the other party, performs service to his advantage and with his implied assent, there is no reason ap- parent, either in justice or morals, why this void contract and his failure to fulfil its terms should be inter- posed as a defense to his recovery up- on a quantum meruit." The remarks to the contrary effect, made by the writ- er of the judgment in Oalvin v. Pren- tice (1871) 45 N. Y. 162, 6 Am. Rep. 58, were declared to be merely obiter. In Cohen v. Stein (1884) 61 Wis. 508, 21 N. W. 514, it was remarked that the logic of this rule is that, in- asmuch as the contract has no legal validity, it is not admissible in evi- dence to determine the value of the services, but the servant recovers what he can show his services were reason- ably worth." But we have already seen that a similar action is allowed under statutes which merely take away the right of suing on the contract it- self, and the ability of the servant to maintain the action may, it is clear, be put upon a broader ground than that which is here relied upon. i^ Ellis V. Cory (1889) 74 Wis. 176, 4 L.R.A. 55, 17 Am. St. Rep. 125, 42 N. W. 252. "In Galvin v. Prentice (1871) 45 N. Y. 162, 6 Am. Rep. 58, an action for two years' services performed under a void contract for a longer period, it was laid down that the rate of com- pensation fixed by the agreement dur- ing the whole term is not even prima facie evidence as to the value of the services rendered, where, at the com- mencement of the term of service, the plaintiff was ignorant of the business in which he was employed, and ordi- nary skill therein was only acquired by instruction and practical experience for a considerable time. The state- ment of the court is here qualified by reference to the special circum- stances involved. In a later case, however, it has been laid down by the supreme court of the state, that the servant cannot rely on the contract as a measure of the value of his services, if he has refused to fulfil the contract. Scheuer v. Monash (1901) 35 Misc. 276, 71 N. Y. Supp. 818. In Nones v. Eomer (1858) 2 Hilt. 116 (where the servant had been wrongfully discharged), the court of common pleas held that, in the absence of evidence as to the value of the serv- 478 PIASTER AND SERVANT. [chap. IV. Where a second contract which is within the statute is entered into on the expiration of a previous term of service, the void contract is deemed to be competent evidence for the purpose of destroying the implication of any intention to keep the original contract in force.** 145. Effect of various statutes relating specifically to contracts of service. — The effect of the cases in which certain other statutes re- lating speciiically to the formal authentication of contracts of serv- ices have been construed is stated in the note below.* ices, the stipulated compensation fixes the measure of recovery. But it is difficult to admit that there can be any middle course between an invariable rejection and an invariable acceptance of the evidence of the contract price. If it is legal evidence at all, it must be legal evidence for every purpose. In another case the position was taken that a person "cannot treat a contract as void under the statute of frauds, which the other party is will- ing to treat as valid." Van Valken- lurg V. Croffut (1878) 15 Hun, 147. The court said: "The party who con- tracted to render the services has in fact fully rendered them under the contract, and the other party has ac- cepted them. The contract, then, has been actually treated by the parties as valid, until all has been done by the plaintiff which he was to do. And this has been with the consent of the defendant. He is then liable to pay for the services rendered, according to his agreement. 'The effect of, the statute, in the language of Judge Rapallo, is not to make a different contract between them.' Galvin v. Prentice (1871) 45 N. Y. 162, 6 Am. Rep. 58. Every act was done under the contract; and when all had been done by the plaintiff and accepted by the defendant, there was a readoption of the terms of the original contract." Accordingly it was held that, "where a party enters into a verbal agreement to work for another for a number of years for a certain compensation, to be paid at the end of the time specified, and fully performs such contract on his part, he cannot repudiate such con- tract, on the ground that it was void under the statute of frauds, and main- tain an action to recover the value of the services rendered; he can only recover the compensation agreed upon." But the theory of an implied readop- tion of an originally void agreement would seem to be untenable. l»Horton v. Wollner (1882)- 71 Ala. 452, holding that the employee could not recover under an implied contract that he was to receive the same salary as during the first term. 1 English master and servant acts. Ontario. By § 5 of the master and servant act (Rev. Stat. 1897, chap. 157), it is enacted that verbal, as well as written, contracts of service shall be binding, but that a verbal agree- ment must not exceed its term of one year. It has been held that a contract to employ a person as long as a con- tract with other parties remains in force does not come within the scope of this provision. Glenn v. Rudd (1902) 3 Ont. L. Rep. 422. New South Wales. Under the agree- ments validating act (39 Viet. No. 29, now replaced by the act of 1902), which declared that agreements made outside the Colony for personal services to be rendered in it should be valid as if made in New South Wales, provided that it was read in the presence of an officer authorized by the Governor, and his certificate was annexed, does not avoid parol contracts of the de- scription referred to. It was passed merely to simplify proof, and was not intended to get rid of any common-law rights. Tarn Boe v. Oa Lee (1889) 5 W. N. (New South Wales) 155. Where, in appending a certificate under this act, the person signing did not add the name of his office, as re- quired by the schedule, it was held that, as it appeared in the body of the certificate that the person was duly authorized to grant certificates, the certificate sufficiently complied with the form and effect of the schedule. Ex- parte Sperring (1890) 11 New South Wales L. R. (L.) 407. Held, also, that the agreement, having been re-executed. § 146] FOEilATION AXD ^'ALIDITY OF CONTRACT. 479 146. Formal requisites of a valid contract of service in Scotland. — If the engagement of a servant be for a year, or during the term which, by general or local usage, is fixed as the ordinary duration of the particular service, the contract may be proved by verbal evidence or oath of party, and, if unconditional, will eifectually bind the par- ties.^ For an engagement for a longer term than a year, a proba- in the colony under § 5/ of the act, did not depend on the act for its validity. Michigan. By Comp. Laws, § 6083, it is provided that no liability for an amount exceeding $500, except against the person incurring it, shall bind a partnership, unless reduced to vfriting and signed by at least two managers. Held, that an agreement to work for a partnership for two years at a salary of $2,000 ner year was within the scope of this provision. Rhoades v. Malta Vita Pure Food Co. (1907) 149 Mich. 235, 112 N. W. 940. North Carolina. In Spence v. Wil- mington Cotton Mills (1894) 115 N. C. 210, 20 S. E. 372, it is laid down that, where a, contract is nonenforceable at the time it is entered into because not in writing as required by a statute, the subsequent repeal of the statute, and the continuance of service after the end of the year, will not validate the contract so far as to admit of its being made the foundation of an action for nonperformance. In such a case the plaintiff can recover only on a quantum meruit for such services as he may have actually rendered. South Carolina. In this state it has been held that, under § 9 of chap. 103 of the General Statutes (enticement of laborers) an unwritten contract of hir- ing was valid, although it was provided that either party might require it "to be duly executed before a trial justice." This provision was not mandatory, and if the parties chose to dispense with the mode of execution thus indicated, tlie clause which stated that it was to be "read and explained" to them would not become applicable. Daniel v. Swearengen (1875) 6 S. C. 297, 24 Am. Rep. 47. Haicaii. The master and servant act 1868 enacts that "all contracts for serv- ice between masters and servants where either of the contracting parties is of Hawaiian birth, shall be written and printed in both the Hawaiian and English languages. No such contracts shall have effect in law when executed in the one language only." This stat- ute does not require the making of such contract in both languages, wliere both parties are of Hawaiian birtli. Martin V. Nahoa (1881) 4 Haw. 427. Each version of tlie contract must be signed by both parties. Unna v. Eealaula (187G) 3 Haw. 690. The provision in this statute to the effect that "the Minister of the Inte- rior is hereby authorized to prepare, in both languages, printed forms of contract" between master and servant, does not affect the validity of a con- tract not made according to such form. Kaalaea Plantation v. Bolabola (1877) 3 Haw. 818. The act of 1872, relating to labor contracts, providing that an acknowl- edgment fee shall be paid by the mas- ter, "and no charge shall be made for the certificate of acknowledgment on the copy of the contract furnished the servant," does not require the furnish- ing of siieh a copy to make the con- tract binding. Unna v. Kealaula (1876) 3 Haw. 690; Kaalaea Planta- tion V. Bolahola (1877) 3 Haw. 818. The statute requiring that all con- tracts under § 1417, Civil Code (which provides that any person who has at- tained the age of twenty years may bind himself to service by written con- tract), shall be aclcnowledged, does not require the acknowledgment of a labor contract made in a foreign country, to be executed in Hawaii. Board of Immigration v. Estrella (1884) 5 Haw. 211. IBell, Principles, §§ 173, 190. The rule allowing parol proof of con- tract of service does not necessarily apply where the agreement founded on it is not a pure contract of service, but a complex contract. Fraser, Mast. & S. p. 31, citing a case in which it was held incompetent to prove by parol an agreement whereby a person was said to have been engaged to proceed to New Zealand as general servant and 480 MASTER AKD SERVANT. [chap. IV. tive writing is required, and till it has been executed there is locus poenitentioe, at least as to the excess beyond the usual term, — in the absence of rei inter ventus? But verbal contracts for more than one year are possibly not valid even for one year without rei interventus.^ This rule was probably introduced from the analogy of the law re- garding leases of heritable subjects.* In order that a written contract of service may be valid of itself, without the necessity of legal procedure, and without rei interventus, it must be either probative or constituted by missives holograph of both parties.® stock-keeper, the master promising to pay the servant's passage and to lend him £100 to pay his creditors in this country, the engagement being for twelve montlis certain, at £60 per an- num of wages, but the servant being obliged to serve as much longer as should be necessary to repay the £100 out of his wages. Currie v. M'Lean (18G4) 2 Sc. Sess. Cas. 3d series 1076. It is the duty of the party who founds his claim on the contract to prove the terms of a verbal contract, even though the defendant pleads that it was conditional. There is no pre- sumption that such contracts are con- ditional, so as to throw the onus pro- bandi on the person pleading the condition. Eraser, Mast. & S. p. 29, cit- ing Fortes v. Milne (1827) 6 Sc. Sess. Cas. 1st series, 75. There is no general rule, however, that an innominate contract can only be proved by writ or oath. The proof is so restricted only where the stipu- lations are of an unusual and extra- ordinary character. Forbes v. Caird (1877) 4 Sc. Sess. Cas. 4th series, 1141. If it be agreed that a contract of service for one year shall be reduced to writing, this is a conditional sus- pensive of the completion of the con- tract, and there is locus poenitenticB till the writing be formally executed. Fraser, Mast. & S. p. 31. 2 Bell, Principles, § 173. 3 Eraser, Mast. & S. p. 30, citing Paterson v. Edington (1830) 3 Sc. Sess. Cas. 1st series, 770 (where the judges were divided in opinion) ; Thomson v. I2at (1831) 9 Sc. Sess. Cas. 1st series, 598, 3 Scot. Jur. 419. Whether a contract of employment for a period of more than one year might be proved by parol where the compensation was to be by commission, and it was therefore in the nature of a partnership, was left undecided in Peckin v. Hawkes (1878) 5 Sc. Sess. Cas. 4th series 676. * Fraser, Mast. & S. p. 28; Green Enc. of Scots Law, sub voc. Hiring p. 204. 5 Fraser, Mast. & S. p. 32, citing Dickson, Ev. § 566; Baird, Mast. & S. § 49; Bell, Principles, 173; Gaddel V. Sinclair (1749) Morison's Diet. 12416; Stewart v. M'Call (1869) 7 Sc. Sess. Cas. 3d series, 611. Written obligations are divided by Professor Bell (Principles, § 19) into three classes: Attested, holograph, and privileged. To the last class belong mercantile writings, to which effect is given, although neither attested nor holograph, on account of the rapidity which may be necessary in preparing them, and the immediate use to which they are to be applied. Missive letters, mandates, and obli- gations in mercantile aifairs, although not holograph, are valid without being attested by witnesses, or having the writer's name. But a different rule is applicable to a contract of hiring for a period of years; such a contract must be in writing, and if the writing be not holograph, and not rendered effec- tual by rei interventus, it is probative only if duly attested according to law. Tait, Ev. p. 120; Dickson, Ev. § 784. An artificer sent an unsigned holo- graph offer of service for three years, to commence at a future period, but the proposition was not accepted in terms by the master. The master then wrote out a new offer, with some varia- tions, and sent it to the artificer for signature, with a relative acceptance signed by himself. The artificer signed I 146] FORMATION AXD VALIDITY OF CONTRACT. 481 Rei interventus bars the power to withdraw from a contract of serv- ice imperfectly constituted, or otherwise remaining still incomplete.* It is inferred from any proceedings not unimportant on the part of the obligee, known to and permitted by the obligor to tal<:e place on the faith of the contract as if it were perfect, provided they are un- equivocally referable to the agreement, and productive of alteration of circumstances, loss, or inconvenience, though not irretrievable.'' The mere entering upon service is not sufficient to render the engage- ment binding for the whole term of years stipulated. As the mere entering upon service can be referred to a contract for one year, the law holds that such was the period which the parties had in contem- plation.* Commonly, "earnest" is given as the test of the engage- ment of a servant; but it is not indispensable, except in localities where it is established by custom, in which case there is locus poeni- tentioe till it has been given. When it has been once given, its re- turn will not dissolve the contract.* the new offer, but withdrew from the agreement a few weeks afterwards, be- fore the period of service had arrived, or anything was done under the con- tract by the other party. Held, that the artificer could not be compelled to enter the service on pain of imprison- ment, and was not liable to an action for damages. Paterson v. Edington (1830) 3 Sc. Sess. Cas. 1st series, 770. No binding contract is constituted by the sending of a missive letter, not holograph or attested, in which one person agrees to act as salesman for a period of two years, and the acceptance of the offer by another person. Stew- art V. M'Call (1869) 7 Sc. Sess. Cas. 3d series, 611 (defendant held entitled to withdraw). By the Scotch statute 1579, chap. 83, no action of debt for "servant's fees" ptc, not founded upon written obli- gations, can be pursued, "except the creditor either prove by writ or by nath of his party." See Aleoclc v. Easson (1842) 3 Sc. Sess. Cas. 2d series, 147. 6Fraser, Mast. & S. p. 34. A workman who holds himself out as bound with an English company for a term of years, and who has made an agreement in England with a Scotch company to exchange with another workman in its employment, and has thereafter entered on his service, is not M. & S. Vol. I.— 31. entitled to plead the rule of Scotch law, that a verbal contract of service is only binding for one year. In this case, as the agreement has been fol- lowed by regular rei interventus, he is bound to warrant what he has held out. Dale v. Dumiarton Olass Work Co. (1829) 7 Sc. Sess. Cas. 1st series, 369. 7 Bell, Principles § 26. There was held to be a binding con- tract in a case where a man who had been engaged by an improbative writ- ing to serve as a loam-builder for five years had stipulated, as a condition of his bargain, that his brother should also be engaged, and had also got cer- tain expensive alterations made by his employer on the premises intended for himself. Napier v. Dick (1805) Hume Dec. 388, cited in Fraser, Mast. & S. p. 35. 8 Fraser, Mast. & S. p. 36, citing Caddel v. Sinclair (1749) Morison's Diet. 12416. These cases as to rei interventus may b« compared with those cited in § 143, ante, as to the effect of part perform- ance in common law jurisdictions. 9 Bell, Principles, § 173, citing Wal- lace V. Wisha/rt (1808) Hume, Dec. 353. For further information as to the Scotch law regarding earnest, and the extent to which the giving of it ren- ders a contract binding, see Fraser, Mast. & S. pp. 36-38. 482 MASTER AND SEKVANT. [chap. iv. 147. — ^in Quebec— A contract of hiring is not one of those which, under the Civil Code of this Province, are invalid unless executed in writing and in the prescribed form. But that Code (art. 1233) de- clares that no proof may be made of any contract involving a sum exceeding $50, except in commercial matters, without the production of a written document emanating from the party upon whom it is sought to impose the obligations of the contract.^ The want of such a document, however, may be overcome by examining that party, and obtaining from him an admission sufficiently "explicit to serve as a commencement of proof in writing" (Code Civ. Proc. 316).* If these provisions alone were to be considered, it is clear that a con- tract for the hire of a servant in a noncommercial employment could not, in any case where a larger sum than $50 is involved, be proved without a writing or an admission obtained in the manner specified. But by article 1669 of the Civid Code it is enacted that "in any ac- tion for wages by domestic or farm servants, the master may, in the absence of written proof, offer his oath as to the conditions of pay- ment," such oath being subject to refutation in the same manner as any other testimony. It would appear that the consent of her husband, which is neces- sary to validate the contract of a married woman for the hire of her services, must be expressed in writing. Such an instrument, if given, would be sufficient proof of her engagement; and, as the husband could not be examined in order to make proof (Code Civ. Proc. art. 314, § 4), it seems to be impossible in this instance to obtain such an admission as will serve as an evidential substitute for the writ- ing. See above. Some of the provisions of the English statute of frauds have been embodied in article 1235 of the Civil Code, but there is no require- 1 The engagement by a railway com- there should be desertion after a hiring pany of a civil engineer for tlie con- in writing, or a verbal hiring before a struction of the railway is a com- witness, and this should be found by mercial matter, and may be proved the conviction. Pelletier v. Harteau by verbal testimony; and any modifi- (1880) 3 L. N. (Montreal S. C.) 331. cation of the original agreement may * Although a photographer is a trader, be proved in the same way. Legge v. the engagement of an apprentice to Laurentian R. Go. (1879) 3 L. N. 23, whom a photographer pays a salary 24 Lower. Can. Jur. 98. at the same time that he instructs him The engagement of an employee in in his work is not considered to be a a hotel is also a commercial matter commercial contract. Therefore a which may be proved by witnesses, "commencement of proof by writing" Gousineau v. Bewuvais (1890; Super, is necessary to let in proof of such an Ct.) 20 Rev. Leg. 319. engagement by parol evidence. Jones But it is essential to a prosecution v. Jones (1866) 15 Rap. Jud. Quebec, under 33 Vict. (Quebec) chap. 20, that 132. § 148] FORMATION AND VALIDITY OF CONTRACT. 483 ment as to contracts not to be performed within a year. The con- sequence is that contracts of service which fall under that category remain subject to the general rules referred to above. An employee is held to be entitled to wages accruing under a con- tract after it has been fully performed, although it was not reduced to writing, as prescribed by the statute applicable to the circum- stances.^ 148. Requirements of the stamp acts. — The restrictive provisions of the stamp acts, which relate to written contracts of hiring, are not ap- plicable where the document in question does not amount to an agree- ment at all,^ or where it does not create the relation of master and servant,'' or where, although that relation is created, the servant hired belongs to one of the classes which are specially exempted by the legislature.' 3 Monfette v. Les Commissaires D'Eoole (1906) Rap. Jud. Quebec, 29 C. S. 487. 1 A letter in which the defendant, ■who was proprietor of a theater, wrote to a third person, saying, "F. must be satisfied with his present salary until I know what turn the season takes," — was not an agreement, and did not require a stamp. Frazer v. Bunn (1838) 8 Car. & P. 704. Where the defendants, the provision- al committee of an unincorporated as- sociation, made and signed a resolution to the effect that J. V. (the plaintiff) be appointed secretary for three years, and receive £5 per week, and act under the direction of the provisional com- mittee, but it was not shown that the plaintiff was present, or that he was consulted with respect to the appoint- ment, it was held that the instrument did not require a stamp to entitle it to be admitted in evidence. Vaughton V. Brine (1840) 1 Mann. & G. 359. 2 See Reg. v. Wortley, note 3, infra, where the contract was denied to be one of partnership. 3 In the English statutes we find the following clauses : By 55 Geo. Ill, chap. 184, schedule, title Agreement, a memorandum or an agreement for the hire of any laborer or artificer, manufacturer, or menial servant was exempted from all stamp duty. (Similar provision in act of 1891). So, a memorandimi or an agreement made between the master and mariners of any ship or vessel, for wages, on any voyage coastwise from port to port in Great Britain, was likewise exempt. (Similar provision in act of 1891). By 17 & 18 Vict. chap. 83, § 21, all contracts and agreements entered into in the United Kingdom, for or relating to the service in the Colonies or pos- sessions abroad, of any person as an artificer, clerk, domestic servant, handi- craftsman, mechanic, gardener, .serv- ant in husbandry, or laborer, were exempted from stamp duty. By 33 & 34 Vict. chap. 97, schedule, Agreement, an agreement or memoran- dum for the hire of any laborer, arti- ficer, manufacturer, or menial servant is exempt from stamp duty. By 17 & 18 Vict. chap. 104, § 143, all indentures of apprenticeship to the sea service are exempted from stamp duty. By the merchant shipping Act, 1883 (46 & 47 Vict. chap. 41), § 11, all indentures of apprenticeship to the sea- fishing service, and agreements with respect to such service under the act, are exempt from stamp duty. Construing these clauses, the courts have held that an overseer in a print- ing office is an "artificer." Bishop v. Letts (1858) 1 Fost. & F. 401. That the fireman of a sea-going steamer is a "laborer," and not an ordinary seaman. Wilson v. Zulueta (1849) 14 Q. B. 405, 14 Jur. 366, 1& L. J. Q. B. N. S. 49. That a man who engages to taJce 484 MASTER AND SERVANT. [chap. iv. F. Alien labor laws. 149. Tlnited States. — a. Federal legislation. — By the original act of February 26, 1885, § 1, it was declared to be "unlawful for any per- son, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way assist or encourage the im- portation or migration of any alien or aliens, any foreigner or for- eigners, into the United States, its territories, or the District of Co- lumbia, under contract or agreement parol or special express or im- plied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its territories, or the District of Cohimbia." The prohibition was declared (§5) not to be applicable to "actors, artists, lecturers and singers," or to persons employed as "personal or domes- tic servants," or to persons engaged in new industries not then es- tablished in the United States, provided that "skilled labor for such purpose could not be otherwise obtained." By the act of March .3, 1899, "ministers of any religious denomi- nation, persons belonging to any recognized profession, professors of colleges and seminaries," were excepted from the prohibition. Act of March 3, 1903, chap. 1012, (32 Stat, at L. 1213, § 2, U. S. Comp. Stat. Supp. 1905, p. 276). This statute prohibits in gen- eral terms the importation of aliens under agreement to perform "work or service of any kind skilled or unskilled," but permits the importation of skilled labor "if labor of like kind cannot he found in this country," and makes an exception in favor of "professional act- ors, artists, lecturers, singers, ministers of any religious denomina- cbarge of a farm at a fixed salary per H., quarryman, and the Y. I. Co., that annum, with a third share in the clear is, the said I. H. do engage to quarry a annual profit, is not a partner, but a sufficient quantity at C. G. to complete "laborer." Reg. v. Wortley (1851) 2 a dry wall which is to be erected be- Den. C. C. 333, 15 .Jur. 1137, 21 L. J. tween certain specific limits. Hughes Mag. Gas. N. S. 44. In this case v. Budd (1840) 8 Dowl. 478. (agreement stated in detail in § 71, Except in the particular cases men- note, 1, ante), the point was that the tioned in the clauses quoted above, the agreement, though unstamped, was ad- exemptions do not apply to deeds of missible in a prosecution for embezzle- apprenticeship. Rex v. Ditchingham ment. (1792) 4 T. R. 769 (rule assumed) That a clerk is not a "laborer." Nor to an agreement for the assign- DaJcin v. Watson (1841) 2 Craw. & ment of an apprentice. Rex v 8t J). C. C. (Ir.) 224, per Crampton. J. Pauls Bedford (1796) 6 T. R. 4.52. The following agreement was held For information as to the stamp not to be one for the hire of an "arti- acts generally, Mr. Alpe's treatise on ficer," and accordingly to be inadmissi- the subject may be consulted. See also ble in evidence without a stamp: "A Chitty. Contr. "l3th ed. chap. 6. memorandum of agreement between I. § 149] FORMATION AND \ALIDITy OF CONTRACT. 485 tion, professors for college or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as per- sonal or domestic servants." It is also declared to be "unlawful for any person, etc., in pursuance of any offer, solicitation, promise, or agreement, parol or special, expressed or implied, made previous to the exportation of such alien, to perform labor or service of any kind, skilled or unskilled, in the United States." Under the act of February 20, 1907, § 2, one of the classes of aliens excluded from the United States are "persons . . . who have been induced or solicited to migrate to this country, . . . in consequence of agreements, oral, written, or printed, express or implied, to perform labor in this country . . . skilled or un- skilled." 34 Stat, at L. 898, chap. 1134 (U. S. Comp. Stat. Supp. 1909, p. 448). The exceptive provisions are to the same effect as in the act of 1903. The constitutionality of this legislation has been explicitly af- firmed.^ In order to support a prosecution under these statutes it must be proved : — (1) That the person employed was an "alien" in the sense contem- plated by the legislature.* (2) That the contract of employment constituted a valid obliga- tion subsisting at the time when the alien reached the United States.' (3) That the contract had relation to services of the description 1 Lees V. United States (1893) 350 on his return to the United States, held U. S. 476, 37 L. ed. 1150, 14 Sup. Ct. to be an immigrant within the act. Rep. 163. Re Maiola (1895) 67 Fed. 114. 2 It was held in one case that the In United States v. Aultman Co. statutory prohibition did not extend (1906) 79 C. C. A. 457, 148 Fed. 1022, to an alien who, after having declared affirming (1906) 143 Fed. 922, it was his intention to become a citizen, had held that the act did not apply to a returned to his native country and re- man who entered the United States as mained there two years in consequence an immigrant from Germany when of the illness of his wife. Re MartorelU young and remained continuously domi- (1894) 63 Fed. 437. The ratio de- ciled and working in this country for cidendi was that upon the given facts twelve or more years, although without there had been merely the temporary becoming naturalized, and who then departure of a resident who intended went temporarily into Canada, where to return. he had been for two weeks when the In another case an unmarried man contract alleged to be in violation of who had emigrated to the United States the statute was made, with the intention of making it his ^ M oiler v. United States (1893) 6 permanent home, having remained about C. C. A. 459, 13 U. S. App. 472, 57 two years, and worked at his trade and Fed. 490. kept a store, and who, having been An alien who upon a promise of em- taken ill, had returned to his native ployment upon his arrival in this land, and done no work during the ten country at stipulated wages in a defi- months he stayed there, was not, up- nite occupation, which promise was made 486 MASTER AND SERVANT. [chap. rv. covered by the act. So far as the scope of the original statute was concerned, the courts readily arrived at the conclusion that the phrase, "labor or service of any kind," was to be understood in such a sense as to include all classes of servants engaged to perform work which is ordinarily designated as "manual." * But the proper construction of the general words "service of any kind" was a more difficult ques- tion. It could scarcely be disputed that this expression, when viewed by itself and apart from extrinsic circumstances, was sufficiently com- prehensive to cover skilled, as well as unskilled, labor. Nor could it well be denied that, having regard to the principle, Expressio wnius est exclusio alterius, the denied construction thus indicated derived a strong support from the addition of the exceptive clauses by which certain classes of employees engaged in occupations which demand special skill and training were exempted from the prohibition. But in a notable case in which it was held that the prohibition was not ap- plicable to ministers of the Gospel, the Supreme Court of the United States proceeded upon the ground that the act was designed merely "to stay the influx of cheap, unskilled labor." * One of the elements relied upon was the fact that in the title the word "labor" alone was used. But the consideration which mainly influenced the court is in- dicated by its remark that one of the guides to the meaning of a statute "is to be found in the evil which it is designed to remedy;" by one who advanced him the money for received a promise from a distant rel- his passage and who accompanied him ative in this country, that if he came on his journey, came to this country, to the United States he would be given went to work for such person at the employment, and whose father paid his stipulated wages, and at the designated passage, and who had no contract for occupation, repaid the advance out of employment before he came, is not a his wages, and continued in the em- contract laborer merely because the rel- ployment of the person who made the ative gave him work upon his arrival promise for a year, is a contract labor- in this country. Botis v. Davies, 173 er expressly excluded by the immi- Fed. 996. gration act (Act Feb. 20, 1907, chap. The acceptance of an oiler to employ 1134, 34 Stat, at L. 898, U. S. Comp. a foreign laborer if he will come to the Stat. Supp. 1909, p. 447). Ex parte United States is constituted by his George (1910) 180 Fed. 785. starting to the United States, and com- An offer by a foreign laborer to come pletes the contract in the foreign to the United States if transportation country. United States v. Great FaUs were furnished, and his correspondent's d C. R. Co. (1892) 53 Fed. 77. reply stating that he had provided *In United States v. Parsons (1904) tickets and could give steady work, 66 C. C. A. ]29, 130 Fed. 681, a farm nothing being said on either side as laborer employed to work under super- to time or compensation, do not con- vision was held to be within the pro- stitute a contract "made previous to hibition. said importation and migration." United 6 Church of Holy Trinity v. United States V. Edgar (1891) 1 C. C. A. 49, States (1891) 143 U. S. 457, 36 L. ed. 4 U. S. App. 41, 48 Fed. 91, affirming 226, 12 Sup. Ct. Rep. 511, reversing (1891) 45 Fed. 44). (1888) 36 Fed. 303. A minor sixteen years of age who 5 149] FORMATION AND VALIDITY OF CONTRACT. 487 and that, for the purpose of ascertaining what that evil was, a judge "properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body." * The construction placed upon the specific exceptive clauses is indi- cated by the cases cited in the note.'' 6 In this connection the court in Church of Holy Trinity v. United States (1891) 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511, quoted with approval the following remarks of Mr. Justice Brown, who had, as district judge, rendered the decision in Umted States V. Cfraig, 28 Fed. 795, 798: "The motives and history of the act are mat- ters of common knowledge. It had be- come the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under con- tracts, by which the employer agreed, upon the one hand, to prepay their pas- sage, while, upon the other hand, the laborers agreed to work after their ar- rival for a certain time at low wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupation to the level of the assisted immigrant. The evil finally became so flagrant that an appeal was made to Congress for relief by the passage of the act in ques- tion, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands or those of their friends, to pay their passage." A passage in which the effect of the importation of foreign laborers in de- grading American laborers is adverted to in strong terms is quoted by the court in United States v. Aultman Co. (1906) 143 Fed. 922. In United States v. Laws (1895) 163 U. S. 259, 41 L. ed. 152, 16 Sup. Ct. Hep. 998, the court reaffirmed the same theory as to the scope of the act, and declared a chemist hired for a planta- tion not to be within the act. In United States v. Gay (1899) 37 C. C. A. 46, 95 Fed. 226, affirming 80 Fed. 254, the employment of a person to come to the United States and en- gage for a drygoods house as a draper, window dresser, and clerk was held not to be within the prohibition. T Act of 1885. That a trimmer of hats was not a "professional artist" was held in United States v. Thompson (1889) 41 Fed. 28. The phrase, "employed strictly as a personal or domestic servant," was held not to include a farm servant or dairy- man whose labor is to be in part de- voted to the production of merchandise which competes with the product of others whose entire attention is given to manufacturing such products. Re Gummings (1887) 32 Fed. 75. But an "under-coachman" was held within its purview. Re Howard (1894) 63 Fed. 263. The alien whose rights were there in question assisted to Iceep the stables, horses and carriages in good or- der, drove the horses when his em- ployer or any of the family went out in carriages, accompanied younger mem- bers of the family on horseback rides, did no productive work, but performed services ministering exclusively to the personal comfort and enjoyment of his employer and family, and slept in the coach house and boarded with the coach- man. An industry not fully established, in which several firms are struggling for existence, experimenting and hoping, is a "new industry" within the exception. United States v. Bromiley (1893) 58 Fed. 554. But that expression does not cover the manufacture of entire silk stockings of peculiar texture, due to the peculiar structure and operation of the knitting machines used, on which feet only have heretofore been manufactured in this country. United States v. McGollum (1891) 44 Fed. 745. Where the evidence shows that a skillful workman, after a few weeks, could learn to run certain machines, the fact that a manufacturer advertised unsuccessfully for operators, and that two of his workmen attempted without success to run the machines, does not show the employment of such reason- able efforts to run the machines as indicate a necessity for resorting to foreign workmen. Ihid. Act of 1891. A chemist employed 488 MASTER AND SERVANT. [CHAP. IV. The original act was directed against persons, etc., who "assisted or encouraged the importation or migration" of laborers belonging to the prohibited classes.' But this phraseology does not occur in the act of 1903. The act of 1903, although it omits the clause inserted in the origi- nal act, with regard to the exchision of employees of the prohibited descriptions, has been held not to repeal by implication the provisions for the deportation of such employees. * The United States district court has jurisdiction of actions by the government to recover the penalties for violations of the act.^" Such actions are so far of a civil nature that the trial court may direct a verdict in favor of the plaintiff, whenever it appears by undisputed testimony that the defendant has committed the statutory offense.^^ On the other hand, they are deemed to be criminal in such a sense that the defendant cannot be compelled to be a witness against himself.*^ on a sugar plantation was within the exception of "persons belonging to any recognized profession." United States V. Laws (1895) 163 U. S. 2.58, 41 L. ed. 151, 16 Sup. Ct. Rep. 998. This may reasonably be regarded as an alterna- tive ground of decision, since the gen- eral theory that the act did not apply to skilled labor would have excluded the employee in question, even if he had not been within the express excep- tion. On the other hand, that phrase has been held not to embrace an expert ac- countant. Re Ellis (1903) 124 Fed. 637. 8 In United States v. Michigan G. R. Co. (1891) 48 Fed. 365, it was held that the statute had not been violated by the employment of a man who re- sided in Canada and crossed the border daily to his work. The insertion of an advertisement in a foreign newspaper: "Wanted — First- class weavers, on fine combed work. First-class weavers can earn per week 35s. to £2. . Baltic Mills Co., . . . Baltic, Conn., U. S. A.", — is a proceeding within the pro- vision of the act of March 3, 1891, chap. 551, § 3 (26 Stat, at L. 1084, U. S. Comp. Stat. 1901, p. 1295), which declares it to be unlawful to "assist or encourage" migration of aliens "by promise of employment through advertisements" published in a foreign country. United States v. Bal- tic Mills Co. (1903) 59 C. C. A. 558, 124 Fed. 38, reversing (1902) 117 Fed. 959. The offense of assisting the immigra- tion of an alien laborer under contract to work, under the act of February 26, 1885, is not complete until such alien has entered the territory of the United States. United States v. Craig (1886) 28 Fed. 795; United States v. Borne- man (1890) 41 Fed. 751. SRe Ellis (1903) 124 Fed. 637. With reference to the amendatory act of 1887, which directed that the immigrants be sent back to the nations from which they came, it was held that an immigrant might be prevented from landing. Re Cummings (1887) 32 Fed. 75. It was also held that, although the necessary effect of refunding to allow an immigrant to land was to confine him to the ship on which he came, he was not entitled to be released on habeas corpus. Re Florio (1890; C. C.) 43 Fed. 114. 10 Lees v. United States (1893) 150 U. S. 476, 37 L. ed. 1150, 14 Sup. Ct. Rep. 163. 11 Hepmer v. United States (1909) 213 U. S. 103, 53 L. ed. 720, 29 Sup. Ct. Rep. 474, 16 Ann. Cas. 960. 12 Lees V. United States, supra. Congress by providing in the immi- gration act (act Feb. 20, 1907, chap. 1134, § 5, 34 Stat, at L. 900, U. S. Comp. Stat. Supp. 1907, p. 393), a civil action for the recovery of a pen- § 149] FORMATION AND VALIDITY OF CONTRACT. 489 And the government has the burden of proving the violation of the act beyond a reasonable doubt. ^^'^ The decision of the Secretary of the Treasury with regard to the question whether a certain immigrant is entitled to enter the country is conclusive, and will not be reviewed by the courts.^' ISTor can they review on habeas corpus proceedings a decision of the collector, if there was competent evidence before him on which he could deter- mine the status of the immigrant.^* It has also been held that, where the proceedings taken by him are regular, the immigrant cannot be released on habeas corpus upon the ground that his statements in re- gard to the contract were untrue. But in such a case the collector may re-examine the facts.''* Under the general principle stated in § 570, post, it is clear that no action can be brought for the recovery of remuneration in respect of services performed in pursuance of an agreement which is within the prohibition of the statute.'® h. State legislation regarding labor contracts made with aliens while still in their own country. — By some of the state legislatures, statutes of a tenor similar to those passed by Congress have been en- acted. Illinois. Act of June 1, 1889. -It is declared to be unlawful to employ on any public work aliens who have not declared their inten- tion of becoming citizens. Indiana. Acts 1885, p. 153 (Burns's Anno. Stat. 1894, §§ 7079, 7082). The importation of aliens under agreement to perform serv- ices is prohibited. Virginia^ Code, § 44. Duly attested contracts with aliens for labor for a term not exceeding two years, made in a foreign country are enforceable as if made within the state. alty in cas" of a violation of § 4 of 14 i?e Giimrmngs (1887; C. C.) 32 that act, making it a misdemeanor to Fed. 75. assist or encourage the importation of U Re Dietze (1889) 40 Fed. 324. alien contract laborers, did not pre- le Simon v. Haut (1905) 95 Minn. elude a prosecution by indictment to 521, 104 N. W. 129. There, however, it enforce such penalty. United States v. ^^s held that the pleading did not Stevenson (1909) 215 U. S. 190, 54 L. sufficiently show an illegal agreement ed. 153, 30 Sup. Ct. Rep. 35. where the complaint did not allege See also Grant Bros. Constr Co. -v ^^^^ ^.^^ ^^^^^ performed was in pur- Vnited States (1911) 13 Ariz. 388. 114 ^^^^^^ ^^ ^^ agreement entered into in ^Ua'£a»v. United States (1910) 31 -}.?^.f°« f t'^^ ^^^Vr ^TfTnrpV.n LRMN.S.) 1073, 105 C. C. A. 505, h'bitmg the importation of foreign 183 Fd 293 \a.hoT, and the answer contained no a.\- 13 Re' Howard (1894) 63 Fed. 263, legation, and the reply stated that referrins to special provisions in U. S. plaintiff's transportatir-n from Germany Stat. 188S, chap. 1210. to the United States was paid by de- 490 MASTER AND SERVANT. [chap. iv. Wyoming. Eev. Stat. 1899, § 2520. No contract made for labor or services, with any alien or foreigner, previous to the time that such alien or foreigner may come into the state, shall be enforced within this state for any period after six months from the date of such contract. All that need be said regarding these statutes is that, so far as they cover the same ground as the Federal acts, they are superfluous, and that, so far as they conflict with those acts, they are invalid. The writer has not found any case in which they have been construed. c. State legislation as to contracts with resident aliens. — In Penn- sylvania it has been enacted that, in all public work, none but citizens of the United States, or aliens who shall have legally declared their intention to become such, who have been residents of the state in which such work is to be done for six months next preceding the date of such employment, shall be employed by the state, or any munici- pal corporation therein, or by any person or persons contracting with the same." In some of the western states prohibitory statutes of a similar tenor have been passed with reference to Chinese.^' The Ore- gon statute has been pronounced invalid by a Federal judge, as being in conflict with the treaties made with China by the Federal govern- ment in 1858 and 1868." 150. Canada. — a. Legislation by Dominion Parliament. — The Ca- nadian statute regarding labor contracts with aliens (60 & 61 Vict, chap. 11; amended by 1 Edw. VII. chap. 13, § 3) follows very closely, in its substantive provisions, the statute now in force in the United States. Its effect has not been much discussed as yet by courts of review.* In construing it, the Canadian judges will doubt- less proceed upon the principle that the decisions of the United States fendant upon his agreement to work for Machinist, Apply Vancouver Engineer- defendant after arriving in the country, ing Works, Vancouver, B. C," — it was 17 P. Laws, 1897, No. 379, § 2. held that the advertisement did not 18 Oregon. Laws 1878, p. 9, 2 Hills's contain a promise of employment with- Anno. Laws, § 4235. in the meaning of the act. Doumie v. Nevada. Laws 1879, p. 81 (Gen. Vancouver Engineering Works (1904) Stat. § 4927) ; Cutting's Comp. L. § 10 B. C. 367. 5004. Some points of procedure were de- ls Bofcer V. Portland (1879) 5 Sawy. cided in Rex v. Hayes (1903) 5 Ont. 566, Fed. Cas. No. 777. In Portlaaid v. L. Rep. 198 ; Real v. Breckenridge Baker (1880) the state court of first (1905) 10 Ont. L. Rep. 459. instance held the statute to be valid, A judge of a county court in New but the supreme court (see 8 Or. Brunswick has no jurisdiction to con- 356) did not refer to the question. vict for an offense not committed with- 1 Where the defendant company pub- in his territorial jurisdiction. Rex v. lished in a Seattle newspaper this Forhes (1906) 37 N. B. 402. advertisement: "Wanted, First Class ■S 151] FOKMATION AND VALIDITY OF CONTRACT. 491 ■courts with respect to the acts of which it is a copy are of strongly- persuasive, if not decisive, authority. By an Ontario court the section (6) which provides that an immi- grant who has been allowed to enter Canada contrary to the prohi- bition of the act may be returned to the country whence he came was recently held to be vitra vires of the Dominion Parliament, for the reason that it involved the assumption of a right to exercise an extra- territorial jurisdiction. But this doctrine has been pronounced er- roneous by the judicial committee of the privy council. The ratio decidendi was that the sovereign power of expelling aliens had been conferred upon the Dominion government by the British North America act of 1867, and the grant of this power included, by neces- sary implication, the grant of the subsidiary power of imposing that extra-territorial constraint which, in the nature of the case, is neces- sary for the purpose of enabling the government to effect the expul- sion of aliens.® b. Provincial legislation regarding contracts made with aliens while still in their own country. — By § 15 of the Ontario immigra- tion aid societies act (Kev. Stat. 1897, chap. 212), immigrants are authorized to bind themselves to work for the appointees of a society, and to allow the employer to deduct certain specified sums at inter- vals from their wages for the purpose of repaying advances made by the society. In view of the decision of the privy council which is cited in the following subsection, this statute is possibly to be regarded as in- valid. c. State legislation regarding contracts made with resident aliens. — By § 4 of the coal mines regulation act 1890 of British Columbia, the employment of Chinese of full age in underground workings is prohibited. This act has been declared by the judicial committee of the privy council to be invalid as an invasion of the powers of the Federal leg- islature.^ 151. Australia. — a. Commonwealth legislation. — Contract immigra- tion act 1905 (ISTo. 19), § 5. It is provided that every immigrant under contract to perform labor in Australia may land if the contract is first approved by the minister for external affairs. His approval is to be given, if (1) the contract in his opinion is not made in con- 2 Atty. Oen. v. Cain (1906) A. C. 542, A. C. 580. This decision overrules reversing (1905) 10 Ont. L. Rep. 469. Re Coal Mines Regulation amendment tVnion Colliery Co. Y. Bryden (1899) act 1890 (1896) 5 B. C. 306. 492 JIASTER AND SKRVANX. [chap. iVw templation of, or with a view to affecting, any industrial dispute; or (2) if there is a difficulty in obtaining laborers of equal skill in the commonwealth (this clause is not applicable to a British subject or a descendant of a British subject) ; or (3) the remuneration and other terms are as advantageous as those current for other workers of the same class in the place where the contract is to be performed. If the immigrant lands before the contract is approved by the minis- ter, the contract is avoided, and he is subjected to a penalty. The above provisions supersede cl. 3, par (g), and cl. 11, of the immigration restriction act 1901, which contained a general prohi- bition against the immigration of any persons under contract to per- form manual labor, except workmen exempted by the minister for special skill, or the crews of vessels in the coasting trade.'' Post and telegraph act 1901 (No. 12). 'No colored laborer can be employed in the steamers under contract to carry the mails. Pacific Island laborers' act 1901 (Commonwealth act No. 16). This statute provides for the restriction, and ultimately the pro- hibition, of the introduction of laborers from the Pacific Islands. It will be observed that all these acts apply only to contracts for the performance of manual labor, so that one of the questions which arose under the first alien labor act of the United States is excluded. b. State legislation. — Queensland — The Pacific Island laborers' act 1880 regulates contracts for the hiring of laborers imported for plan- tation work from the South Sea Islands.^ 1 With reference to § 3 (k) of this have relation to the same test. The act (permitting members of a sliip's provision, therefore, is taken as operat- crew to go asliore but imposing a pen- ing in any case in whicli the officer is alty on the master, in case of the ab- of opinion that the person in question sence from the muster of a member is one vpho, if the opportunity for ap- who would, in the opinion of the officer, plying the presented test had occurred be a prohibited immigrant), it has been would have failed to satisfy it. Preston held that, having regard to the pur- v. Donahoe (1905, 1906) Com. L. R. port of el. (a) of the same section, 1089. under which one of the classes of pro- 8 It has been held that, unless it is hibited immigrants consists of persons otherwise stipulated in the contract, who fail to satisfy the test of writing the obligation of an employer to pay an from dictation fifty words in a Euro- islander's wages for the whole term of pcan language, — ^the "opinion" of the his engagement is absolute. Hornbrook officer upon which the question of cul- v. Hyne (1897) 8 Queensl. L. J. 17. pability depends must be assumed to CHAPTER V. DURATION OF THE CONTRACT. A. Geneeallt. 152. Duration determined with reference to the specific terms of tin; contract. 153. Understanding of parties as to effect of contract. 154. When the term of service begins. 155. Continuity of tlie service. B. Duration of a hibing without specific mention of time. 156. English doctrine that a hiring without mention of time is presump- tively a hiring for a year. 157. Nature of presumption discussed. 158. Doctrine applied in the British Colonies where the common law is administered. 159. Doctrine in the United States. 160. Discussion of this doctrine. 161. Doctrine in civil law jurisdictions. a. Louisiana. 6. Scotland, c. Quebec. 162. Duration of contracts for the performance of piecework. 163. Duration of contracts providing for payment by commissions. C. Elements beaeing upon the duration or a hiking without mention op TIME. 164. Period with reference to which the rate of wages is estimated. Eng- lish and Colonial decisions. a. Annual rate of wages specified. 6. Rate of wages stated with reference to periods shorter than a year. 165. Same subject. Review of cases decided in the United States. a. Annual rate of wages specified. i. Rate of wages stated with reference to a period shorter than a, year. c. Statutory provisions. 166. Same subject. Decisions in civil law jurisdictions. a. Scotland. 6. Louisiana, c. Quebec. 167. Intervals at which the wages are payable. English and Colonial decisions. a. Generally. 6. Effect of provisions as to termination of contract by notice. 493 494 MASTER AND SERVANT. [chap. V> 168. Same subject. American decisions. 169. Same subject. Rule in civil law jurisdictions. 170. Performance of services, without specific evidence of a precedent contract. 171. Custom and usage. a. Hiring expressly for a definite term. I 6. Hiring without mention of time — English decisions. c. — American decisions. d. — ^Decisions in civil law jurisdictions. 172. Terms on which other servants of the same employer are hired. 173. Character of the work to be performed. 174. Subsidiary stipulations regarding property used for the purposes of the work. 175. Specification of employment as being permanent, steady, for life, etc. 176. Statutory provisions. 177. Provisions of corporate by-laws. 178. Term of employment measured with reference to the continuance of a certain state of things. 179. Contract defeasible at the option of the parties. 180. Employment defeasible by conditions subsequent expressly referred to. A. Geiteeally. ^ 152. Duration determined with reference to the specific terms of the contract. — ^Not infrequently the duration of a contract of hiring is a question merely of the proper construction of the language by which the parties have expressed their intention. In the note below are cited various cases which were decided on this footing.* 1 Where the agreement was to pay to purchase of the other party not less the servant £12 10s per month for the than 80 acres of land, to be paid for first year, and an advance of £10 per in monthly payments at the rate of annum till the salary amounted to £180, $300 per year, and to perform such it was held that the parties contem- labor as may be necessary in superin- plated, first, that the contract was to tending the clearing of land, building continue for one year at all events, and, °^, "^'^'' construction of buildings or secondly, that it might continue for if^"" Y^^"" r^q^ir^d. of h.m for which four; in which case there was to be ^L « Vto^hP ^rfX^lMf^l 'V^'^ ' , . , n . „4i a"d ilidOO to be applied on the land con- a yearly advance in salary Fa^ce« ^^act for 80 acres of land, entered into V. Cash (1834) 5 Barn. & Ad. 904. ^t the same time, fixing the purchase A contract of employment by which price at $600, $300 payable yearly ac- the employer agrees to pay the employee cording to the terms of the former con- a weekly sum, and in a month a fur- tract,— constitutes a hiring of such ther sum as extra pay, and for the en- person for a term of at least two years, suing year to pay him such salary and Wright v. G. 8. Graves Land Co. a certain percentage of the net profits (1898) 100 Wis. 269, 75 N. W. 1000. of the business, is an employment for One about to enter the employment of the whole ensuing year. Koehler v. another demanded $100 per week for Buhl (1893) 94 Mich. 496, 54 N. W. the term of two years. The employer 157. offered him $75 a week for the first A contract by which one party agrees year, and $100 for the second. He de- to keep a boarding house and hotel, and clined, but agreed to contract for $90' § 152] DURATION OF THE CONTRACT. 495 a week for the first year, and, if busi- ness should not then warrant the $10 raise, iie would wait until it did. This was accepted. Held, that this was a contract for one year only. Nash v. Kreling ( 1899 ) — Cal. — , 56 Pac. 260. The court said: "There was no agree- ment as to wages for another year, and hence no employment beyond the first year; for there is nothing in the correspondence between the parties to indicate that the defendant had in mind any period of service for which the rate of compensation was not fixed in ad- vance." A contract binding until the end of the year was held to be inferable, where a receiver appointed at the instance of the mortgagee of the property of a com- pany wrote to the plaintiff a letter in which he promised to make good the contracts of the president for the com- ing year, and asked her whether she wished to remain in the employment. Worthington v. Oak & H. Park Improv. Co. (1896) 100 Iowa, 39, 69 N. W. 258. A contract by which the employer hired a foreman of smelting worlds at a yearly salary, "to remain with me for at least three years at my option," was held to be not a hiring at will, but a yearly hiring, giving the employer an option to require the foreman's serv- ices for three years, or to determine the engagement at the end of the first, second, or third year. Down v. Pinto (1854) 9 Exch. 327. In Stewart v. Cochrane (1871) 9 Scot. L. R. (Sc. Sess.) 23, the terms of the contract, as expressed in a letter written by the servant and accepted by the employers, were to the eflect (1) that the servant, after spending a month at one of the employers' estab- lishments for the purpose of acquaint- ing himself with the employers' system, was to proceed to R., and start new works; (2) that, in consideration of his so doing, the employers were to pay him at the rate of £120 for the first three months of his employment at R. ; (3) that if at the end of this time the employers were satisfied, he was to be given an engagement to the end of the ensuing year, and to be paid at the rate of £150 for the remaining nine months; that if the employers should not be satisfied, the arrangement was to terminate at the end of the three months after he had started the works. Held, that under this agreement the servant had been engaged for a year, with a break at tlie end of three months, and that his employers, not having availed themselves of the break were not entitled subsequently to dis- miss him before the end of the year without payment of the whole year's salary. The plainTiiff was appointed manager of a bank at a salary of £750 for the first twelve months, "to commence from a specified date, with the understand- ing that progressive yearly increases thereafter would be considered as the bank grew in strength." Held, that the hiring was for a year only, and that a nonsuit in an action for wrongful dis- missal during that year was proper, the defendant having paid into court the residue of the year's salary. Cook v. Sydney & County Bank (1882) 3 New South Wales L. R. 273. A contract dated January 1, 1893, by which the employee was "to receive $1,200 per year until further notice, or during the year 1893," the salary not to be reduced in any event, is not a contract from year to year so as to en- title the employee, on being discharged after having worked a year and four months, to compensation for the bal- ance of the year. Fuller v. Peninsular White-Lead & Color Works (1896) 111 Mich. 221, 69 N. W. 492. Discussing the effect of the above provision, the court said: "To say that he could only be dismissed at the end of a year would make this provision meaningless, for nobody contends that without it the contract might not be changed, or even terminated, at any yearly period by either party. The only reasonable con- struction is that for the year 1893 the plaintiff had a right to a salary of $1,200. After that his right might be terminated upon notice, which was equivalent to saying that the defend- ant might terminate the contract, be- cause he could not be compelled to work at a lower price, or insist upon receiv. ing any stated amount." An employer does not reserve the right to terminate a contract of em- ployment regardless of substantial cause, where his agent testifies that he told the employee when he employed him that if he gave satisfaction the 4DG MASTER AND SERVANT. [CHAP. V. agent would keep him for a year, and that the agent «ould be the judge of that. Keller - . Wolkarte (1910) — Tex. Civ. App. — , 132 S. W. 506. An emploj-ee is entitled to recover agreed wages for three months, regard- less of his efficiency during that time, where the contract provided that he was to be employed for three months, and then retained if his services were satisfactory, notwithstanding he was discharged at the end of two weeks for unsatisfactory work. Dally v. T. C. Wheaton Co. (1909) 79 N. J. L. 574, 76 Atl. 1074. An oral statement that the employ- ment would continue until the follow- ing Easter, and a direction over the telephone to come to work upon a cer- tain day, which the employee did, con- stituted a contract of hiring, binding on both parties, for a period ending at Easter following. Schulman v. Rosen- stein (1909) 120 N. Y. Supp. 58. A contract of employment for two years is inferable from an agreement to the effect that the employee is con- joining the agency of the employer with that of another person "until such pe- riod within two years" from a specified date as the employee "may meet with and accept another agency to combine with" the two which he would thus be holding. Nielans v. Cutlibertson ( 1891 ) 7 Times L. R. 516. The defendant agreed with the plain- tiff that he should serve him, as his commercial traveler, by a contract which contained these words: "This agreement to be binding between the said parties for twelve months certain from the date thereof, and continue from time to time until three months' notice in writing be given to either party to determine the same." Held, that the employment was only for twelve months certain, and not for fifteen months or any longer period, and that it might he determined by either party by a three months' notice, ending with the first twelve months. Brown v. Symons (1860) 6 Jur. N. S. 1079, 29 L. J. C. P. N. S. 251. 8 C. B. N. S. 208, 8 Week. Rep. 460. In Langton v. Carleion (187.3) L. R. 9 Exch. 57, 43 L. J. Exch. N. S. 54, 29 L. T. N. S. 650, a traveler was engaged by a firm of brewers at a salary of £200 a year, payable fort- nightly, and it was stipulated "that the agreement between the parties shall be for twelve months certain, after which time either party shall be at liberty to terminate this agreement by giving to the other a three months' notice in writing." But if the' em- ployers "shall be desirous of terminat- ing this agreement without notice, after twelve months, or before any no- tice shall have expired, they may do so on payment of £50." Bramwell, B., thus stated his views as to the meaning of these provisions: "The agreement is difficult to construe, but it must, I think, mean one of two things : either an agreement for twelve months cer- tain, to expire, without notice at all, at the end of the twelve months, and then to continue, if the parties so please, until terminated by a three months' notice; or it is an agreement for twelve months, and for some time after, until determined by a three months' notice. This would, in fact, make it an agreement for fifteen months at the least. I prefer the first construc- tion, for otherwise I do not see that any meaning is given to the words 'twelve months certain.' " Pigott, B., expressed his concurrence in the follow- ing terms: "This is a special contract, and not an ordinary yearly hiring for twelve months certain, and then from year to year until determined by notice. The parties no doubt contemplated an engagement which might last longer than one year, and if it did, then it was to be terminated by a three months' notice. But the necessity for a notice only arises in case the first year has expired. At the end of that year, either party could, in my opinion, put an end to the agreement without any notice at all." Kelly, C. B., dissented, saying: "The agreement contemplates, I think, a continuance of the service beyond the twelve months. Within that time it could not be terminated bj- notice at all, nor, as it seems to me, at the close of that period, without a three months' notice." Under a contract made with a teacher providing that, unless there was just cause of complaint on the part of the institute, it was understood that the agreement was to be for one year, and also providing that monthly notice was to be required of either party, the hir- ing was held to be for a year, with the right reserved to either party to ter- minate the contract sooner by giving § 152] DURATION OF THE CONTRACT. 497 to the other a month's notice of his three years from its date, as he should election. Hannay v. Zerian (1889; perform such services and they should City Ct.) 28 N. Y. S. E. 145, 8 N. Y. continue the business and require his Supp. 97. services, paying him the stipulated A contract "for any period less than compensation vpeekly, so long only as ten months, at the option of either he should be employed by and faith- party," to commence on or about a fully serve them; but not to oblige designated date, . providing for cancel- them to continue the business, or to ation of the contract "at any time by employ him therein, except at their either party giving two weeks' notice own election, or to pay him any com- to the other in writing," is a contract pensation after reasonable notice that of employment to last until either party they should no longer require his serv- elects to end it by giving two weeks' ices. This case does not present the written notice, and not to last in any question whether the plaintiff had a event more than ten months. Howe similar right of election." v. Robinson (1895; C. P.) 13 Misc. A contract by which one party agrees 256, 68 N. Y. S. R. 87, 34 N. Y. Supp. to mine, clean, sack, and store ore, 85. and timber any ground worked by him. In Harper v. Hassard (1873) 113 and the other agrees to pay a specified Mass. 187, the agreement consisted of price for the ore mined, furnish a (1) a recital that the defendants in- team to haul the necessary timber, and tended to carry on the business of mak- not to deprive the other of his contract ing oil and water colors, and wished to and give it to another, — is a contract secure the services of the plaintiff in of employment for an indefinite time, the making of said colors; (2) an and does not prevent the employer from agreement of the plaintifif with the de- discontinuing the work at any time on fendants "that he will, during the term reasonable notice. Christensen v. Pa- of not exceeding three years from the cific Coast Borax Co. (1894) 26 Or. date of this agreement, render and 302, 38 Pac. 127. give his exclusive time, service, skill, A contract by an engineer to render and energy to them in the manufac- himself, to the orders of a, person ture of oil and water colors, and named, for "service on steamer he may also instruct and teach them, during assign, and for services in the West the said term, the art of manufactur- Indies, not to extend six months," is ing or making colors in all its details, not a contract for six months, but for so far as it is in his power to do so;" an indefinite period which may amount (3) in consideration of the above, an to six months, but can in no event agreement of the defendants, "during exceed it, and may be terminated at said term," to pay to the plaintiff any time by either party. Oamplell "$30 per week as compensation for his v. Jimenes (1894; C. P. ) 7 Misc. 77, services so rendered;" (4) an agree- 57 N. Y. S. R. 480, 27 N. Y. Supp. 35], ment of the plaintiff that he would reversing (1893) 5 Misc. 593, 56 N. Y. not, "during the continuance of this S. R. 900, 25 N. Y. Supp. 1143. agreement," be connected with any In Nouneniooker v. Hooper (1855) other persons in the manufacture of 4 E. D. Smith, 401, the court, relying colors. In an action by A against B on the rule of construction that effect for wrongfully discharging him before should be given, if possible, to every the expiration of three years, it was part of a contract, held that a written held that B could terminate the con- agreement by which it was stipulated tract at any time by giving reason- that the defendant should give the able notice. In discussing the effect plaintiff employment for one year, at of the contract, Gray, Ch. J., said: a certain rate per hour for every hour's "There is no express agreement of the labor performed, as a gilder, in the defendants to employ the plaintiff for employer's gilding department; and also three years, and no stipulation from that the defendant should pay him $1 which, in our judgment, such an agree- a week extra to superintend the silver ment can be implied. The agreement gilding department, and make himself appears to have been framed and adapt- generally useful, "commencing from the ed to secure to the defendants the right 1 st of May next, and ending on the to the exclusive services of the plain- 1st of January," — should be construed tiff for such time, not extending beyond as entitling the plaintiff to employment M. k S. Vol. I.— 32. 498 MASTER AND SERVANT. [CHiJ. v. Other decisions merely serve to illustrate the application of certain general principles of the law of contracts ; as, where it is laid down that the construction of a written contract of luring is a matter for the court ; ^ that a contract covering a specific period cannot be changed, in respect of its duration, without the consent of both par- ties ; ^ that parol evidence is not admissible to vary the terms of a written contract ; * that a modification of a contract of hiring for a as a gilder for a year, and as a super- receipts signed by plaintiff contained intendent, etc., from May to January such a stipulation did not bind plain- during such year. The last clause, it tiff, unless the same was called to his was considered, did not limit the effect attention, or unless it was shown that of the whole agreement to the period he read them, was erroneous. The of eight months. presumption, under such circumstances. Under a contract of employment pro- was that the plaintiff knew what he viding merely that the salary shall be was signing. Morgenbesser v. Levy $2,500 "for the first year," and $3,000 (1908) 58 Misc. 554, 109 N. Y. Supp. "for the second year and thereafter," 825. if the services rendered during the first ^School LHst. v. McDonald (1903) 68 year are satisfactory, the hiring was Neb. 610, 94 N. W. 829, 97 N. W. 584 held to be from year to year, and not (verdict should be directed where the at will. Mdson v. TSlew York Produce only defense properly pleaded is not Exchange (1908) 127 App. Div. 282, supported by evidence) ; Rvssell \. Ar- m N. Y. Supp. 163. The contention tJwir (1882) 17 S. C. 477; (construction of the defendant that the words, "if cannot be left to the jury, even though your services prove satisfactory to the the contract was made by correspond- authorities of the exchange," applied ence, and the obscurity and inconsist- to the term of hiring, and gave the de- ency of its different parts make it dif- fendant the right to discharge plaintiff fieult to understand), at any time if his services were not 3 Dickinson v. 'Norwegian Plow Go. satisfactory, thus making the hiring for (1898) 10] Wis. 157, 76 N. W. 1108. an indefinite period, was rejected on ^Drennen v. Satterfield (1898) 119 the ground that these words applied Ala. 84, 24 So. 723, such evidence was only to the amount of compensation to held incompetent to show that, in ad- be paid after the first year. dition to what was expressed in a writ- A hiring for one year was held to ten agreement of hire, it was under- be evidenced by a contract reading: stood and agreed that the employer was "I will work for you the first year for at liberty to terminate the contract $1,000, give my undivided time and at- at any time. tention to the advancement, etc., of In Garter v. Weher (1904) 138 Mich, the enterprise, after that time, pro- 576, 101 N. W. 818, defendant agreed vided each of us should live, I will to pay plaintiff a salary of $25 per leave it to you to say what I am worth month for four months for keeping de- to the business. . . . This contem- fendant posted on the market and pla- plates continuous and perpetual serv- cing orders for defendant to the best ice." Seago v. White (1907) 45 Tex. advantage, and, if the service was satis- Civ. App. 539, 100 S. W. 1015. factory, to continue the balance of the In an action by an employee, where year. Held, that such contract pur- the complaint alleged a contract of em- ported to contain all the elements of ployment for a specified number of the agreement, and hence parol evidence weeks, and the answer was a general of a contemporaneous arrangement that, denial, plaintiff offered no testimony unless the contract operated as a saving to explain his signing receipts stipu- to defendant of $5,000, he should not lating that he was engaged by the be bound, was inadmissible. The ratio- week only. Defendant testified that he decidendi was that the proffered evi- hired gangs for the season, and gave dence tended to prove that an obliga- them the same receipt. Held, that a tion which the words of the contract charge that the mere fact that the had made absolute was conditional only. § 152] DURATION OF THE CONTRACT. 499 certain period, which the law requires to be in writing, cannot be proved except by a written instrument ; ^ that parol evidence is ad- missible to explain a written contract which is ambiguous ; ° that ex- trinsic testimony is admissible for the purpose of reconciling apparent inconsistencies in the terms of an oral contract, as alleged ; "^ that the effect of conflicting evidence as to duration is a question exclu- The report does not show the precise ground upon which counsel had con- tended that the evidence was competent. But it would seem that the contem- poraneous agreement in question might not improperly have been admitted as tending to explain the meaning of the conditional clause in the main con- tract regarding the "satisfactory" per- formance of the work. 6 This was laid down in the Scotch case, Dumbarton Glass Co. v. Coats- worth (1847) 9 Sc. Sess. Cas. 2d series, 385 (original contract was for seven years ) . The requirement that certain contracts shall be in writing does not rest in Scotland, on any express legis- lation resembling the statutes of frauds which have been enacted in England and the United States. (See § 146, ante). But it would seem that the principle embodied in the above case must be equally applicable in jurisdic- tions where such statutes are in force. 6 Camphell v. Jimenes ( 1893 ) 3 Misc. 516, 52 N. Y. S. R. 495, 23 N. Y. Supp. 333, reversing (1893) 3 Misc. 144, 52 N. Y. S. R. 494, 23 N. Y. Supp. 312. Where a contract of employment is on its face contradictory as to the length of the term, the parties, by in- troducing parol evidence as to the in- tention of the parties, raise a question of fact. Oluck V. Duberstein (1899; Sup. Ct.) 28 Misc. 777, 59 N. Y. Supp. 497. Whether there is a contract for serv- ices for a definite period depends on the conditions surrounding the agree- ment, as well as on its terms, when the latter are not specific and clear. Maynard v. Royal Worcester Corset Co. (1908) 200 Mass. 1, 85 N. E. 877. Where a contract for the employment of an insurance agent provides that he shall be permitted to remain the agent for a reasonable period, the opinion of an insurance agent, expert in that busi- ness, as to what would be a reasonable time, is competent in an action by the agent against his principal for damages for an alleged wrongful discharge. Niagara F. Ins. Co. v. Greene (1881) 77 Ind. 590. In Schulte v. Simmons Fur Go. (1907) 46 Wash. 555, 90 Pac. 917, where a written contract for the em- ployment of a fur cutter provided for the payment of so much a week for the "busy season," and so much a week for the "dull season," oral testimony was held admissible to show the mean- ing of these terms in the fur trade. The inquiry into the meaning of these expressions was rendered necessary by the ambiguity of a statement made in the employer's letter which contained the offer, viz., "I have no doubt but what it will be all year round." The plaintiff argued that these words must be literally construed as meaning the absence of all doubt, and therefore as importing an absolute agreement for one year. The court conceded that such a meaning was indicated by a strict reading, but the defendant contended that the words contained within them- selves a reservation of some doubt. This position, it was admitted by the court, might be correct, when viewed with reference not to the actual words employed, but to a provincial, or pos- sibly general, usage and understanding of the words in similar connections. For other cases in which evidence of a custom was held competent for the purpose of explaining contracts, see § 171, post. 7 In Johnston-Woodbury Bat Co. v. TAghtbody (1902) 18 Colo. App. 239, 70 Pac. 957, where the contract alleged was to hire the plaintiff "for a period of one year, for the season commencing December 1, 1897," it was held that the words "for the season" qualified the preceding words, "for a period of one year," and that testimony was ad- missible to show what constituted the 500 MASTER AND SERVANT. [CHAP. V. si^'ely for the jury, or such other tribunal as may in the given in- stance be exercising the functions of a jury,' or unless the evidence is such that only a single inference can reasonably be drawn from it.« It is error to refuse the request of an employer for a specific in- struction informing the jury what verdict they should render in the e\'ent of their finding the engagement to be of that duration which the evidence adduced on his behalf tends to establish.'" But he is not entitled to have the case submitted to the jury by an instruction which is more favorable to him than his own testimony with regard to the duration of the hiring in question warrants. '' 153. Understanding of parties as to effect of contract. — A doctrine ap- plied in several settlement cases was "that the private understanding of the parties, either one way or the other, as to the legal effect of their contracts, and whether they may or may not part with each other, can make no difference." ' This doctrine has also been affirmed in cases involving the rights of the parties inter se.^ The decisions founded upon it, however, must be carefully distinguished from 8 Howell V. Joseph Edwards Dredging Co. (1891) 36 N. Y. S. R. 803, 13 N. Y. Supp. 349, affirmed in (1891) 129 N. Y. 625, 29 N. E. 1030; Leichman v. Jughan (1889; Sup. Ct.) 22 N. Y. S. R. 861, 4 N. Y. Supp. 525; Bloom v. P. Cox Shoe Mfg. Go. (1894) 64 N. Y. S. R. 132, 31 N. Y. Supp. 517; Cox v. Baeder (1886; Sup. Ct.) 5 N. Y. S. R. 51; Junge v. Haug (1890; Sup. Ct.) 32 N. Y. S. R. 189, 10 N. Y. Supp. 215; McGowan v. Giveen Mfg. Co. (1900) 54 App. Div. 233, 66 N. Y. Supp. 708; Arnold v. Railioay Steel Spring Go. (1908) 131 Mo. App. 612, 110 S. W. 617; Bairns v. Penza (1907) 107 N. Y. Supp. 25; Cooke v. Independent Teleph. & Teleg. Gonstr. Co. (1908) 77 N. J. L. 454, 68 Atl. 790; Holloway v. JAndberg (1898) 30 N. S. 421, first appeal (1897) 29 N. S. 460. ^Egan v. Chabot (1908) 124 App. Div. 593, 109 N. Y. Supp. 110 (plain- tiff's own testimony not sufficient to sustain her allegation). Zahler v. Ar- kin (1906) 112 App. Div. 327, 98 N. Y. Supp. 544 (weight of evidence held to be in defendant's favor, where the uncorroborated testimony of the plain- tiff was opposed to that of the defend- ant and two other witnesses ) . V>B arris v. Harioell (1902) — Tex. Civ. App. — . 71 S. W. 791. liEartsell v. Masterson (1902) 132 Ala. 275, 31 So. 616, it was held that an instruction that, unless the contract was for an entire year, defendants had a right to discharge plaintiff at any time during the year without any fault on his part, had properly been refused, where defendants had testified that the hiring was by the month. ^Bex V. Beaton (1784) Cald. 440; Rex V. Stocklridge (1773) Burr. Sett. Cas. 759; Bex v. Bath-Easton (1776) Burr. Sett. Cas. 823; Bex v. Newton Toney (1788) 2 T. R. 453. 2 In Higgins v. Shepard (1903) 182 Mass. 364, 65 N. E. 805, it was held that the trial judge had properly re- fused to give an instruction which con- flicted with the doctrine that, where the issue is whether the contract was abso- lute for a fixed time, or terminable at the wish of eitlier party, and there is no express stipulation in the contract, the question is not what was in fact the understanding of the parties, but what ought to have been their under- standing, in view of what was said and done under the circumstances. That a declaration of the servant himself as to the construction which he himself placed upon a special agree- ment was not competent evidence to establish the terms of the employment. § 154] DURATION OF THE CONTRACT. 501 those which proceed upon the theory that the understanding of the parties is admissible in evidence, when it is adduced merely as one of the elements which go to show what their actual intention was at the time when the contract was entered into.* 154. When the term of service begins. — Where no direct evidence up- on the point is obtainable/ it will ordinarily be presumed that the period covered by the contract began to run at the time when the services of the employee were first required and used by the em- ployer.* This presumption is, of course, corroborated when the evi- dence shows that his compensation was subsequently paid on this foot- was held in Granger v. American Brew- ing Go. (1899) 25 Misc. 701, 54 N. Y. Supp. 695, 696. * In Dickinson v. Norwegian Plow Go. (1898) 101 Wis. 157, 76 N. W. 1108, an action against a corporation by an employee to recover the balance of his salary for a year's service under a con- tract made by the secretary of such corporation, it was held that the tes- timony of such secretary that the em- ployment was for one year could not be rejected as being only a conclusion of law. Such evidence showed that the defendant, which was acting through its secretary, understood that the hir- ing was for a year. Where the jury are called upon to consider the absence of any protest up- on the part of the plaintiff when he was discharged, as an element bearing upon the question whether or not the contract was for a year, their attention may also properly be called to the fact that this was not made a point of by the defendants at the time. DeLeon v. Echeverria (1879) 13 Jones & S. 610. In one case it was held on this sub- ject, that an answer in an action for an alleged wrongful discharge of an em- ployee, verified by one of the defend- ants, and containing an unqualified ad- mission that the defendants had em- ployed the plaintiff to serve as their bookkeeper until a designated date, was competent to go to the jury on the question as to what were the terms of the contract in respect of duration. Norris v. Cargill (1883) 57 Wis. 251, 15 N W. 148. See also E. I. Du Pont Go. V. Waddell (1910) 101 C. C. A. 335, 178 Fed. 407. 1 In an action on a contract of em- ployment between defendant and plain- tiff's testator, the plaintiff alleged that the contract commenced on April 11, 1892, and was to continue for one year, while defendant alleged that it com- menced on July 1, 1892, and that the employment from April 11th to July 1st was a preliminary engagement. Held, that a receipt from plaintiff's testator, acknowledging payment to the end of June 30, 1892, was admissible as show- ing that the engagement of plaintiff's testator for which he was paid was to end on June 30th, and that his year- ly employment was to commence on the 1st of July. Janin v. Gheney Bros. (1899) 44 App. Div. 110, 60 N. Y. Supp. 645. 8 The defendant having established smelting works at Carthagena, in Spain, offered to employ the plaintiff as foreman, by letter containing these passages: "I should require you to en- ter into an engagement to remain with me for at least three years, at my op- tion; salary £250 per annum. I should require you to visit some of the best smelting works in England before you come out. " The plaintiff accepted the employment, and on the 1st of Febru- ary, 1850, proceeded to visit smelting works, and was so occupied until the 15th, when he departed for Cartha- gena, arriving there on the 6th of March. He continued in the service of the defendant until the 15th of Feb- ruary, 1851, when he was discharged. He had been paid his first year's sal- ary as commencing on the 1st of Feb- ruary, 1850. In an action to recover the second year's salary, held, that the service and the salary commenced when the plaintiff first proceeded to visit the smelting works in England. Down V. Pinto (1854) 9 Exch. 327, 23 L. J. Exch. N. S. 103, 2 C. L. R. 547. In Reg. v. Dixon (1868) 11 Cox, C. 502 MASTER AND SERVANT. [CHAP. V. ing.' But if the specific language used by the parties definitely fixes the commencement of the contractual period at a certain date, the mere fact that services were rendered before that date, and were paid for on the same scale as that stated in the contract, will not warrant the conclusion that the contract took effect from the time when the employee began to render those services, — especially where it may reasonably be inferred from the evidence that such services were per- formed not under the contract, but with a view of getting it.* Where a definite contract for a year's services is entered into, it will, as a general rule, be inferred that the year is to begin at the time when the contract takes effect. But the character of the em- ployment may be such as to require a different inference.* C. 178, 19 L. T. N. S. 324. (prosecution for embezzlement) while the prisoner was managing a shop for U., his master assigned his property for the benefit of his creditors, and the notice was served on the prisoner to act as the agent of the assignee in the management of the shop. Subsequently a deed of reassign- ment was executed, and the shop mon- eys were thenceforward taken by U. The embezzlement was committed after the reassignment. Held, that the pris- oner was the servant of U. from the time of the execution of the deed, al- though it was not registered until after the embezzlement charged. An employment will be deemed to have begun before the date for com- mencement specified in the contract, where at the request of the employer the employee reported for work at an earlier date. Doyle v. Wurtziurg (1899) 32 N. S. 107. 3 See Down v. Pinto, cited in the last note. * Portier v. Royal Canadian Ins. Co. (1878) 29 U. C. C. P. 353. There the plaintiff, who resided at Toronto, wrote on November 27, 1873, to the president of the defendants' company at Montreal, suggesting their entering into the marine business, and offering his services as manager; and, on re- ceiving a favourable reply asking what salary he would require, on December 16 he wrote, stating that he would ac- cept it named sum, and was willing to enter into an engagement for three or five years. On December 19 the defend- ants replied, stating that they agreed to pay the salary named, "the engage- ment to be for a period of not less than three years," to which the plaintiff re- plied accepting the salary and appoint- ment. The correspondence showed that the plaintiff's duty was to be at Mon- treal, at which place the plaintiff was to reside, and that the business usually commenced early in the year, at which time the plaintiff suggested their com- mencing it. He stated that he would then be prepared to begin, and would be down soon after New Year's Day. Held, that the contract was one for three years, to commence January 1, 1874. 5 In Tyng v. Theological Seminary (1880) 14 Jones & S. 250, it appeared that the actual work of the seminary in which the plaintiff had been a pro- fessor began in each year on the 1st of October; that in the month of June of each year there was an annual meeting of the board of trustees, at which, as plaintiff well knew, provision was made for carrying on the work of the scho- lastic year next ensuing, and at which it was customary, as plaintiff also well knew, to select the professors who were to perform duty during the coming year, and to fix their salaries. The evi- dence showed, further, that it was not until after the completion of these arrangements that t^e salaries thus fixed as so-called annual salaries com- menced to run from July 1 of each year. After one of the annual meetings, of the trustees, which was adjourned for want of a quorum, the plaintiff was informed by a committee of the board that, as there were no students in the seminary, his services must be dis- pensed with during the ensuing year, and a resolution vacating his chair was € 155] DUEATION OF THE CONTRACT. 503 Where a person is at first employed for a specified, term ty parties boiind together only by a private association, and is afterwards re- elected, without any change of terms, either as to duration or salary, by a corporation subsequently formed by those parties, it may prop- erly be inferred that, as regards the corporation, his contract began to run from the date of his original appointment.® 155. Continuity of the service. — In order to gain a settlement by iiring and service under the poor laws formerly in force in England, it was necessary that there should be "a contract for one whole year, and a service for the whole year." ^ It was held that this require- ment was not satisfied where the hiring was exceptive ; that is to say, a hiring under a contract which by its express terms suspended the control of the master for a certain number of hours each day, or for one or more days during the year.^ Exceptions which were impliedly adopted at the next meeting of the board. He accepted a tender made to him of his salary and the use of his house until October 1, but some years afterwards brought suit to recover his salary for the remainder of the year which expired at the end of the fol- lowing June. Held, that he could not recover, since the date of the com- mencement of the year for the running of the contract, as one from year to year, was October 1, and the time in- tervening between the making of the contract and that date formed no part of the year. A teacher's contract employed her for a given time at a given price, but failed to state when services should begin. Held, the law implied that the services were to be rendered within the school year, and that the services should begin when the hoard fixed the opening of the term. GraVb v. School Dist. No. 1 (1902) 93 Mo. App. 254. 8 Beckman v. New Orleans Cotton Press Co. (1838) 12 La. 67. iBayley, J., in Rex v. Lydd (1824) 2 Barn. & C. 754. SRex V. North NiUey (1792) 5 T. E. 21 (contract to work a certain number of hours a day for five years) ; Rex v. Norton Bavcmt (1835) 3 Ad. & El. 161 (similar contract) ; Rex v. Frome &'e^ ivood (1830) 1 Barn. & Ad. 207 (simi- lar contract); Rex v. Lydd (1824) 2 Barn. & C. 754 (services in their na- ture such as hardly ever required more than a few hours each day) ; Rem v. Rushulme (1808) 10 East, 325 (hiring for four years, with liberty to leave for week every year) ; Reg. v. Th/reking- ham (1838) 7 Ad. & El. 866 (servant when hired said he should want a holi- day to go to his "feast") ; Rex v. Cow- pen (1836) 5 Ad. & El. 333 (contract left the servant his own master on Sat- urday and Sunday) ; Rex v. Turvey (1819) 2 Barn. & Aid. 520 (provision for month's absence to be made up after the end of the year) ; Rex v. Buolcland- Denham (1772) Burr. Sett. Cas. 694; Rex V. Empingham (1774) Burr. Sett. Cas. 791; Rex v. Bishop's Hatfield (1758) Burr. Sett. Cas. 439; Rex v. Kingswmford (1791) 4 T. R. 219; Rex V. North Nibley (1792) 5 T. R. 21; Rex V. Macclesfield (1758) Burr. Sett. Cas. 458; Rex v. Over (1801) 1 East, 599; Rex v. Arlington (1813) 1 Maule & S. 622; Rex v. Edgmond (1819) 3 Barn. & Aid. 107; Rex v. Byher (1823) 2 Barn. & C. 114; Rex v. Althorne (1823) 2 Barn, k C. 112; Rex v. Poles- worth (1824) 2 Barn. & C. 715. For the purpose of giving a settle- ment, thgre was held to be a year's service if it began during the afternoon of the 11th day of a certain month, and continued until the 10th of the same month in the succeeding year. Rex v. Syderstone (1777) Cald. 19. Two periods of six months following each other without an interval count- ed as a hiring for a whole year, pro- vided the contracts for such periods were both made prior to the commence- ment of the service. Reg. v. Raven- stonedale (1840) 12 Ad. & El. 73. 504 -MASTER AXD SERVANT. [chap. v. introduced by a usage or custom, by virtue of which the servant was entitled to absent himself without the permission of his master, did not prevent a settlement.' Nor was an exceptive hiring inferred where the servant was given leave of absence during the term ; * nor where he was absent during a portion of the year on account of in- capacity caused by a bodily injury or sickness.® In some cases the right to a settlement turned upon the question whether the hiring was conditional or exceptive. In one case the dis- tinction between these two kinds of hiring was thus explained : "If the bargain be originally made for an entire year, and terms are in- troduced applicable to a continuance of the relation of master and servant during the whole year, but there is a provision that in a given event it shall be competent to the parties to put an end to or suspend the service for a part of the year, still, a settlement is gained if the service is actually performed for a whole year, and neither party avails himself of the condition. A conditional hiring is, for this purpose, the same as an absolute hiring, unless the condition is acted upon. An exceptive hiring is one by which the relation of mas- ter and servant will not subsist for the whole year, unless some fur- ther arrangement is entered into." ' ■ B. DUEATIOBT OF A HIEING WITHOUT SPECIFIC MENTIOM' OF TIME 156. English doctrine that a hiring without mention of time is pre- sumptively a hiring for a year.— The doctrine of the English courts may be stated thus : It is a presumption of fact that a general or in- definite hiring — that is to say, a hiring under a contract which con- tains no express provision respecting the length of the engagement — An implied exception of hours for But where the servant had gone rest was not deemed a break in the away twelve days before the end of continuity of the control of the mas- his year, it was held that no settle- ter. Rex v. All Saints (1818) 1 Barn, ment had been gained. Seaford v. Cas- & Aid. 322. tie Church (1736) 2 Strange, 1022. SRexY. St. Agnes (1770) Burr. Sett. 6 ResB v. Sharrington (1785) 2 Bott, Cas. 671; Rex v. Birmingham (1780) Poor Law, 344; Rex v. Islip (1721) 1 Dougl. K. B. 333, Cald. 77; Rex v. 1 Strange, 423. Edgmond (1819) 3 Barn. & Aid. 107; ^ Rex v. Byker (1823) 2 Barn. & C. Reg. V. Stoke-Vpon-Trent (1843) 13 L. 114. J. Mag. Cas. N. S. 41. Where an arrangement was made for *Rex V. Richmond (1773) Burr. Sett, a temporary absence in the event of his Cas. 740; Rex v. Bray (1771) Burr, being required to serve in the militia, Sett. Csi3. 682; Rex V. St. Philip (1788) it was held that the hiring was not 2 T. E. 624; Rex v. Islip (1721) 1 exceptive. Rex v. Westerleigh (1774) Strange, 423; Rex v. St. Bartholomew Burr. Sett. Cas. 753; Rex v. Winchcomb (1778) Cald. 48. (1780) 1 Dougl. K. B. 391. i 156] DURATION OF THE CONTRACT. 505 is a hiring for a year.^ The scope of this doctrine in respect to various descriptions of service is indicated by the cases cited below and in the notes to the following section.* The suggested explanations of the origin and rationale of the doc- 1 "If a man retain a servant general- ly, without expressing any time, the law shall construe it to be for one year, for that retainer is according to law." (a) Co. Litt. 42, 6. The same doctrine is stated in Com- yns's Dig. title. Justices of Peace, B. 58; Dalton, Justices, chap. 58, p. 127. "If a man retain one to serve him, and express not for how long he shall serve him, he shall serve him for a year; for that retainer is according to the statute," (i. e., of laborers, 5 Eliz. chap. 4). Fitzherbert, Nat. Brev. 168, H. The right of a pauper to a settle- ment by service was determined on this footing in Dunsfold and Ridgwick (1711) 2 Salk. 535. "Wherever the relation of master and servant is to continue for an indefinite time, and cannot be put an end to at the election of either party without notice, there the hiring must be under- stood to be a hiring for a year." Rex v. Hampreston (1793) 5 T. R. 205. To the same general efi'ect, see Rex v. G-reat Yarmouth (1816) 5 Maule & S. 114. "There can be no doubt that a gen- eral hiring is a hiring for a year." Beeston v. Collyer (1827) 4 Ring. 309, per Gaselee, J. "If a master hire a servant without mention of time, that is a general hir- ing for a year." Ibid., per Best, Ch. J. "The general rule is that if a master hire a servant without mentioning the time, that is a general hiring, and in point of law a hiring for a year." Faw- cett V. Gash (1834) 3 Nev. & M. 177, 5 Barn. &, Ad. 904, per Denman, Ch. J. "As a general rule, where the hiring is a yearly hiring it cannot be put an end to by either party before the end of the year." Buckingham v. Surrey & H. Canal Co. (1882) 46 L. T. N. S. 885, per Grove, J. "It would appear that a general hir- ing, if left unexplained, will be taken to have been a hiring for a year." Chit- ty, Contr. 12th ed. p. 640. "If there be no special agreement, or no usage or custom, but the hiring is a general one without mention of time, it is considered to be for a year certain." Smith, Mercantile Law, 10th ed. p. 521. See also the passage quoted in note 3, infra, from 1 Bl. Com. 425. Where the evidence is merely that the plaintiff entered the defendants' em- ploy at a certain salary, the only two possible suppositions as to tlie nature of the hiring are that it is a hiring by the year, or a general hiring without any particular agreement as to time. Broxham v. Wagstaffe (1841) 5 Jur. 845, per Parke, B. In one case Bayley, J., is reported as having said: "The contract is to endure a reasonable time, if no specific time be fixed, and is determinable by a reasonable notice." Winstone v. Linn ( 1823 ) 1 Barn. & C. 460. In this general unqualified form, the remark so made is plainly in conflict with the authorities above cited. Possibly tlie report is not accurate. In one settlement case it was held that from the hiring of a shepherd a few days after a previous term had come to an end, and the payment of his wages up to the end of that term, a general hiring could not be inferred by connecting the new period with the earlier one. Rex v. Ardvngton (1834) 1 Ad. & El. 260. The court said it did not see how the master could have done better to avoid a yearly hiring, and that this was apparently the inten- tion of the parties. 2 Where the only evidence is that a. person was hired to work as the fore- man of silk manufacturers, and was to have wages at the rate of £80 a year, there is nothing to repel the ordinary presumption that he was hired for an entire year. Turner v. Robinson (1833) 5 Barn. & Ad. 789, 2 Nev. & M, 829 (servant dismissed for good cause during a current year was held not to be entitled to recover compensation for his actual services, for the reason that the contract was an entire one). An agreement to serve as a steward from a certain date for a specified sal- ary per annum creates an engagement for a year. Forgan v. Burke (1861) 12 Ir. C. L. Rep. 495 (verdict for plain- 506 MASTER AND SERVANT. [chap. v. trine are not altogether satisfactory. Blackstone states that "if the hiring be general, without any particular time limited, the law con- tiflf in accordance with this rule held to have been rightly directed). In Davis v. Marshall (1861) 4 L. T. N. S. 216, Pollock, C. B., said with regard to a man hired to manage a shop and keep accounts: "This position and employment, coupled with the hir- ing at £30 a year, are sufficient to es- tablish a yearly contract." (For full statement of this case see § 167, note 1, post). Evidence that the plaintiff entered the service of the defendant as a clerk upon a yearly salary, which had at one time been paid quarterly, but which during the last six years of the service had been paid monthly, was held to warrant a jury in finding that the hiring was a yearly one, and termin- able only at the end of a current year. Beeston v. Gollyer (1827) 4 Bing. 309, 12 J. B. Moore, 552, 2 Car. & P. 607. To the same general effect see Buttman V. Boulnois (1826) 2 Car. & P. 510, per Abbott, Ch. J., negativing the con- tention that this doctrine applied only to domestics and servants in husbandry. In Foxall v. International Land Credit Co. (1867) 16 L. T. N. S. 637 (nisi prius case) it was not questioned by either side that the hiring of a clerk whose salary was fixed at so much "per annum" by a resolution en- tered on the company's minute book was a yearly hiring. In Ex parte Humphreys (1833) 1 Mont. & B. Bankr. 413, 3 Deacon & C. 114, where the claimant had been en- gaged at a weekly salary, with a stip- ulation that he was to have two suits of clothes per annum, there was held to have been a yearly hiring. The doctrine that the hiring of a clerk is presumptively yearly was also recognized in Parker v. Jbbetson (1858) 4 C. B. N. S. 346. The hiring of an engineer, under a resolution of a company, at a specified annual salary is prima facie a hiring for a year certain. Buckingham v. Sv/rrey & H. Canal Co. (1882) 46 L. T. N. S. 885. Grove, J., said: "It seems to me, therefore, that the judge was bound to direct the jury that, in the absence of any such evidence, the hir- ing was a hiring for a year. There is nothing to show that the plaintiff ac- cepted the engagement upon any other terms than those expressed in the reso- lution. The plaintiff established a prima facie case of a yearly hiring, and therefore, in the absence of any evi- dence of custom to rebut that prima facie case, I think the verdict ought to stand." Unless something to the contrary is said at the time of the hiring, the en- gagement of a person employed to sup- ply a particular department of a news- paper — as, for instance, the leading ar- ticles or reports of the parliamentary debates — is understood to be for a year. Holcroft V. Barier (1843) 1 Car. & K. 4. There Wightman, J., submitted to the jury the question whether this rule was applicable In the case of a month- ly paper to be sent to India as a sort of speculation; but the defendant had a verdict on the ground that the plain- tiff was not hired as an editor, and the question was not answered. In Baxter v. Nurse (1844) 6 Mann. & G. 935 Coltman, J., remarked that the question whether, in the case of an editor of a literary publication, a gen- eral hiring was to be considered as necessarily an engagement for a year, had never been decided. But it is clear from the language used by all the judges in this case that the remark so made is not to be construed as im- plying a doubt as to the doctrine that the general rule is applicable in such a case, where no evidence to rebut the usual presumption is given. The proposition that, if unexplained, a general hiring of a surgeon's assist- ant, is to be taken as a hiring for a year, has been recognized, arguendo, as correct. Bayley v. Rimmell (1836) 1 Mees. & W. 506, per Parke, B. In Emmens v. Elderton (1853) 4 H. L. Cas. 624, it was assumed by all the judges summoned by the House of Lords to give their opinions, that the effect of a resolution entered in the minute-book of a company, by which a person was to receive, as the company's solicitor, a salary of £100, in lieu of his rendering an annual bill of costs, as he had previously been doing, was to bind the company to retain him in its employment for at least a year, the sole subject of controversy being wheth- S 156] DURATION OF THE CONTEACT. 507 strues it to be a hiring for a year, upon a principle of natural equity, that the servant shall serve and the master maintain him throughout all the revolutions of the respective seasons, as well when there is work to be done as when there is not." * In the opinion of a recent text writer, a more probable explanation of it is that it arose in con- sequence of various statutory provisions (5 Eliz. §§3 and 7, and other acts), long in force, that the hiring in certain occupations should be er it was also bound to give him busi- subject to the incident engrafted on it ness to transact during that time. ( See by usage, that the relation may be ter- § 258, note 1, post ) . Crompton, J., con- minated by a month's warning or a curred "entirely with the judgment of month's wages. See the case just cited, the exchequer chamber as to the com- and § 171, post. pany being bound to continue the re- In Lilley v. Elwin (1849) 11 Q. B. lation of employer and employed, at 742, 12 Jur. 623, 17 L. J. Q. B. N. S. least for a year," and said that, "sup- 132, there was held to be a fatal vari- posing the case one of employment and ance, where a servant in an action for service, the words of the contract ap- wrongful dismissal declared a special pear to me as strong in favor of the contract determinable on reasonable no- engagement lasting during the year as tice, and the proof was of a general the words in Fawoett v. Cash." Piatt, hiring as an agricultural laborer. B., said: "This agreement appears to That an indefinite hiring was a year- me to have established the relation of ly one was also held in the following employer and employed for the period settlement cases: Rex v. Berwick St. of a year, at a salary of £100." Cole- John (1760) Burr. Sett. Gas. 502 ridge, J., said: "It seems to me clear (gamekeeper); Bex v. 8tockbridge that the parties contemplated here an (1773) Burr. Sett. Cas. 759 (postboy agreement to subsist for a year certain at inn) ; Rex v. Macclesfield (1789) 3 at least, subject, of course, to deter- T. E. 76 (butter-maker); Rex v. Win- mination in case of plaintiff's miscon- caunton (1750) Burr. Sett. Cas. 299 duct or neglect, or any such adequate (servant in husbandry) ; Rex v. South cause for discharge. The stipulation is Newton (1830) 10 Barn. & C. 838 for a salary of £100 by the year, not at (shepherd) Rex v. Bath-Easton (1776) the rate of £100 for a year; and it is Burr. Sett. Cas. 823 (general indefi- unreasonable to infer that any less nite hiring of a journeyman barber to period of duration, or no period at all, serve for board and lodging, with a was contemplated, when an attorney stipulation that he was to have a agrees to forego the ordinary and more Christmas gratuity instead of wages, lucrative mode of payment for services held to be a hiring for a year) ; Wands- to be rendered from time to time as worth v. Putney ( 1740 ) 2 Bott, Poor such and accepts in lieu thereof a Law, 288 (hiring for a year implied, fixed sum." In delivering the judg- where a boy goes into service without ment of the exchequer chamber (6 C. B. any express hiring, and his master tells 160) Parke, B., has laid down the him that, if he stays a year, he will broad rule that an agreement to give give him a livery and full wages) ; Rex a certain annual salary to a person v. Worfield (1794) 5 T. E. 506 (farm who engages for it to give his services, servant provided with clothes in lieu of if required, amounts to a promise to wages ) . continue the relation for at least a For other decisions relating to the year. doctrine stated in the text, see §§ 210, "The contract between the master 211, post. and a domestic servant is a contract 3 1 Com. *425. Judge Story also to serve for a year." Parke, B., in (Contr. 1290) considers that the rule Twner v. Mason ( 1845 ) 14 Mees. & W. was established in order to give the 112. master and the servant the benefit of This particular contract, however, is all the seasons. 508 MASTER AND SERVANT. [chap. v. by the year.* The objection to the former of these theories is that the consideration to which it refers the doctrine has no relevance ex- cept in regard to occupations in which a servant's work is either en- tirely suspended, or becomes much lighter during certain periods of the year. It is, of course, possible that the doctrine was originally propounded with respect to such occupations, and afterwards, for the sake of uniformity, extended to others in which the value of a serv- ant's assistance is virtually a constant quantity. But in the absence of any positive historical evidence to this effect, it seems more rea- sonable to suppose that the element, whatever it may be, upon which the doctrine is based, is one of general applicability. The second theory would require us to assume that the courts, by a species of judicial legislation, extended the rule prescribed by statute for one particular class of employees, viz., those engaged in manual labor, to other employees who did not come within the purview of the stat- ute. The present writer, while willing to admit that this view may possibly be correct, ventures to think that a much simpler and more reasonable hypothesis is that the statutory provision was itself mere- ly a recognition of a well-understood custom, having its origin in economic and social conditions. This explanation has at least the advantage of referring the rule to a source from which a large part of the so-called unwritten law has been derived, and obviates all ne- cessity for the rather violent supposition that the legislature, at the particular period which gave birth to the statute, added an entirely novel incident to the contract of service.^ 157. Nature of presumption discussed. — The language used in form- ulating the doctrine as to the duration of a general hiring has some- times been such as to obscure the essential character of the presump- tion which forms the basis of that doctrine.^ But the conception actually entertained with regard to the nature of that presumption, as being one of fact merely, and not of law, is clearly indicated not merely by various explicit judicial statements, but by the footing on which all the cases have been decided.* The presumption, therefore, 4 Macdonell, Mast. & S. p. 167. tion of time is presumed to be a hiring 6 In Coffin V. Landis (1864) 46 Pa. for a year; but, lilce all other presump- 426, the court expressed the opinion tions, it is to be explained by circum- that the doctrine as to the presumptive stances, and holds good only till the yearly duration of a. general hiring contrary appears. Wherever an intent rested on usa'ge. appears to hire for a less time, this 1 See the authorities cited at the be- destroys the presumption." Rex v. Be- ginning of note 1 to the preceding sec- stack (1785) Bott, Poor Law, 298, tion. Cald. 480, per Lord Mansfield. 2 "A general hiring without limita- "In some instances the nature of the f 157] DURATION OF THE CONTRACT. 609 cannot properly become the foundation of an inference drawn as a matter of law, except in cases where no evidence tending to rebut it has been introduced. Thus it may be applied by the court as a cri- terion for determining whether there is a variance between the con- tract upon which a servant has declared and the proof by which he has supported it.' So also a trial judge may, in some states of the evidence, be warranted in directing a verdict in favor of the party who has alleged that the hiring in question was for a year. But even in cases where the effect of the contract scarcely admitted of any doubt, this course has not been followed.* There is also, as it would seem from an examination of the decisions as a whole, a strong disincli- nation on the part of courts of review to interfere with the findings of juries, or other tribunals performing the functions of juries, in a case where any circumstances, however slight their probative value may be, have been put in evidence for the purpose of rebutting the presumption. contract is, in fact, so well understood that it is often put as a matter of law. Still it is always a mater of fact." Lord Denman in Williams v. Byrne (1837) 7 Ad. & El. 177, 182. In Baxter v. Nitrse (1844) 6 Mann. & G. 935, 7 Scott, N. R. 801, 1 Car. & K. 10, 8 Jur. 273, 13 L. J. C. P. N. S. 82, the effect of which is stated in note 8, infra, Cresswell, J., said: "An indefinite hiring has been held to be a hiring for a year; but if any other facts appear, such as payment by the week, the presumption of a yearly hiring may be rebutted." Ad- verting to the circumstance that, in some of the earlier cases upon ques- tions of settlement. Lord Kenyon had ■directed the justices at sessions, when they stated a case themselves, to draw the conclusion of a hiring, he said that Lord Kenyon "must have meant a con- clusion of fact, not of law, as to wheth- er or not there had been a yearly hir- ing." See also the statement at the beginning of the extract quoted in note S, infra, from the judgment of Coltman, J., in the same case. The phraseology employed in stating the conclusions arrived at in several of the cases cited in the last section, note 2. is quite unambiguous in the same sense. In this connection it should be re- membered that the numerous aflBrma- -tions of the general doctrine which we find in the settlement cases refer to the findings of justices of the peace, whose functions in this regard were identical with those of a jury. In one such case it was laid down that wheth- er there is a, hiring for a year is in most cases a question of fact for the justices to determine. Rex v. Bottes- ford (1825) 4 Barn. & C. 84. 3 See Lilley v. Elwin, cited in the pre- ceding section, note 2. This case shows that the remark in Rex v. Seacroft (1814) 2 Maule & S. 472, to the eflfect that a court of review would not upon a case stated presume a hiring for a year, for that was a fact to be found by the session, needs some qualification, if it was intended to convey the mean- ing that such a court of review cannot apply the rule as to the presumption, even if the record states the terms of the contract. 4 In Foxall v. International Land Credit Go. (1867) 16 L. T. N. S. 637, we find the following remarks in the charge of Byles, J.; "I am very strong- ly of opinion that a hiring simply for a year, as in the present case [of a clerk], cannot be determined by a three months' notice; and my only doubt is whether I should not direct the jury that, if they believe the evi- dence given, there was an absolute hir- ing for a year. It is perhaps safer to leave the 'question to the jury." 510 MASTER AKD SERVANT. [chap. t. The foregoing remarks indicate the actual meaning which is to be ascribed to the language of two eminent judges, that "there is no in- flexible rule that a general hiring is a hiring for a year." * These words might, if literally construed, be taken as importing an adop- tion of the doctrine that the duration of a hiring without mention of time is invariably a question for the jury.* But as they were used in cases in which nothing whatever was said which can be regarded as betokening a disapproval of the doctrine embodied in the decisions cited under the preceding paragraph, the only reasonable conclusion is that they are to be construed in such a sense as will bring them into harmony with that doctrine. In this point of view, they will be considered merely as an affirmation of the proposition that the pre- sumption which is entertained with respect to the duration of a gen- eral hiring is not one of law.' So far as regards the actual conclu- sions which were arrived at in the cases cited, and the footing upon which they were submitted to the jury, they are in full accord with all the others in which the English courts have had to determine the effect of such a hiring.' SFairman v. Oakford (1860) 5 Hurlst. & N. 635, 29 L. J. Exch. N. S. 459, per Pollock, C. B.; Baxter v. Nurse (1844) 6 Mann. & G. 935, 7 Scott, N. E. 801, 1 Car. & K. 10, 8 Jur. 273, 13 L. J. C. P. N. S. 82, per Tindal, Ch. J. See note 8, infra. 6 It is worth noting that in Foaoall V. International Land Credit Co. (1867) 16 L. T. N. S. 637, Bayles, J., seems to have understood in this sense the words now under discussion, for he took the trouble to explain that, as used in Baxter v. Nurse, supra, they were "not at all necessary to the case." ' The peremptory character of the statement as made by Pollock, C. B., is doubtless due to the fact that he was combating the obviously untenable doc- trine of plaintiff's counsel, that the presumption of a yearly hiring must prevail "in the absence of an express stipulation to the contrary." 8 In Baxter v. Nurse, ubi supra, the plaintiff declared on a special contract to employ him as editor of a certain periodical for a year, at a salary of £3 3s., to be raised progressively when the work should reach a certain circu- lation, and assigned as a breach his dismissal before the expiration of the year. At the trial the terms on which the plaintiff was engaged were not proved; but it was shown that, after the commencement of the publication, the defendant had paid him 3 guineas a week. The defendant abandoned the enterprise after the third number of the review had been issued, but the pub- lication was continued by another per- son. The plaintiff called several wit- nesses to prove that, in the absence of any stipulation to the contrary, a gen- eral engagement as an editor of such a work is understood to be an engage- ment by the year; but upon cross-ex- amination they admitted that they spoke with reference to established' works, and not to new speculations. Tindal, Ch. J., left it to the jury to say whether there had been a contract for the period of a year, observing that the rule spoken of by the plaintiff's witnesses might be useful and proper in the generality of cases, but that it might not be so applicable in the case of a newly started work, where it might be uncertain whether it would be con- tinued for the period of a year. The verdict being for the defendant, a new trial, moved for on the ground that the trial judge had refused the request of the plaintiff to direct the jury that an indefinite hiring was, as a general rule of law, a yearly hiring, was re- fused. Tindal, Ch. J., said: "Upon the § 157] DURATION OF THE CONTRACT. 511 first ground on which the present mo- tion was made, namely, that the jury ought to have been directed, as upon a general rule of law, that the hiring in this case must be taken to have been by the year, it appears to me that the principle on which contracts of this nature, which have been entered into without any definite arrangement as to time, are held to be contracts for a year, is by no means an inflexible rule, but that it is a presumption to be raised from contracts of the same kind; and that the judge at a trial is not au- thorized to lay down any general rule upon the subject. There are cases in which undoubtedly a rule of law is laid down to the jury. Thus, in the case of a deed, the instrument, being under seal, imports the existence of a valid consideration. So a promissory note or a bill of exchange also imports a consideration. These are rules of law: and upon these points the judge does not ask the opinion of the jury. So twenty years' adverse possession (with- out reference to the late statute) will import a right of possession. That also is a rule of law, upon which the opinion of the jury would not be asked. In cases where a general rule with re- gard to questions of hiring has been established, it has been in conformity with some established usage to be gathered from evidence. That it is not a fixed rule is clearly shown from the course taken at trials where the ques- tion as to the nature of a, hiring aris- es, — where evidence is always given by persons in the particular trade, or un- der circumstances similar to those of the parties in the case; and then the jury are told that, unless there is some- thing to distinguish the case before them from the usage that has been proved, the parties must be considered as dealing with reference to such usage. But the finding by the jury in such a case, in conformity with such general usage, cannot be considered as a rule of law. In the present case it appears to me that tne evidence was of a week- ly hiring; but even if it had shown a general hiring, still I think the ques- tion ought to have been left to the jury whether, under the circumstances of the case, there had been a hiring by the year. And I think it was a proper and pertinent observation made by the counsel for the defendant, which I re- peated to the jury, that there might be a distinction between an established and a new publication, the success of which might be uncertain, and which might be given up in a few weeks; in which case it would be unreasonable that the employer should be considered as bound to pay the salary of a party in the situation of the plaintiff, for a whole year. It has been said that the defendant might have guarded himself by an agreement that the hiring might be put an end to at any time. But if there is no general rule on the sub- ject, it is equally reasonable to say that the plaintiff might have guarded himself by stipulating that his engage- ment should be for a year." Coltman, J., said: "The rule with regard to do- mestic servants is established; but that rule applies only in the absence of any fact which would tend to show that an annual hiring was not contemplated. Thus, if there be a reservation of week- ly wages, the inference of a hiring for a year does not arise. In the present case the only proof given was that some service was performed by the plaintiff, and that weekly wages were paid to him. There is also another circum- stance which tends to throw a doubt upon the supposition that there was a yearly hiring, namely, that the defend- ant said, if the work were not con- ducted to his satisfaction he should give it up. In such a state of things it is not very probable that he should hire persons to be concerned in the management of the publication for a whole year. There is, therefore, in my opinion, no presumption of a yearly hiring; and I do not see that the jury have come to an unreasonable conclu- sion on the subject." Cresswell, J., said: "It is said that a contract is to be inferred; and that upon two grounds: First, that a usage was proved that such a contract between publishers and editors was a contract for a year. It cannot be contended that this was not a question for the jury. And it was certainly a fair observation by counsel, that all the instances that were proved had reference to old and established works." Erslcine, J., "As- suming that the general rule of pre- sumption, arising from an indefinite hiring might apply to such a case as the present, and that, if a general hir- ing had been proved, the jury ought to have been told that it should be taken to be a yearly hiring, still it is enough 512 MASTER AND SERVANT. [chap. v. 158. Doctrine applied in the Eritish Colonies where the common law is administered. — In some of the British Colonies in which the com- mon law is the prevailing system of jurisprudence, the English doc- to say that a general hiring was not proved in this case. The facts in evi- dence clearly do not amount to such proof. It appears that the plaintiff was paid 3 guineas a week, with a pros- pect of increase of salary, and there is the fact of some service having been performed, but there is nothing to show what passed at the time of the engage- ment. The terms of the hiring were therefore a question for the jury, and I think the circumstance of its being a new periodical, of which the plaintiff was to have the management, was worthy their attention in considering the probability of a yearly engagement having been entered into with reference to such a publication, whatever might be the usage in the case of an old-es- tablished work. It seems to me, there- fore, that the whole question was prop- erly left to the jury." Cresswell, J., (p. 941), after noticing the failure to adduce sufBcient evidence of a control- ling usage, proceeded thus: "The rule of law was referred to in the second in- stance, namely, that a general hiring — or, to use more correct terms, a hir- ing for an indefinite period — is to be taken as a yearly hiring. But what is the evidence of the hiring in this case? There is nothing to show that it was an indefinite hiring. The progressive increase of salary would apply as well to the second as to the first year." In Fairman v. Oakford, supra, the plaintiff stated at the trial, that on .July 26, 1859, he entered into the serv- ice of the defendant as a clerk at a salary of £250 a year, which was paid weekly. No time was mentioned. On January 20, 1860, the defendant gave him a month's notice, and dismissed him on February 20. On cross-examin- ation he said that he had been previous- ly in the service of the defendant, and, when discharged, was paid a month's salary in lieu of notice. The defendant stated that when the plaintiff was en- gaged on the second occasion, the terms were to be the same as on the former occasion, except as to the amount of salary. The trial judge left it to the jury to say whether the engagement was for a year, and they found that it was not a hiring for a year. A verdict was accordingly entered for the de- fendant. A new trial [was sought] on the ground that there had been a mis- direction, and that the verdict was against evidence. The learned judge, it was urged, should have told the jury that if there was an indefinite hiring, it was a hiring for a year. Pollock, C. B., said: "The learned judge's direction was correct, and no fault is to be found with the verdict of the jury. The plaintiff was hired as a clerk at a salary of £250 a year, and dismissed at a month's notice. When he quitted the defendant's service on a former oc- casion, he accepted a month's salary in lieu of notice, and the jury were warranted in finding that the second engagement was on similar terms. As to the other point, there is no inflex- ible rule that a general hiring is a hir- ing for a year. Each particular case must depend upon its own circum- stances. From much experience of ju- ries, I have come to the conclusion that usually the indefinite hiring of a clerk is not a hiring for a year, but rather one determinable by three months' no- tice." In 29 L. J. Exch. N. S. 459, the concluding portion of this judgment is reported as follows: "The contention of the plaintiff's counsel was that he was entitled to a whole year's salary, or, at all events, to more than a month's notice. . . . My own ex- perience is that juries in London gen- erally find that clerks are entitled to threee months' notice; that is, they find that the hiring was in each par- ticular case to be put an end to by three months' notice." This version is probab:.- the more authentic of the two, as the special allusion to London can scarcely be an invention of the re- porter; and, since it indicates that the learned judge was probably referring merely to trials in one particular city, where, as it happened, the rights of the parties were governed by a custom which allowed dismissal at a reasonable notice, the significance of the passage as an expression of general principles is reduced to a minimum. S 158] DURATION OF THE CONTRACT. 513 Tine that a hiring without mention of time is presumptively for a year has been fully accepted.^ In others that doctrine has been repudi- ated ; but it is quite apparent, from the language and reasoning of the courts, that this repudiation has been the result simply of a miscon- ception regarding the actual effect and rationale of the English prece- dents.* 1 The English rule was applied in Mackenzie v. Union F. & M. Ins. Co. (1879) 1 New South Wales L. R. (L) 103 (document appointing the plain- tiff agent for the defendants contained the following passage: "Remuneration allowed by the company is a nominal salary of Is. per annum, payable in advance, and commission as dealt with in separate circular) ;" Fordt/ce v. Westport Coal Co. (1884) New Zea- land L. R. S. C. 63 (general rule laid down a/rguendo) ; Short v. Laery (1891) 11 New Zealand L. R. 17 (general rule land down a/rguendo) ; Wood v. Well- ington Woolen Co. (1895) 14 New Zea- land L. R. 296 (general rule laid down arguendo) ; Wier v. Letson (1878) 12 N. S. 299 (general rule taken for granted) ; Armstrong v. Tyn- dall Quarry Co. (1910) 20 Manitoba L. Rep. 254, 16 West. L. Rep. (Can.) Ill (general rule laid down.) 2 In Ontario the English doctrine was at first followed. See Rettinger v. Mao- dougall (1860) 9 U. C. C. P. 486 (fore- man -in printing ofiBce) ; Broughton v. Brantford (1869) 19 U. C. C. P. 434 (person appointed to manage property of navigation company which had passed by foreclosure into the hands of a municipal corporation, at a specified annual salary) ; Tihls v. Wilkes (1876) 23 Grant, Ch. (U. C.) 439 (agent for mercantile firm at an annual salary and a percentage of the profits) ; Booth V. frittie (1881) 6 Ont. App. Rep. 680 (hiring at the rate of $500 a year presumptively a hiring for a year). The same rule seems to have been also taken for granted in Ellis v. Mid- land R. Co. (1882) 7 Ont. App. Rep. 464, where the presumption of yearly hiring in the case was held to be con- firmed by the words which were used in a form of agreement which the serv- ant had said he was prepared to sign, and which showed clearly that he con- sidered himself to be bound for one year). M. & S. Vol. I.— 33. The above decisions have now been overruled by the judgment of the court of appeal in Harnwell v. Parry Sound Lumber Co. (1897) 24 Ont. App. Rep. 110 (for facts see § 231 note 1, post), in which there has been a departure from what the present writer conceives to be the English doctrine. The im- portance of Ihis case as containing a deliberate expression of opinion by a court of very high authority in the Dominion of Canada will justify a some- what minute examination of the rea- soning by which the decision was sus- tained. Commenting upon the older English cases, Osier, J. A., who deliv- ered the judgment of the court, re- marked that it is admitted that, as a general rule, wherever the question of the duration of an indefinite hiring was expressly raised, it was said to be "for the jury to determine upon the whole of the circumstances of the case, though they were to be told that the presump- tion [t. e., oi a yearly hiring] existed, and ought to govern in the absence of anything to repel or control it." Hav- ing made this admission, the learned judge was clearly bound to sustain by adequate citations of unambiguous au- thorities his theory that the law had subsequently been modified in the sense necessary to sustain his conclusions. This obligation, it is submitted, has not been discharged. No reference whatever was made to the virtually conclusive circumstance that the cor- rectness of the ordinary rule was taken for granted in all the lengthy discus- sions in the great case of Emmens v. Elderton (1853) 4 H. L. Cas. 624. Nor was any attempt made to explain away the significance of the almost equally conclusive circumstance that there is no reported decision in which the rule al- leged to be obsolete has been disap- proved. It may reasonably be assumed that so radical a change in the law would scarcely have been made without some specific judicial repudiation of a doctrine so long and so often applied. 514 MASTER AND SERVANT. [chap. t. The English cases will be searched in vain for any real indication that there has ever been any renunciation of that doctrine even by indirection. The ut- most that can be said of some of the more recent cases is that certain in- dividual judges have used language which, when detached from the facts which occasioned it, may be construed in a sense favorable to the contention of the court of appeal. As regards cer- tain dicta in two of those cases, — Baof- ter V. Nurse and Fairman v. Oakford, — the writer has already stated his reasons for inferring that they do not reflect any new departure in doctrine. See preceding section. Nor does there seem to be any adequate ground for supposing that the English court of common pleas division, when it quoted in Green v. Wright {§ 211, post), an- other of the cases relied upon by the Canadian court, the dictum of Pollock, C. B., in Fairmcm v. Oakford, was im- puting to that eminent judge the in- tention of burying the older doctrine, without even condescending to explain when and how its demise occurred. The court by which it was quoted was reviewing the ruling of a judge who had directed a verdict for the defend- ant for the narrow reason that, as the contract was specific, and no provision was made for notice, nor any custom proved, the plaintiff could be discharged at any time the employer pleased. Under such circumstances it was only natural that the court, in sending back the case for a new trial on the ground of misdirection, should take occasion to point out that the peculiar nature of the employment was a circumstance tending to rebut the general presumption that a hiring in- definite as to time is one for a year, and that its duration was therefore a matter to be settled upon the whole evidence. That there was no intention on the part of the court to treat this presumption as obsolete is conclusive- ly shown by the fact that Lord Cole- ridge, by whom the judgment was writ- ten, enunciated, during the argument of counsel, the ordinary rule regarding that presumption, and cited, without any hint of disapproval, one of the familiar authorities on the subject. Rex V. Hampreston (1793) 5 T. R. 205. As to Green v. Wright, considering that this was a nisi prius case, and that both the trial judge, Lord Coleridge, and the counsel, exhibited a singular ignorance or forgetfulness of many of the earlier authorities which were most pertinent to the issue, the Ontario court of ap- peal seems to have treated tlie rulings made with far too much respect. Whether this be so, or not, however. Lord Coleridge certainly did not intend in this case, any more than in Green V. Wright, to treat the ordinary doe- trine as obsolete; for during the pro- ceedings he remarked that he would tell the jury that, "as the plaintiff was engaged for a year, prima facie the pre- sumption was that it was a yearly con- tract." The direction which he finally gave to the jury was, it is true, different from this. But there was no explicit re- traction of the earlier remark, which may, therefore, fairly be regarded as embodying his actual opinion on the subject. It would seem, therefore, that even the cases cited by the Ontario court of appeal itself for the support of its judgment do not, upon any reasonable construction, support its theory as to a modification of the law. But the most conclusive refutation of that theory is that one of the latest deci- sions on the subject by an English court of review shows quite clearly that the presumption which was consigned to the limbo of discarded doctrines is still fully accepted. The hypothesis that there has been a modification of the law is deprived of its last prop when, so late as 1882, we find that the course taken by a trial judge, in direct- ing a verdict for the plaintiff on the ground that there was no evidence to rebut the presumption that the hiring, being general, was for a year certain, was approved by two such eminent judges as Justices Grove and Mathews. Buckingham, v. Surrey & R. Ganal Go. (1882) 46 L. T. N. S. 885. The weight of this decision, from our present standpoint, is greatly increased by the fact that the familiar principle estab- lished by the older authorities, which are supposed by the Ontario court of appeal to have been discredited, is laid down without the smallest suggestion or hint that other eases, such as Green v. Wright, had introduced a different rule. The unavoidable inference, there- fore, is that the Canadian ease under discussion, in so far as it proceeds upon the ground that the judgment of the § 158] DURATION OF THE CONTRACT. 515 lower court was erroneous for the rea- son that it was based upon the exist- ence of a presumption regarding the yearly duration of a general hiring, was wrongly decided. A similar doctrinal position, however, was taken by the supreme court of the Dominion, in a case decided in the following year. B v. Lyth Supp. 134; Pinckney v. Talmage (1793) 5 T. R. 327. (1889) 32 S. C. 364, 10 S. E. 1083. In Reao v. Long Whatton (1793) 5 T. In Oapron v. Stro'tU (1877) 11 Nev. R. 447, the fact that a servant had 304, the employment of a servant at lived three years in service with the a stipulated price per diem, payable same master was held to be evidence monthly might justifiably be found to which justified the inference of a be from month to month. yearly hiring, although it also appeared Other cases which support the state- that he had at first been hired for a. ment in the text are Jones v. Trvnity part of a year only. Parish (1883) 19 Fed. 59 (in charge * I* was held that the relation of to jury) ; Osgocd v. Paragon Silk Go. master and servant could not be in- (1897) 19 Misc. 186, 43 N. Y. Supp. ferred from evidence which merely 271; Pottsmlle Iron d 8. Go. v. Good showed that one person, when a young (1887) 116 Pa. 385, 2 Am. St. R«p. boy, had lived with another upon char- ',„'.,.._ ^ .,, n 1 A itv, and run errands, etc. Rex v. Wev- 614, 9 Atl.49/; CrmemMar ^ Duluth- ,^.- ^j^g^, ^ ^ ^J 2^^ ^^^ ^J^ Superior Mill. Go. (1908) 134 Wis. evidence that a person, after having 248, 114 N. W. 432. li^-e^^l ^^.j^jj ^is uncle on charity, hired 1 Armstrong v. Bainbridge (1846) 5 himself out to another person as a Sc. Sess. Cas. 2d series, 9 (wages pay- yearly servant, and then accepted an able by the quarter). invitation from his uncle to come "and 'i- Trinity v. St. Peters (1764) 1 W. live with him as before, — he would Bl. 443. That service for a year by a make it better for him than a common servant in husbandry aflforded very servant." Bex v. Stokesley (1796) 6 strong presumptive evidence of a hiring T. R. 757. 544 MASTER AND SERVANT. [chap. v. That a jury was warranted in awarding compensation on the hypothesis that a servant had not been hired for a year, and was merely entitled to recover on a quantum meruit, was held in a case where the evidence was merely to the effect that he had served the employer for nearly half a year; that payments were made during that time, but not according to any yearly amount or at any definite intervals; and that, after his recovery from an illness which neces- sitated his removal to a hospital, he did not return to his employ- ment, and was not required by the employer to do so.^ 171. Custom and usage. — a. Hiring expressly for a definite term. — Where the hiring is expressly for a definite term, evidence of a custom applicable to the trade or business in question, by virtue of which the master or servant is entitled to put an end to the employ- ment at any time without notice, is not admissible to control the agreement.^ h. Hiring without mention of time — English decisions. — In a case, the effect of which is fully stated in § 157, note 8, ante, Wilde, B., is credited in one of the reports with the following statement: "Except in the case of menial servants, where there is no express con- tract, the terms must be ascertained by reference to the ordinary usage of mankind." ^ The language thus used, in so far as it may imply that the burden of proving, by specific evidence of usage, that a general hiring was a hiring for a year, lies, in every instance but the one mentioned, upon the party who alleges it to have been of that duration, is manifestly opposed to the weight of authority, as indicated by the cases cited in the section just mentioned. Having regard to those cases, it is clear that the rule in this connection can- not be put more strongly than this, — that, where there is no direct evidence as to the contemplated duration of the contract, evidence tending to show a custom to the effect that the engagement of em- ployees holding positions similar to the one in question was for a year is admissible, unless there was an express stipulation to the contrary.^ But under such circumstances, evidence of a custom seems to be merely corroborative in its significance. 3Bayley v. Rimmell (1836) 1 Mees. Melville Co. (1909) 123 La. 257, 48 So. & W. 506, 2 Gale, 60. 927. ^ Peters Y. Staveley (1866; Q. B.) 15 ^ Fair man v. Oakford (1860) 29 L. L. T. N. S. 275, 31 J. P. 40; Connell J. Exeh. N. S. 459. These words are V. Averill (1896) 8 App. Div. 524, 40 not found in the report in 5 Hurlst. & N. Y. Supp. 855; Given v. Charron N. 635). (1859) 15 Md. 502; Rosenherger v. 3 Such is the effect of the ruling of Pacific Coast R. Co. (1896) 111 Cal. Wightman, J., in Eolcroft v. Barber 313, 43 Pac. 963; Camp v. Baldwin- (1843) 1 Car. & K. 4. There an action § 171] DURATION OF THE CONTRACT. 545 Evidence of custom will not avail to rebut tlie general presump- tion that the hiring is for a year certain, unless it relates to "a gen- eral custom, of some reasonable antiquity and standing, uniform, and sufficiently notorious and well understood that people would make their contracts on the supposition that it exists." * There is some judicial authority for the doctrine that the absence of evidence of a right under custom to terminate a hiring by notice maturing at some other time than the end of the year is, without more, sufficient to require the conclusion that the hiring was for a year certain.* But this is clearly putting the case too strongly, for the presumption of a yearly hiring is, as the other sections of this subtitle show, rebuttable by other evidence besides that of a custom. c. — American decisions. — ^In the United States, as in England, evidence of a custom prevalent in the business in question has fre- quently been treated as competent to show the duration of an in- definite hiring, whether the contract was in writing or not.^ for wrongful dismissal was brought on year, and the evidence of the plaintiflf's the theory that the plaintiff was the witnesses goes only to the extent of ■editor of a newspaper and engaged for showing that usage had made such a a year. The jury found for the defend- hiring annual in the case of estab- ant on the ground that the plaintiff was lished periodicals, it is proper to leave not the editor. it to the jury to say whether such a, In a settlement case Coleridge, J., usage is applicable to a periodical like remarked: "I have always understood tliat for the management of which the that the general usage of trade may be editor was hired. Baxter y. Nurse given in evidence on the ground that (1844) 6 Mann. & G. 935. (See § 157, the parties contracted with reference ^°rL \ V'j a i, t -j-j-i j i t , ..'^ T ii.- T J i V, .„ 6 Rule so laid down by Littledale, J., to it. In this case, I do not see how . „„,,.„„.. „ ^„„i jtoqas c t!„™ si ,, ., . ' ... -J.!, iv m tawcett v. Vash, (lad4) 5 Jiarn. & the evidence was inconsistent with the ^, g^^ written contract." Reg. v. Stoke-Vpon- i ArkiidelpMa Lumler Go. v. Asman Trent (1843) 13 L. J. Mag. Cas. N. S. (1907) gS Ark. 568, 107 S. W. 1171; 41, 43. Bascom v. SUllito (1882) 37 Ohio St. In an action by a surveyor's assistant 431 ; Mcintosh v. Min^ ( 1899 ) 37 to recover a month's wages in lieu of App. Div. 483, 55 N. Y. Supp. 1074; a month's notice, the right to recover Beck v. Thompson & T. Spice Co. ( 1899 ) was denied on the ground that evidence 108 Ga. 242, 33 S. E. 894 (amendment of the defendants which went to show to declaration alleging such a custom that in this calling there was a cus- should have been allowed); Johnston- torn under which employment might be Woodbury Hat Go. v. Lighthody (1902) terminated without notice had not been 18 Colo. App. 239, 70 Pac. 957 (evi- controverted by any testimony on the dence admitted to show length of "sea- part of the plaintiff. Andrews v. Par son" of a traveling salesman) ; Schultz oific Goast Goal Mines (1909) 15 B. v. Simmons Fur Go. (1907) 46 Wash. C. 56. 555, 90 Pac. 917 (see § 152, note 6, 4 Byles, J., in Foxall v. International ante. Land Credit Co. (1867) 16 L. T. N. S. In Given v. Gharron (1859) 15 Md. 637 (jury found that there was such 502, evidence of a custom among dry- & custom). goods' jobbers in a city, that when a Where the question is whether the clerk or salesman began a season with- editor of a new periodical can be dis- out a special contract he could not be missed before the end of the current dismissed until the end of it, and that M. & S. Vol. I.— 35. 546 MASTER AND SERVANT. [chap. v. If no positive evidence respecting a specific usage is adduced, and the case is otherv^ise destitute of elements indicative of the duration of the engagement, the obligations of the parties are determined by the rule that a general hiring is a hiring at will.'' d. — Decisions in civil laiv jurisdictions. — In one Scotch case, proof of the custom in the district where the servant was hired was admitted for the purpose of showing that the engagement was to^ continue for a year.* That the legal duration of a contract of employment may be fixed by local usage is a doctrine recognized by French jurists.' 172. Terms on which other servants of the same employer are hired. — It has been laid down broadly that the duration of a contract for the employment of a given servant cannot be proved by evidence as to the duration of contracts made by his master with other servants.* This doctrine has been applied even to cases in which that evidence goes to the extent of showing a uniform practice on his part to hire them for a certain period.* But it is difficult to admit that such evi- dence should be treated as incompetent in every instance. There is apparently no adequate reason why a uniform practice of a particu- lar employer, if it be known to a person whom he is hiring, should not be treated, like a local custom, as an element entering into the contract.^ Still less can any exception be taken to such evidence, if there were two seasons, one from Jan- this state, where usage is so various,^ nary 1st to July 1st, and one from for the present is not one of them." July 1st to January 1st, was held to B Mabon f. Elliot (1808) Hiune's Dec. be admissible in an action by a clerk 393. or salesman against a dry-goods' jobber 9 Troplong, Louage, p. 860. See MU- tor an alleged wrongful discharge at a ler v. Gidiere (1884) 36 La. Ann. 201. time other than at the expiration of ^ Lichtenhein v. Fisher (1896) 6 a season. App. Div. 385, 39 N. Y. Supp. 553 ; TCo^in. V. Lared^s (1864) 46 Pa. 426; jchnson v. Crookston Lumber Co. Greshwm. v. Lee (1900) 61 Kan. 535, (1904) 92 Minn. 393, 100 N. W. 225; 60 Pac. 312. ^ u J 'STio// v. Schlaohetzky (1901) 62 App. In the former case the court observed, pj^, ^gg ^^ jj_ ^ g ^^33 arguendo: No doubt there is a class 2 ^„^j,,„ ^_ Ma^terson (1902) 132 of contracts for the employment of serv- ,, „„^ „, ' „,„ ' k^.j^^i ants where the law presumes the con- t ./^^A ^ ^°- J?^^ ', .■^»?*,Tr'^ T' tracts to intend a yearly or monthly I'aotfic Coast R. Co. (1896) 111 Cal. employment, though nothing is said of ^^^' '^^ Fue. 963. the duration of service. They are more ^ In Arkadelphia Lumber Co. v. As- numerous in England than in this coun- man (1907) 85 Ark. 568, 107 S. W. try. They relate to contracts of hire 1171, evidence that plaintiff's prede- of menial, domestic, and husbandry cessor in the given position had been servants. They are so construed be- engaged by the year, and had been re- cause such hirings are customarily for tained in the employment for seven a year or a month, and the Englisli j-ears, was held admissible to prove a courts recognize the custom. It is particular custom of the defendant to' needless to inquire whether they are hire for a year, fully applicable to contracts of hire in In Evans v. St. Louis, I. M. & 8. R. § 173] DURATION OF THE CONTKACT. 547 it tends to prove not merely the duration of the contract made with another servant, hut also an intention on the employer's part to hire that servant for the same period as the one whose rights are in ques- tion.* 173. Character of the work to be performed.— It is well settled that, even where the element of a specific custom is not involved (see § 171, ante), the character and ordinary incidents of the given work con- stitute distinct evidential factors bearing upon the duration of thi; engagement.^ A portion of the decisions under this head proceed upon the theory that a prima facie presumption that the hiring is for a year arises whenever the stipulated services are to be rendered in a business that requires continuous labor for that period.^ In some instances the presumption thus entertained is corroborated by circumstances tend- ing to show the improbability that the servant would have accepted the position in question, if he had not supposed that he was being engaged for a year.' It will be observed that the practical results of the theory exemplified in the cases cited were virtually the same Co. (1885) 16 Mo. App. 522, the refusal of the court to exercise its power of affirming a judgment, regardless of the errors of the trial judge, on the sole ground that it was just, was based on the ground that the evidence tended to show that, if plaintiff's employment was for a stated period, as he had testified, it was exceptional and contrary to de- fendant's course in employing otlier servants of the same grade. * The testimony of a fellow servant of the plaintiff that, at the time he was hired, the officers of the defendant com- pany told him "they would hire him lor a year, just as they hired the plain- tiff," has been held sufficient to support a finding that the hiring of the plain- tiff was yearly. McCullouyh Iron Co. V. Carpenter (1887) 67 Md. 554, 11 Atl. 176. ^Bascom v. ShilUto (18S2) 37 Ohio St. 431 {arguendo) ; and the cases cited below. Where a person was employed to serve another for the time work under- taken by the employer should last, and the employee was discharged, evidence showing the length of time the work would last was held to be admissible for the purpose of showing the amount of damage sustained by a wrongful dis- missal. Prescott V. Paget Sound Bridge & Dredging Co. (1905) 40 Wash. 354, 82 Pac. 606. 2 "If one is hired to do general serv- ice on a farm, the presumption is, in the absence of an agreement to the contrary, or circumstances showing a contrary intention, that the term of service is to continue for a year." Smith V. Theobald (1887) 86 Ky. 141, 5 S. W. 394 (arguendo). In Miller v. Gidiere (1884) 36 La. Ann. 201, a letter engaging an over- seer of a plantation in the month of February contained the following sen- tence: "I agreed with your conditions, which were $100 a month, what will be for you $1,100 this year, a raontli having elapsed since the 1st of Janu- ary." On the ground that overseers are not usually employed from month to month, or by the month, and that agriculture in Louisiana requires them through the year, it was held to be manifest that the parties contemplated a yearly engagement. 3 In Smith v. Theobald, supra, it was held that a hiring by the year was in- ferable, the evidence being that the employee, at the time when he was engaged, was in business in Louisville, Kentucky, as the manager of a hotel; that he was required to give up that business, and move himself and family 548 MASTER AND SERVANT. [chap. v. as those which would have followed from the application of the Eng- lish doctrine that a general hiring, without mention of time, is pre- sumed to be for a year. But it is clear from other decisions ren- dered by the courts concerned that they did not intend to commit themselves to an adoption of that doctrine.* The rationale of other decisions is that, having regard to the character of the employment, the parties may reasonably be presumed to have contracted on the understanding that the duration of the con- tract should be measured not with reference to the divisions of the calendar, or any other precise standard, but with reference to the indefinite period which would be necessary for the completion of the whole or of a certain part of the work undertaken.* This pre- to Hot Springs, Arkansas, and there law principles, terminable by notice? assume the management of aniother (3) What were the plaintiff's rights hotel, and to act as secretary and as to notice under the actual provisions treasurer of the hotel company. Under of the contract? With respect to the such circumstances it was, in the opin- first of these questions (the others will ion of the court, impossible to suppose be referred to post, § 211o), the court that the employee could have intended apparently adopted the view of one of to give up his position in Louisville, the counsel who had argued that the and move himself and family a dis- case of a master of a ship was an ex- tance of several hundred miles, at a ceptional one, as it would be extremely large expense to himself, for the sake inconvenient if the services were to of a month's employment at the price determine in the middle of a voyage, of $125 in the hotel in Arkansas. and consequently it could not be in- * See § 159, ante. tended to be a service for a, year. Sin Creen v. Wright (1876) L. R. Coleridge, Ch. J., said: "The relation 1 C. P. Div. 591, a master mariner ac- of the master of a ship to his employer, cepted the command of a ship under a the ship owner, is not one in which, written agreement running as follows: in the case of an indefinite hiring, the "I hereby accept the command of the law has made, and there was no evi- ship City Camp, on the following terms : dence of any custom making, the hiring salary to be at and after the rate of a hiring for a year, or for any other £180 sterling per annum. Should definite time, nor the notice by which owners require captain to leave the the service is to be determined cer- ship abroad, his wages to cease on the tain." day he is quired to give up the com- Upon a general retainer for no par- mand, and the owners have the option ticular voyage, the captain of a ship of paying or not paying his expenses may be dismissed by a majority of the traveling home. Wages to begin when owners at any time without cause as- captain joins the ship." While in signed. Montgomery v. Wharton {nSO) England he was dismissed without no- 1 Dall. 49, 1 L. ed. 32, afiBrmed in tice. In an action for wrongful dis- (1780) 2 Pet. Adm. 397, Fed. Cas. No. charge, the lower court directed a ver- 9,737, followed in Ward v. Ruckman diet for the defendant on the ground ( 1861 ) 34 Barb. 419, affirmed in ( 1867 ) that, as the contract was specific, and 36 N. Y. 26, 93 Am. Dec. 479. But where there was no evidence of a custom, as a particular voyage is agreed upon, in the case of clerks and servants, the though the owners may dismiss him, plaintiff was not entitled to any notice, they are liable for damages in a com- In the court of review the questions mon-law court, if the dismissal is with- discussed were these: (1) What was out good cause. Montgomery v. Whar- the prima facie duration of an indefi- ton, supra. nite hiring of a shipmaster? (2) Was Where seamen enter upon a voyage the engagement, under general common- without signing shipping articles, an § 173] DURATION OF THE CONTRACT. 549 sumption is, of course, subject to rebuttal by any appropriate evi- dence.^ Tbe controlling principle in other cases is that evidence tending to support the conclusion that an agreement obligatory for a defi- nite period was not contemplated by the parties is presented when- ever the work to be performed is so essentially lacking in the elements of stability and permanence that the servant must be supposed to implied contract is presumed whicli binds them to remain with the ship till the voyage is terminated. Jensen v. The Heim-ich (1838) Crabbe, 226, Fed. Cas. No. 7,215; Longstreet v. The R. R. Springer (1880) 4 Fed. 671 (rule applied in the case of a fireman on a steamer plying between Cincinnati and New Orleans ) . Under such a contract there is also an implied agreement that the seaman is to be returned to the port of shipment. Worth v. The Lion- ess No. S (1880) 2 McCrary, 208, 3 Fed. 922 (rule applicable to men en- gaged in trips on the navigable rivers of the United States). Seamen hired to serve as hands on a pilot boat at a monthly rate of wages must, since it is impossible for the boat to be at the port of departure at monthly periods, and the seamen cannot leave while she is upon the high seas, be considered to have engaged for a term to end when the boat is in port, not less than a month, and, upon leav- ing the boat in less than a month, be- come deserters and forfeit wages then unpaid. The Pilot Boat No. 5 (1893) 54 Fed. 537. "If one is hired to work in a crop being raised, the presumption is, in the absence of circumstances showing a contrary intention, that his term of service is to continue during the crop season." Smith v. TheolaU (1887) 86 Ky. 141, 5 S. W. 394 (arguendo). The plaintiff, a saw filer, wrote a letter asking defendant, a sawmill owner, about "the coming sawing sea- son," "how long a run" he expected to have, and what he was willing to pay plaintiff "to come and keep the saws up." The defendant replied, stat- ing what he would pay plaintifl', men- tioning that he expected to have a good season's work, and requesting plaintiff to answer at once and let him know whether he was coming or not. The plaintiff accepted the offer con- tained in the reply. Held, that a con- tract of employment for the season, or at least as long as the defendant ran his mill, was inferable. Lewis v. New- ton (1896) 93 Wis. 405, 07 N. W. 724. In proceedings against a deserting servant, under the masters and serv- ants act of New South Wales, it ap- peared that a shearer was engaged to shear at the informant's shed, but by mistake was not asked to sign any written agreement, and nothing was said as to the terms on which he was employed. He worked for about three weeks, and then absented himself. Held, that there was evidence of an agreement to shear till the shearing was finished. Ex parte Quinlan (1895) 12 W. N. 71. The above decision seems to be more consistent with the general principle which underlies the cases cited above than another Australian decision under a similar act, to the effect that, where a man agreed to shear sheep at a certain price per score, but there was no evidence of a definite contract on his part to continue shearing during the entire season, he was not to be amenable to penal proceedings for ab- senting himself from his employment. The court proceeded upon the ground that no definite agreement such as was necessary in such proceedings had been proved, and that the evidence showed merely an expectation with respect to the duration of the employment. Gros- hanig v. Yaughan (1891) 4 Queensland L. J. 50. 6 In Sherwood v. Crane (1895; C. P.) 12 Misc. 83, 66 N. Y. S. R. 517, 33 N. Y. Supp. 17, it was held- that an engagement of an actress for a definite period, as distinguished from one for the run of a play, is constituted where the employer, at the time when the agreement was made, specifically re- ferred to the run as extending to a certain date, and assured the actress 550 MASTER AND SERVANT. [chap. v. have contracted with reference to the possibility of losing the posi- tion before the end of a year.'' A similar significance is ascribed to evidence which shows that the fitness of the employee for his position was dependent on his con- tinuing to hold the same views as his employer with regard to politi- cal or other questions.' The incumbents of livings in the Established Churches of Eng- land, Wales, and Scotland hold their positions for life or during good behavior. In the United States the duration of the appointment of the minister of a church depends upon the general regulations of the religious body to which he belongs, and the terms of the particular contract under which he is appointed.® In any jurisdiction in which the English doctrine as to the pre- sumptive annual duration of a general hiring prevails, it is mani- festly an a fortiori conclusion that the engagement was limited to a year, if the nature of the occupation was such that the servant could not legally continue to act as a servant without a government license, and that the license was good only for a year.^" th at he would give her the salary named from the opening till the end of the season. 7 In its relation to the English doc- trine as to the presumptive duration of a, general hiring, this situation is illustrated by the two cases discussed at length in § 157, note 8, ante. See also Bain v. Anderson (1898) 28 Can. S. C. 481, affirming (1897) 24 Ont. App. Rep. 296, which reversed (1896) 27 Ont. Rep. 369 (purchaser of busi- ness retained an employee who knew that it was unprofitable, and was told that the arrangement was merely temporary). In Coigin v. Laridis (1864) 46 Pa. 426, where it was held that an agency for the sale of land was, from its very nature, of uncertain duration, and therefore terminable at will, the court thus discussed the contention of counsel that there was an implied obligation to emplo}' the agent. "The plaintiff undertook not a, continuous employ- ment, but an agency to sell land. Such contracts are generally revocable at pleasure, unless the power to revoke is restrained by express stipulation, or unless given for a valuable considera- tion. To them is never applied an im- plication such as in England is at- tendant upon contracts of hiring." One employed as a brakeman to sup- ply the place of a striking brakeman. under a contract by which he is to re- ceive the regular and usual wages of brakemen, and who, after working for a few days, for which he is paid, is told that he will be informed when his further services will be needed, cannot recover wages for a, subsequent period during which he performs no services. Louisville & N. R. Go. v. Harvey (1896) 99 Ky. 157, 34 S. W. 1069. 8 See Lowe v. Walter (1892) 8 Times L. R. 358, where Coleridge, Ch. J., pointed out that if a contract for the employment of a foreign correspondent of a newspaper should be treated as binding for a year, the proprietor might be placed in the embarrassing predica- ment of being obliged to permit the newspaper to be made a medium for the publication of views of which he disapproved. 9 In Whitney v. First Ecclesiastical Soc. (1824) 5 Conn. 405, it was held that an appointment for life, and not at will, was the only reasonable in- ference from evidence that the minister was to be paid a certain yearly salary, a,nd also a sum as a settlement, pay- able in three annual instalments. See, however, Perry v. Wheeler (1877) 12 Bush, 541, '§ 175, note 1, post. iOShortt V. Laery (1891) 11 New Zealand L. R. 19 (plaintiff was an §§ 174, 175] DURATION OF THE CONTRACT. 551 In the absence of evidence showing that snch was the understand- ing of the parties, the employment of a person to teach in a college ■or university for a year does not necessarily mean a year of twelve months. ^^ 174. Subsidiary stipulations regarding property used for the pur- poses of the work.— A stipulation that certain articles belonging to the master, and used by the servant for the purpose of performing his duties, shall be accounted for and delivered up to the master, whenever demanded, is competent evidence with regard to the dura- tion of the contract. But it does not constitute conclusive proof that the contract was to be terminable at the pleasure of the master.^ 175. Specification of employment as being permanent, steady, for life, etc. — As a general rule the word "permanent," as applied to an employment, will be regarded as meaning nothing more than that the employee is to hold the position until one or the other of the contracting parties shall desire to terminate the connection ; in which event the dissatisfied party is to have the right to be relieved of fur- ther obligations to the other, upon fair and equitable terms, and after reasonable notice. Such a term is not to be understood in the sense that the parties are to be bound together by ties which can be dissolved only by mutual consent or for sufficient reasons.^ auctioneer's assistant, for wliom an an- (1881) 77 Ind. 590 (insurance agent nual license fee of £40 was payable), during the currency of this engagement Richmond, J., said: "A general hiring, had given his employer various receipts virhere no term is fixed, is presumed for books, etc., containing stipulations to be a yearly hiring, in the absence as to redelivery). of circumstances shovping a, different I Perry v. Wheeler (1877) 12 Bush, intention. Here the circumstances are 541 (rector of a protestant Episcopal strongly in favor of the ordinary pre- church). This case was cited with sumption. The defendant paid the sum approval, and followed in regard to of £40 for a year's license, presumably other kinds of employment, in Lord v. on the understanding that the engage- Goldberg (1889) 81 Cal. 596, 15 Am. ment should not be terminated by the St. Rep. 82, 22 Pac. 1126; Faulkner plaintiff within the year. Reciprocally, v. Des Moines Drug Co. (1902) 117 the plaintiff, properly conducting him- Iowa, 120, 90 N. W. 585. self, had a right to serve out the term Employment for a year is held, in of the license. The period of the en- SulUi>an v. Detroit, T. & A. A. R. Co. gagement manifestly had reference to (1904) 135 Mich. 661, 64 L.R.A. 673, the period of the license, though not 106 Am. St. Rep. 403, 98 N. W. 756, exactly coincident therewith, and both to be a fulfilment of a contract to parties must be taken to have meant give an attorney permanent employment that the engagement should last for in consideration of services rendered a year." in the formation of a corporation, since 12 University of Illinois v. Bruner the contract is indefinite and terminable (1898) 175 111. 307, 51 N. E. 687, af- at the will of either party. drming (1896) 66 111. App. 665. In Elderton v. Emmens (1847) 4 C. i Niagara F. Ins. Co. v. Greene B. 498, 11 Jur. 612, 16 L. J. C. P. N. 552 MASTER AND SERVANT. [chap. v. But several decisions proceed upon the ground that the extent of the contractual obligation should be estimated on a different footing, S. 209; in assumpsit against a joint- stock company (sued in the name of their secretary), the first count of the declaration alleged that, in considera- tion that the plaintiff had agreed to become the "permanent" attorney and solicitor of the company, the company promised the plaintiff to retain and employ him as such permanent attorney, etc., and that, in pursuance of the agreement, the company did in fact retain and employ him, and the plain- tiff acted, and had always from thence been ready and willing to act, as the permanent attorney of the company; and alleged, for breach, that the com- pany wrongfully, and without any just or reasonable cause for so doing, dis- charged the plaintiff from being or act- ing as such attorney, etc. Held, that this count was not supported by proof of a resolution of the directors that the plaintiff "be appointed permanent solicitor to the institution." Wilde, Ch. J., said: "The contract alleged in the first count is that the company would retain and employ the plaintiff as their 'permanent attorney and solic- itor.' Whether that means an employ- ment for life, or so long as the com- pany shall exist, or what, we have no means of judging. But I incline to think it means no other than a general employment, as distinguished from an occasional employment in particular matters. It seems to me to be impos- sible for the parties to have intended to use the word 'permanent' here in the sense that has been suggested on the part of the plaintiff. Had such been their intention, the agreement would have contained a variety of stipu- lations that are not found in it. . . . If the word 'permanent' has no force in the construction of this contract, then, inasmuch as the first count is framed upon a motion that that word has a definite legal effect, the result is that the plaintiff has failed to give evidence to support the promise al- leged therein." Maule, J., said: "This must be understood to mean a promise to employ the plaintiff for some cer- tain time. But the evidence does not support such a promise; it does not show any contract on the part of the company to retain and employ him as their attorney any longer than they should think proper. In fact, 'per- manent attorney' means no more an enduring engagement than 'standing counsel.'" Coltman, J., said: The al- legation "obviously means that the re- tainer was so far 'permanent' that the company were not to be at liberty to dismiss the plaintiff without some adequate cause. When we look at the agreement itself, it is evident that the parties used that term in a sense totally different from that intended in the dec- laration." The judgment was reversed by the exchequer chamber, whose judg- ment was affirmed by the House of Lords. See (1848) 6 C. B. 160 (1853) 4 H. L. Cas. 624. But the reversal was not upon the point discussed above. This English decision was followed in a case where a contract whereby a corporation agreed to give an attorney "permanent employment"- as counsel, if he would render certain services, and the scheme involved should prove a success, was held to be satisfied by his employment thereafter for the period of a year at a fixed salary. Sullivdn r. Detroit, Y. & A. A. R. Go. (1904) 335 Mich. 661, 64 L.R.A. 673, 106 Am. St. Rep. 403, 98 N. W. 756. The leader of an orchestra, employed by one who guarantees a "long engage- ment," may be discharged on giving him the usual and customary notice, as the employment is not for any defi- nite time. Grwy v. Wulff (1896) 68 HI. App. 376. An employment of a steamboat pilot by a letter stating that he will be needed about a certain date, and that the job will be permanent, and his reply that he will accept the offer at a specified rate, does not constitute an employment for a definite period, but merely one which is to continue as long as it is satisfactory to both parties; and such pilot may be dismissed at any time. Lawless v. Meynier (1893) 9 C. C. A. 59, 13 U. S. App. 639, 60 Fed. 445. By a contract in settlement of a claim under the English workmen's compensation act of 1897, the master, in addition to agreeing to make im- mediate payment of a lump sum to the § 1'5] DURATION OF THE CO^JTRACT. S53 where the consideration of an agreement couched in language which shows that a protracted engagement was contemplated is a release of the master from his liability for personal injuries received by servant. Such an agreement, it is held, cannot be terminated at the will of the master.* claimant, agreed to give him "regular tract is that the defendant promised employment at a fixed weekly wage." to pay the plaintiff wages at the rate Held, that the contract did not give of $65 a month, and to allow him his him a right to permanent employment fuel and the benefit of the garden so so long as he was willing and able to long as his disability to do full work do the work. Lawrie v. Brown (1908) continued; and that, in consideration Sc. Sess. Cas. 705. The decision pro- of these promises of the defendant, the eeeded upon the ground that, in the plaintiff agreed to do such work as he absence of an express stipulation re- could, and to release the defendant from garding the matter, the duration of the all liability upon his claim for dam- service is what is customary in the ages, for his personal injuries. An in- given employment, and that persons en- tention of the parties that, while the gaged in such work as the claimant plaintiff absolutely released the defend- were usually employed only for the ant from that claim, the defendant term of a fortnight. might at its own will and pleasure 2 In Pierce v. Tennessee Coal, Iron cease to perform all the obligations & R. Go. (1898) 173 U. S. 1, 43 L. ed. which were the consideration of that 591, 19 Sup. Ct. Rep. 335, reversing release, finds no support in the terms (1897) 26 C. C. A. 632, 52 U. S. App. of the contract, and is too unlikely to 355, 81 Fed. 814, the defendant, at be presumed. Carnig v. Garr (1897) first, agreed to pay the plaintiff, "regu- 167 Mass. 544, 547, 35 L.R.A. 512, 57 lar wages while he was disabled." The Am. St. Rep. 488, 46 N. E. 117." Before court said that the agreement in this the removal of the case into the circuit form would clearly last so long as he court of the United States, the supreme continued to be disabled, and could not court of Alabama had expressed the have been put an end to by the de- opinion that "the contract is sufficiently fendant without the plaintiff's consent, definite as to time, and bound' the de- By another agreement, made after the fendant to its performance, so long as plaintiff had resumed work, the defend- plaintiff should be disabled by reason ant was "to give him work, such as he of the injuries he received, which, under could do, paying him therefor the wages the averment that he was permanently paid before said accident, that is, $60 disabled, will be for life." (1895) 110 a month." In the opinion of the covirt Ala. 533, 536, 19 So. 22. The Supreme this agreement should be considered as Court of the United States remarked a mere modification of the first, — re- that, as it concurred in that opinion, quiring the plaintiff to do such work as it was necessary to consider how far he could do, but showing that he was it should be considered as binding upon still much disabled by his injuries. By it. a third agreement in writing, of June 4, Harrington v. Kansas City Gahle R. 1890, after a recital of the plaintiff's Co. (1895) 60 Mo. App. 223. There claim for damages for these injuries, as the court, in discussing the effect of a well as the earlier agreements, it was stipulation that the employment should provided that his "wages from this date be "steady and constant so long as were to be $65 a month," and he ex- plaintiff should properly do the work," pressly released the defendant from all said: "We will concede that this may liability for the injuries resulting to mean, or come to mean, under its terms, him from the accident or from the employment for and during the plain- effects thereof, and agreed that this tiff's life. But this would not make should be a full and satisfactory settle- the term of employment indefinite or ment of all his claims against the de- uncertain in a legal sense, since that fendant. The court said: "The only is certain in law which depends upon reasonable interpretation of this con- a certain event. It may be freely con- 554 MASTER AND SERVANT. [chap. v. 176. Statutory provisions.— Any contract which purports to be of a duration different from that authorized by a statute whicli controls the terms upon which appointments to the position in question may be made is manifestly invalid.^ ceded that a hiring for an indefinite time is a contract determinable at the will of either party. Such might be the construction of a contract for steady and constant employment, where the sole consideration for the employment was the services rendered during the current time of the employment. But if that should be granted, it is not this case." That there was no fatal variance between the proof and the complaint, where the averment was that the em- ployment is to be "steady and per- manent," and the testimony of the plaintiff was that the defendant em- ployed him for the term of his natural life, was held in Pennsylvania Go. v. Dolan (1892) 6 Ind. App. 109, 51 Am. St. Rep. 289, 32 N. E. 802. It was declared that an agreement on such terms amounts to a promise to retain the servant as long as he is able, ready, and willing to perform such services as the master may have for him to perform. A contract by which a master, in consideration of being released from his liability to an injured servant, agrees to give him employment during life or his ability and disposition to perform the duties of his position, made at the time of the settlement, entitles him to employment, according to its terms, during the period of his ability and fidelity. But if he becomes in- competent, unfaithful, or disobedient, he is subject to discharge, and forfeits his rights under the contract. Brighton v. Lake Shore & M. 8. R. Co. (1894) 103 Mich. 420, 61 N. W. 550. 1 If an office be created, to be held during good behavior, an appointment is, in contemplation of law, for the life of the grantee. Smyth v. Latham (1833) 9 Bing. 692. Accordingly, an appointment to such an office during pleasure is invalid. Rex. v. Oioen (1695) 4 Mod. 293 (where the court refused to indorse the contention of counsel that the words "during pleas- ure" should be rejected, for the pur- pose of upholding the validity of the appointment) ; Stephenson v. Stephens (1847) 11 Ir. L. Rep. 10. (Weigh- master of Dublin). In Delea v. Cork (1870) Ir. Rep. 5 C. L. 37, it was unsuccessfully argued that the office of weighmaster of Cork was a freehold office, and that an ap- pointment during pleasure was an in- valid appointment. The court, after pointing out that the effect of the legis- lation respecting the appointment and removal of this official was tliat the office ceased to be a freehold office held during life or good behavior, and tliat the officer appointed became removable, "at the discretion" of the mayor, sheriffs, and common council, by an order to be made by them at a meet- ing assembled after eight days' notice, proceeded thus; "The words used are 'at their discretion,' which does import an exercise of judgment, but not neces- sarily upon the merits or demerits of the officer; and at such a meeting they could remove him, though he was not guilty of any misbehavior, if they thought fit. Are we, then, to apply to this appointment the doctrines of the case to which I have referred, and which were decided with reference to appointments during good behavior? It was argued that 'at discretion' and 'during pleasure' do not mean the game thing; that if the appointment were absolutely during pleasure, that would give the power of removal capriciously, and without calling a meeting by no- tice for the purpose, and this is incon- sistent with the office. We, however, ought to give this appointment a reason- able construction, — Vt res magis valeat quam pereat. The appointment is not inconsistent with the power conferred by the statute, and the words 'during pleasure' do not necessarily import that the pleasure is to be expressed in any other manner than that pointed out by the statute itself, — namely, at a meeting properly assembled." Under a city charter providing that the assistants of any officer shall hold their positions during good behavior, but that they may be removed for cause by the mayor or the officer under whom they work, at pleasure, inspectors of § 177] DURATION OF THE COKTEACT. 555 177. Provisions of corporate by-laws.— Where a corporation has framed a by-law fixing the terms upon which its employees hold their positions, it is ordinarily determinative of their rights whenever the duration of their contracts is in question.^ But there is authority for the doctrine that the directors may overrule the operation of a by-law, by a special contract.* buildings, appointed by the commis- sioner of public buildings and approved by the mayor, are such assistants. State ex rel. Bartraw v. Longfellow (1902) 95 Mo. App. 660, 69 S. W. 590. Under N. Y. Laws 1889, chap. 375, § 13, authorizing the board of sewer commissioners of any village to employ a supervising engineer to superintend the construction of any sewer, at $10 a day, a village board has no authority to employ a supervising engineer for one year and an indefinite period there- after, "until the construction of the sewerage system is completed." Ac- cordingly where, nineteen days after the making of such a contract, the village was annexed to the city of New York, and that city never recognized the con- tract, it was held that the employee could recover nothing of the city for breach of the contract after the an- nexation. Mack V. New York (1902) 37 Misc. 371, 109 N. Y. S. R. 809, 75 N. Y. Supp. 809. In Sickey v. Renfrew County (1870) 20 U. C. C. P. 429, it was held that the effect of the provision in the On- tario municipal act, that "all oflSeers appointed by the council shall hold office until removed by the council," is that a council cannot enter into a contract for a definite term which will be binding on its successor. To the same effect is the decision in Willson V. York (1881) 46 U. C. Q. B. 289. In a Quebec case, where a board of highway commissioners had been em- powered to dismiss its employees, it was held that, as this power was be- stowed to subserve the public advantage, an existing board had not the right to bind themselves or their successors by a contract for a determinate period. Samson v. Les Syndies (1880) 6 Quebec L. R. 86. On the ground that the act of Con- gress relating to national banks pro- vides that officers of such banks may be dismissed "at pleasure," it has been held that they cannot be engaged for a specified time. Harrington v. First Nat. Bank (1873) 1 Thomp. & C. 361. 1 That a by-law of a corporation own- ing a school, by which the circumstances under which a teacher might be removed were stated, formed a part of all con- tract for their employment, was held in Gibson v. Tain Academy (1840) 1 Rob. App. H. L. 16. As an officer of a company must be presumed to know its by-laws adopted before his appointment, a by-law to the effect that the tenure of office is "dur- ing pleasure" defines the term of the engagement of any such officer, — here the premium ledger bookkeeper of an insurance company. Hunter v. Sun ^!ut. Ins. Go. (1874) 26 La. Ann. 13. See also the cases cited in the next note. 2 In Martino v. Commerce P. Ins. Go. (1881) 15 Jones & S. 520, it was ex- plicitly held that a by-law of the de- fendant, providing that its officers, clerks, etc., should be elected "during the pleasure" of the board, did not pre- clude it from overriding the by-law by a special contract. In Douglass v. Merchants' Ins. Go. (1890) 118 N. Y. 484, 7 L.R.A. 822, 23 N. E. 806, where a by-law provided that certain officers, including the secretary, should hold their offices during the pleasure of the board of directors, and until the appointment of a successor, either permanent or pro tempore, it was held that, as the secretary was chargeable with knowledge of the by- law, it constituted a part of his contract of employment. The court, without deciding expressly that it was within the power of the board which cre- ates a by-law to exclude by a special con- tract any particular contract from its operation, said that, assuming this pow- er to exist, no special contract to em- ploy for a year could be predicated, wliere the secretary had been hired under a, contract for a yearly salary, and the yearly duration of the contract was a matter of inference only. 556 MASTER AND SERVANT. [chap. v. 178. Term of employment measured with reference to the continuance of a certain state of things. — A contract of hiring which does not by its explicit terms cover any specific period, but which provides that the employment is to last during the continuance of a certain state of things, cannot be terminated by the employer, except for good cause, as long as that state of things subsists.'' Where the agreement for the hire of the servant provides that the term of his engagement is to be co-extensive with the period covered by a contract which the master has made for the performance of certain work for a third party, the master cannot, in fraud of the agreement, make a different arrangement with the third party, for the purpose of simply arresting the employment of the servant. But the servant has no specific interest in his employer's contract, inde- pendently of the hiring and service for a definite time; and if the master, without any intention of interfering with the servant, thinks proper to annul the contract with the third party, and enter into a second contract having reference to the same work, but extending beyond the period covered by the first one, the new contract cannot be treated as one engrafted on the first one. In an action of law, 1 An employee in a corporation, under an agreement that the employment shall continue so long as he owns and holds in his own name a specified amount of the corporate stock, does not cease to hold such stock, within the meaning of the contract, by merely pledging it for the payment of a debt. McMullan V. mcUnson Co. (1896) 63 Minn. 405, 05 N. W. 661, 663. A contract for the employment of a specified person in a factory "while the same remains in operation" will not justify the discharge of such employee because of a temporary suspension of the operation of the factory. American Glucose Co. V. LuUtz (1897) 71 111. App. 638. In Downes v. Poncet (1902) 38 Misc. 799, 78 N. Y. Supp. 883, where the servant was to be employed as long as the account of a certain company re- mained with defendants, it was held that he could not be dismissed at will. An employee who, under his contract, is to be retained in the employment at u, stated monthly salary if his employ- ers continue in the manufacturing busi- ness beyond six months from the date of the contract, cannot recover any compensation for services beyond the six months, if the employers do not continue in such business, but, to his knowledge, merely experiment to learn whether they have an implement worth manufacturing. WfUtworth v. Brown (1893) 85 Wis. 375, 55 N. W. 422 (instruction to this effect approved). The testimony of the defendants tended to show that they engaged in making the implements as an experiment merely, and continued making them for that purpose alone while plaintiff worked for them after the six months. PlaintiflT's testimony was to the effect that de- fendants manufactured the implements in the same way and for the same pur- poses as they had theretofore manu- factured other implements. Held, that, unless informed to the contrary, plain- tiff had the right to assume that they were continuing in the manufacturing business, and might recover according- Although the case is not exactly in point, reference may be made to Pick- well T. Spencer (1872) L. R. 7 Exch. 105, 41 L. -T. Exch. N. S. 73, affirming (1871; L. R. 6 Exch. 190, where it was held that a devise to A. with a direction to pay B f 5 a year in wages as long as he should continue to labor on the farm, gave A the fee. § 178] DURATION OF THE CONTRACT. 557 therefore, tte contract of employment will be regarded as having come to an end when the new contract with the third party takes effect. But in equity the agreement for the hire of the servant will be considered as subsisting during the whole of the period covered by the first contract.^ Where a company not incorporated for any specified period, and therefore in its nature perpetual, hires a person to perform services for the time for which the corporation is established, the hiring is for an indefinite time, determinable by the dissolution of the corpora- tion in a mode fixed by law, and not otherwise.* Z Harrington v. ChuroJiMMrd (1859) corporation to pay so long as the other 29 L. J. Ch. N. S. 521 (bill for an party shall perform, with a proviso accounting). that, by the death of the party con- 3 Revere v. Boston Copper Co. { 1834 ) tracting to perform services, the cor- 35 Pick. 351. The agreement in that poration shall be discharged, is in legal case provided that the employee was effect a contract for life." The con- to be paid a yearly salary so long as elusion of the court was that the em- he should perform such service, and ployee was entitled to an indemnity that, on his _death or refusal to perform for the loss sustained by the company's such service, the corporation should be refusal to employ him. With regard discharged from its obligation. After to another ground of defense suggested he had held the position for a few by the defendant's counsel, tHu., that years, a majority of the stockholders the plaintiff himself was one of the voted to dissolve the company. He was corporation, and as such was bound then dismissed, and the corporate prop- by its acts; and that, when a majority erty was transferred to trustees for the of the corporation voted to dissolve benefit of the creditors and the stock- and wind up the business of the com- holders, and the state authorities were pany, he was bound by it, though he notified that no further interest was individually dissented, the learned judge claimed in the charter. It was held said: "We think it clear that this that, as such a company could not dis- argument cannot be sustained. So far solve itself and terminate its own exist- as his rights, duties, and obligations ence, at its own will, by a bare notice as a corporator were concerned, no to the executive department of the doubt he is bound by the acts of a government, the rights of the employee majority, but no further. Here he were to be adjusted on the hypothesis claims not as a corporator, but upon that it was still in existence. Dis- a contract in which he is one party and cussing the effect of the final provision the corporation the other. One of the of the agreement, Shaw, Ch. J., said: main purposes and principal effects "This clause, to my mind, carries a of incorporation is to create a separate necessary implication that, until the person in law, capable of acting and death of the plaintiff or his refusal to contracting in a separate capacity; perform his agreement, the corporation and such conventional person and body is not discharged, but the obligation politic has a legal existence, indepen- to pay continues, and, further, that dent of that of all its members, and upon the death or refusal to perform therefore may as well contract with one of one, the obligation of the corpora- of its own members as with other per- tion is to continue as to the other, sons. It follows, as a, necessary con- This makes it essentially a contract sequence, that such contracts must be with each for life. For although this construed and carried into effect in , term is not used, yet a contract with the same manner as contracts between a corporation, which is in its nature other parties, and that the votes and perpetual, but determinable by some acts of the corporation can have no contingent event, is a contract for an effect to deprive the plaintiff of rights indefinite time, and a stipulation by the which he claims not as a corporator, 558 MASTER AND SERVANT. [chap. v. 179. Contract defeasible at the option of the parties. — An engage- ment for a fixed period cannot be inferred where the hiring is in- definite as regards time, and it is expressly provided by the agree- ment that the services may be determined at any time by one or both of the parties.^ On the other hand, where the provisions of the con- tract are otherwise such as to justify the inference that the engage- ment was for a fixed period, the addition of a stipulation which ren- ders it determinable at any time, if one or other of the parties should so desire to rescind it, is not, of itself, sufiicient to repel that infer- ence.* but as a contractor with the corpora- tion." ^Eea> V. Great Bowden (1827) 7 Barn. & C. 249 (hiring for a year not in- ferable for purpose of giving a settle- ment), citing a case in which there was held to be merely a service at will, where a boy was employed to work "for meat, drink, and clothes as long as he had mind to stop." Rex V. Christ's Parish (1824) 3 Barn. &■ C. 459. In this earlier case the court referred to an unreported decision. Rex V. Trowhridge (1816), in which the same conclusion was arrived at with respect to a hiring "for as long as the servant pleased." A hiring of a domestic servant at weekly wages for so long a time as the master should still want a servant was held not to be a hiring for a year. Rex V. Elstack (1785) Bott, Poor Law, 298, Cald. 480. That a hiring at weekly wages, "and to part at a week's notice," was not a general hiring, was held in Rea: v. Hanbury (1802) 2 East, 423. See also Parks v. Atlanta (1886) 76 Ga. 828, where the servant was em- ployed by the fire masters of the de- fendant city, in accordance with a reso- lution previously adopted by them, that their servants should be hired "subject to the will of the board." 2 The doctrine applied in cases aris- ing under the English poor law former- ly in force was thus stated: "The circumstance of the parties having it in their power to determine the service on giving notice will not defeat the settlement, where there is a contract tor a year, and a year's service under it." Rex V. nampreston (1793) 5 T. R. 205. The court cited a, case in which it was laid down that an agreement to go one month upon liking, at £5 a year, with liberty to leave the service on a month's wages or a month's warning on either side, is a conditional hiring for a year. Rex v. Wew Windsor (1735) Burr. Sett. Cas. 19. In Rex V. Sandhurst (1827) 7 Barn. & 0. 557, it was remarked with regard to an arrangement of this kind: "It is like the case of a defeasible contract, . . . to be determined on some con- tingency; but that contingency not hav- ing happened, and the contract not hav- ing been defeated during the year, it enures, after the year's service, as a yearly hiring." To the same general eflFect see Rex V. Birdhrooke (1791) 4 T. R. 245. Contracts are construed on a similar footing where it is a question of the rights of the parties inter se. Thus it has been held that an agreement for a year certain was inferable where the instrument appointing the servant ran as follows: "I hereby give you the appointment as commander of the S. S. 'Wonga Wonga,' and agree to allow you for such services a salary of $500 per annum, to be paid either monthly or at any other time you desire. Terra of service to continue so long as is agreeable to both parties." Benl v. irall (1870) 9 New. South Wales S. C. 285. It was declared that the provision as to the monthly payment of salary clearly implied that it was within the contemplation of the parties that the engagement should last several montha at least. The presumption entertained in Eng- land with regard to the yearly duration of a general hiring is not deemed to be repelled by the mere fact that tlie serv- ant left the service in the middle of his third year. Rex v. Worfield (1794) § J 80] DURATION OF THE CONTEACT. 559 An agreement to employ a servant for as long a period as he de- sires has been held to be subject to rescission by the master at any time, until the servant has exercised his option of fixing the period during which he wishes to render services.^ The writer ventures to express the opinion that this view is erroneous. The distinctive and outstanding features of an agreement of this type is that it is de- signed for the advantage of the servant, and that it contemplates by its terms a prolonged continuance of the employment. This con- sideration, the writer submits, points with reasonable certainty to the conclusion that it imports a hiring the duration of which is to be dependent entirely upon the will of the servant, unless he is guilty of some breach of duty; that it cannot be construed in such a sense as will subject him to the obligation of specifying within a given time the length of the period during which he desires the engagement to continue; and that his position, in fine, is virtually the same as that of a person hired under a contract which provides for "perma- nent" employment. See § 175, ante. 180. Employment defeasible by conditions subsequent expressly re- ferred to. — From a stipulation of which the effect is to render the servant's tenure of his position conditional upon the performance of his work in a certain manner, a hiring at will merely is ordinarily to be inferred.^ 5 T. E. 506. Lord Kenyon, Ch. J., that an agreement to employ the plain- pointed out that "it was competent to tift in a certain business for so long both parties to put an end to the con- a period as he should elect was too tract whenever they pleased." uncertain to form the basis for an An express contract, by which an action for damages, where the plaintiff iron company guaranteed a molder a had not declared his election, steady position as foreman of its mold- Other Texas cases which proceed ing shop for a term of three years, upon the same ground are Texas Mid- "or as long as he performs his duties land R. Co. v. Harris ( 1902 ) 29 Tex. in a, successful or satisfactory manner," Civ. App. 491, 69 S. W. 102 (agree- provided that the employer continued ment to employ plaintiff in a, certain in existence, is not a contract for an capacity "during his lifetime, or so indefinite time, but for three years; long as he might desire") ; Hickey v. and the employer has no right to dis- Kiam (1904) — Tex. Civ. App. — , charge the foreman during that time, 83 S. W. 716 (agreement to give an unless in accordance with provisions employee permanent employment as- of the contract. Bridgeford & Co. v. long as he desires to retain the employ- Meagher (1911) 144 Ky. 479, 139 S. ment and his services are satisfactory) . W. 750. 1 In Finger v. Koch & S. Brewing Co. SEast Line & R. River R. Co. v. (1883) 13 Mo. App. 310, an employ- Soot* (1888) 72 Tex. 70, 13 Am. St. ment which was to continue a year. Rep. 758, 10 8. W. 99 (compromise if the servant "did his work well," was agreement made in consideration of an held not to be a hiring for a year, injured servant's relinquishment of his D. was employed by S. for a week, claim for damages), citing with ap- and, if she suited, to continue during proval Bolles v. Haohs (1887) 37 Minn, the summer months and until Sep- 315, 33 N. W. 862, where it was held tember 1st. Before the end of the week. S60 MASTER AND SERVANT. [chap. v. In eases under the English poor law formerly in force it was held that the settlement was not defeated by the inclusion in the contract of a condition subsequent which might possibly put an end to the S. declared that D. suited, and D. said: "Then, as long as I suit you, there is no fear for the summer months;" to which S. replied affirm- a,tively. Held, that the employment- re- mained conditional on D.'s continuing to suit S., and was not absolute up to September 1. Daveny v. Shattuok (1880) 9 Daly, 66. A resolution passed by defendants, that the plaintiff be engaged for the society's otBce as a clerk, "at three months, on trial, at a salary of $800 per annum," was held not to support a count alleging his employment for a year. Hughes v. Canada Permanent Loam & Sav. Soc. (1876) 39 U. C. Q. B. 221. An agreement to give a specified per- son employment so long as he does faithful and honest work is indefinite as to time or terms of employment, and may be terminated at any time by either party. Lomsville d N. R. Go. V. Offutt (1896) 99 Ky. 427, 59 Am. St. Rep. 467, 36 S. W. 181. The court said: "The well-settled rule with reference to the character of hiring that is set up in the petition and amended petition is that, when the term of service is left discretionary with either party, or when it is not definite as to time, or when it was for a definite time, provided both par- ties are satisfied, in either event either party has the right to terminate it at any time, and no cause therefor need be alleged or proved." A contract providing that the em- ployer shall be the absolute judge of the manner in which the employee per- forms his duties, and shall have the right to dismiss him at any time for incapacity or breach of duty, in which ease he shall have his salary up to date of dismissal, but no claim what- ever against his employer, — gives the latter the right of dismissal for breach of duty at any time, without notice and without specifying any particular act calling for dismissal. MoRae v. Marshall (1891) 19 Can. S. C. 10, reversing (1889) 17 Ont. App. Rep. 139, which affirmed (1889) 16 Ont. Rep. 495. A railroad company is not bound to employ a freight brakeman so long as he desires to stay in its service and his work is satisfactory, in accordance with a stipulation in a written offer of compromise made by him for an in- jury sustained, where the stipulation was changed in the release executed by him when he was paid the sum named in his offer, to employment to such time as may be satisfactory to the company, and no fraud or imposition is shown. He will be presumed to have consented to the alteration. Phares v. LaJce Shore & M. S. R. Co. (1898) 20 Ind. App. 54, 50 N. E. 306. The cases bearing on the question whether stipulations of this type invest the employer with the sole right to determine the quality of the servant's work are collected in § 198, post. An agreement from month to month merely was held to be inferable, where the plaintiff, having negotiated with defendant for employment at $2,000 per year, offered to work for $1,500 a year, and defendant finally wrote to him as follows: "We have concluded to give you a trial for a month or so, for a compensation at $80 per month. ... If you show yourself to be the man we want, we will gladly make yearly arrangements to mutual satisfaction, and put you in a position to earn more money than you have asked. . . . The experience we have had together does not warrant us to do any better for the present, until you prove yourself to us a competent man." Zender v. Seliger-Toothill Co. (1896) 17 Misc. 126, 39 N. Y. Supp. 346, re- versing (1896) 16 Misc. 296, 38 N. Y. Supp. 116. In Stuile v. Waldeck (1891) 78 Wis. 437, 47 N. W. 833, evidence on the part of the defendants was to the effect that they were to pay the plaintiff at the rate of $1,000 a year and expenses, provided that on his first trip lie should sell goods at the rate named, was met by evidence to the effect that one of the defendants had stated that the plaintiff "would receive $1,000 the first year," and by a direct denial by the plaintiff that the agreement was sub- § 380] DURATION OF THE CONTRACT. 561 service before the end of the year/ But the rationale of these de- cisions was that, as the servant's rights had been fixed by the com- pletion of a year's service, it was quite immaterial that the occurrence of a certain event during the currency of the year might by possi- bility have put an end to the contract. They are not relevant as precedents where the question involved is, What shall be regarded as the duration of the engagement for the purpose of determining the reciprocal obligations of the parties themselves ? ject to any such condition as was al- leged. Held, that there was no evi- dence suflacient to sustain a verdict based on the theory that the servant had been hired for a year. That the contract under which plain- tiff entered defendants' employment was for five months, subject to the right to discharge him for incompetency, was held to be a proper inference from the testimony of the defendants that they told plaintiff that, if he could do the work, it was all right; that it would not take them long to find out whether he could hold the job; that, if he proved satisfactory, they would need him till M. & S. Vol. I.— 36. the work was completed, which would take at least five months, but that, if he could not do the work to their satis- faction, he would have to go. Mo- Keithan v. American Teleph. & Teleg. Co. (1904) 136 N. C. 213, 48 S. E. 646. HRex V. Farleigh Wallop (1830) 1 Barn. & Ad. 336 (right reserved to dis- miss a servant if the master "should have a sale") ; Rex v. Northwold (1823) 2 Dowl. & R. 790 (continuance of engagement made to depend upon the servant's being found to have sufficient physical strength). OHAPTEE VI. TERMINATION OF THE CONTRACT. A. Termination by mutual consent. 181. Generally. 182. Effect of dissolution by mutual consent. B. Teemination by act op the masteb. 183. Eiglit of master to dismiss servant. Generally. 184. Right of dismissal in the case of employees performing public duties. a. Persons engaged directly by the state. 6. Persons engaged directly by municipal councils, c. Persons engaged by officers or official boards discharging public functions. 185. — in the case of employees of private institutions controlled by gov- erning bodies. 186. Authority of person exercising right of dismissal. a. Generally. 6. Authority of individual partners. c. Authority of superior employees. 187. What constitutes a dismissal. o. Generally. 6. Dismissal, v^hen inferable from the statements of the master, c. Dismissal, when inferable from acts and other circumstantial evidence. 188. What constitutes a valid ground for dismissal. 189. Right of master to rely on a cause of discharge not assigned at the the time of the discharge. a. Generally. 6. Materiality of circumstance that existence of cause ultimately assigned vpas unknown to the master at the time of the servant's dismissal. c. When the doctrine will not be applied. 190. Waiver of right of discharge by condoning servant's breach of duty. u.. Effect of retention of defaulting servant in the employment. Generally. 6. Doctrine that condonation is presumed from the mere fact of retention. c. Doctrine that condonation is a question for the jury, except in clear cases. d. Qualifications of the rule as to inference of waiver from fact of retention. e. Reliance by master upon one out of several grounds of dis- missal. 562 TERMINATION OF THE CONTRACT. 563 191. Waiver of reserved right to terminate tlie employment, if a specified event should occur. 192. Consequences of dismissal with regard to the primary stipulations of the contract. a. Wrongful dismissal. 6. Rightful dismissal. 193. — with regard to special subsidiary stipulations. 194. — with regard to the person and property of the servant. 195. — ^with regard to the master's chattels used for the purposes of the servant's work. 195a. — ^with regard to articles purchased from the master for resale. 196. - — ^with regard to third persons. Termination of contkact by master. Subject consideked with beference to specific stipulations defining his rights. 197. Stipulations permitting rescission if the work is not satisfactorily performed. 198. Under what circumstances the employer's judgment as to the quality of the work is conclusive. 199. How far the actual existence of dissatisfaction on the employer's part may be inquired into. 200. Necessity of showing that the dissatisfaction alleged was covered by the contract. 201. Effect of special stipulations other than those simply relating to the satisfactory quality of the work. a. Unqualified right of discharge. 6. Right to dismiss conditioned upon existence of a cause for dis- missal. c. Right to dismiss conditioned upon defective performance by the servant. d. Right of dismissal reserved in the event of the failure of the given enterprise. e. Previous consultation between parties a condition precedent to termination of contract. f. Continuance of employment dependent upon acts or forbear- ances of servant. g. Stipulations taking into account the contingency of a termina- tion of the employment. Teemnation by the act of the servant. 202. Generally. 203. What constitutes an abandonment of the service. 204. Consequences of abandonment. 205. Right of abandonment, as affected by special stipulations. 206. Waiver of the right of abandonment. 207. Marriage of servant. a. Common-law jurisdiction. 6. Quebec. Termination of the contract by giving notice. 208. Obligation to give notice under the express terms of the contract. a. Generally. 564 MASTER AND SERVANT. [chap. vi. 6. Sufficiency of express notice. o. Sufficiency of notice implied from circumstances. d. Effect of rules prescribing the length of notice to be given \>y the servant. 209. Obligation where the contract contains no express provision on the subject. 210. Obligation as inferred from a specific custom. a. Generally. 6. — in the case of domestic servant. c. — in the case of other servants. d. Custom overridden by express terms of contract. 211. Obligation as inferred independently of a. specific custom. a. The character of the employment. 6. Period for which the contract was binding. c. Period with reference to which the rate of compensation is estimated. d. Reasonableness of notice a question of fact. 212. At what time the notice should be given. 213. Obligation to give notice under the law of Scotland. a. Express agreements as to notice. 6. Obligation to give notice to prevent tacit relocation of con- tract for a definite period. c. Obligation in respect to contracts for a fixed period, where the question of tacit relocation is not involved. d. In cases where the servant was not hired for a fixed term. e. Form of notice. 214. Under French law as administered in Quebec. F. TEKMINATIOlSr BY OE ON ACCOUNT OP THE DEATH OE PHTSICAI. DISABILITY OF ONE OF THE PABTIES. 215. Effect of death. Generally. 216. Death of individual master. 217. Death of member of employing firm of partners. 218. Death of servant. 219. Bodily or mental incapacity of the master. 220. Bodily or mental incapacity of the servant, considered as an event operating so as to dissolve the contract. 220a. — considered as an excuse for nonperformance of the contract. 220b. — considered as a ground for rescinding the contract. 220c. Eight of employer to refuse to allow an employee to perform services while temporarily incapacitated. 220d. Incapacity supervening after a wrongful dismissal. G. TeBMINATION by OB on ACCOUNT OF OTHER CIBCUMSTANCES BEYOND THE CON- TBOL OF THE PARTIES. 221. Epidemics and other overpowering natural calamities. 222. Destruction or deterioration of master's property. 223. Bankruptcy of master. 223a. Bankriiptcy of servant. 224. Insolvency of an individual employer. 224a. Compulsory winding up of employing company. § 181] TERMINATION OF THE CONTRACT. 565 226. 227. 225. Appointment of receiver and manager of business of employing com- pany. Execution sale of employer's property. Imprisonment of servant. a. Where he is guilty of the crime charged. 6. Where is not guilty of the crime charged. 228. Other acts of public authorities. a. Authorities of state in which parties reside. 6. Authorities of foreign state. Acts of third persons. 229. A. Termiitatioit by mutual consent. 181. Generally. — The rescission of the contract by mutual consent may be proved by evidence either of the words or of the acts of the parties.^ Not infrequently a rescission on this footing is effected by 1 A letter notifying an employee that his services will not be needed after a designated day, with the reply of the latter that he accepts the ultimatum of his employer, releases such employer from any existing contract of employ- ment. Martin v. New York L. Ins. Go. (1893) V3 Hun, 496, 56 N. Y. S. R. 149, 26 N. Y. Supp. 283, affirmed in (1895) 148 N. Y. 117, 42 N. E. 516. Plaintiff, employed by defendant as its state agent for Wisconsin for a term of one year from April 1, 1877, was notified by defendant's vice presi- dent, under date of December 14, 1877, that, for reasons stated (not implying any dissatisfaction with plaintiff), the directors had concluded that, at least for the next calendar year, the agency for Wisconsin must be added to the duties of the person who was then defendant's state agent in an adjoin- ing state; and added that defendant's general agent was then in the West, and would probably visit plaintiff in a few days, when "all matters relating to the future" could "be arranged be- tween" him and plaintiff. Plaintiff immediately answered at length, ex- pressing acquiescence in the necessity for the change, and giving no intima- tion that he should claim his salary after January 1, 1878. On December 19, 1877, he sent out circulars to de- fendant's subordinate agents in Wis- consin, stating that on January 1st next the relations existing between him and them would be dissolved "by ex- piration of engagement;" and com- mending to them the state agent who was then to succeed him. Held, that these papers showed a termination of plaintiff's employment with his con- sent. Southmayd v. Watertown F. Ins. Co. (1879) 47 Wis. 517, 2 N. W. 1137. Although the bankruptcy of the mas- ter does not of itself, dissolve contracts with his servants (see § 1094, infra), the fact that a servant ceases to per- form his duties because his master, after becoming bankrupt, ceases to carry on business, justifies the inference of a dissolution of the contract by mutual consent. Thomas v. Williams (1834) 1 Ad. & El. 685, 3 Nev. & M. 545. Where plaintiff in an action for wrongful dismissal had received a let- ter from the firm in March, 1882, dis- pensing with his services from the 1st of January, 1883, and afterwards signed a receipt for his wages for December, adding, "and I am now leaving their employment," it was held that tliis was evidence for the jury of acquiescence in the termination of his engagement, — more especially as he had made no claim for future wages. Burnet v. Hope (1885) 9 Ont. Rep. 10. Where the defendant in an action for wrongful discharge relies on a plea of rescission by mutual assent, very little weight should be attached to angry expressions which the employee may have let fall during a dispute with the employer, — especially when the latter is shown to have given the first provo- cation. Edwards v. Levy (I860) 2 Fost. & F. 94. There the defendant, 566 MASTER AND SERVANT. [chap. VI. after some heated talk started by a slight remissness on the part of the plaintiff, the musical critic on the de- fendant's newspaper, desired plaintiff to "leave." The plaintiff replied that he was quite ready, and that if the defendant desired his services he must send for him. Next morning, however, the plaintiff wrote to the defendant, stating himself to be ready to attend any of the theaters in the discharge of his duty. Upon this evidence the jury found that the plaintiff was ready and willing to remain in the employ- ment of the defendant on the terms and in the capacity mentioned in the con- tract, and, in accordance with the ex- plicit advice of the judge, that there was no mutual consent to rescind the agreement. A dissolution by consent is inferable where the servant left, and called for a settlement, which was made. Gran- nemoMn v. Kloepper ( 1887 ) 24 111. App. 277. In a Scotch case it was held, on the ground that there is no obligation on a servant who has been illegally dis- missed to give notice of his claim for compensation, that acquiescence in his dismissal cannot be inferred from the mere fact of his omission to give such notice. Ross v. Pender (1874) 1 Sc. Sess. Cas. 4th series, 352. In two other Scotch cases it has been held that a master is precluded from insisting on his rights under an in- denture of apprenticeship, where he has allowed the apprentice to continue working for another party for a long period, without making any attempt to reclaim him. Ferguson v. McKenzie (1815) Hume's Dec. 21; Roiinson v. Smith (1800) Hume's Dec. 21. Evidence that the servant had notice of the insolvency and dissolution of his employers' firm, and made no ob- jection to a notification of discharge, and afterwards sent a probated state- ment of his claim by the month, which emitted certain periods within the period of hiring, is evidence of his assent to his discharge. Vanuxem v. Bostwick (1887) 4 Sadler (Pa.) 532, 19 W. N. C. 74, 7 Atl. 598. In Bell V. Chind (1901) 110 Wis. 271, 85 N. W. 1031, letters written by a discharged servant showed that, be- fore his discharge, he had formed the intention of taking up farming. In them he had also suggested that his master should aid him in finding a market for his produce, and had ex- pressed his satisfaction with the change. The master testified that the servant consented to the termination of the con- tract, and was paid an extra compen- sation therefor, but this was denied by the servant, who contended that the extra compensation was for extra work. Held, that the letters were admissible in evidence, and that the testimony was sufficient to support a finding that the servant consented to a termination of the contract. A person employed for a specified period requested permission to go away for a short time, and was informed that, in view of a customer's dissatis- faction, he might go, and would be telegraphed for when wanted, and was never asked to return. Afterwards he tendered performance, and was met with a refusal. Held, that his absence prior to the tender was to be regarded as a circumstance which showed that he had assented to the rescission of the contract. Pinet v. Montagiie (1895) 103 Mich. 516, 61 N. W. 876. In an action on a contract of employ- ment made with an agent, in which it was stipulated that the servant should receive a year's notice or a year's salary in case of discharge, the agent testified that he informed the servant that on a certain date dur- ing the second year the agent and prin- cipal had formed a partnership, and that the agreement with the defendant was then voluntarily canceled. This was denied by the plaintiff. Held, that the question whether the contract was voluntarily canceled was one of fact, to be determined by the referee to whom the case had been submitted. Gates V. Stead (1900) 54 App. Div. 448, 66 N. Y. Supp. 829. In a case where the master had, after learning that the claimant had left the employment, stated to him that he would not pay any more wages until the expiration of such term, there was held to have been a sufficient assent to the servant's withdrawal to entitle him to recover the contract price for the services actually performed. Mer- rill V. Fish (1896) 68 Vt. 475, 35 Atl. 368. In Rogers v. Steele (1852) 24 Vt. 513, a mutual relinquishment of the contract was held to be inferable, where it was subject to rescission by giving § 181] TERMINATION OF THE CONTRACT. 567 a certain notice, and the servant had, after giving notice, been told that he might leave before the expiration of the stipulated period of notice. In Hopkins v. Wanostrocht (1861) 2 Fost. & F. 368, the plaintiff, who had been retained by the defendant at an annual salary, received, in June, 1859, a letter of the following tenor from the defendant: "Our friends request us to curtail jour expenditure during the time our works are in abeyance, and have particularly called attention to your salary, which, they say, during the suspension ought not to be charged, as there is nothing to call for your labors. We hope you understand this, and we hope shortly to recommence our works." The plaintiff subsequently gave this receipt: "Received from Messrs. W. & Co. £50 for a quarter's salary ending 30th June, 1859, being, for the present, the last, or until the works shall be resumed." The works were not resumed; and the plaintiff, finding they were not to be, claimed, in April, 1860, "the usual notice." The following questions propounded to the jury by Wightman, J., were answered in the affirmative: (1) Was the con- tract rescinded as to any salary subse- quent to June, 1859, and absolutely put an end to? (2) Was he retained after that only in case the works should be resumed? (3) Did the defendant in effect give notice to the plaintiff in June, 1859, to terminate the original contract, and did the plaintiff accept such notice? A verdict for the de- fendant was thereupon directed. A letter in which a servant requests his master to reconsider his decision as to the discontinuance of the employ- ment, and asks for a prolongation of the employment, in view of the im- possibility of obtaining work at that season of the year, will not be con- strued as a renunciation of the rights which he derives from the terms of his engagement, but rather as an offer of a compromise. MoOreevy v. Quebec Harbor Comrs. (1897) Rap. Jud. Quebec 7 B. R. 17, reversing on this point (1896) Rap. Jud. Quebec 11 C. S. 455. The plaintiff agreed that his son, a minor, should work for the defendant nine months, and the defendant agreed to give him therefor certain chattels, which were delivered forthwith, but were to remain the property of the de- fendant until the service should be per- formed. The plaintiff sold the chattels to a stranger. The defendant turned away the boy without cause, and claimed the chattels from the stranger, who, with knowledge of the facts, set- tled the demand by paying a sum of money. Held, that the contract was rescinded. Hill v. Green (1826) 4 Pick. 114. In Howard v. Chamherlin (1880) 64 Ga. 684, where the issue was whether the contract had been terminated by dismissal or rescission, it was held that statements made by a discharged employee, after the time when notice of his discharge was alleged to have been given, and before the time when it was to take effect, were admissible, to show preference by him for other serv- ice, but that the fact of his having left a more lucrative position in order to obtain the employment in question was not admissible. The fact that a seaman consented to his discharge is no defense to his action for his wages for the rest of the trip, where the consent was con- ditioned on his receiving a full month's wages, and these were not paid. Boston V. Ocean S. 8. Go. (1908) 197 Mass. 561, 83 N. E. 1116, 14 Ann. Cas. 945. Any given contract may be deter- mined by entering into a new contract with the master. But in settlement cases the English judges refused to in- fer a discontinuance of the original engagement, whenever the new contract provided for substantially similar serv- ices. Thus in one case it was held that a contract, by which a servant hired himself to a master as a footman and ». groom, wa-s not dissolved by a sub- sequent contract by which he engaged to bind himself to serve in a different character at higher wages and in a foreign country, although the servant accompanied his master into such for- eign country. Bew v. Buckingham (1834) 3 Nev. & M. 72. The question whether or not an em- ployee has consented to the transfer of the business to a lessee may prop- erly be referred to the jury, where it turns upon proper conclusions to be drawn from a series of letters, taken in connection with other facts and cir- cumstances. White V. Lumiere North American Co. (1906) 79 Vt. 206, 6 L.R.A.(N.S.) 807, 64 Atl. 1121. Where, with the assent and co-oper- ation of an officer of a corporation, all 563 MASTER AKD SERVANT. [chap. VI. its property, business, and franchises are sold, the contracts as to his salary will be deemed to be canceled, although the corporation itself is not dissolved. Long Island Ferry Co. v. Terhell (1872) 48 N. Y. 247. In a case where an employing cor- poration had agreed to pay an addi- tional salary for the last year of the claimant's term, in the event of the contract's not being renewed by rea- son of the corporation's neglect or re- fusal, it appeared that, in his capacity of stockholder, he had taken an active part in consummating a transaction by which his employer's business and plant were transferred to another corpora- tion which had acquired the stock for the purposes of a reorganization. It was also shown that he had refused to consent to a novation of his contract. Held, that he could not maintain an action for the additional salary. Wood- bridge v. Pratt & W. Go. (1897) 69 Conn. 304, 37 Atl. 688. As will be shown in § 264, 'post, the authorities are divided upon the ques- tion whether a dissolution of a, part- nership is per se a breach of a contract of hiring, as regards a person in its employ. But it is agreed that, if that person accepts, upon the dissolution, an agree- ment with a new firm comprising mem- bers of the old partnership and also new partners, this will be evidence to support a. plea of exoneration, in an action against the members of the old firm on the original agreement, even apart from any express agreement to cancel it; because there cannot be two coexistent agreements by the same per- son to serve different firms composed of different parties; and the second agreement is thus an implied surren- der of the first. Hobson v. Cowley (1858) 27 L. J. Exch. N. S. 205; Nick- erson v. Russell (1899) 172 Mass. 584, 53 N. E. 141. In one case it was laid down, as mat- ter of law that, where the master enters a partnership, and the servant accepts an engagement from the firm, his orig- inal contract is at an end. Anderson v. Freeman (1885) 75 Ga. 93. But on the analogy of the two cases last cited, it would perhaps be more correct to say that a jury would be warranted under such circumstances in finding that the original contract is terminated. In settlement cases the contract was held to have been dissolved, under the following circumstances : Where the parties had separated by mutual consent three weeks before the end of the year, with a remittance of wages pro rata. Pawlet v. Burnham (1714) Bott, Poor Law, 424. Where the master had insisted on turning away the servant, and thrown down his wages, which the servant be- fore going away had taken up. Hex V. Oreslmm (1786) 1 T. R. 101. Where, upon the servant's having he- come too ill to do his work, his master had paid him his whole year's wages, and he had afterwards gone into a hos- pital, and never returned to his mas- ter's service. Rex v. Sudbrooke (1803) 1 Smith, 55. Where the servant, having fallen sick while at a fair to which he had gone towards the end of his year to seek another service, had sent for his clothes and wages, and accepted his wages, with a trifling reduction for the part of the year still to run. Rex V. WMttlebury (1795) 6 T. R. 464. Where a servant had left his master's house on account of ill usage, and re- fused to enter the service again, and threatened that he would lay a com- plaint if his wages for the whole year were not paid, which his master con- sented to pay. Rex v. G-rantham (1790) 3 T. R. 754. To the same gen- eral effect, see Rex v. Vpwell (1798) 7 T. R. 438; Rex v. Corsham (1802) 2 East, 303. Where the servant had accepted his wages for the full term, and hired him- self to another master. Rex v. Bray (1814) 3 Maule & S. 20. Where the servant had procured a substitute, who was accepted by the master, and had hired himself to an- ,ather employer. Rem v. Uildenh.a,ll (1810) 12 East, 482. Where the servant, with his master's consent, had hired himself to another master before the expiration of the stipulated period. Rex v. Thistleton (1795) 6 T. R. 185. But in cases of this class no dissolu tion was inferred where the servant had merely -gone to perform another kind of work, with his master's con- sent. Rex V. Goodnestone (1746) Burr. Sett. Cas. 251. § 181] TERMINATION OF THE CONTRACT. 569 the master's acceptance of a formal tender of resignation by the servant.* The tender, being a mere offer, is of course not binding upon either party until it has been accepted, and may be withdrawn at any time until it has been acted upon by the master.^ Nor does the employer's acceptance of a tender, made subject to certain condi- tions, bind the employee to a greater extent than is indicated by those conditions, unless it appears that they have been subsequently waived by him.* Where a special agreement of cancelation is executed, the contract of employment is presumed to be terminated at the date named in the agreement. ° 2 See, for example, Levin v. Standard Fashion Go. (1889) 25 N. Y. S. R. 817, 4 N. Y. Supp. 867; Ivey v. Bessemer City Cotton Mills (1906) 143 N. C. 189, 55 S. E. 613; Greer v. Fea-therston (1902) 95 Tex. 654, 69 S. W. 69, affirming (1902) — Tex. Civ. App. — , 68 S. W. 48; New York L. Ins. Go. v. Thomas (1907) 47 Tex. Civ. App. 150, 103 S. W. 423. 3 Curitright v. Independent School Dist. (1900) 111 Iowa, 20, 82 N. W. 444. * In Blum, V. Nebraska-Imca Creamery Co. (1908) 82 Neb. 110, 117 N. W. 104, a VFritten resignation read: "I resign on same conditions, except on tliirty days' notice after annual meeting in February, 1904". The court was of opinion that these words could not be construed in any other way than as required thirty days' notice to be given after the annual meeting in February, and held that the leasing of the prop- erty and business of defendant to an- other company on January 1, 1904, and notice of that fact, was not a com- pliance with the condition. The court held further, that oral statements made by the employee to individual mem- bers of the board, that he was willing, if necessary for certain purposes, to waive the conditions inserted in such resignation, were not sufficient to con- stitute a waiver. In Hinchman v. Matheson Motor Car Co. (1908) 151 Mich. 214, 115 N. W. 48, a corporation employed one to act as its treasurer for a year. Pur- suant to the contract, he purchased cor- porate stock, and paid a part of the purchase price thereof in cash. Before the expiration of the year, the mana- ger of the corporation suggested that the contract of employment might be terminated. The employee replied to the effect that he would resign on the receipt of the amount he had paid for the stock, and on his being released of his indorsements on corporate notes. His offer was not accepted. Held in- sufficient to show his discharge as treas- urer. B Pray v. Standard Electric Go. (1892) 155 Mass. 561, 30 N. E. 404. There it was held tiuit an employee who consents to the cancelation, from a certain date, of his contract with a corporation, the latter agreeing to give him a written request for the surrender of papers deposited by him with a trust company, which undertook to sur- render them on the written request of the parties, cannot recover salary for the time intervening between such can- celation and the surrender of the pa- pers on a certified resolution of the di- rectors of the corporation, without which the trust company refused to deliver them. One ground of the de- cision was that the trust company would have been protected if it acted on the simple request for a surrender, and that a formal note of the directors was not necessary to validate such sur- render. A second ground was that the plaintiff, by accepting and keeping the bonus of $400 paid to him by the de- fendant as a part of the consideration for having the original contract can- celed, had elected to treat the contract as canceled, and could not now be heard to say that the promise therein contained, to pay him a salary, con- tinued in force. 570 MASTER AXD SERVANT. [chap. VI. A contract of employment may, of course, be rescinded before the arrival of the period for performance, by an agreement to that effect between the parties.^ Unless the contract of hiring is under seal, its rescission by mutual consent may be effected by a parol agreement.'' 182. Effect of dissolution by mutual consent. — The obligation of a contract of hiring is entirely destroyed, so far as its ordinary inci- dents are concerned, when the parties have, once consented to its dissolution/ even though one of them may have withdrawn his con- ^ Mcintosh V. Miner (1899) 37 App. Div. 483, 55 N. Y. Supp. 1074. An em- ployee, after a mutual agreement re- leasing both parties from the contract of employment, cannot, by subsequently stating that he does not mean to re- lease the employer from payment of his salary, and offering to perform his duties thereafter, reinstate the original relation of the parties. Martin v. New York L. Ins. Co. (1893) 73 Hun, 496, 56 N. Y. S. R. 149, 26 N. Y. Supp. 283. "> Belch V. Manitoba & N. W. R. Go. (1887) 4 Manitoba L. Rep. 198. lln Wharton v. Christie (1891) 53 N. J. L. 607, 23 Atl. 258, the employee had resigned after a dismissal which, being illegal, had left the original con- tract still in force. It was held that, as no fraud or duress had been sug- gested, the resignation was absolutely conclusive against him in an action for wages. "This resignation," said Beasley, Ch. J., "was a contract in writ- ing between these parties, and it could not be altered by parol. The object or purpose of it was entirely legal, nay even laudable, as it was designed to enable the employee, who, at the worst, had committed but a slight offense, if he had committed any, to seek for em- ployment elsewhere without the stigma placed upon him of having been dis- charged by his late master for imputed disobedience. The employee had, upon being illegally discharged, the option either to yield to it or to resist, and he chose the former of the alternatives, and evinced such election in the con- elusive form of a written resignation. It seems to me, upon the plainest prin- ciples of law, that, after such an act as this, the employee was utterly pre- cluded from asserting in a court of law that the contract between himself and his employer still continued in ex- istence." Where plaintiff was employed by de- fendant for a certain time, and they had a disagreement on Sunday, an in- struction that if plaintiff declared he would stop work right there, and de- fendant assented to this declaration, this would not end plaintiff's employ- ment, if thereafter he was willing to and did work for defendant under the contract, was held to be erroneous, since, if a party bound to perform a contract declares that he will not per- form, the other party need not wait until the time for performance before acting on such declaration. Collins Ice Cream Co. v. Stephens (1901) 189 111. 200, 59 N. E. 524. In Greer v. Featherston (1902) 95 Tex. 654, 69 S. W. 69, affirming (1902) — Tex. Civ. App. — , 68 S. W. 48, a soliciting agent of a live-stock com- mission company, whose contract of em- ployment required him to solicit ship- ments of stock, make and collect loans, and to guarantee such loans, sent his resignation to the company, which was accepted. Before he received the ac- ceptance, though after it was mailed to him, he again wrote to the company, stating that he would insist on his sal- ary till the loans of which he was guarantor were paid, unless the com- pany would release him from liability thereon. This it declined to do. Subse- quently there was other correspondence between the parties, in which the agent claimed the right to such compensation, while the company denied the right. He continued to look after the pay- ment of the loans, and payment there- of was frequently urged by the com- pany. Held, that the servant was not entitled to his salary after the accept- ance of his resignation. See also Magnolia Metal Co. v. Price, note 4, infra. The rule in settlement cases under 183] TEEillNATION OF THE CONTRACT. 571 sent a few minutes after it was signified.^ The servant, if he re- sumes work, will be presumed to do so under a new contract of the same tenor as the original one.^ Generally speaking, however, it would seem that the rescinded contract is to be treated as still sub- sisting so far as regards provisions inserted for the special purpose of compelling the servant to abstain, after the severance of the rela- tionship, from acts injurious to the interests of the master.* B. Tekmination by act oi' the mastee. 183. Right of master to dismiss servant. Generally. — Unless the con- tract, either by its express terms or by implication, covers a definite term, a master is, as a general rule, entitled to discharge his servant without notice at any time.^ A master clearly has also the right to dismiss a servant at any time, upon paying him the full amount of the compensation to which he would be entitled if he were permitted to complete the stipulated term of service.^ A master may also dis- the Engliah poor law formerly in force was that no settlement could be gained where the contract was dissolved before the end of the year, although it should be by the consent of the parties. Rex V. Castlechurch (1736) Burr. Sett. Cas. 68. In an action for wrongful dismissal, it is of course a conclusive defense that the circumstances show, instead of such a dismissal, a termination of the con- tract by mutual consent. See, for ex- ample, Pinet V. Montague (1895) 103 Mich. 516, 61 N. W. 876; Levin v. Standard Fashion Co. (1889) 25 N. Y. S. E. 817, 4 N. Y. Supp. 867; Ivey v. Bessemer City Cotton Mills (1906) 143 N. C. 189, 55 S. E. 613; Bell v. Gund (1901) 110 Wis. 271, 85 N. W. 1031; Burnet v. Hope (1885) 9 Ont. Eep. 10; Peltier v. Moisan (1884; Quebec Super. Ct.) 3 Stephens's Dig., (Quebec) p. 489. 2 Peter v. Glasgow Millboard Co. (1875; Se. Sess.) 13 Scot. L. R. 127. 3 Collins Ice Cream Go v. Stephens (1901) 189 111. 200, 59 N. E. 524. On the ground that there had been no "continuing and abiding" in the same service for a year, it was held that no settlement had been gained, where a yearly servant had quitted his service, being paid his wages up to the date of his departure, and about a fort- night afterwards had returned to the service of the same master. Rex v. Ross (1771) Burr. Sett. Cas. 688. 4 See Magnolia Metal Co. v. Prioe (1901) 65 App. Div. 276, 72 N. Y. Supp. 792. 1 Boyer v. Western V. Teleg. Co. (1903) 124 Eed. 246, holding that un- der such circumstances there can be no such thing as an unlawful conspiracy to destroy a labor union by dischar- ging its members or refusing to em- ploy them. An explicit authority for the obvious proposition that a hiring at will may be terminated at any time by either party, is Summers v. Phenix Ins. Go. (1906) 50 Misc. 181, 98 N. Y. Supp. 226. To the same effect. Fidelity & C. Co. v. Gibson (1907) 135 111. App. 290, affirmed in (1908) 232 111. 49, 83 N. E. 539. Under a contract between an insur- ance company and a medical examiner, by which he is entitled to make such examinations as shall be assigned to him or required during the absence of the chief examiner, the company may dismiss him or appoint other examin- ers at its pleasure. Laberge v. Equi- table Life Assur. Soc. (1895) 24 Can. S. C. 595, affirming (1894) Eap. Jud. Quebec, 3 B. R. 513, which reversed (1893) Rap. Jud. Quebec, 3 C. S. 334. 2 In Ridgway v. Eungerford MarTcet 572 PIASTER AND SERVANT. [chap. VI. miss a servant at any time without paying him such compensation.^ But if he does so, his action is always subject to review by tiie courts; and if it appears that there was not a sufficient cause for the dis- missal, he must indemnify the servant for the loss of his position.* Co. (183£) 4 Nev. & M. 797,. 3 Ad. & El. 171, 1 Harr. & W. 244, Lord Den- man, Ch. J., remarked during the ar- gument of counsel: "The dismissal orig- inally intended would have been no more than an exercise of a master's right to determine the service, paying whatever salary would have been in law due and payable, in the absence of misconduct." The Scotch doctrine has been thus stated in a case relating to a domestic servant: "It has long been settled in this country that a master is entitled to dismiss a servant during the term of his engagement, upon paying wages, and also board-wages where the serv- ant has been boarded by the master; and the servant cannot apply for an interdict to prevent the dismissal." Mollen V. Baillie (1885) 22 Scot. L. R. 595, per Lord Eraser, citing 3 Erskine, Inst. 3, 16. See also to the same effect, Cooper v. Henderson (1825) 1 Sc. Sess. Cas. 1st series, 601; Graham v. Thomson (1822) 1 Sc. Sess. Cas. 1st series, 107. An exception to the general rule, however, is predicated where the serv- ant has what has been termed a free- hold in his office. In such a case he may insist on retaining office until he has been legally dismissed. Eraser, Mast. & S. p. 162, citing Simpson v. Tod (1824) 1 Sc. Sess. Cas. 1st series, 482 (town clerk) ; Duff v. Grant (1799) Morison's Diet. 9576 (parochial schoolmaster under law prior to 1872) ; Adam v. Inverness Academy (1815) 14 Sc. Sess. Cas. 1st series, 714 note (teacher of private school). As to dismissal from military or nava.l service, see Clode's Military LaWj 26. 8 "A contract of service is peculiar in this respect, that, althougn the par- ties to it may stipulate for notice, yet the master may terminate the contract at any time, and the servant is bound to leave the service." Lord Shand in Clift V. Partohello Pier Co. (1877) 4 Sc. Sess. Cas. 4th series, 462. 4 This is a free country, and the em- ployer has a perfect right to break his contract with the employee, if he pleases; but he can do so only on the usual conditions, that is to say, he must pay damages for the breach of contract. Faulkner v. Cooper (1899) 4 Com. Cas. 213, 1 Butterworths's Dig. 33, per Mathew, J. "The master has, at all times, the power to dismiss his servant, making himself responsible for the consequences when he dismisses without cause." Champion v. Hartshorne (1833) 9 Conn. 564. "An employer of labor is entitled to dismiss his servant if he is so disposed, while the servant on his part has a money claim for damages, if he can make out a case of wrongovis dis- missal." First Edinburgh Starr-Boic- ket Bldg. Soc. v. Munro (1884) 21 Scot. L. R. 291. To the same effect, see Illinois C. R. Co. V. Ely (1904) 83 Miss. 519, 35 So. 873 (arguendo); Orphan Asylum v. Mississippi M. Ins. Go. (1835) 8 La. 181 ( arguendo ) ; Mason v. Scott (1836) 14 Sc. Sess. Cas. 1st series, 343; Boran v. Strachan (1890) 86 Ga. 408, 22 Am. St. Rep. 471, 12 S. E. 678_. Swartwood v. Waliridge (1890) .57 Hun, 33, 10 N. Y. Supp. 862; Derby v Johnson (1848) 21 Vt. 21; Kennedy v. South Shore Lumber Co. (1899) 102 Wis. 284, 287, 78 N. W. 567, and the cases cited in §§ 188, 189, infra, of the present chapter, and those reviewed in chapter xiv., post. When his' term expires, the mana- ging agent can be removed by the prop- er officer who appointed him. Magpie Gold Min. Co. v. Sherman (1909) 23 S. D. 232, 121 N. W. 770, 20 Ann. Cas. 595. The rule that the captain of a vessel, though hired for a particular voyage, may be dismissed at any time, his only remedy being an action for damages, was affirmed in Montgomery v. Henry (1780) 1 Dall. 49, 1 L. ed. 32, 1 Am. Dec. 223, affirming (1780) 2 Pet. Adm. 397, Eed. Cas. No. 9,737; Clayton v. The Eliza B. Emorij (1880) 4 Fed. 342 (captain, though himself a joint own- er, may be dismissed by a majority of the other owners ) . A fortiori he may § 183] TERMINATION OF THE COXTEACT. 573 In other words, a master cannot assume to be a final judge in his own behalf of the propriety of dismissing a servant during the speci- fied term of employment, unless he also takes the responsibility which attaches to a dismissal without sufficient cause.^ But by proving the existence of such a cause he exonerates himself from all liability.^ This rule is applicable not only to contracts for a definite period, be dismissed where he was not en- gaged for any particular voyage, nor tor any definite period of time, and his vessel was one which sought em- ployment wherever it could be ob- tained. Lombard, S. S. Co. v. Ander- scm (1904) 67 C. C. A. 432, 134 Fed. 568. ^ Jones V. Graham & M. Transp. Co. (1883) 51 Mich. 539, 16 N. W. 893; Shaver v. Ingham (1886) 58 Mich. 649, 55 Am. Eep. 712, 26 N. W. 162; Potter v. Ba/rton (1902) 86 Minn. 288, 90 N. W. 529. That the custom of the neighborhood did not protect a planter against the legal consequences of his violation of a contract with an overseer for a defi- nite term of employment was declared in Jones v. Jackson (1870) 22 La. Ann. 112. A corporation cannot, by virtue of a general power of removal of employees, contained in its charter, discharge a servant at any time without a suffi- cient cause, if it makes a specific con- tract with him for a fixed time. By such a contract it is as much bound as an individual under similar circum- stances. Soldiers' Orphan Borne v. Shaffer (1872) 63 111. 243. The court held that, on the breach of such a con- tract, the plaintiff must declare spe- cially. By art 2747 (2718) of the Louis- iana Civ. Code it is provided: "a man is at liberty to dismiss a hired servant attached to his person or family, with- out assigning any reason for so doing. The servant is also free to depart with- out assigning any cause." 6 "Generally speaking, the relation of master and servant, or principal and agent, may, where the servant or agent has been guilty of misconduct, be terminated at any moment." Willes, J., in WUte v. Bayley (1861) 10 C. B. N. S. 227, 234. In two of tlie American Codes it is provided: "An employment, even for a specified term, may be terminated at any time by the employer, in case of any wilful breach of duty by the em- ployee in the course of his employment, or in case of his habitual neglect of his duty, or continued incapacity to perform it." Cal. Civ. Code, § 2000; S. D. Civ. Code, § 4965. By art 2748 (2719), La. Civ. Code, it is provided that "laborers who hire themselves out to serve on plantations or to work in manufactures, have not the right of leaving the person who has hired them, nor can they be sent away by the proprietor, until the time ^las expired during which they had agreed to serve, unless good and just causes can be assigned." The mere fact that an employee is one of the shareholders in a corpora- tion by which he has been hired does not in any way enlarge hia right to be retained in his position, or circum- scribe the right of his employers to dismiss him for good cause. In Guild- ford V. Ango-French 8. 8. Go. (1882) 9 Can. S. C. 303, the plaintiff, one of the largest shareholders of the de- fendant company, entered into a con- tract by which he was to supply a ship with men and provisions for the passengers and crew, and sail her as commander for a stated sum per month. The ship had been originally accustomed to remain at a certain port forty-eight hours, but the time was afterwards lengthened to sixty hours by the company, yet the plaintiff in- sisted on remaining only forty-eight hours, against the express directions of the company's agents at the port, and was otherwise disobedient to the agents, in consequence of which he was dismissed. By Eitchie, Ch. J., and Four- nier and Gwynne, JJ., it was held that the fact of the master's being a share- holder in the corporation owning the vessel had no bearing on the case, and that it was proper to grant a, new trial to have the question whether the plain- tiff had so acted as to Justify his dismissal by the owners, submitted to 574 MASTER AND SERVANT. [chap. VI. with or -without a stipulation as to termination by notice/ but also to contracts purporting to be permanent or for the life of the serv- ant.' The fact that the servant, "when he was engaged, made false repre- sentations respecting material circumstances, will usually be treated as affording a valid reason for dismissing him.' But in order to the jury. The decision in the Nova Scotia court is reported in (1881) 14 N. S. 54. The old English statute, 5 Eliz. chap. 4, which required a master in certain cases to satisfy tveo justices of the peace that he had reasonable and suffi- cient cause for putting awaj his serv- ant, has long been obsolete, and now is wholly repealed by 38 & 39 Vict. chap. 86, § 17. See Odgers, Libel & Slander, p. 202. In Porter v. Murphy (1907) 7 Ind. Terr. 395, 104 S. W. 658, it was laid down in general terms that the fact that persons not connected with the contract, and not responsible under it, expressed an unfavorable opinion re- garding the servant's character, is not sufficient to justify an employer in re- scinding the contract. But this doc- trine, which was enunciated with re- spect to a public officer who had been dismissed in consequence of an adverse report by another officer, is obviously too broad. An instruction which purports to cover the entire case, and authorizes the jury to find for the plaintiff if they should find that he was hired for a definite period, and does not advert to the effect of the defendant's evidence tending to show that he was discharged for cause, is erroneous. Evans v. St. Louis, I. M. & 8. R. Co. (1885) 16 Mo. App. 522, 525. The doctrine of the French law is that the rescission of a contract for the hire of work may be demanded at any time, if one of the parties fails to perform his obligations. 2 Guil- louard, n. 729 et seq.; 3 Bandy-Lacan- tinerie, n. 74; Merlin, Rep. sui. vac. Domestiques; 2 Duvergees, n. 293, 294. T "If a servant robs his master, he may though a month's notice is required, dismiss him without any notice, and need not pay him a month's wages; and if he is negligent in his business, and injures his master, I am not prepared to say that the master may not dis- miss him, as, if he were kept, it might be very inurious, as he might do the business very carelessly when he knew he was not to be kept longer." Cun- ningham V. Fonblanque (1833) 6 Car. & P. 49. In Basse v. Allen (1875) 43 Tex. 481, an action for wages claimed to be due under a contract terminable by either party by giving a. month's notice, a plea alleging gross neglect, want of care in the business, and drunkenness on the part of the laborer, so as to interfere in the performance of his duty, was held not to be demurrable. 8 Brighton v. Lake Shore <£ M. 8. R. Co. (1894) 103 Mich. 420, 61 N. W. 550 (holding that an injured servant whom his master agreed to furnish with employment at a. given monthly salary during life or ability and disposition to perform his duties was subject tO' discharge if he became incompetent, unfaithful, or disobedient). 9 As to the duty of a servant to deal honestly with his master, see generally § 279, post. In a case where plaintiff contracted to move upon defendant's farm and work the same, and to furnish another hand for assistance at his own expense, in consideration of a certain sum to be paid plaintiff per month by defendant,, the fact that plaintiff had falsely stated to defendant the amount of wages which was to be paid the farm hand was held not to justify defendant in putting an end to the contract with plaintiff, when the deception was discovered. Wood v. Ravenscroft (1907) 135 Iowa, 346, 112 N. W. 640. The court said: "We are inclined to the view that defendant had no such interest in the amount of the wages paid the hired man as to- render a misstatement of the same by the plaintiff a fraud of which defendant can take advantage in this action. The- thing which plaintiff undertook to do- was to furnish a competent assistant at his own expense, and, if that was done, it was not a, matter of concern § 184] TERMINATION OF THE CONTRACT. 575 enable the master to avail himself of this fact as a defense to an action for wrongful dismissal, he must show that he has paid or tendered to the servant any money which the servant may have paid in pursuance of the terms of the contract." 184. Right of dismissal in the case of employees performing public duties. — a. Persons engaged directly hy the state. — The doctrine ap- plied in the United Kingdom and in the British Colonies is "that in a contract for service under the Crown, civil as well as military, there is, except in certain cases where it is otherwise provided by law, imported into the contract a condition that the Crown has the power to dismiss at its pleasure." ^ The same doctrine has been adopted in the United States.* to the defendant how much the plain- tiff agreed to pay such assistant. The evidence tends to show that plaintiff employed the man Alger as an assistant, and also employed the service of his own sixteen-year-old son in the same employment, and we are not able to say that the assistance rendered by tliese two persons was not equal to that which would have been rendered by any other competent person, or that the expense of keeping and boarding the son while in the performance of such service, with the wages paid to Alger, was not fully equal to that which would have been incurred had Alger been paid $22 per month, and the plaintiff's son had rendered no service at all." Having regard to the fiduciary relationship of a master and his servant, and also the obvious consideration that the given misstatement may well have operated as an influence inducing the master to pay a higher rate of remuneration than he would otherwise have paid, it is at least questionable whether this decision was correct. 10 Hinchman v. Matheson Motor Car Co. (1908) 151 Mich. 214, 115 N. W. 48, — a case in which the plaintiff had purchased a certain amount of the de- fendant company's stock. I Could V. Stuart [1896] A. C. 575, affirming 16 New South Wales L. R. (L) 132, 17 New South Wales L. R. (L) 331; Re Tufnell (1876) L. R. 3 Ch. Div. 164; Orant v. Secretary of State (1877) L. R. 2 C. P. Div. 445; De Dohse v. R. an unreported case, de- cided in the court of appeal, 1885, and in the House of Lords, 1886, cited in Dunn V. Reg. [1896] 1 Q. B. 116; Shen- ton V. Smith [1895] A. C. 229; Plynn V. Reg. (1880) 6 Vict. L. R. (L.f 208, 2 Australian Law Times, 21; Power v. Reg. (1873) 4 Australian J. R. 144; Chitty, Prerogatives of the Crown, p. 82; Mattingley v. R. (1894) 22 Vict. L. R. (L.) 80. The point actually decided in Gould V. Stuart, supra, was that the doctrine of the common law had been modified pro tanto by the provisions (§§ 32, 33) of the New South Wales civil service act 1884, by which a servant was given the right to be heard in his defense and to exculpate himself before being dis- missed. By the provision in the act of 1895, declaring that the Crown may "dispense with the services of any per- son employed in the public service," the right of the Crown to dismiss its serv- ants at pleasure was restored. This act was held not to be retrospective in such a sense as to be the measure of the rights of a servant appointed under the earlier act, and dismissed before the later act came into force, although, at the time when his action for wrongful dismissal was instituted, the later act had become operative. Adams v. Young (1898) 19 New South Wales L. R. 37. By the New South Wales government railways act 1888, § 15, it is expressly provided that every person appointed by the commissioners of railways shall hold office during pleasure only. It has been held that there is nothing in any other part of the act which limits the effect of this provision. Titterton v. Railway Comrs. (1894) 16 New South Wales L. R. (L) 235. ^Dearie v. United States (1900) 36 Ct. CI. 5. It was there held that the 576 MASTER AND SERVANT. [chap. VI. h. Persons engaged directly hy municipal councils. — The construc- tion placed by the American courts upon the statutes regulating mu- nicipalities is that employees appointed by the municipal councils may be dismissed at pleasure.' The same rule prevails in the Ca- nadian Provinces, in which the common law is the prevailing sys- tem of jurisprudence,* and also in Quebec.^ Apart from specific legislation, it would seem that the duration of an indefinite hiring of municipal employees, as distinguished from municipal officers, is determined upon the same footing as that of the employees of private persons. The effect of a given contract, therefore, will depend upon the construction which is attached to such a contract in the jurisdiction in which the point arises.* c. Persons engaged by officers or official hoards discharging public functions. — The general rule applicable to employees of this class power conferred by law on the Post- master General to employ carriers so far as the public convenience may re- quire includes the power to remove or to reduce carriers to the list of sub- stitutes, and that, notwithstanding a rule exists in the PostofBce Department that no carrier shall be removed except for cause and on written charges, there is no provision of law which gives a car- rier a permanent position. The removal of a carrier was accordingly declared to be beyond review by the courts. In Butler v. University (1873) 32 Wis. 124, the court expressed the opin- ion that a professor in the State Uni- versity was not "a public officer in any sense that excludes the existence of a contract relation between himself and the board of regents that employed him, in respect to such employment. It seems to us that he stands in the same relation to the board that a teacher in a public school occupies with respect to the school district by which such teach- er is employed; and that is purely a contract relation." 3 1 Dill. Mun. Corp. 4th ed. 250; Tiedeman, Mun. Corp. 83. ^Hiclcey v. Renfreio County (1870) 20 U. C. C. P. 429; •Willson v. York (1881) 46 U. C. Q. B. 289; Dempsey v. Toronto ( 1849 ) 6 U. C. Q. B. 1 ; Hellems v. St. Catherines (1894) 25 Ont. Rep. 583; Sydney v. Hill (1893) 25 N. S. 433. Bin Davis v. Montreal (1897) 27 Can. S. C. 539, affirming (1896) Rap. Jud. Quebec 6 B. R. 177, it was held that the proper construction of the pro- vision in the charter of the defendant (52 Vict. chap. 79), that the power of removal of officers might be exercised "at its pleasure," (in the French ver- sion of the act, A sa discretion), was that the officers were removable sum- marily where the engagement was in- definite. In Paquin v. Hull (1888) 11 Leg. News (L. C. ) 354, the court cited Sirey, vol. 2, At. 1780, Nov. 52-56, as an au- thority for a decision to the effect that the ordinary rule, which requires that either the customary or reasonable no- tice shall be given to an employee, is not applicable to the public officers of a municipal corporation, as they are deemed to have been engaged during pleasure, and to be subject to dismissal at will. 6 The assistant secretary of the com- missioners of docks in New York has been held not to be a public officer, and to be therefore subject to discharge at the will of the commissioners. Jackson V. New York (1895) 87 Hun, 296, 34 N. Y. Supp. 346. That a municipal officer who is a mere employee may be removed without notice, subject to the liability of the corporation for damages for breach of contract, if by such removal a contract is violated, was laid down, arguendo, in State ex rel. McMahon v. New Orleans (1902) 107 La. 632, 32 So. 22. § 184] TERMINATION OF THE CONTRACT. 577 is that "where the power of appointment is conferred in general terms and without restriction, the power of removal in the discretion and at the will of the appointing power is implied, and always ex- ists, unless restrained and limited by some other provision of law." '' Under some of the enactments regulating state schools, the power of removing teachers, which is vested in the designated officials or official, can be exercised only for certain specified causes.* Other enactments confer a discretionary power of removing teachers at pleasure. In jurisdictions in which provisions of this tenor are in force, the action of the designated body is not subject to review by the courts,^ if the power of discharge vested in it has been exercised T Muck V. New York (1902) 37 Misc. 371, 75 N. y. Supp. 809 (a case in which the sewer commissioners of a vil- lage had appointed a supervising engi- neer) . In Wood V. East Ham Urban Dist. Council (1907) 71 J. P. (C. A.) 129, 5 Local Gr. R. 403, it was held that the matron of an isolation hospital under the control of a local authority might be dismissed at pleasure. In Hayes v. Richmond Dist. Lunatic Asylum (1890) Ir. L. R. 28 C. L. 107, the statute 30 & 31 Vict. chap. 118, § 6, was construed as having conferred upon the hoard of guardians of a district lunatic asylum a discretionary power which might be lawfully exercised with- out assigning or proving misconduct. In Krefft v. Hill (1875; Sup. Ct.) 13 New South Wales (L) 280, the two judges who sat in tlie case disagreed upon the question whether, under the statutes regulating the matter, the trus- tees of a public museum had the power to dismiss the curator. That a police constable may be dis- missed at pleasure by the chief consta- ble was held in Brown v. Edinburgh Mag- istrates (1906-07) Sc. Sess. Cas. 256, 2 Butterworths' Dig. 601 and Innes v. Adamson (1889) 17 Sc. Sess. Cas. 4th series, 11. The power of the railway commission of the government railways in Victoria to dismiss an employee "at pleasure," under the railways act 1880, was held to have been legitimately exercised in a case where he had refused to sever his connection with a labor association, after having been notified to do so. Williams v. Victorian R. Comrs. ( 1903 ) 29 Vict. L. R. 566. M. & S. Vol. I.— 37. 8 Under the Political Code of Califor- nia, boards of education in cities can remove a teacher, "when elected," only for the violation of the rules of the board of education, or for incompetency, or unprofessional or immoral conduct, — especially where the time of employment is not fixed by contract. Kennedy v. Board, of Education (1890) 82 Cal. 483, 22 Pac. 1042, where it was held that this clause applies to previously elected teachers, and is violated by removing a teacher to a lower grade. 9 Evyin V. Independent School Dist. No. 8 (1904) 10 Idaho, 102, 77 Pac. 222; Knowles v. Boston (1859) 12 Gray, 339 ; Wood v. Medfield ( 1877 ) 123 V. Darlington Free Grammar School (1894) 88 Wis. 7, 24 L.R.A. 336, 58 N. W. 1042. One of the authorities cited in the latter case was Reg. eas rel. Wray V. Darlington Free Qrammar School (1844) 6 Q. B. 682, where the power of removing teachers at discretion was vested in the governors by the special charter under which the school was founded. (See § 324, note 2, post.) The rule stated in the text prevails in Scotland. Aird v. Tarbert School Board (1906-07) Sc. Sess. Cas. 305, 3 Butterworth's Dig. 139. The statutory power can, of course, be exercised only by the official or offi- cials upon whom it is conferred. Thus in one state it has been held that the board of directors of a school district has no power to summarily put an end to a contract with a teacher, and dismiss him for incompetency or im- morality. That power is given by the statute to the county school commis- sioner. Armstrong v. School Dist. No. 3 (1885) 19 Mo. App. 462. 578 MASTER AND SERVANT. [chap. vr. by it in its corporate capacity, and after due deliberation,^" and witK a due observance of any formalities which may be required by the regulating statutes." It has been held, however, that the right of public school trustees to dismiss for good cause a teacher engaged by them necessarily exists by reason of the relation of the parties, and that their inherent right to dismiss is not taken away by a statute- which provides a proceeding by which the status or qualification of the teacher may be determined, although the result of such proceed- ing may be in effect the same as dismissal.'* 185. — in the case of employees of private institutions controlled by governing bodies. — Assistant masters in schools within the purview of the endowed school acts of 1868 and 1869 may be dismissed at any time by their head masters.' The cases involving applications for the restoration of school-mas- 10 In Robertson v. School Dist. No 2 terms, and that, therefore, no other (1896) 34 N. B. 103, it was held that, ground of wrongful dismissal could be for want of a compliance with this re- relied on by him. Larter v. Melbourne d quirement, a notice of dismissal of a M. Board of Works (1896) 22 Vict. L. school teacher was invalid, although it R. 519. had been signed by two out of the three ^^ Raymond v. Cardinal (1887) 14 Ont. trustees who composed the board. ^PP- Eep. 562, discussing the effect of In Gauran v. Commissaries de VEcole the statute (49 Vict. chap. 49, §§ 165, (1881) 16 Rev. Leg. 36, note, the dis- 168) Hagarty, C. J. O., said: "The proc- charge of a teacher was held to be in- ess [provided] is one which would pos- valid on the ground that the decision sibly involve considerable delay, and we- regarding the discharge had not been can easily conceive cases in which taken at a meeting regularly convoked, prompt action would be necessary on or entered on the official register. the part of the trustees. If a teacher 11 In Iowa a discharge of a teacher for were guilty of such conduct as rendered incompetency can only be made in the it unfit that he should be allowed to act manner prescribed by § 1734 of the at all as teacher, — as in the case of Code; and a, discharge by any other intoxication, or visibly improper be- method is wrongful. Hull v. Independ- havior in the conduct of the school, — it ent School Dist. (1890) 82 Iowa, 686, might be essential that the promptest 10 L.R.A. 273, 46 N. W. 1053, 48 N. W. action should be taken, and that he' 82. should be prevented from a day's fur- Under the Codes of several of the ther presence as teacher." states, a school-teacher cannot be dis- 1 In Wright v. Zetland (1907) 23' charged before the expiration of her Times L. R. 709, a dismissed master term, without an opportunity to be was awarded damages by a jury, oni heard. Benson v. Silver Lake Dist. the ground that, according to the tes- Twp. (1896) 100 Iowa, 328, 69 N. W. timony of several witnesses, the custom 419 ; White v. Wohlenberg ( 1901 ) 113 of giving notice was virtually universal Iowa, 236, 84 N. W. 1026; Ewin v. In- in such institutions. But I^awrence, J.,. dependent School Dist. No. 8 (1904) 10 entered judgment for the defendants, Idaho, 102, 77 Pac. 222. being of opinion that the custom could Where the notice of action for illegal not control the explicit words of the dismissal stated, as a ground of action, statutes, which declared that the head that the board of works, of which the master should have the sole power of plsiintifE was an employee, did not en- appointing, and might at pleasure dis- able him to exercise his right of being miss, all assistant masters. This rul- represented before it by counsel, it was ing was affirmed by the court of appeal held that the notice was limited by its [1908] 1 K. B. 63. Vaughan Williams,. § 186] TERMINATION OF THE CONTRACT. 579 ters to oiBce by means of injunction or mandamus are reviewed in § 324, post. 186. Authority of person exercising right of dismissal. — a. Gener- ally. — Whenever a servant's claim is based upon the fact of bis dis- missal, a condition precedent to recovery is that tbe dismissal sbould be shown to have been effected by competent authority.^ It is clear that, where a single private individual is the master, this evidential requirement is sufficiently fulfilled if it is shown that the revocation of the contract was his own personal act. The cases which do not involve this situation are divisible into the two classes mentioned in the following subsections. b. Authority of individual partners. — There appear to be no re- ported decisions bearing directly upon the question of the authority of a single partner to dismiss a servant, and text writers have ex- pressed different opinions upon the subject. Lord Lindley adopts the view that one partner has implied authority to discharge servants, although he cannot do so against the will of his partner.* But a dif- L. J., said: "I wish also to add, with regard to the eflfect of the words 'at pleasure,' that, giving those words the widest possible meaning, I think that the pleasure must be exercised in good faith. Therefore, if the dismissal of a master be what 1 may, for the sake of brevity, call a corrupt dismissal, I think the court might set it aside. There is, however, no suggestion of that sort here. I further think there may be cases in which the governors or the head master, as the case may be, having thought fit to assign a cause for the dismissal of a master, although under no obligation to do so, and that cause, when brought before the court, appear- ing to be an insufficient cause, the court may, as in a case where the dismissal is corrupt, set aside the dismissal. I mention these matters in order to pre- vent misunderstanding as to the effect of our judgment; but there is no ques- tion of anything of the kind in the present case." i Collins V. Eazelton (1887) 65 Mich. 220, 31 N. W. 843, where it was held that a servant cannot succeed in an action for wrongful dismissal, unless lie shows that he was dismissed by the employer or the employer's agent, or that the dismissal was assented to by the employer. PlaintiflF, employed to work from September to July, testified that he was discharged in December, ordered not to come around the factory, and another put in his place. Held, nonsuit erro- neous ; evidence should have gone to the jury as to whether he was discharged by competent authority, and was willing to continue in defendant's employment. Synear v. Wharton (1885) 48 N. J. L. 97, 2 Atl. 664. 8 Partn. p. 157. The only decision cited is Donaldson v. Williams (1833) 1 Cromp. & M. 345, in which it was held that one of two partners, joint tenants of a house where their joint business was carried on, had a right to authorize a joint weekly servant to re- main in the house, though the other partner had regularly given him a week's notice to leave the service, and that the servant, having been turned out of the house at the expiry of the notice, could maintain trespass. The ratio de- cidendi was that the partners were jointly interested in the house, and therefore possessed "coextensive rights" in respect to it. The case, therefore, cannot be regarded as a direct author- ity for the doctrine of Lord Lindley, the rights of the partners qua joint tenants, and not qua partners, being the actual question determined. 580 MASTER AND SERVANT. [chap. VI. ferent opinion was expressed by Mr. Dixon.^ As each partner is the general agent of the firm in all matters pertaining to the conduct of its business, it would seem that the former of these doctrines is the correct one. In cases where a partnership consists of numerous individuals, and its business is carried on by a portion of them selected for that purpose, the right to discharge employees is vested in that commit- tee, subject to any restrictions which may be imposed by the articles of partnership.* It has been held that a captain of a vessel having an interest there- in is liable to be removed by a majority in interest of the owners of such vessel.* sPartn. p. 139. The doctrine there propounded is that a partner may dis- miss a servant of the firm, if the other partners do not forbid it, and that, even if they do forbid it, a valid dismissal could be eflfected, at least as against the servant himself. He supports this opin- ion by referring to the general princi- ple that, where several have an election, the first election made by any shall stand (Co. Litt. 145a), and by advert- ing to the consideration that the other partners could not, by re-engaging the dismissed servant after notice to him by the dissentient partner that he would not be bound, give the servant a claim against that partner for his wages. 4 Where it was provided in one of the articles of a banking partnership, that "no manager should be removable unless two thirds of the ordinary com- mittee of management for the time be- ing should concur in a motion for his removal," it was held that the first -manager appointed might be removed at the discretion of the specified por- tion of the committee, and that, as no provision had been made in the arti- .cles for compensating him in the event of his being dismissed, he had no claim to any such compensation if he should be removed with the concurrence of the requisite portion of the committee. Commercial Bkg. Go. v. Pollock (1829) 3 Wilson & S. 430. Partnerships of this description have now been almost en- tirely superseded by joint-stock com- panies of the modern type; but the rule stated in the text is clearly applicable io the directorates of such companies, the body corresponding to the committee of management of a firm. s Ward V. Ruckman { 1867 ) 36 N. Y. 26, 93 Am. Dec. 479, an action brought to recover damages against the defend- ant for depriving the plaintiff' of the right claimed by him to sail and navi- gate, as captain, a certain vessel. Da- vies, J., after remarking that the plain- tiff''s right of recove-ry depended upon his establishing the proposition that he owned a sailing or master's interest in the vessel, thus stated his reasons for declining to concede the soundness of this claim : "I have looked in vain at all the authorities referred to, and text- books accessible to me, and in none do I find any such interest mentioned or referred to. I find no allusion to any such interest, or that a master who is a part owner of a vessel has any such interest which he can sell and dispose of. If a master has such an interest attached to his share in the vessel, then, if it be capable of sale and disposition by him, and goes with his share as ap- purtenant thereto, it follows that he can by a sale of his share, however small soever it be, appoint a master of the vessel, in hostility to the wishes of all the other owners, and greatly to their detriment. If the doctrine con- tended for be true, that a majority of the owners cannot change the captain or master at their pleasure, it would necessarily follow that a perpetual cap- tain or master might have the control of the vessel, in hostility to them." (p. 29). At p. 33 the following passage in § 445 of Judge Story's treatise on Part- nership was quoted with approval: "We have already had occasion to state that § 187] TERMINATION OF THE CONTRACT. 581 c. Authority of superior employees. — As a general rule, the pos- session by an employee of authority to hire servants implies also the possession of authority to discharge them. Ordinarily, therefore, it will not be inferred that he had authority to discharge ?er\-ants, where it is sbown that he had no authority to hire them.® In cases where the dismissal of a servant of a company is alleged, it may be proved by statements made by its officer to the servant. It is not necessary to show that the company authorized the dismissal by an express resolution.' If the action of the agent of the employer in dismissing the serv- ant in question was in excess of his authority, it may, of course, be validated by a subsequent ratification on the part of the person or persons who possess the power of dismissal.' 187. What constitutes a dismissal. — a. Generally. — In general, the question whether, in the given instance, the relation of master and servant was ended by a dismissal or in some other manner, is es- sentially one for the jury, and should always be submitted to them, if the evidence is conflicting or such as justifies different conclu- the majority in interest of the part own- ers have a right to appoint the master and oflScers of the ship. This right necessarily carries with it the right to displace and dispossess the master and other officers when in authority or pos- session of the ship; and it will make no difference in this respect, whether the master or other officer he a part owner or not. . . . However, when a court of admiralty is called upon to enforce this right, although it allows the authority to displace and dispossess to be exercised at the sole pleasure of the majority if the master or other offi- cer is a mere stranger, yet if he is a part owner the court commonly requires some reasonable ground to be stated therefor." The authority cited in sup- port of this proposition was The Neiv Draper (1802) 4 C. Rob. 287, where the master was deprived of his command, an application for that purpose having been made to the court by persons rep- resenting nine sixteenths of the whole property. That the captain of a vessel may be dismissed by the majority of the joint owners, though he himself is a joint owner, was held in Clayton v. The Eliza B. Emory (1880) 4 Fed. 342. 6 The cases as to the authority of em- ployees to hire servants are collected in §§ 114 et seq. ante. The curate of an Anglican church has no power to dismiss a clerk of the church. Earle v. Simms, Newfoundl. Rep. (1854-64) 541. For a ease in which an action for wrongful dismissal failed for the reason that the evidence was insufficient to show that plaintiff had been discharged by anyone authorized to act for the de- fendant company, see Mozzi v. Admin- istration Restaurant Co. (1906) 120 Mo. App. 587, 97 S. W. 947. "^ Varrelmann v. Phoenix Brewery Co. (1894) 3 B. C. 135. 8 Arkadelphia Lumher Co. v. Asman (1907) 85 Ark. 568, 107 S. W. 171. There the position was taken that, as the discharge of the plaintiff by the president of the defendant company had not been ratified by the directors, the discharge was wrongful, although under the by-laws of the company the plaintiff held his position at the pleasure of the directors. But, qucere, could not the directors ratify the president's action at any time, and thus entitle themselves to take advantage of the by-law? Such a ratification might, it would seem, have been implied simply from theii defending the suit. 6S2 MASTER AND SERVANT. [chap. VI. sions.^ To this rule an exception is manifestly predicable in cases where it is an understood incident of the employment that the adjudi- cation of some designated person should be decisive upon the point. ^ The fact of dismissal may be proved or disproved by either of the two descriptions of evidence discussed in the following subsections. Suspension from an office, being merely a direction that so long as the incumbent holds the office, and until he is legally dismissed, he must not do anything in the discharge of the duties of the office. 1 Semet Solioay Co. v. Wilcox ( 1906 ) 74 C. C. A. 635, 143 Fed. 839; Spencer Medicine Go. v. Hall (1906) 78 Ark. 336, 93 S. W. 985; Ryan v. New York (1895) 86 Hun, 223, 35 N. Y. Supp. 260; Klaw v. Ehrich (1894) 64 N. Y. S. R. 477, 31 N. Y. Supp. 773; Weli V. Whitesell (1904) 87 N. Y. Supp. 454; Monroe v. Proctor (1906) 51 Misc. 632, 100 N. Y. Supp. 1021; Cradg v. Pride (1843) 2 Speers, L. 121; Goldsmith v. Late (1899) 96 Va. 680, 32 S. E. 483; and the cases cited passim in tlie fol- lowing notes. The failure of a servant to present a claim for wages at the usual time has some significance in relation to the ques- tion whether the contract is still in force. Hence, where the servant sues for wages during the latter part of an alleged yearly term, when, as he claims, he was unlawfully dismissed from serv- ice, and it appears that pay has always been balanced monthly, — it is error to exclude an answer of the plaintiff to the question whether he ever asked for any pay at any time between the date of the alleged discharge and the end of the term of hiring. Collins v. Hazelton (1887) 65 Mich. 220, 31 N. W. 843. A request by an employer for his employee's resignation is not equivalent to a discharge when not so treated by them. Reiter v. Standard Scale & Sup- ply Co. (1908) 141 111. App. 427, judg- ment affirmed in (1908) 237 111. 374, 86 N. E. 745. The act of a master in refusing to pay the moving expenses of an employee from the place at which the servant contracted to do the work, and notify- ing him that he had no further use for his services, upon the servant's refusal to pay such expenses, constitutes a breach of the contract of employment. Stewart d Co. v. Stephens (1910) 7 Ga. App. 453, 67 S. E. 199. In an action to recover a balance of salary, it was proved that, after a con- troversy between the claimant and her employer as to the employer's right under the contract to discharge her, they had a conversation in which the em- ployer advised her to go away quietly, and that as a compromise they would pay her for a month beyond the actual time worked. Held that, even if the conversation was admissible as tending to prove a discharge, it should not have been admitted generally so as to bear upon the question of the employer's lia- bility under the contract for such dis- charge. The defendant's request that this offer of a compromise should not be used is evidence in support of the plaintiff's version of the contract should have been granted. Eiggins v. Shepard (1903) 182 Mass. 364, 65 N. E. 805. In a case where a servant who was employed by a, manager stated, after he and the manager had both been dis- charged, that he would stand by the manager, it was held that this remark was not so inconsistent with the serv- ant's claim that he was wrongfully dis- charged as to require an instruction on the subject of his having voluntarily left the master's service. Reupke v. D. H. Stuhr & Son Grain Co. (1905): 126 Iowa, 632, 102 N. W. 509. 2 In Park v. Independent School Dist. No. 1 (1884) 65 Iowa, 209, 21 N. W. 567, an action for the wrongful dis- charge of a teacher, it was held that evidence tending to prove that he had not been discharged, but had resigned, was held to be inadmissible, for the reason that the county superintendent had decided that he had been unlawfully discharged, and that, under the pro- visions of the school statute, his de- cision was final. '§ 187] TERMINATION OF THE CONTRACT. 583 is essentially different from a dismissal. Accordingly, if a suspended employee is dismissed while the suspension is still in force, the dis- missal will be deemed to take effect at the date it actually occurred, ^nd will not relate back to the time when the period of suspension tegan.' b. Dismissal, when inferable from the statements of the master. — In order to establish the fact of a dismissal by evidence of the state- ments of the master, it is not necessary to show that he used any particular form of words. All that need be proved is that he said or wrote something to the servant, which imported an intention on his part to sever the relationship between them, and that the servant understood and was warranted in understanding the statement in this * In cases where the words used by the master would of them- sense. s Boston Deep Sea Fishing d Ice Co. V. Ansell (3888) L. R. 39 Ch. Div. (C. A.) 339, per Cotton, L. J. (p. 352). iWardlaw v. New York (1893) 137 N. Y. 194, 33 N. E. 140; Ryan v. New York (1897) 154 N. Y. 328, 48 N. E. 512; Johnson v. Crookston Lumber Co. (1904) 92 Minn. 393, 100 N. W. 225; Semet-Sohcay Co. v. Wilcox (1906) 74 C. C. A. 635, 143 Fed. 839. In these cases the condition that the servant must have been justified in understand- ing the communication as a dismissal is not in terms mentioned; but this is manifestly an indispensable element in any general and precise statement of the rule. The opinion of the servant himself is certainly not conclusive. In Saunders v. Anderson (1834) 2 Hill, L. 486, the court discussed the rights of the parties with reference to the hypothesis that an "unqualified dis- mission" of the overseer of a planta- tion might be inferred from evidence that he and his employer had different views about the management of the ■concerns of the plantation; that the defendant proposed to the plaintiff that they should "settle their accounts and ■quit;" and that the plaintiff replied, ■"Agreed." But such evidence, it is sub- mitted, indicates rather a rescission by mutual consent. Supposing this to be its true significance, the decision of the ■court that the overseer was not entitled to his wages for the remainder of the year was clearly correct, but not for the reason assigned, viz., that he had refused to return to his employment upon the request of his employer. It is a sufficient notification to a traveling salesman of his discharge from employment, where he is paid a month's salary and expenses, and informed by letter that his sales are too small to be profitable, and that his employers cannot afford to continue the trial ar- rangement between them beyond the end of the current month. Arnold v. Adams (1898) 27 App. Div. 345, 49 N. Y. Supp. 1041. In Kershner v. Henderson (1908) 48 Wa«h. 228, 93 Pac. 323, plaintiff was employed to attend defendant, an in- valid, and did so for a few days, when defendant moved to a distant state, leaving plaintiff in possession of his house. Plaintiff remained on the place several months, and then, through de- fendant's attorney, sent him a bill for services rendered as nurse and care- taker. Defendant replied through his attorney with notification to plaintiff to leave the place, which reply was shown plaintiff by the attorney. Held to be sufficient notice to terminate the contract of employment, and that there could be no recovery for services ren- dered after such notice. In Phillips V. Jones (1834) 1 Ad. & El. 333, defendant agreed with plain- tiff's father to receive plaintiff (who was a minor) into his service on trial, and to take him as apprentice if ap- proved of. Plaintiff went into the serv- ice, and worked for defendant nearly two years. After several applications made during that time by the father, defendant told the father that plaintiff should serve out the two years, and 584 MASTER AND SERVANT. [chap. vt. then be bound, the father paying defend- ant £10. This was agreed to, but de- fendant shortly after quarreled with plaintiff, and told him to go home about bis business. Plaintiff went home, and, on the father's applying to defendant for an explanation, the latter told him to go and do his worst. The father then caused a. letter to be written to defendant by his attorney, requiring him either to take plaintiff as his ap- prentice, or recompense him for his work; but no satisfactory answer was given, and plaintiff, by his next friend, brought an action to recover compen- sation for his service. The judge put it to the jury, on these facts, whether or not the defendant's conduct was such as warranted the father in considering the contract for an apprenticeship as rescinded; and he further stated that, if they thought it was, they were to give plaintiff such compensation for his work as they thought proper. The jury found a verdict for the plaintiff, with damages by way of compensation for his services. Held, that the direction was right, and the verdict not to be disturbed. In Sigmon v. Goldstone (1906) 116 App. Div._ 490, 101 N. Y. Supp. 984, the plaintiff in an action for wrongful dismissal was held to have been im- properly nonsuited, where the evidence was that, for some weeks prior to the alleged discharge, considerable friction existed between the plaintiff and the defendants, and, instead of permitting him to do the work for which he was hired, they compelled him to sit during working hours in a dark room unem- ployed; that the plaintiff protested against this treatment and consulted a lawyer, who, in company with him, had an interview with one of the part- ners with respect to this treatment; that at the close of this interview the partner told both himself and the lawyer to get out of defendants' place of busi- ness; that thereupon the lawyer and he went away; and that no offer to take the plaintiff back was made. In an action for breach of an em- ployment contract, an instruction to the jury that an absolute refusal to perform on the part of the employer was not necessary to constitute a breach of the contract, which might be manifested by words or acts evincing an intention not to perform the contract according to its terms, in which case the employee was entitled to treat the contract at an end and recover damages suffered, provided he had himself performed his part of the contract, — was held to have been properly given. Spencer Medicine Co. v. Ball (1906) 78 Ark. 336, 93 S. W. 985. In East Tennessee, V. £ G. R. Co. V. Staub (1881) 7 Lea, 397, the plain- tiff had, in consideration of being given employment, renounced his claim for damages for an injury received in the course of his employment. His testi- mony showed that, for some time after entering into this compromise agree- ment, he had continued at intervals to perform light labor for the defendant when able to do so, but received pay only for the time he actually worked. He then complained to the company's superintendent about the footing upon which he was being remunerated, and several unsatisfactory interviews took place between them. In the final inter- view he was told by the superintendent that "he might go on to work or not, as he chose." It was also shown that, in these interviews, the superintendent totally denied the company's liability for the physician's bill, and all obliga- tions to the plaintiff except to the ex- tent of paying him for such work as he might afterwards perform on the same footing as any other employee would be paid. Commenting on this evidence, the court said: "The lan- guage of the superintendent, as proven by the plaintiff, being, in substance, that he regarded himself under no more ob- ligations to the plaintiff than to anyone else. In short, the superintendent total- ly repudiated the plaintiff's version of the contract, and in fact the company has ever since continued to do so. It is in view of this state of facts that it is insisted on behalf of the defend- ant that the jury should have been in- structed that, before they could find a total breach of the contract, the proof should show that the officers of the com- pany refused to allow the plaintiff to work, and dismissed him from its serv- ice, for this is in effect the position assumed. We hold the position un- tenable. No precise form of words was necessary on the part of the defend- ant's superintendent to reject plaintiff's services. The obligation of the contract being created, a denial of its existence was equivalent to a refusal to allow the § 187] TEKMINATION OF THE CONTRACT. 585 selves warrant the inference of an intention on the master's part to dismiss the servant, that inference is sometimes corroborated by tes- timony respecting acts which carry a similar significance.^ plaintiff to continue the service under it." To entitle an employee to maintain an action for breach of the contract, it is sufficient if he was told in sub- stance that his services were no longer required, that his presence was disagree- able, and that he was not fit for the business, and had better go. Paine v. Hill (1893) 7 Wash. 437, 35 Pac. 136. A school-teacher was held to be war- ranted in assuming a termination of his employment, where his principal in- formed him of some complaints made by parents of the pupils, and said: "We had better discontinue our relation- ship," and, upon his asking at what time, replied, "Immediately." Bennett V. Morton (1891) 46 Minn. 113, 48 N. W. 678. No recovery can be had by an em- ployee against his employer upon a con- tract of employment terminable at will, for a prevention of performance caused by a statement made to him by the latter's president, that he need not come to its place of business, and that it was "no use his spending his time coming there." since such statement constituted a termination of the employment. Granger v. American Breioing Co. (1899; Sup. Ct.) 25 Misc. 701, 54 N. Y. Supp. 695, reversing (1898) 25 Misc. 302, 55 N. Y. Supp. 590. A statement by the servant's fore- man, that he "had fired himself," con- stitutes a dismissal. Johnson v. Crook- ston Lumher Co. (1904) 92 Minn. 393, 100 N. W. 225. A demand or request that the serv- ant shall resign is legally equivalent to a peremptory dismissal. Jones v. Graham & M. Transp. Co. (1883) 51 Mich. 539, 16 N. W. 893; Ryan v. Neio York (1897) 154 N. Y. 328, 48 N. E. 512. In the latter case it was held that undisputed evidence that, after re- ceiving from the aqueduct commissioners a written demand for immediate resig- nation, an inspector of masonry upon the new aqueduct in New York city did not report for duty, or perform or offer to perform any services, but made demands for reinstatement, required, as a matter of law, the inference that he regarded the demand for resignation as a discbarge. A letter from the defendant's attor- ney, stating that the defendant did not consider itself liable for any duties the plaintiff had theretofore or might thereafter discharge as engineer, was held not to amount to a discharge. Wagner v. Edison Electric Illuminating Co. (1900) 82 Mo. App. 287. In a, case involving an independent contract, it was held that an instruc- tion that the defendant's command to the plaintiff to stop work, obeyed by the latter, is a breach of their contract of hiring, but that a mere request ac- quiesced in by him is not a breach, is correct. McGregor v. Ross (1894) 101 Mich. 575, 60 N. W. 38. s Evidence that an employer told an employee that they had better discon- tinue their relationship immediately, and refused a personal meeting; that the next day the employee found others discharging his duties; and that no work was assigned to him, although the employer saw him there, — is sufficient to show a discharge. Bennett v. Mor- ton (1891) 46 Minn. 113, 48 N. W. 678. An assistant surveyor was held to be entitled to consider himself as having been dismissed, where his employer's son, who had authority to act for his employer, came to him early one morn- ing and asked for the key of the instru- ment box, and at the same time kept telling the assistant to go and see his employer at a camp some miles distant. Feneron v. O'Keefe (1884) 2 Manitoba L. Rep. 40. Testimony given by the plaintiff that he was discharged and ordered not to come around to the factory, and that the gates were locked upon the next day, and that another was put in his place, and that he could not get in, is sufficient to go to the jury, on the ques- tions whether or not he was discharged, and whether he was willing to continue to work. St/near v. Wharton (1886) 48 N. J. L. 97, 2 Atl. 664. A dismissal may justifiably be in- ferred, where a man temporarily em- ployed in place of a striker is paid off 58G MASTER AND SERVANT. [chap. VI. An intention on the master's part to repudiate the contract is not predicable where his language may reasonably be construed as being merely a proposition looking to a modification ^ or a rescission '' of the contract by mutual consent; nor where it is shown that such a modification or rescission of the contract had actually been effected ; ' nor where the master used expressions which merely imported that the servant might leave if he wished.^ after a few days, and told that lie ■will be informed when his further services are needed. Louisville & N. li. Co. v. Harvey (1896) 99 Ky. 157, 34 S. W. 1069. ■ 6 A disagreement having arisen be- tween a traveling salesman and his employer as to commissions, the em- ployer served a written notice on the salesman, which guaranty was a con- latter's contention, stated that the em- ployer refused "to recognize said con- tract as written, and to avail himself of the salesman's services any further under the contract as . . . con- strued" by the salesman. After fur- ther stating that the employer had been guaranteed against loss through the salesman, which guaranty was a con- dition of employment, the notice further stated that the employer "re- pudiated the contract as written, to the extent that permitted the construction" claimed for it by the salesman, and "re- fused to proceed further under it un- less" the present guarantor or some other suitable person would guarantee the employer against loss under the construction insisted on by him. A few days later the employer's attorney wrote a letter to the salesman's attor- ney, stating that the employer "was perfectly willing to carry out his con- tract," but that the salesman was at- tempting, etc., and further that, if suitably guaranteed against loss, the employer was "perfectly willing to con- tinue to make advances," etc. Held, that the notice served on the salesman was at most a conditional discharge, the first step in a negotiation entered upon for the purpose of procuring a modification of the contract. Isaaosen V. Andrews (1902) 69 App. Div. 430, 74 N. Y. Supp. 1039, first appeal (1901) 64 App. Div. 408, 72 N. Y. Supp. 177. T Pinetv. Montague (1895) 103 Mich. 516, 61 N. W. 876. There the trial judge instructed the jury that they might ascertain the defendants' inten- tion in writing to the plaintiflF that he had better quit the job, and that if they should find that they intended it as a discharge, and that the plaintiff had a right to so consider it, then they might consider that he was discharged thereby; and it is apparent tliat they did so find. The supreme court held that the letter was not susceptible of such a construction. Where an employer, during an alter- cation, said to a servant, "If you are not satisfied, you had better quit now," the remark was held to be a proposition for a "consentive termination of the contract, or rescission of it for the resi- due of the year." McGehee v. Roberts (1890) 90 Ala. 534, 8 So. 46. 8 For the circumstances under which a rescission by mutual consent is predi- cable, see § 181, ante. On the ground that a change of duties accepted by the servant does not amount to a termination of his employment, it has been held that money deposited by an employee as security for the faith- ful performance of his duties "as col- lecting salesman and otherwise," to be returned sixty days after the "ter- mination of his employment," does not become due sixty days after his duties are changed to those of a canvassing agent. Bdelsohn v. Singer Mfg. Co. (1892; C. P.) 1 Misc. 166, 48 N. Y. S. R. 673, 20 N. Y. Supp. 655. 9 Where a master had re-engaged a servant for another term, and, before the new term began, a quarrel arose between them as to allowance under the existing contract, and the master told the servant he might leave if he was not satisfied, it was held that there had been no dismissal, and that the master was not warranted in hiring another servant, without any other in- formation than a report that the serv- ant had said he was leaving the em- ■§ 187] TERMINATION OF THE CONTRACT. 587 The essential character of a communication which, as a whole, im- ports a definite repudiation of the contract is in no wise altered by the fact that it offers the servant the option of retiring by a formal resignation.^" Xor does the master's statement that he is willing to engage, under a new contract and in a different capacity, a servant to whom notice has been given that his services will no longer be required for the purposes for which he was hired, prevent that notice -from operating as a dismissal.^^ A declaration by the master that he will no longer pay the stipu- lated amount of compensation, and that the servant, if he stays, must do so at a lower rate of wages, may be treated by the servant as equivalent to a dismissal.^^ But the more correct theory with re- gard to these and other cases in which the servant is offered the alternative of leaving or of submitting to an essentiah alteration in the conditions of the service would rather seem to be this, — that the servant is justified in abandoning his work, and suing the master •on the ground of a specific breach of duty in altering the conditions. •See § 263, post. ployment. Campbell v. Mackenzie (1887) 24 Scot. L. R. 354. 10 Cumierlwrid & P. R. Co. v. Slack (1876) 45 Md. 161. There a letter was sent from C, the president of a rail- road company, to S., the superintendent, informing S. that C. had written to M., the vice-president, to superintend every- thing, and adding: "I presume you "will prefer to retire by means of a resignation. It is hereby understood that the same is accepted, and you will please telegraph me of its transmission, as I have instructed . ... [M.] to take entire charge of the railroad im- mediately on the receipt of my letter. Please confer with M. in turning over the papers in the supt.'s oflSce." On the next day S. despatched a letter of resig- nation "to take effect at once." It was held that the first letter operated as a positive dismissal of S. from the serv- ice of the company, that that letter from S. could not change its character ■or construction, or show that he volun- tarily resigned; nor could it be con- strued as an acquiescence in his dis- missal. li^Coy V. Martin (1898) 29 App. Div. 418, 51 N. y. Supp. 962, a case in which a person employed to take charge of the distribution of goods in a sales- room and warehouse was notified by his employer that his services were no longer required in connection with the salesroom and warehouse, but that if he desired to make sales of goods in another state, or in any other terri- tory that was not engaged, he might state his wishes in writing and the employer would give the matter his best attention. 12 Berney v. O'Brien, Newfoundl. Eep. (1864-74) 260; Dumbarton Glass Co. V. Coatsworth (1847) 5 Sc. Sess. Cas. 2d series, 385. In the second of these cases the inference that the master's reserved power of dismissing the serv- ant had been exercised, and that the contract was consequently no longer in existence, was held to be unavoidable, where it was shown that the master had informed the servant that, unless he consented to accept smaller wages, his employment was to cease, and that there was no competent proof of his having consented to the change. The original contract being no longer oblig- atory, a court could not hold, from the mere fact that the servant went on working, that he did so at the lower rate of wages, and was bound to do so for the whole term of that contract. In a common-law jurisdiction the con- tinuance of work after a period suffi- ciently long to give the servant an op- 588 MASTER AND SERVANT. [chap. VI. c. Dismissal, when inferwhle from acts and other circumstantial evidence. — The essential question under this head is simply whether the evidence is suiScient to prove that the master did something "in- consistent with the supposition that the service continued." " The situation thus described is inferable under the following circum- stances : (1) "\^Tiere the master absolutely refused to permit the servant to proceed with the performance of the contract ; the conclusion from such conduct being the same, whether the refusal occurred before or after the servant had actually commenced work.^* portunity of deciding what to do would, it is apprehended, be regarded as pre- sumptive proof of the servant's assent to the altered term. 13 This phrase is used in Howard v. Daly (1875) 61 N. Y. 362, 19 Am. Rep. 285. The plaintiff agreed that his son, a minor, should work for the defendant nine months, and the defendant agreed to give him therefor certain chattels, which were delivered forthwith, but were to remain the property of the de- fendant until the service should be per- formed. The plaintiff sold the chattels to a stranger. The defendant turned away the boy without cause, and claimed the chattels from the stranger, who, with knowledge of the facts, settled the demand by paying a sum of money. Held, that the contract was rescinded. Hill V. Green (1826) 4 Pick. 114. 1* In Howard, v. Daly, ubi supra, the plaintiff's period of service having al- ready arrived, the defendant had, on her application for permission to fulfil her contract, repudiated his obligations. Dwight, C, said (p. 308) : "No precise form of words was necessary on his part to reject her services; the obliga- tion of the contract being created, a denial of its existence was equivalent to a refusal to allow her to enter upon the service. The defendant's intent is plain. He might reject her services indirectly, as well as directly." The word "from," in computations of time, is ordinarily exclusive of the day from which the time is reckoned, but there is no rigid rule of law which prevents interpreting it, with reference to the terms of the instrument, so as to include that day. Hence a com- plaint in an action for wrongful dis- missal is not demurrable, where it declares on a term of service from a certain day, and alleges, as a breach, that on that same day the defendant refused to suffer the plaintiff to con- tinue in his service. Wilkinson v. Gas- ton (1846) 9 Q. B. 137, 10 Jur. 804. In Pinet v. Montague (1895) 103 Mich. 516, 61 N. W. 876, plaintiff, who had contracted to measure all of de- fendant's lumber for a year, requested permission to leave for a few days, and was informed that, on account of the- dissatisfaction of one of defendant's, customers with him, he might go, and that defendant would telegraph him when he should return. After plaintiff left, defendant wrote advising him, on account of the customer's dissatisfac- tion, to stop the work. This, plaintiff refused to do. Defendant then wrote, complaining of the measurements by the man plaintiff had left to do the work, and concluded by saying, "You had better call your man home, and quit," — whereupon plaintiff wrote offer- ing to give up the contract on a com- promise, to which defendant replied, stating that plaintiff's man was not measuring the lumber, and that he had written for a man to come and measure a, few boat loads. Plaintiff answered, offering to perform the contract, and threatening suit if not permitted to do so, and defendant answered with an intimation that plaintiff might sue. Held, the evidence warranted a finding that defendant discharged plaintiff. A contract between a sewing machine company and a salesman gave the sales- man exclusive territory, and stipulated that the contract might be dissolved by either party giving notice to the other. The company notified the salesman of the withdrawal of a part of the terri- tory. Held, that the notice was a dis- 5 187] TERMINATION OF THE CONTRACT. 589 (2) Where the master refused to receive any further services from ihe servant, except upon conditions violative of the terms of the en- gagement.** (3) Where arrangements vpere made for the performance of the servant's duties by another person.*^ (4) Where the master by some positive act rendered it impossible for the servant to accomplish the stipulated work." The most numer- ous and important examples of this situation are furnished by the solution of the contract, authorizing the salesman to treat the contract as dis- solved in toto. White Seiving Mach Co. V. Shaddock (1906) 79 Ark. 220, 95 S. W. 143. An abandonment of the employment by an employer cannot be predicated upon the fact of his neglect to require actual services of the employee, unless it was accompanied by some affirmative act indicating the latter's discharge or dismissal. Berg v. Carroll (1890; C. P.) 16 Daly, 73, 30 N. Y. S. E. 675, 9 N. Y. Supp. 509. "When there is a refusal to permit the servant to perform the substantial or principal service he agreed to per- form, and a direction to substitute a different service, as in this ease, then the servant may treat such refusal and direction as a discharge." Loos v. Geo. Walter Brewing Co. (1911) 145 Wis. 1, 140 Am. St. Rep. 1052, 129 N. W. 645. 15 Curtis v. Lehnvann (1905) 115 La. 40, 38 So. 887. 16 Cumherland & P. R. Co. v. Slack (1876) 45 Md. 161. Privates in the police of the Capitol at Washington remained absent without leave and without reasonable cause. They were not dismissed, but substitutes were employed, who were paid, the names of the absentees being stricken from the pay roll. They were after- wards restored, and sought to recover their pay during the time of their ab- sence, on the ground that they had not been dismissed. Held, that they could not maintain their claim, inasmuch as they had been in fact removed. Thicing V. tfnited States (1880) 16 Ct. CI. 13. Where plaintiff sued for breach of contract of employment, alleging that he had been discharged contrary to the contract, and this was denied, and on the trial several witnesses testified that, while plaintiff was absent on a vacation, defendant attempted to hire another person to take plaintiff's position, stat- ing that plaintiff had been discharged, it was held not to be error to submit the question to the jury, as one of fact. Lewis V. Moorhead Bros. (1902) 201 Pa. 245, 50 Atl. 960. In that case the plaintiff had been requested to resign, and on his refusal had been requested to take a vacation. On his return, on July 19th, he was not permitted to perform the same work that he had previously done, in his capacity as man- ager, but was told that his duty there- after was to remain in the manager's office, and give such information as might be requested. This he refused to do, and left the office, but returned on September 7th, and demanded his salary, which was refused. Held, that the court did not err in instructing that the jury might consider the bearing of the demand and refusal of salary on the question of defendant's intention on July 19th. IT Wilson v. Press Pub. Co. (1895; C. P.) 14 Misc. 514, 70 N. Y. S. R. 770, 36 N. Y. Supp. 12 (master took possession of books, papers, etc., used by the servant for the purposes of his work ) . In DeCamp v. Stevens (1835) 4 Blackf. 24, a servant sued for wages on the theory that his abandonment of the employment had been justifiable. The following instruction was given at the request of his counsel: "If the jury believe the defendants resorted to improper means and ungenerous con- duct towards the plaintiff, to make him abandon his contract, he is entitled to recover for the labor done under the contract." The record showed that one of the defendants remarked, when told the plaintiff had quit work, that he was glad of it, for the plaintiff was worth nothing ; and one witness thought DeCamp manifested a disposition to get 590 MASTER AND SERVANT. [chap. ti,. cases which involve a discontinuance of business by the master. Se& § 264, post. (5) Where the servant is ordered to surrender property which, was given into his possession for the purpose of enabling him to. perform his duties.^' (6) Where the master, after assigning the contract to another per- son, in accordance with a special provision therein allowing the transfer, insists, after the servant has refused to accept the assign- ment, that the contract is no longer binding upon him.^® On the other hand, a dismissal cannot be implied from the fact that the doors of the employer's place of business are closed, for they may at any time be reopened.^" Nor can a wrongful dismissal be predicated on the ground that the employer failed to pay the em- ployee the stipulated wages, such a failure being merely a valid reason for an abandonment of the contract by the employee.*^ ISTor does a dissolution of the contract result from the master's having placed the servant in custody on a criminal charge which was after- wards abandoned. ^^ A dismissal may be created without express words.^^ the plaintiff to leave him. This was all steady and settled foundation than that the testimony upon which the instruc- of sensibility." The instruction of the tion is founded, or which, in any degree, trial judge was accordingly held to be- related to "improper means and un- erroneous. generous conduct" used towards the A contract employing one as a man- plaintiff. Conxmenting upon this state ager of a sales department is violatecj of the evidence the court said : "The by the master in reducing the servant positive or implied rescission of a con- to a sales clerk. Cooper v. Strange & tract is certainly different from ira- W. Co. (1910) 111 Minn. 177, 27 L.R.A. proper means or ungenerous conduct, (N.S.) 1011, 126 N. W. 541, 20 Ann. by one party to the other, to induce an Cas. 663. abandonment of it. The question be- 18 Whether the conduct of a store- fore the jury was. Is the contract dis- keeper in demanding the keys of the- solved? If it was dissolved by the de- store from one of his salesmen con- fendants, the plaintiff was entitled to stituted a dismissal was held to be a recover. If it was not, the verdict qiiestion for the jury in Markham v. should have been for the defendants. It Markham (1892) 110 N. C. 356, 14 S. is clear there was no positive rescission ; E. 963. and if it was implied, it must have been 19 Griffin v. Brooklyn Ball Club ( 1902 ) from the improper means and ungener- 68 App. Div. 566, 73 N. Y. Supp. 864, ous conduct used towards the plaintiff. aflBrmed in (1903) 174 N. Y. 535, 6S These terms are vague and indefinite; N. E. 1109. and to adopt them as establishing the ^. Smith, 393, it was laid service which will warrant a master in down, quite generally, that if a laborer ■discharging his servant; and if he does, had, after a revolt of laborers, returned he must discharge him on the occasion to work, with the acquiescence of the •of his misconduct, and not at any time defendant's agent, he could not after- after, at the master's option." This wards be dismissed. See, however, the language, if it is intended to convey the New York cases cited in the next sub- meaning that, under the circumstances section. mentioned, condonation is an inference In some English cases, where the in point of law, is in conflict with that question was whether a pauper had ac- used in a more recent English case cited quired a settlement by a full year's in note 6, infra,. But it seems not im- service, it was held that a servant's probable that this eminent judge was absence was purged by his master's re- merely laying down the doctrine of con- ceiving him again. Rex v. Banbury donation in very general terms, without (1753) Burr. Sett. Cas. 322; Rex v. any attempt to define the precise evi- Eaton (1735) Burr. Sett. Cas. 47. But dential effect of retention with refer- these cases are obviously not relevant ence to the division of functions be- precedents where the rights of the mas- 600 MASTER AND SERVANT. [chap. vt. condonation is in this instance controlled in any degree by a definite presumption there is, on general grounds, one weighty, if not con- ter himself are concerned. It is scarce- ly necessary to mention that the special standpoint from which these cases were decided deprives them, in the present connection, of most of their significance as precedents in regard to the extent of the rights of the master himself. But in certain other cases, language has been used which is difficult to rec- oncile with any other hypothesis than that of an acceptance of the theory that mere retention raises a presumption of condonation. Ill a Federal court the jury were charged that an employer who, after the employee's material breach of con- tract, continues to accept his services without reasonable cause for delay in discharging him, is presumed to have waived the breach. Jones v. Trinity Parish (1883) 19 Fed. 59. Another charge substantially to the same effect was given in Leatherberry v. Odell (1880) 7 Fed. 641. In Roberts v. Brownrigg (1846) 9 Ala. 106, the court, after conceding drunkenness to be a justification for dismissing an overseer of a plantation, proceeded thus: "But if the intemper- ance was not habitual, we think a sin- gle offense of this kind would be con- sidered as overlooked and forgiven, if he was afterwards permitted to remain on the plantation. It could not be tolerated that the employer should pass over such an offense until such period as suited his convenience, and then give this as a reason for putting an end to the contract. The injustice of this will be apparent when it is considered that, if the overseer is rightfully dismissed, he forfeits all right to the wages which have accrued at the time of his dis- missal, when the contract, as in tliis case, is entire. The obligations of good faith require that the employer should act promptly when any just cause ex- ists for putting an end to the con- tract." In Brigham v. OarUsle (1884) 78 Ala. 243, 56 Am. Rep. 28, where the servant iiad not yet commenced the perform- ance of his contract, owing to a sick- ness which had lasted so long that the master might have abandoned it, the court said without any qualification: The defeiidants "will be held to have- waived their right to renounce the con- tract when, after the delay has ter- minated, they regard and treat it a* continuing and in force." Where a mistake of a manager in doing certain work was an error of judgment, and his employer made no complaint until months after, his fail- ure to complain earlier will be held to be a condonation, and the mistake will not serve as a reason for discharging the manager. Pringle v. Producers' Turpentine Co. (1910) 126 La. 1095, 53 So. 359. In Jonas v. Field ( 1887 ) 83 Ala. 445, 3 So. 893, the court held that, as there was evidence tending to show that the plaintiff', a bookkeeper, had been re- tained in consequence of his promises to avoid mistakes in his work for the future, it was error to instruct the jury, without qualification and as a matter of law, that it was th6 duty of the defendant to dismiss the plaintiff immediately upon the discovery of tiie mistakes in question. The rationale of the decision was that, "when there are- circumstances which tend to establish a reasonable excuse for delay, waiver or condonation of a. breach of the con- tract is a question of fact for the jury, and not a question of law for the court." Taking this remark in connec- tion with the other Alabama decisions just cited, it seems clear that the ju- ridical situation, as conceived by the court, was that of a presumption re- butted by the special circumstances ia evidence. In a still later case the same court laid down the law in the following terms: "One or more single breaches of contract on the servant's part may be waived or condoned by his being re- tained in service by the master an un- reasonable length of time after the mas- ter's knowledge of the fact of such breaches. Such retention is presump- tively a condonation; but the question- of waiver is usually one of fact for the jury, dependent on the peculiar cir- cumstances of each case." Troy Fertil- izer Go. v. Logan (1889) 90 Ala. 325, 8 So. 46. Tlie notion of a "presump- tion" to be entertained as a matter of § 190] TERIIINATION OF THE COXTEACT. 601 clusiTO, objection, viz., that all the decisions regarding analogous states of fact, with the exception of those in which the doctrine of a servant's acceptance of risks is involved (a doctrine which rests upon the very special notion of an implied stipulation in the contract of service), proceed upon the principle that the question whether in a given case the failure to enforce or exercise a right at the time when it was first known to have accrued should be deemed to have law, upon the ascertainment of a fact which is primarily for the jury, viz., that the period of retention was "un- reasonable," is scarcely satisfactory in a strictly logical point of view. But if, as seems probable, nothing more is meant than that a jury should be di- rected to infer condonation if they con- sider the period of retention to be un- reasonable, or that a judge should draw that inference, as a matter of law, if the admitted facts require it, this latest utterance of the Alabama court commits it to a doctrine which, in its practical operation, will appar- ently produce much the same results as that which is discussed in subsection c of this section. A railroad company employed a. sys- tem of discipline marks, which on any breach of duty were entered against an employee's name. An official notified an employee that, while he did not wish to apply discipline against him, he must do so, in view of the frequent trouble with his office. The contract between the employee and the railroad was made in Vermont, and it was proved that according to the law of that state the railroad company had, under the circumstances in evidence, waived its right to discharge the em- ployee for any preceding breach, but that, if anything further occurred, the master would have that additional cause. Held, that the railroad had elected not to discharge the servant. Daniell v. Boston & M. R. Co. (1903) 184 Mass. 337, 68 N. _E. 337. An employee is entitled to the whole compensation provided for in the con- tract, notwithstanding alleged breaches thereof, where the employer received services during the entire contract time, and it was not alleged that the breaches damaged the employer. Brownold v. Rodbell (1909) 130 App. Div. 371, 114 N. Y. Supp. 846. In one Wisconsin case the actual scope of the decision was merely that there was prima facie a, waiver of the right of dismissal, where the master, without making any objection, had re- tained to the end of the agreed term a servant who had several times absented himself from work. Bast v. Byrne (a 881) 51 Wis. 531, 37 Am. Eep. 841, 8 N. W. 494. (A special point deter- mined in this case was that, where there is a dispute as to the amount due under such a contract of service, and the em- ployer tenders a judgment for a cer- tain amount, with costs of the action, this is competent evidence of a waiver.) More recently it was held in the same state that, no explanation or excuse having been offered, the facts that the defendant had retained the plaintiff "for a long time" after his breaches of duty had become known to the master, and paid the stipulated wages at the agreed intervals, without any objection or protest, were "at least prima facie evidence of waiver and condonation." Tickler v. Andrae Mfg. Co. (1897) 95 Wis. 352, 70 N. W. 292. So far as they go, these cases are authorities only for the doctrine that, in the special cir- cumstances involved, a waiver might be presumed, — a conclusion which might well have been reached if the question had been considered from the standpoint of the doctrine reviewed in tne follow- ing section. But in the second one the court quotes with approval the general statement of Mr. Wood (Mast. & S. § 123), that prima facie the retention of a servant after knowledge obtained of a breach of duty is a waiver, and condonation is presumed. In another decision rendered during the same year, the action of an employer in retaining an employee after knowledge of a breach of duty, with an admonition "not to let it happen again," was held to be a condonation of the breach. Moody V. Streissguth Clothing Co. (1897) 96 Wis. 202, 71 N. W. 99. 602 MASTER AND SERVANT. [chap. VI. entailed an incapacity to enforce or exercise that right afterwards is to be determined from the evidence as a whole, and without refer- ence to any presumption. Unless there is some specific reason for denying the applicability of this principle in the present connection, — and no such reason is apparent, — it follows, of necessity, that, on the one hand, no such absolute and specific significance as will serve as the basis of a presumption can be ascribed to the mere fact that a servant known to have been guilty of a breach of duty was kept in the employment, and, on the other hand, that the actual probative value of that fact depends upon the attendant circumstances, — more especially the length of the period of retention. c. Doctrine that condonation is a question for the jury, except in clear cases. — The doctrine stated at the end of the preceding para- graph obviously involves the corollary that the question of condona- tion is one which should ordinarily be left at large to the jury. And this is the view which seems to be sustained by the preponderance of judicial authority.^ The ultimate issue to be determined is whether 6 In Boston Deep Sea Fishing & Ice Co. V. Ansell (1888) L. E. 39 Ch. Div. 339, Cotton, L. J., remarked (p. 358): "Of course if he [the master] knows of the act, and still continues to employ him [the servant], it might have been held by judges of fact, or by a jury, that he had condoned it, and prevented himself from insisting on the legal right." "Generally speaking, waiver is a mat- ter of intention, and when different in- ferences may be justly drawn from the acts relied on to constitute a waiver, it is always a question for the jury." Jordan v. J. R. Weber Moulding Co. (1898) 77 Mo. App. 572, 577. In Barrington v. First Nat. Bank (1873) 1 Thomp. & C. 363, Potter, J., when commenting on certain instruc- tions held to be erroneous, obsei-ved: "If the fact of delay had been certain, as the judge assumed, it might perhaps have been proper to have submitted to the jury, whether the delay was not unreasonable, and whether the objec- tion had not been waived or condoned." In another part of the opinion the learned judge said: "The question of lapse of time after the offense was not a question of law for the judge. . . . It was a question of fact for the jury." The doctrine that a master who as- certains that a servant who has been guilty of misconduct which would jus- tify his discharge is not bound to dis- charge him immediately, in order to avoid being chargeable with a condona- tion of the misconduct, was recognized in Huntington v. Claflin (1863) 10 Bosw. 262 (decision as a whole affirmed in (1868) 38 N. Y. 182; but this point not adverted to) ; Dunlcell v. Simons (1889) 15 Daly, 352, 7 N. Y. Supp. 655, reversing (1889) 25 N. Y. S. R. 862, 5 N. Y. Supp. 417; Murray v. O'Donohue (1905) 109 App. Div. 696, 96 N. Y. Supp. 335; Atkinson v. Heine (1909) 134 App. Div. 406, 119 N. Y. Supp. 122, Fitzpatrick Square Bale Ginning Co. v. UcLaney (1907) 153 Ala. 586, 127 Am. St. Rep. 77, 44 So. 1023 (propriety of leaving question of waiver to jury not disputed in a case in which the serv- ant had been retained for fourteen days after his dereliction of duty had been discovered) ; Batchelder v. Standard Plunger Elevator Co. (1910) 227 Pa. 201, 75 Atl. 1090, 19 Ann. Cas. 875. Hoshaeh v. Sackett & W. Go. (1909) 134 App. Div. 130, 118 N. Y. Supp. 846. Newman \. Reagan (1879) 63 Ga. 755 (instruction embodying the theory of a presumption of condonation as arising from retention merely was dis- approved) ; Atlantic Compress Go. v. Young (1903) 118 Ga. 868, 45 S. E. 677. "In all cases where misconduct or 1901 TERMINATION OF THE CONTRACT. 603 the servant was retained for more than a "reasonable" time ; ' unless ie had been, there is no condonation. Acts amounting to a breach of the eon- tract is made the grounds for the dis- ■charge of an employee, and condonation or waiver is relied upon to meet that defense, the issue is one of fact to be ■decided by the jury, except in those instances where the evidence is of such a character as would warrant the court in assuming its suffiicency or insuffi- •ciency as a matter of law." G. A. Kelly Plow Co. v. London (1910) — Tex. Civ. App. — , 125 S. W. 974. Whether the violation, by a traveling salesman, of his contract of employ- ment, on his first trip, by selling at a greater discount than authorized, is ■condoned by his employer's sending him on a second trip, with knowledge of the facts, was held to be question for the jury in Sabin v. Kendrick (1901) 58 App. Div. 108, 68 N. Y. Supp. 546. That condonation is a question of fact for the jury, if in the opinion of the judge there is any evidence of it to be laid before them, was laid down in Mclntyre v. Bockin (1889) 16 Ont. App. Eep. 498, 502. In. a case where an employee in a store committed an assault and battery upon another employee therein, and his employer retained him in his service for ■eleven or twelve days after knowledge of the occurrence, until the determina- tion of a criminal prosecution com- menced by the assaulted employee against his assailant, the question whether the employer should be con- sidered as having waived the transgres- sion was held to have been properly ■submitted to the jury. McGraih v. Bell (1871) 1 Jones & S. 195. In an action brought to recover wages to which the claimant was entitled, if his dismissal was shown to be wrong- ful, the court charged that, if plaintiff was properly performing his duties at "the time of his discharge, such dis- •charge was wrongful. Held, that such instruction was erroneous, in the ab- sence of evidence going to show that the prior violations had been condoned. Moynahan v. Interstate Min. Mill. & Development Co. (1903) 31 Wash. 417, 72 Pac. 81. In the same case it ap- peared that the plaintiff, a mining su- perintendent, had paid himself at the ■end of each month out of the com- pany's funds. In the action, defendant pleaded a counterclaim for money plain- tiff had paid himself for time he was not engaged. in the service of the com- pany. Held, that a charge that any payment by defendant for any services during any particular time would be a waiver of any absence or failure to dis- charge his duties during that time which had come to the knowledge of de- fendant before such payment, etc., was erroneous, since, in order to establish a waiver, it would be necessary to prove that the master had knowledge of the default and that the time was paid for, and also that there was an unreasonable delay in demanding repayment. In Hunter v. Gibson (1846) 3 Rich. L. 161, where an overseer had been hired under a contract embracing a stipula- tion that he should "abstain entirely from intoxication," the fact that his em- ployer forebore to enforce the forfeiture of the contract for a first offense, and only dismissed him after he had been provoked by repeated breaches of the stipulation, was held not to justify the inference of a waiver of the agreement. 1 1f the master "retains the servant in his employment for any considerable time after discovering his fault, that is condonation, and he cannot afterwards dismiss for that fault, without anything new. No doubt the employer ought to have a reasonable time to determine what to do, to consider whether he will dismiss or not, or to look for another servant." Mclntyre v. Bockin (1889) 16 Ont. App. Rep. 498, 502. In another part of the same judgment it is re- marked that the master "cannot retain the servant in his employment, and afterwards, at any distance of . time, turn him away." The general rule is that, if a servant does not comply with his contract, then within a "reasonable" time after knowl- edge of the fact the employer must discharge him, or give him notice of his failure to comply. WilUams v. Jeter (1880) 64 Ga. 737. There it appeared that the plaintiff's management of a plantation was unskilful and damaging to his employer's interests, but that he was neither discharged nor notified that his services were unsatisfactory. 604 MASTER AND SERVANT. [chap. vi> In order to establisli a condonation, tlie evidence must be sucli a& will warrant the inference that the employer had forgiven the serv- ant's default, and that the delay in rescinding the contract was due to the employer's forgiveness, and not to any other good reason.* In a clear case, where only one inference can reasonably be drawn from the evidence, the court may doubtless decide the question of condonation as a matter of law, and instruct the jury on this foot- ing.® But the boundary line between the respective provinces of court and jury is not defined with much exactness by the reported decisions. "Where the length of the period of retention is the only element presented for consideration, condonation may presumably be infered, as a matter of law, where the period is manifestly an unreasonably long one with relation to the term of employment.'* On the other hand, it seems equally clear that the question of con- It was also shown that his employer was in feeble health, and lived at a place remote from the plantation. Held, that a charge to the jury which, in stating the rule of law as to the duty of the master to discharge a servant upon failure to perform his contract, omitted to advert to these latter facts, and to point out their tendency to show that a knowledge of the breach of contract might not have been promptly obtained by the employer, afforded ground for a new trial. In Newman v. Reagan (1879) 63 Ga. 755, it was ruled that the jury should have been instructed that the employer must act in a reasonable time after the misconduct of which he complained, and the jury left to judge of what time would be reasonable under all the facts of the case. It was held to be error to charge the jury, in substance, that if the master accepted the servant's serv- ices for a considerable length of time after ascertaining his breach of duty, the master could not go back and dis- charge him, without becoming liable for the services rendered during the time he had retained him; and that from retention by the employer after knowledge of failure by the employee would arise a presumption that it was condoned. In Hamilton v. Love (1899) 152 Ind. 641, 71 Am. St. Eep. 384, 53 N. E. 181, rehearing denied in (1899) 152 Ind. C47, 71 Am. St. Rep. 390, 54 N. E. 437, affirming on rehearing (1896) 43 N. E. 873, the descriptive epithet of the pe- riod of retention which will justify the inference of condonation is "consid- erable." ^ Dunkel V. Simmons (1889) 15 Daly, 352, 7 N. Y. Supp. 665, reversing (1889) 25 N. Y. S. R. 862, 5 N. Y. Supp. 417. 9 Jordan v. J. R. Weber Moulding Go. (1898) 77 Mo. App. 572, 577. 10 In Ridgway v. Eungerford (1835) 3 Ad. & El. 171, one of the counsel in his argument put this case: "Suppose a servant guilty of misconduct in June, and that the master, knowing it, re- tains him till November, would the right to current salary be destroyed?" To this question Lord Denman replied: "In that case a condonation might he presumed." The reasonable construc- tion of these words apparently is that the learned judge considered the sup- posed circumstances to be such as Avould warrant a jury in finding condo- nation as a matter of fact. But as they were used oilier merely, their precise meaning is not a matter of much importance in the present connection. In Baillie v. Kell (1838) 4 Ring. N. C. 638, where the servant was dismissed about four months after his misconduct had come to the knowledge of an em- ploying company, Tindal, C. J., referred to the fact that it did not appear that the employers had ever consented to waive the actual grounds on which the servant had been discharged. But the question of condonation was not di- rectly raised or discussed. In Beattie v. Baramenter (1889) 5 1 190] TERMINATION OF THE CONTRACT. G05 -donation shoiild usually be regarded as one of law, where the period •of retention is quite short." If there are other elements in the case besides that of retention, that question may be determined by the court, if there is no reasonable doubt as to the effect of the evidence as a whole. ^* d, Qiuilifications of the rule as to inference of waiver from fact -of retention. — The fact that a servant was retained after the corn- Times L. E. (C. A.) 396, condonation ^vas predicated, as a matter of law, where the servant had been retained for -several months (how many is not stat- ■ed) after the offenses in question. In Martin v. Everett (1847) 11 Ala. ■375, it was laid down, apparently as a matter of law, that a planter who, with .a knowledge of an overseer's miscon- ■duct, retained him in his service for several months, could not then make ■such misconduct an excuse for dischar- ging him. But the doctrine of this ■court as to the presumption of condo- nation (see note 2, supra) renders this decision of smaller significance in the present connection than it would be if it emanated from a court in which that doctrine "does not prevail. An employee, after the termination of his employment, retained a list of agencies issued by the employer, and delivered it to a competitor. There- after the employer again hired the em- ployee for a specified term. The vice president of the employer knew what the employee had done, for more than a year before the employee was dis- charged. Held, that, even if the de- livery of the list at a time when no contract relations existed between the parties were a breach of duty (wliich was denied), the retention by the em- ployer of the employee in its service for such a length of time constituted a waiver of its right to discharge for that reason. Butterick Pui. Co. v. Whit- comb (1907) 225 111. 605, 8 L.E.A. (N.S.) 1004, 80 N. E. 247. Where the teller of a bank, hired by its president, refused to obey the orders of the cashier, and the cashier delayed telling the president of such disobe- dience until some time afterwards; and, upon being told, the president dis- charged the teller, a waiver of the dis- obedience was held not to be inferable. Harrington v. First Nat. Bank (1873) 1 Thomp. & C. 363. In a case where plaintiff's evidence tended to prove that the defendant al- lowed him to remain on the road for over a month after the commission of the alleged offenses, and that at the time of his discharge it offered to re- tain him, provided he would work for smaller wages, the conclusion was held to be unavoidable that the defendant intended to condone the offenses. Jor- dan v. J. It. Weber Moulding Co. (1898) 77 Mo. App. 572. In Sharp v. McBride (1907) 120 La. 143, 45 So. 41, a waiver was held to be inferable, where the plaintiff had been allowed to remain at work about two months. In Thomson v. Watson (1880; Q. B.) 3 Legal News (L. C.) 203, affirming (1879) 2 Legal News (L. C.) 387, where a clerk who had negligently al- lowed the master's money to be stolen from him was retained for eighteen months, his default was held to have been condoned. "In Huntington V. Claflin (1863) 10 Bosw. 262, it was held that no waiver was inferable from the fact that the master allowed one day to pass before dismissing the servant." This point was not referred to in (1868) 38 N. Y. 182, where the decision as a whole was affirmed. See, however, Reynolds v. Hart, cited in the following note. 12 In a case where the plaintiff was permitted to continue the performance of services for two days after he had been absent for an unreasonable time, and the defendant failed to give notice of his election to terminate the contract because of the default, and to accept plaintiff's offer to permit defendant to obtain another to finish the work, there was held to have been a waiver. Rey- nolds V. Hart (1908) 42 Colo. 150, 94 Pac. 14. Where the right of the janitor of a school to draw his monthly salary is conditioned upon the presentment of a 606 MASTER AND SERVANT. [chap. vi. mission of a breach of duty will not preclude the master from using it as a ground of discharge, if the offense is repeated.^' So also, where the cause of discharge relied upon is incompetency, manifest- ing itself in repeated acts, the employer is not obliged to take advan- tage of the first infraction of the contract. A different doctrine would involve the consequence that "anything forgiven might fasten the contract upon him, and make the incompetent workman secure certificate of the principal of the school donation of any particular act, that that his duties have been satisfactorily act cannot subsequently be relied upon performed, such certificate condones by the employer as a reason to dis- previous neglect, irregularity, and mis- charge the servant. Such discharge conduct so that a dismissal on that must then arise from another act or account cannot be justified. Cook v. other acts occurring subsequently to School Comrs. (1902) 35 N. S. 405. those veaived or condoned." This is 13 Groi/ V. Shepard (1895) 147 N. Y. not open to the objection that it im- 177, 41 N. E. 500, affirming (1894) 79 ports a statement to the effect that an Hun, 467, 29 N. Y. Supp. 975; Jerome act subsequent to that which vi^as con- V. Queen City Cycle Co. (1900) 163 N. doned may not be considered in the Y. 351, 57 N. E. 485, reversing (1897) light of the former act. Bauerlach v. 24 App. Div. 632, 48 N. Y. Supp. 1107 Calder (1897) 15 Utah, 371, 49 Pac. (servant had been absent from work 049. several times, prior to the last delin- In Darnell v. Boston & M. R. Go, quency); Siselman v. Cohen (1898) 25 (1903) 184 Mass. 337, 68 N. E. 337, Misc. 529, 54 N. Y. Supp. 991 (held the defendant company sometimes af- erroneous to charge, without qualifica- fixed discipline marks to a defaulting tion, that if a contract of employment servant's name, instead of dismissing has been violated by an employee, and him. Held, that by retaining the plain- the employer, with knowledge of such tiff after obtaining knowledge of his violation, retains him in his employ, defaults, whether committed before or then the violation is not ground for a after the use of marks, the company subsequent discharge) ; Johnson v. Van had elected not to discharge the serv- Winkle Gin & Mach. Works (1902) 130 ant, hut that, considered as matters N. C. 441, 41 S. E. 882 (salesman who to be taken into account in the event of had agreed to send in daily and weekly his being guilty of subsequent breaches reports had refused two specific requests of duty they had not been waived, to send such reports, and had sent in In Cooh v. School Comrs. (1902) 35 none between the date of the second N. S. 405, it was held that acts of mla- request and his discharge five weeks conduct antecedent to the condonation afterwards) ; Cook v. School Comrs. may be proved, in combination with (1902) 35 N. S. 405 (former irregu- those afterwards committed, for the larities, although condoned, may be put purpose of showing the habitual guilt in evidence to show that the last mis- of the servant. conduct which led directly to the em- The rule that an employer cannot ployee's dismissal was not a solitary discharge an employee for unsatisfac- instance). tory work, of which he had previously "Condonation is subject to an implied complained, but for which he had not condition of future good conduct, and discharged the employee, does not apply whenever any new misconduct occurs, where the unsatisfactory, character of the old offenses may be invoked, and the services is alleged to be continuous may be put in the scale against the and to have immediately preceded his offender as cause for dismissal." Mc- discharge, — especially where the con- Intyre v. Hockin (1889) 16 Ont. App. tract provided that the services should Rep. 498, 502. "at all times be to the satisfaction" of In an action for wrongful discharge, the employer. Ginsberg v. Friedman it is not error to instruct the jury as (1909) 125 N. Y. Supp. 473. follows: "If you find a waiver or con- § 191] TERMINATION OF THE CONTRACT. 607 in liis employment." '* Accordingly, in determining the propriety of the discharge in a case of this description, the jury may look to all previous acts tending to prove a general unfitness for the particu- lar business, -whether they were condoned or not.^^ In a case where a servant had been hired on trial, and dismissed, it was held that a waiver of the defaults for which he had been dis- missed could not be inferred from the fact that he had afterwards been taken back. Under such circumstances, it was considered, there was merely a continuance of the trial.^^ A servant cannot rely upon an alleged condonation which he pro- cured by falsely denying his guilt and deceiving the master." e. Reliance by master upon one out of several grounds of dismis- sal. — In one of the states where waiver is treated as the subject of a presumption of fact (see subsection h, supra), it has been held that a party to a contract of employment, who undertakes to forfeit the contract on the specific ground of the other party's having refused to perform one particular stipulation, will be deemed to have waived other causes of forfeiture.^' In jurisdictions in which the doctrine discussed in subsection c, supra, is accepted, the circumstances thus predicated would perhaps be regarded merely as evidenca bearing upon the question of waiver. 191. Waiver of reserved right to terminate the employment, if a specified event should occur. — In a case where the contract provided that the employment was to terminate if the master's premises should be destroyed by fire, and that event occurred during the stipulated ^iKoehler v. Buhl (1893) 94 Mich. ^i Troy Fertilizer Co. \. Logan (1889) 496, 54 N. W. 157, holding that it was 90 Ala. 325, 8 So. 46. Where plaintiff error to instruct the jury as follows: and defendants in 1890 agreed that "If you employ a man who enters your plaintiff should act as business manager employment, and you are to decide upon of defendants' college for a period of certain questions, you are obliged, under fifteen years, and plaintiff's incompe- the law, to act within a reasonable tency developed shortly after his con- time; and if the defendants in this case tract of service began, and continued to recognized the fact, or were aware of his discharge in 1893, defendants, hav- the fact, that this man was an incom- ing the right to discharge at any time petent man, at any time within the for just cause, were not estopped from nine months, their business was to make doing so by bearing plaintiff's incom- it known to the plaintiff in the case." petency for the time. Glasgow v. Hood In United Oil & Ref. Co. v. Grey (1900) — Tenn. — , 57 S. W. 162. (1907) 47 Tex. Civ. App. 10, 102 S. 16 Fairbanks v. Nelson (1884) 56 Vt. W. 934, the court observed: "Incom- 657. petency and unfitness by their very n Federal Supply & Cold Storage Co. nature are continuing, and persistentlv v. Angehrn (1911) 80 L. J. P. C. N. S. repeat themselves. Glasgow v. Hood 1, 103 L. T. N. S. 150, 26 Times L. R. (1900) — Tenn. — , 57 S. W. 162. 626, 48 Scot. L. R. 706. Condonation does not extend to subse- 13 Wright v. C. S. Graves Land Co. quent acts, nor to continued incom- (1898) 100 Wis. 269, 75 N. W. 1000. petency." 608 MASTER AND SERVANT. [chap. vi. term, evidence that the master requested the servant to stay until he could "get straight," and told him that he would find something for him to do, was held not to warrant the inference of a waiver of the proviso, although the servant waited several weeks in good faith for the fulfilment of these declarations, and refused ojBFers of employ- ment elsewhere.^ 192. Consequences of dismissal with -regard to the primary stipula- tions of the contract. — a,. Wrongful dismissal. — The wrongful act of the master in dismissing a servant without a valid cause does not dissolve the contract.^ The servant is entitled to treat it as still open and subsisting, for the purpose of enabling him to maintain an action for damages. See chapters xi. and xii., post? But the extent of the master's liability becomes fixed at the time when the contract is broken by him, and cannot be enlarged by any subsequent acts of the servant. He cannot, without the master's consent, acquire a right to additional compensation by continuing the performance of his duties after the dismissal.^ As regards the master, the effect of a wrongful dismissal, accord- '^ Edwards v. Block (1884) 73 Ga. servant for the future, and you may 450. The court said that such deolara- regard that determination in two ways : tions were merely gratuitous, and in no It is either a determination in con- sense related to the contract which had formity with the rights of the master been terminated by the fire. Supposing which arise under the contract itself, the declarations to amount to a new there being, as I have said in every contract, they had not been declared contract of service an implied condition en as such. that, if faithful service is not rendered, liJesc V. Hardborn (1810) 12 East, the master may elect to determine the 51; Rex V. Polesworth (1819) 2 Barn, contract, and the determination takes ■& Aid. 483 (master refused to permit place on that implied condition; or you resumption of work by a servant who may regard it under the more general had, as the custom of the country en- law, which is not applicable to con- titled him to do, gone to a fair to find tracts of service alone; you may treat a place for the ensuing year). it as the wrongful repudiation of the 2 In Boston Deep Sea Fishing & Ice contract by one party, being accepted Co. V. Ansell (1888) L. R. 39 Ch. Div. by the other, and operating as a de- (C. A.) 339, 59 L. T. N. S. 345, the termination of the contract from that following remarks were made by Bowen, time, that is, from the time the party L. J. : "Some confusion always arises, who is sinned against elects to treat as it seems to me, from treating these the wrongful act of the other as a. <:ases between master and servant as breach of the contract, which election instances of a rescission of the orig- on his part emancipates the injured inal contract. It is not a rescission of party from continuing it further." This the contract in the sense in which the language was adopted as an accurate term ordinarily is used, viz., that you statement of doctrine by Cozens-Hardy, relegate the parties to the original M. R., in the recent case of General position they were in before the con- Billposting Co. v. Atkinson [1908; C. tract was made. That cannot be, be- A.] 1 Ch. 537. cause half the contract has been per- 3 White v. Lumiere North American formed. It really is only a rescission Co. (1906) 79 Vt. 206, 6 L.R.A. (N.S.) in this sense, that an act occurs which 807, 64 Atl. 1121. determines the relation of master and 192] TERMINATION OF THE CONTKACT. 609 ing to the decided preponderance of authority, is to preclude him, absolutely and under all circumstances, from regaining any of his contractual rights, except in so far as the servant may consent to restore them.* In this point of view it has been held that the serv- ant cannot, against his will, be deprived of his right of action for the wrongful dismissal,* and that, after having been ordered to leave, he is not bound to continue or resume work at his master's request.® In one state, however, the position has been taken — erroneously in the opinion of the writer — that such a request must be complied with, unless he has accepted employment from another master.' 4 See Sutton v. Tyrell (1840) 12 Vt. 79, and the cases cited in the next two notes. ^ Uearing v. Pearson (1894; C. P.) 8 Misc. 269, 28 N. Y. Supp. 715, affirm- ing (1894) 6 Misc. 617, 26 N. Y. Supp. 74. In drem. v. Hulett (1850) 22 Vt. 188, where the plaintiff had not acted immediately upon the defendant's order to quit, but had continued to render services for a few hours, it was laid down that his conduct in remaining at work did not amount to such a waiver of the master's breach of contract as would convert his ultimate withdrawal into a. wrongful abandonment. This conclusion, it was held, was not affect- ed by the circumstance that, on a subse- quent day, he stated, as a reason for not returning to the employment, that he was doubtful regarding the defend- ant's solvency. ^ Youngberg v. Lamberton (1903) 91 Minn. 100, 97 N. W. 571. The court said: "We know of no rule that would then (i. e., after discharge) permit de- fendant to repudiate his own action, and re-establish the obligations of the other party." In Pricho/rd v. Martin (1854) 27 Miss. 305, it was held that the servant was under no such obligation, where he had been told that he might stay, but the offer was made upon a certain condition implying that he was to do more than the contract required him to do. Whether the court considered that such an obligation would have been predicable if the condition had not been attached is not apparent from its opin- ion. 1 1n Saunders v. Anderson ( 1 834 ) 2 Hill, L. 486, the court thus stated the grounds upon which its conclusion was M. & S. Vol. I.— 39. based: "By the terms of the contract, the defendant was entitled to the whole year's service, and consequently he had the right to exact or dispense with any portions of the time, and capriciously if he chose, provided he inflicted no injury or inconvenience on the plaintiff. If he had said to the plaintiff, 'I only want your services for a portion of the year, and at irregular intervals,' would that excuse the nonperformance of the contract at the periods when his services are required by defendant? Certainly not." The obvious flaw in this reason- ing is that the right of the master referred to is predicated only in cases where the contract is viewed as sub- sisting. After the contract has once been broken by the master, the servant is, it is submitted, clearly entitled to treat it as having been finally dissolved. His obligation to resume work, if there be any such obligation, is coextenslvf. with, and of the same nature as, his obligation to accept work from a third person in order to keep down damages. This, however, is not an absolute obli- gation, but merely one which the serv- ant may or may not be bound to per- form, according to circumstances, the principal consideration being the char- acter of the work offered and its various desirable or undesirable incidents. The existence of the obligation in any given instance, therefore, is a question of fact, and is not referable to any fixed rule of law, operating in all cases which do not involve the exceptive circumstances mentioned in the text. In a later case, however, the legal principles laid down in Saunders v. Anderson were once more enunciated. Mitchell V. Toale (1886) 25 S. C. 238. 60 Am. Rep. 502. There it was held that, as the obligation of a dismissed 610 MASTER AND SERVANT. [chap. vi. b. BightfvJ dismissal.- — After a servant has been dismissed for sufficient cause, his master is not bound to accept an offer on his part to resume work, however short may be the interval which has elapsed between the dismissal and the offer.' 193. — with regard to special subsidiary stipulations. — The question whether a contract embracing subsidiary stipulations is entire in such a sense that the wrongful dismissal of the servant constitutes a breach of those stipulations, as well as of the stipulation to employ, is to be determined by a construction of the whole contract.^ servant to return upon request was ter stipulation. Butchens v. Suther- subject to qualification under the cir- land (1895) 22 Nev. 363, 40 Pac. 409. cumstances mentioned in the text, it The court said: "A fixed sum, payable was not error to refuse to charge the every month, was to be paid him for his Jury in general terms that he was bound services. This part of the agreement to return. But as it appeared that the was an ordinary contract of hiring, to servant, at the time he was requested continue until the happening of an to balance his books, had not been en- uncertain event in the future. Although gaged by others, and it was no injury a part of the agreement as originally to him to be recalled to do this work, made, it could have been as well made an instruction that the defendant had at any other time, and could have been no right to recall the plaintiff, unless contained, as it really was, in a separate he was to be restored to his former instrument. Each agreement was com- position, was held to be erroneous. plete in itself. The hiring of the plain- 8 In Bowes v. Press [1894] 1 Q. B. tiflf did not increase the defendant's 202, 63 L. J. Q. B. N. S. 165, 10 Times liability on the sale, nor did it increase L. R. 55, it was held that a miner the plaintiff's security; for there was complained of, under § 3 of the Eng- no provision that he was to have any lish employers and workmen act 1875, particular control or management of by the owners of a coal mine, for the mining operations; and, in its ab- "wrongfully absenting himself from his sence, we must suppose the intention employer's service" by his refusal to was that he should act under the con- descend the shaft in a cage in which trol and direction of the owner, the there were nonunion workmen, could same as any other superintendent would, not maintain a counterclaim on the Again, it is unreasonable to suppose ground of a wrongful refusal to allow that the parties intended the rendition him to follow his employment, because of the services by the plaintiflF to coh- a few seconds after his refusal he of- stitute a condition precedent to the pay- ferred to go down in a cage containing ment for the mines, so that, no matter no nonunion miners, and permission what the mines might produce in the to do so was refused him by the "banks- way of net proceeds, he would have man" in control of tne shaft top, where forfeited all claim upon them had he the contract allowed dismissal or sus- died, or become sick, or, by reason of pension for disobedience to orders, and disagreement with his employer, or for he was subject to the orders of such other reason, had ceased to work for manager. him. But if he would not, then the 1 Where a person was employed to defendant did not incur a like penalty superintend a business for a certain by discharging him. It would be equal- salary, under a contract by which the ly absurd to suppose, without clear Ian- business was to be purchased from him guage to that effect, that the defend- in consideration of a certain portion ant intended to bind himself to keep of the net proceeds, the stipulation to the plaintiff employed as superintend- employ and the stipulation to pay the ent, whether satisfied or not with his consideration were held to be separable, services, or, if he did not, to pay him the consequence being that his dismissal immediately his full share of net pro- did not constitute a breach of the lat- ceeds that might never be obtained." § 194] TERMINATION OF THE CONTRACT. 611 The effect of such a dismissal upon the obligations of the servant in respect of stipulations which restrict his right to enter into con- tracts with other persons after the relationship between him and his master has been terminated is discussed in § 301a, post. 194. — with regard to the person and property of the servant. — .Unless the given contract confers upon the servant a higher and more extensive interest in the master's business and property than that which is ordinarily incidental to a contract of hiring and service,^ or he is occupying as a tenant, and not merely in his character of servant, premises belonging to his master,^ he cannot, after having been dismissed, "insist on remaining in the house, or office, or other premises of the master against the master's will, but must make his pecuniary claim, and, if necessary, enforce it." ^ 1 In Champion v. Hartshorne (18.33) 9 Conn. 564, A and B entered into an agreement in writing, but not under seal, whereby B stipulated to perform the various duties of superintendent of the plaintiff's cotton manufactory for the term of five months; and A, on his part, stipulated, to pay B a certain sum. When about half the term had expired, B used insulting language to A, and threatened him with personal violence; whereupon A dismissed him, forbade him to enter the manufactory, and notified the workmen that they were no longer under B's direction. B, not- withstanding his dismissal, entered, and endeavored to persuade the workmen not to obey A, but to work under B, claiming a right so to do by virtue of the agreement. In an action of. trespass brought by A against B for such entry, it was held (1) that the contract was a mere contract for services; (2) that B had no interest in the profits of the establishment, nor any interest in enter- ing the manufactory, except for the purpose of entitling himself to wages as a servant; (3) that his right to enter, after being dismissed, did not depend upon the cause of dismissal; and (4) that his right to enter did not depend upon the actual payment of hia wages; his legal right to enforce pay- ment, if entitled to them, being for this purpose equivalent to actual pay- ment. In reply to the contention, that the plaintiff had not the power to re- scind the contract, and that as it was still in force, the defendant had a right to enter under it, the court said: "The premises may be admitted, while the conclusion is denied. It is not claimed that the contract either was or could be rescinded by the act of the plaintiff alone. Notwithstanding the dismissal of the defendant, the contract remained, and his remedy upon it was still open. But it does not therefore follow that the right of entry remained. It does not follow that where a servant is dis- missed without cause, and without his consent, he has therefore the right to continue his employment, and to enter the master's house in the face of his prohibition. Such I do not understand to be the law; but that the master has, at all times, the power to dismiss his servant, making himself responsible for the consequences when he dismisses without cause." 8 The distinction between these two kinds of occupation is discussed general- ly in chapter in., subtitle B, oMte. 3 Lord Shand in GUft v. Portohello Pier Co. (1877) 4 Sc. Sess. Cas. 4th series, 462. See also Champion v. Harts- horne, note 1, supra; and § 78, notes 4 et seq., ante, where the eases which declare the master to be entitled to eject a servant from premises which he occupies in the capacity of a serv- ant merely, and not as tenant, are col- lected. In Swartwood v. Walhridge (1890) 57 Hun, 33, 10 N. Y. Supp. 862; where the plaintiff, a teacher in a public school, claimed damages for an assault com- mitted upon her by one of the trustees while she was attempting, after her discharge, to force an entrance into the 612 MASTER AND SERVAXT. [CHAP. VI. The master is also entitled to remove the servant's personal effects from his premises.' ISTor is he under any legal duty — in some in- stances at least — to permit a servant who has wrongfully abandoned his employment to re-enter the premises for the purpose of recover- ing possession of articles belonging to him.® Where an employer hires the property as well as the services of an employee for a certain period, any right which the former may have to the possession of the property ceases the moment the contract is determined, whether wrongfully or rightfully; and his retention of it after a demand by the employee for its restoration is an action- able wrong.'' 195. — with regard to the master's chattels used for the purposes of the servant's work. The general rule is that, "when a servant is dis- missed, under whatever circumstances this may be, he is bound to leave behind him the property of his master." * The due perform- ac.hoolhouse, for the purpose of resum- ing her duties, it was held that her proper remedy, if her discharge was wrongful, was "to tender a continuance of her services, and recover her com- pensation as if those services had been actually rendered during the term of her employment," and that, "if she mis- toolc her remedy, the defendant was justified in resisting force by force, and was liable in this action only for excess of force employed." 8 A servant cannot recover damages against the master for having removed his furniture without a warrant, the master having allowed him a reason- able time for removing it. Sinclair V. Tod (1906-1907) Sc. Sess. Cas. 1038. See also cases cited in § 78, note T ffyt ^f^ 'sin Sloss-Sheffield Steel & I. Co. v. Prior (1907) 151 Ala. 576, 44 So. 649; it was held that a rule of a mining company to the effect that miners who left its employ should not be permitted to enter its mine, the object of the rule being to exclude the members of a striking union, was reasonable, and that the company was justified in re- fusing to permit striking miners from going into the mine to get their tools. Whether the exclusion of a servant by an employer who has not protected him- self by such a rule is justified is a question with respect to which there seems to be no direct authority. "J Wilson V. Press Pul. Co. (1895) 14 Misc. 514, 36 N. Y. Supp. 12 (perfor- mance of contract was wrongfully ter- minated in this case). Daly, Ch. J., in his concurring opinion, remarked: "The action which the plaintiff has brought for unlawful seizure and de- tention of his books and property, and for injury to his business, is the only one in which lie could be adequately compensated for the actual damage he has sustained, if his allegations in that regard are substantiated. The action for the breach of his contract with the defendant would only give him as dam- ages the value of the contract, which was for only one year, while the dam- age actually done, as he claimed, is much more extensive; since the seizure and detention of his books and papers caused a disruption of a business which he had built up and maintained long before his connection with defendant, which he might prosecute indefinitely after those relations were at an end, and which might be altogether destroyed if interrupted by defendant in such a manner as to entail the loss of cus- tomers, trade, and good will." 1 Lord Inglis in Clift v. Portobelto Pier Go. (1877) 4 Sc. Sess. Cas. 4th series, 462. There a person engaged as manager of a refreshment room stipu- lated in his contract with the defend- ant company that he would apply in his own name for a license to sell excisable liquors on the premises, which § 195] TERMINATION OF THE CONTRACT. 613 ance of this obligation is not infrequently made one of the specific conditions of the service.* Whether the property in question actual- ly belongs to the master or to the servant is, of course, a question of fact in each instance.* In the absence of a special stipulation to the contrary,* any clothes ■with which the master has agreed to provide the servant remain the property of the master, the same rule being applicable to plain clothes and livery.* license he was to be "bound to assign to such person as the proprietors might require." He obtained a license at the expense of the company, and was after- wards dismissed summarily, without the month's notice stipulated for in the con- tract. It was held that he was bound to deliver up the license to his employ- ers, as it was their property, but {dub. Lord Shand) that he was not bound to execute an assignment of the license, since that could only be transferred by the act of the licensing magistrates. Lord Shand said: "He applied for the certificate, and it appears to me that he did so practically as the servant of the company, and that, therefore, the certificate was their property." In a proceeding under § 24 of the English building societies act 1874, which requires every officer of a society registered under it to give in his ac- counts when demanded by the directors, and surrender the books, papers, and other property of the society in his possession, the fact that he had been wrongfully dismissed was held to be irrelevant. Munro v. First Edinburgh Starr-Bmoket Bldg. Soo. (1883; Se. Sess.) 21 Scot. L. R. 6. In a later case arising out of the same facts, the court granted an Injunction restraining the officer from interfering with the management of the society. First Edin- burgh Starr-Bowket Bldg. Soc. v. Munro (1884; Sc. Sess.) 21 Scot. L. R. 291. Lord Shand said : "As Munro has been dismissed by the society, it is clear that he cannot be permitted to retain his office as secretary, to the efi'ect of interfering with the work of the society. An employer of labor is entitled to dis- miss his servant if he Is so disposed, while the servant on his part has a money claim for damages, if he can make out a case of wrongous dismissal; but he cannot claim to remain in the office from which he has been dismissed, or to continue to do the work of that office." 2 As, where the rules of a friendly society stated that Its "collectors should be provided with books at the expense of the society, such books to be the society's property," and that, "if any collector shall resign or be dismissed, he should deliver up all collecting books." Ellwood v. Liverpool V. L. F. 8oc. (1880) 42 L. T. N. S. 694. It was there held by Stephen, J., that the mere fact that the collector In question, when assuming his duties, had purchased from the outgoing collector the books in which the names of the members of the society had been entered by the latter, did not give the incoming col- lector such an Interest in the books as to entitle him to demand compensation for delivering them up, after he had been rightfully dismissed. S Books In which the draftsman of an engineering firm made sketches, from which finished drawings were after- wards niade, of all the machinery manu- factured by the firm, and which con- tained no original designs of his own, were held to belong to his employers. The fact that he had, in point of fact, purchased the books at his own expense, was declared to make no difference, as it was shown that he was authorized to purchase them at the expense of his employers. Rollo v. Thomson (1857) 10 Sc. Sess. Cas. 2d series, 587. See also preceding note. * A servant hired for certain yearly wages and a suit of clothes cannot, upon being wrongfully dismissed during the year, maintain trover for the clothes. His proper remedy is an action for not being allowed to serve a year, and so become entitled to them. Crocker v. Molyneux (1828) 3 Car. & P. 470. ^Sheills V. Dalzell (1825) 4 Sc. Sess. Cas. 1st series, 136. 614 MASTER AND SERVANT. [chap. vi. 195a. — with regard to articles purchased from the master for resale. — The rescission of a contract with a traveling salesman, in the exercise of an option to terminate it any time by giving him notice, does not affect the rights of the salesman in resisect of articles purchased by him for resale in the district allotted to him.^ 196. — with regard to third persons. — By discharging a servant, a master incurs no liability to third persons, whether the discharge be rightful or wrongful. Accordingly, an action will not lie against an employer for discharging, or threatening to discharge, employees, on the ground of their being customers of the plaintiff,* nor for his re- fusal to hire or retain in his service any person renting a house from the plaintiff.* C. Teemiktation' of cowteact by mastee. Subject consideeed WITH EEFEEENCE TO SPECIFIC STIPtTLATIONS DEFINING HIS EIGHTS. 197. Stipulations permitting rescission if the work is not satisfac- torily performed. — Contracts of hiring frequently embrace stipula- tions to the effect that the employee may be dismissed, or the results of his work rejected, if his services are not performed in a manner defined by the term "satisfactorily," or some word of similar or analogous significance.* Such stipulations are not contrary to pub- 1 White Sewing Mach. Co. v. Shad- factory operation, and that is the ven- dock (1906) 79 Ark. 220, 95 S. W. 143. dee." Campiell Printing Press Co. v. I Payne V. Western £ A. R. Co. {ISSi) Thorp (1888) 1 L.R.A. 645, 36 Fed. 13 Lea, 507, 49 Am. Rep. 666; Inter- 414, 418. national & G. N. R. Co. v. Greenwood But a different theory was apparently (1893) 2 Tex. Civ. App. 76, 21 S. W. assumed in Glyn v. Miner (1894; C. .559; Graham v. St. Charles Street R. P.) 6 Misc. 637, 27 N. Y. Supp. 341. Co. (1895) 47 La. Ann. 214, 27 L.R.A. There the court, while holding that the 416, 49 Am. St. Rep. 366, 16 So. 806. employer's judgment was final, under i Heywood v. Tillson (1883) 75 Me. a stipulation that the services were to 225, 46 Am. Rep. 373. be performed so as to be "deemed satis- 1 The better opinion seems to be that factory by the employer,' distinguished no distinction can be based upon the the earlier decision in Bydecker v. Wit- fact that words are or are not used, Hams (1892; C. P.) 45 N. Y. S. R. showing that the employer is the per- 637, 18 N. Y. Supp. 586, to the effect son to be satisfied. "When, in common that, under a stipulation that the em- language, we speak of making a tiling ployee might be discharged if Ids duties satisfactory, we mean it shall be satis- were not "satisfactorily" performed, the factory to the person to whom we fur- question of satisfactory performance nish it. It would be nonsense to say was for the jury. The ground of the that it should be satisfactory to the distinction was stated to be, that this vendor. It would be indefinite to say language meant that the duties were to that it should be satisfactory to a be performed so as to satisfy the re- third person, without designating the quirements of the contract, and that person. It can only be intended that that was a question which the jury it shall be satisfactory to the person could decide as well as the master; who is himself interested in its satis- while in the ease before the court the S 197] TEKMINATION OF THE CONTEACT. 615 lie policy.* The cases in which they constitute an element are of two descriptions. "In the one class the right of decision is complete- ly reserved to the promisor, and without being liable to disclose rea- sons or account for his course ; and a right to inquire into the grounds of his action and overhaul his determination is absolutely excluded from the promise and from all tribunals. ... In the other class the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination on grounds which are just and sensible, and from thence springs a necessary implication that his decision in point of correctness, and the adequacy of the grounds of it, are open considerations, and subject to the judgment of judicial triers." ^ The general grounds upon which stipulations belonging to the former of these classes are treated as binding upon the employee are these : (1) That, however "injudicious or indiscreet" the employee may have been in undertaking to work for a compensation the payment of which is made "dependent upon a contingency so hazardous or doubt- ful as the approval or satisfaction" of a party in interest, neverthe- less, "against the consequences resulting from his own bargain the agreement implied that the services justify a holding that the written part were to be personally satisfactory to should govern to the disregard of the the employer himself. rights given the employer by the priut- An employer cannot, of course, take ed part. Starkweather v. Emerson Mfg. advantage of a stipulation of this de- Co. (1906) 132 Iowa, 266, 109 N. W. scription, unless it is inserted in the 719. contract, or originally made or subse- For text-books dealing with provisos quently accepted by the employee. Ac- in building contracts, that the work cordingly, a letter written by the em- shall be done to the satisfaction of the ployer's agent, after the contract of employer, the reader is referred to the employment has been completed, and folowing: Emden, Bldg. Leases & Bldg. purporting to embody the terms of the Contr. p. 50; Jenkins & R. Building employment, will not change the terms Contr. pp. 43 et seq.; Wait, Engineering of employment; and the employee may & A. Jur. § 340. stand on the contract as made. Fitz- As to the effect of specific agreements Patrick Square Bale Ginning Co. v. Mo- under which the employer is to pay Laney (1907) 153 Ala. 586, 127 Am. whatever compensation he thinks fit, St. Rep. 71, 44 So. 1023. see § 438, post. The printed part of a contract of 8 This doctrine was explicitly laid employment gave the employer power down in E&tchkiss v. Gretna Ginnery to cancel the contract "at any time" & Compress Co. (1884) 36 La. Ann. for "incompetency, dissipation, miscon- 517 and Campbell Printing Press Co. duct, or violation," of instructions, v. Thorp (1888) 1 L.R.A. 645, 36 Fed. There was also inserted in writing a, 414. It is, of course, taken for granted provision to the effect that, if the em- in all the other cases cited in this and ployee's services should prove "unsatis- the following sections, factory" at the expiration of six months, 3 Wood Reaping & Mowing Mach. Co. the employer might cancel the contract v. Smith (1883) 50 Mich. 565, 570, 571, by giving thirty days' notice. Held, 45 Am. Rep. 57, 15 N. W. 906. that there was no such conflict as to 616 MASTER AND SERVANT. [chap. vL law cau afford him no relief. Having voluntarily assumed the obli- gations and the risk of the contract, his legal rights are to be ascer- tained and determined solely according to its provisions." * (2) That, as the words "satisfactorily," or the like, refer to the mental condition of the employer, and not the mental condition of a court or jury, the right of determining whether the employee filled his position satisfactorily "miist, from the nature and necessity of the case, belong to the person whose interests are directly affected by the plaintiff's action." ' (3) That, "if . . . [the employer] is required to prove facts and circumstances that would justify him in feeling dissatisfied with the manner plaintiff filled his office, it would be annulling this clause of the contract, as, without such a cause, he would have the right to dismiss the plaintiff if he did not properly perform his duties." * Neither the second nor the third of these propositions embodies a reason of so conclusive a description as that which is supplied by the first. But the considerations adverted to are manifestly of great im- portance, as being indicative of the evidential difficulties inherent in the practical application of a doctrine under which the correctness of the employer's judgment regarding the quality of the services ren- dered would be subject to review. Stipulations of this character, if couched in general terms, will,. i McCarren v. McNulty (1856) 7 "Parties make their own contracts. Gray, 139, 141. Compare also the fol- and either may stipulate as he may lowing statements: deem it necessary for his own pro- "It ie not for anyone else [i. e., than tection, and it is optional whether the the employer] to decide whether a re- other accepts the terms proffered. Hav- fusal to accept is or is not reasonable, ing once made the contract, neither can when the contract permits the defendant hold the other to a different contract, to decide himself whether the articles When, therefore, one guarantees to give furnished are to his satisfaction. Al- satisfaction, he assumes the undertaking though the compensation of the plain- to perform the work in such manner tiff for valuable service and materials as to satisfy the other, and invests the may thus be dependent upon the caprice latter with full power to determine of another who unreasonably refused the reasonableness of the cause. We to accept the articles manufactured, cannot presume the contract would have yet he cannot be relieved from the con- been made without such a provision, tract into which he has voluntarily or on any other terms." Allen v. entered." Brown v. Foster (1873) 113 Mutual Compress Co. (1893) 101 Ala. Mass. 136, 138, 139, 18 Am. Eep. 463. 574, 576, 14 So. 362. "Where parties thus deliberately ^ Tyler v. Ames (1872) 6 Lans. 280, enter into an agreement which violates 281. See also Stewart & Co. v. Exum- no rule of public policy, and which is (1909) 132 Ga. 422, 64 S. E. 471. free from all taint of fraud or mistake, 6 Tyler v. Ames ( 1872 ) 6 Lans. 280. there is no hardship whatever in hold- To a like effect see Allen v. MutU/al ing them bound by it." Gibson v. Compress Go. (1893) 101 Ala. 574, 576, Cranage (1878) 39 Mich. 49, 50, 33 14 So. 362; Peverley v. Pool (1885) Am. Rep. 351. 19 Abb. N. C. 272, note. S 198] TERMINATION OF THE CONTRACT. 617 it seems, ordinarily be construed as being applicable with regard merely to the unsatisfactory performance of work during the period covered by the contract of hiring.'' In some instances it may be a question whether an intention to terminate the contract in pursuance of his reserved right is inferable from the language used by the employer.' With regard to the obligation of the master to give notice of his dissatisfaction when the servant is taken on trial, with a stipulation respecting the continuance of the employment in the event of his work being found satisfactory, see § 212, post. Many of the decisions reviewed in the following sections turn on the effect of stipulations inserted in independent contracts. It may be advisable, therefore, to state that these decisions have been cited simply for the reason that an adequate treatment of the subject would be impossible if only those which relate to stipulations between mas- ters and servants were noticed. For the purposes of the present dis- cussion it is manifest that the relevance of a precedent is in no wise dependent upon the question whether the given contract was or was not such as to render the employer a master as regards the employee. 198. Under what circumstances the employer's judgment as to the quality of the work is conclusive. — In a recent case the supreme court of Minnesota undertook to generalize the effect of the decisions in the following statement : "Where they [i. e., the parties] have had in view to satisfy the taste, feelings, sensibility, or judgment of the party, the decisions have generally held that the stipulation that the thing to be done must be to his satisfaction was absolute, and his decision that it was not to his satisfaction was intended to be final and unquestionable. 'A contract between an opera com- stand good for three years, when the pany and a tenor singer employed for market will justify sales in that ter- a specified season under which he may ritory," with a provision that, if the be discharged if incompetent, the vocal party employed was unable to represent and musical directors to be the sole the business in a satisfactory manner^ judges of the fact and extent of incom- the employer would be released from petency, was held to authorize his dis- the agreement, it was held that the charge only for incompetency appear- statement in a letter from the employer, ing after the signing of the agreement, "that your business has been unsatis- and not for that shown at rehearsals factory to us in the extreme," did not prior to the signing of the contract, justify the inference of a termination Walton V. Godwin (1890) 58 Hun, 87, of the employment where it was also 33 N. Y. S. R. 886, 11 N. Y. Supp. 391, shown that the employer thereafter con- rehearing denied in (1890) 35 N. Y. tinued to fill orders sent by the era- S. R. 991, ]2 N. Y. Supp. 436. ployee, and to pay him commissions in 8 Where the plaintiff had been em- accordance with the terms of the con- ployed to sell flour in a certain ter- tract. Caldwell Min. Co. v. Snivel^- ritory, under a written contract "to (1908) 78 Kan. 556, 96 Pac. 943. €18 MASTER AND SERVANT. [chap. vi. On the other hand, where the chief thing the parties have had in mind was to effect some definite purpose or end, of the performance of which others could judge just as well as the parties could, and which involved no considerations strictly personal, the stipulation that it should be done to the satisfaction of the party has been generally held not to be controlling." ^ The court mentioned, as exemplifying the first and second of these categories respectively, contracts to render personal services of a general nature — more especially where the employment "involves considerations of fitness, business capacity, integrity, trust, and confidence;" and contracts to execute a fijxed and definite work, such as the erection of a speci- fied kind of fence. It would seem, however, that in this generaliza- tion the court has ascribed to personal taste a higher significance, as a differentiating factor, than is warranted by the decisions. For the purpose of gauging more accurately the real effect of the cases in this particular point of view, it will be convenient to divide them into three groups. (1) In one group the fact that the performance of the contracts in question involved the gratification of the employer's personal taste is adverted to in terms which show more or less distinctly that this element was specifically treated as being the determinative element.^ But the courts did not use any language from which it can reasonably 1 Frary v. American Rubier Co. "the law will say a contracting party (1893) 52 Minn. 264, 268, 18 L.R.A. ought in reason to be satisfied with, C44, 53 N. W. 1156 (plaintiff was to that the law will say he is satisfied carry on defendant's business in a dis- with." tant city). The rule laid down in this In Crawford v. Mail & Exp. Pub. Co. case was cited as controlling by the (1900) 163 N. Y. 404, 57 N. E. 616, same court in a case where a contract aflSrming (1897) 22 App. Div. 54, 47 for the employment of a manager of a N. Y. Supp. 747 (former appeal [1896] grain elevator was involved. Beissel v. 9 App. Div. 481, 41 N. Y. Supp. 325), Vermillion Farmers' Elevator Co. where it was held that, under a con- (1907) 102 Minn. 229, 12 L.R.A.(N.S.) tract by the plaintiff to write for a 403, 113 N. W. 575. newspaper for a specified period, pro- 2 In Duplex Safety Boiler Co. v. vided his services were "satisfactory to Garden (1886) 101 N. Y. 387, 54 Am. the publishers," they were the sole Rep. 709, 4 N. E. 749, Danforth, J., arbiters of the quality of the work done, referred, arguendo, to the conclusive- the court said: "An article printed ness of the employer's judgment, when- in a paper or magazine may please ever the object of the contract is "to one person, and displease another. It gratify taste, serve personal conven- may gratify the taste of one, and be- ience, or satisfy individual preference." come the subject of criticism and ridi- But the case before the court (involving cule on the part of another. The plain- a. contract for the repair of a boiler, tiff did not agree to satisfy a court or to be paid for, only when the defend- jury, but undertook to satisfy the pub- ant was "satisfied" that it was, as lishers. It was their taste, their fancy, changed, a "success"), was denied to their interest, and their judgment that be within the scope of this principle, was to be satisfied. It further appears and decided on the ground that what that the plaintiff was paid in full to ^ 198] TERMINATION OF THE CONTRACT. 619 be inferred that they considered his judgment to be final only in •cases where the contract is of this description. the time of his discharge and for the "Week for which the notice was given, and that the time for which the plain- tiff seeks to recover in this action the ■contract was executory. It is not, there- fore, a case of a completed contract, in which work has been performed in an ordinary business, commercial or other- wise, such as the repairing of a boiler under a stipulation that it should not leak, and that the owner should be satis- fled that it was a success, or that the woodwork in a house should be polished, stained, and rubbed in the best work- manlike manner, under the supervision of a superintendent named, to the satis- faction of the owner. Duplex Safety Boiler Co. v. Garden (1886) 101 N. Y. 387, 54 Am. Rep. 709, 4 N. E. 749 [see above]; Doll v. tJoUe (1889) 116 N. Y. 230, 5 L.R.A. 554, 15 Am. St. Rep. 398, 22 N. E. 406. We consequently think this case is brought within the line of the authorities distinguishable from the above cases, but recognized in them, involving taste, fancy, inter- est, personal satisfaction, and judg- ment." The court distinguished cases like Smith v. Rohson (1896) 148 N. Y. 252, 42 N. E. 677, in which the mas- ter has the power to discharge the serv- ant, if "in good faith" he shall be satisfied of the incompetency of the employee, and in which the question of good faith is held to be one of fact. See § 199, note 9, post. Where plaintiff contracted with de- fendant to render satisfactory services in her specialties at two performances each day for a theatrical engagement of one week, and was discharged in good faith after one performance be- cause her services were unsatisfactory to the defendant and the public, it was held that she could not recover the sum provided in the contract for the week's services. Parker v. Hyde & B. Amuse- ment Co. (1907) 53 Misc. 549, 103 N. Y. Supp. 731. Where an employee entered into a written contract with his employer, to continue at least three years if the former proved himself "competent and satisfactory," and agreed to perform all the duties of a first-class gardener and manager of his employer's place, to "the satisfaction" of the latter, he was subject to be discharged if the employer was dissatisfied; and this was not de- pendent on whether there were reason- able and sufficient grounds for such dis- satisfaction. Mackenzie v. Minis ( 1909 ) 132 Ga. 323, 23 L.R.A. (N.S.) 1003, 63 S. E. 900, 16 Ann. Cas. 723. Where defendant employed the plain- tiff as an actor under a contract pro- viding that, if his services were not satisfactorily rendered in the estimation of defendant, defendant might cancel the contract, but not providing for a notice, it was held that defendant had the right to discharge the plaintiff when his services ceased to be satisfactory, since the employment involved taste, fancy, and personal satisfaction or judgment; and the good faith of defend- ant in discharging him was not ma- terial. Saxe v. Shubert Theatrical Co. (1908) 57 Misc. 620, 108 N. Y. Supp. 683. On similar grounds, in Olenny v. Lacy (1888; City Ct.) 16 N. Y. S. R. 798, 1 N. Y. Supp. 513 (agreement by playwright to alter a play to the satis- faction of the employer), the employer was held to be the absolute judge of the quality of the work. In an action on an alleged contract of employment of an actress, a request to charge that, if plaintiff undertook to give a satisfactory performance, de- fendants could terminate the employ- ment at pleasure without assigning any reasons, was held to have been improper- ly modified so as to make the right to terminate the employment depend upon her competency to fill the part. Weaver V. Klaw (1891; City Ct.) 42 N. Y. S. R. 675, 16 N. Y. Supp. 931. In Gwynne v. Hitchner (1901) 66 N. J. L. 97, 48 Atl. 571 (contract for the hire of a color-mixer), the court observed: "In the case before us, taste is, to some extent, involved in the ap- proval of the coloring impressed upon wall paper, and it may properly be classified with that line of cases in which the purchaser's right to reject without assigning any reason, and where his action may appear to others to be unreasonable, has been almost univer- sally acknowledged. The propriety of this rule appears conspiciously in this case, from the fact that the defendants' 620 MASTEE AND SERVANT. [chap. ti. (2) The same remark is applicable to another group of cases, all of which, under the system of classification proposed by the supreme court of Minnesota, would be treated as forming one subdivision of those involving matters of personal taste, for the reason that they relate to contracts for "personal services of a general nature." ' (3) In a third group of cases, although the contracts to which they business success would be imperiled if is therefore entirely optional with him fhey were constrained to retain the to discontinue the contract at any time plaintiff in their service under the cir- before its final performance; and if he cumstances here presented, at the risk sees fit to do so^ the other party is of being mulcted in damages by a jury without remedy." Johnson v. Bindseil if they discharged him." (The second (1890; C. P.) 15 Daly, 492, 28 N. Y. appeal of this case is reported in S. R. 881, 8 N. Y. Supp. 485. (1902) 67 N. J. L. 654, 52 Atl. 997). For other cases in which the finality In Kendall v. West (1902) 196 111. of the employer's judgment was affirmed 221, 89 Am. St. Rep. 317, 63 N. E. 683, with respect to contracts of employment the court remarked with reference to to do various kinds of work, see Quirk a, contract by a "monologue artist" to v. Haskins (1860) 15 La. Ann. 656 render "satisfactory services" : "It con- ( evidence as to competency of servant tained no provision in any manner not admissible) ; McClure Bros. v. limiting the appellee in the exercise of Briggs (1886) 58 Vt. 82, 56 Am. Rep. his judgment as to what should be 557, 2 Atl. 583 (rule that a master deemed 'satisfactory services.' The ap- reserving the right to terminate a con- pellant did not undertake to render tract of service if not satisfied has the services which should satisfy a court right to terminate the contract, al- or jury, but undertook to satisfy the though his dissatisfaction is without taste, fancy, interest, and judgment of cause, was recognized, without qualifi- appellee." The employer's right to ter- cation, in the judgment of a ease relat- rainate the contract was affirmed. ing to a sale); Bush v. Koll (1892) "There is no doubt of the general 2 Colo. App. 48, 29 Pae. 919 (no dam- proposition that where one party agrees ages recoverable for discharge where to do a piece of work to the satisfaction contract required servant to "render of another, the excellence of which work good and satisfactory service" ) ; Spring is wholly or in part a matter of taste, v. Ansonia Clock Co. (1881) 24 Hun, — such, for instance, as a portrait, a 175 (agreement to work for a year for photograph or bust, a suit of clothes, a stipulated sum, provided services were a musical instrument, or a piece of "satisfactory") ; XoeAier v. BuTii (1893) furniture, — the buyer may reject it 94 Mich. 496, 54 N. W. 157 (employee without assigning any reason for his agreed that his work should he done dissatisfaction." Campbell Printing- to the satisfaction of his employer) ; Press Co. v. Thorp (1888) 1 L.R.A. /Sfaa; v. />e*roit, (?. H. c6 M. 72. Co. ( 1900 ) 645, 36 Fed. 414, 415. 125 Mich. 252, 84 Am. St. Rep. 572, 84 3 A contract to employ an agent for N. W. 314 (stating, without qualiflea- a year, if he "could fill the place satis- tion, t])at in Michigan "the reasons for fiietorily," may be terminated by the or justice of the defendants' satisfac- employer when, in his judgment, the tion cannot be inquired into") ; Glyn agent fails to meet that requirement, v. Miner (1894; C. P.) 56 N. Y. S. R. Tyler v. Ames (1872) 6 Lans. 280. 341, 27 N. Y. Supp. 341 (reservation One who undertakes to pay a certain of right of discharge when services sum "upon the condition that he is should be "deemed not satisfactory" by satisfied with the performance of the the master) ; Allen v. Mutual Compress party to whom payment is to be made Co. (1893) 101 Ala. 574, 14 So. 362 must be held to be the sole judge as (employee "guaranteed to give satis- to whether he is satisfied or not; and faction" in sewing and tying cotton from his refusal to be satisfied, however bales, or any other work which the em- arbitrary or capricious such refusal ployee might be required to do) ; Oor- may be, there can be no redress. It gan v. George F. Lee Coal Co. (1907) i 198] TERMINATION OF THE CONTRACT. 621 related were more or less distinctly concerned with matters of per- sonal taste, we find the finality of the employer's judgment affirmed without any explicit reference to the peculiar characteristics of the work in that point of view.* 218 Pa. 386, 120 Am. St. Rep. 891, 67 Atl. 655, 11 A. & E. Ann. Cas. 838, {person employed "for so long a time, up to five years, as he satisfactorily performs his duties," may be dismissed whenever the employer becomes, in good faith, dissatisfied with his services). In Alexis Stoneware Mfg. Co. v. Young (1895) 59 111. App. 226, where the contract provided that the servant might be discharged if he should not prove satisfactory, it was held to be «rror to instruct the jury that the servant could not be legally discharged unless the employer's officers not only acted in good faith, but in a reason- able manner. In Koehler v. Buhl, supra, it was ruled that, in the absence of proof that a conversation with reference to it had occurred between the employer and ■employee, a letter received from a cus- tomer for whom the employee had done a piece of work was not admissible as ■evidence to show that the employer was dissatisfied, or that the work was not ^vell done. *In Peverly v. Pool (1885; City Ct.) 19 Abb. N. C. 271, note, under a con- tract for plaintiff's services as chorister in a spectacular play, providing that in case his services should not, "in the estimation of the" defendants, "be satis- factorily rendered, it shall then be law- ful for" the defendants to end the agree- ment, upon giving "the plaintiff" two weeks' "notice," it was held that plain- tiff might be lawfully discharged at any time without the defendants giving any reason therefor, and that it could not be left to the jury to say whether his services were satisfactorily rendered. The court said: "Defendants were not bound to give any reason for the for- mation of their estimate of plaintiff's services, nor did such decision depend upon the manner of plaintiff's perform- ance of his part alone; his services might, in the estimation of defendants, have been unsatisfactory to them for the reason that others could do better, ■or that his performance added nothing to the success of the production, or that there were too many in the chorus, or for numerous other reasons in their managerial economy which it is useless and idle to inquire into, as no court or jury could rightfully determine the matters which entered into the minds of the defendants in making up their estimate of the satisfactoriness with plaintiff's services." In McCarren v. MoNuUy (1856) 7 Gray, 139, it was held that an action for work and labor in making a book- case of a certain kind and dimensions, "in a good, strong, and workmanlike manner, to the satisfaction of" one of the defendants, is not maintained by proof that it was constructed according to the terms of the agreement, unless it is also shown to have been satisfactory to the employer. In Brown v. Foster (1873) 113 Mass. 136, 18 Am. Rep. 463, the plaintiff agreed to make and deliver to the de- fendant upon a day certain a suit of clothes, which were to be made to the satisfaction of the defendant. The clothes as made were not to the satis- faction of the defendant. The court said: "If the plaintiff saw fit to do work upon articles for the defendant, and to furnish materials therefor, contracting that the articles when manufactured should be satisfactory to the defendant, he can recover only upon the contract as it was made; and even if the articles furnished by him were such that the other party ought to have been satisfied with them, it was yet in the power of the other to reject tliem as unsatisfactory." The above case was followed in one where a person who contracted to make a coat for a customer out of certain skins which the customer furnished, the work to be done in a style designated by the customer, and the coat to be made to her satisfaction, was held to be precluded from recovering for a coat unsatisfactory to her, the evidence be- ing that her dissatisfaction was genuine. Haehnel v. Trostler (1907) 54 Misc. 262, 104 N. Y. Supp. 533. In Zaleski v. Clark (1876) 44 Conn. 218, 26 Am. Rep. 446, where the plain- G22 MASTER AND SERVANT. [CHAP. VI.. From the foregoing analysis it appears to be a reasonable deduc- tion that the boundary line between the cases in which the employ- tiflf undertook to make a bust which should be satisfactory to the defendant, the evidence shovi^ed that she vi^as not satisfied with it. The court said : "The plaintiff has not yet, then, fulfilled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to be satis- fied with. . . . Nor is it sufficient to say that the bust was the very best thing of the kind that could possibly be produced. Such an article might not be satisfactory to the defendant, while one of inferior workmanship might be entirely satisfactory. A con- tract to produce a bust perfect in every respect, and one with which the de- fendant ought to be satisfied, is one thing; an undertaking to make one with which she will be satisfied is quite another thing. The former can only be determined by experts, or those whose education and habits of life qualify them to judge of such matters. The latter can only be determined by the defendant herself. It may have been unwise in the plaintiff to make such a contract, but, having made it, he is bound by it." In Gib&on v. Cranage (1878) 39 Mich. 49, 33 Am. Rep. 351, the plaintiff agreed that a picture when finished by him should be satisfactory to the de- fendant. Commenting upon the fact that the contract was proved not to have been performed in this particular, the court remarked: "It may be that the picture was an excellent one, and tliat the defendant ought to have been satisfied with it and accepted it, but under the agreement the defendant was the only person who had the right to decide this question. . . . Artists or third parties might consider a, por- trait an excellent one, and yet prove very unsatisfactory to the person who had ordered it, and who might be unable to point out with clearness or certain- ty the defects or objections." A like conclusion was reached re- garding the effect of a similar contract in Clausen v. Vonnoh (1907) 55 Misc. 220, 105 N. Y. Supp. 102. In Finger v. Koch & 8. Brewing Go. (1883) 13 Mo. App. 310, where the en- gagement of a servant in a brewery was to continue for a year "if he did his work well," this proviso was con- strued as meaning, "to the satisfaction of the employer," and the court ob- served that, "in the very nature of such a contract, the question whether the work is done well or not, must be determined by the employer, and not. by the employed." In Williams v. Kansas City Suburban Belt B. Go. (1900) 85 Mo. App. 103, where the plaintiff, after having been' injured while serving as a railway con- ductor, was given a position as "pilot" in throwing switches, it was laid down in general terms that, under a con- tract stipulating that re-employment is. to continue as long as the service proves satisfactory to the master, his dissatis- faction, although unreasonable and ca- pricious, will justify the servant's dis- charge, provided the dissatisfaction was- honest and free from fraud. In Seaver v. Morse (1848) 20 Vt. 620, where the contract provided that, it might be terminated if either party became dissatisfied, provided that, when the cause of dissatisfaction should be- made known, it could not be removed, there was held to be sufficient ground for the employer's abandoning the con- tract, where the servant had been in- capacitated by sickness for one month. The master was declared to be the- sole judge of the quality of the services- of a traveling salesman in Starkweather V. Emerson Mfg. Go. (1906) 132 Iowa, 266, 109 N. W. 719; Watkins v. Napier- (1907) 44 Tex. Civ. App. 432, 98 S. W. 904. and Fields v. Dinkins (1910) 156 111. App. 528. Other cases which may be consulted' in this connection are Hoffman v. Gal- laher (1875) 6 Daly, 42 (agreement that the employer's friends were to decide whether his portrait was a good one); Moffatt v. Dickson (1853) 13 C. B. 543 (person agreeing to render serv- ices as architect, and prepare drawings for the approval of certain parties spe- cified in a statute, held not to be en- titled to recover anything until the- drawings had been approved by those parties); Andrews v. Belfield (1857) 2 C. B. N. S. 779 (agreement to build § 198] TERMINATION OF THE CONTEACT. 623 er's judgment is final and those "in which it is subject to review can- not be drawn with reference solely to the presence or absence of the element of personal taste, and that the significance of that element as a determinant cannot be put higher than this, — that, whenever the gratification of such taste may fairly be taken to have been the ob- ject of the given contract, it will always be construed on the assump- tion that the employer intended to reserve the right of being the sole judge of the reasonableness of his own dissatisfaction. This view accords with the statement of the supreme court of Michigan, that the cases in which the judgment of the person who is to pay for the the work is conclusive "are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considera- tions of operative fitness or mechanical utility which are capable of being seen and appreciated by others. But this is not always so." * Upon the whole, therefore, it would seem that, although the element of personal taste is determinative in the sense and to the extent above stated, no more precise or definite general rule can, with a due regard to the authorities as a whole, be laid down concerning cases of this description than that which was propounded by Cockburn, Ch. J., in construing a building contract: "Where the language of the con- tract will admit of it, it should be presumed that the parties meant only what was reasonable ; yet, if the terms are clear and unambigu- ous, the court is bound to give eifect to them, without stopping to consider how far they may be reasonable or not." ^ Under this a carriage in a manner which should 841 (agreement that grain binder should "meet the approval of the person for do good work and give satisfaction) ; ■vhom it was to be made, not only on McGormick Harvesting Mach. Co. v. the score of workmanship, but also that Chesrown (1884) 33 Minn. 32, 21 N. of convenience and taste." Held, that W. 846 (warranty that cord binder his rejection, made in good faith and would work satisfactorily) ; Graj/ v. not capriciously, was conclusive). Central R. Co. (1877) 11 Hun, 70; Compare also the following decisions Aiken v. Hyde (1868) 99 Mass. 183; as to contracts for the sale of specific Goodrich v. Van Nort-wick (1867) 43 articles: Camplell Printing Press Go. 111. 445. V. Thorp (1888) 1 L.R.A. 645, 36 Fed. ^ Wood Reaping & Mowing Mach. 414 (manufacture of printing presses Go. v. Smith (1883) 50 Mich. 565, 570, guaranteed to "do their work satisfac- 571, 45 Am. Rep. 57, 15 N. W. 906. torily'M ; Singerly v. Thayer (1885) « Stadhard v. Lee (1863) 3 Best. & 108 Pa. 291, 56 Am. Rep. 207, 2 Atl. S. 364, 32 L. J. Q. B. N. S. 75. There 230 (contract for manufacture of eleva- the contract provided that if the work tor, "warranted satisfactory in every should not proceed as rapidly and'sat- respect" ) ; Wood Reaping d- Mowing isf actorily as required by the employers, Mach. Co. v. Smith (1883) 50 Mich, they should have full power to take pos- 565, 45 Am. Rep. 57, 15 N. W. 906 session thereof. Held, in an action for (contract to be of no effect unless bar- work and labor, that a replication was vestin" machine worked to the satisfac- insufficient which only alleged that the tion of the vendee) ; Piano Mfg. Co. dissatisfaction of the defendants was V. Ellis (1888) 68 Mich. 101, 35 N. W. unreasonable and capricious, and did 624 MASTER AND SERVANT. [chap, vi, theory, the presence of the element of personal taste, however im- portant, becomes merely one of the circumstances which bear upon the intention of the parties. It seems to be upon the broader ground thus indicated that various decisions relating to contracts, of which at least a portion apparently cannot, without an undue straining of language, be classed with those involving that element, are preferably to be explained.'' In some instances, contracts of the type under discussion, instead of providing in general terms that the employee shall perform his duties satisfactorily, expressly state that the employer is to be "the absolute judge" of the manner in which those duties are performed. As to the effect of such a provision there can clearly be no question, whatever may be the nature of the stipulated work. It entitles the employer to dismiss the employee for breach of duty at any time, without specifying any particular act calling for dismissal.* 199. How far the actual existence of dissatisfaction on the em- ployer's part may be inquired into. — There is abundant authority for the doctrine that, even where the given stipulation belongs to the class of those which prima facie import the finality of the employer's judgment regarding the manner in which the employee performs his work, the questions whether the employer really was dissatisfied, and, if so, whether his dissatisfaction was the actual ground upon which the contract was rescinded, still remain open to investigation.* not aver mala fides in acting upon the 16 Ont. Rep. 495, Ritchie, Ch. J., said: stipulation. I can see no reason why a provision of 7 Grafton v. Eastern Counties R. Co. this Icind cannot be so framed as to {1853) 8 Exch. 699 (contract to supply make the approval of the employer quite coke, which was to be to the satisfaction arbitrary, if it is exercised in good of the defendant's inspector. Held to be faith, and not for the special purpose a condition precedent to the right of of defeating the contract." The ground the plaintiffs to insist upon the accept- of the diflferent decision in the Ontario ance of the coke, that it should be to court of appeals was that, the plaintiff the satisfaction of such inspector) ; having certain rights of property under Morgan v. Birnie (1833) 9 Bing. 672 the agreement, the parties to it did not (production of architect's certificate, occupy merely the relation of master held to be condition precedent to the and servant, and that under the tenth maintenance of an action on a build- clause the defendant occupied a quasi ing contract under which the employer judicial position, and had no right ar- was to pay for building upon receiving bitrarily to dismiss the plaintiff, but from the architect such a certificate was bound to act in good faith, and stating that the work had been done to to inquire into the circumstances upon his satisfaction) ; Harder v. Marion which he based his determination to County (1884) 97 Ind. 455 (revocation dismiss, — this necessarily involving no- of agreement with independent con- tiee to the plaintiff and an opportunity tractor, provided for when employer of being heard. (Hagarty, C. J. 0.. was "not satisfied with the work"). dissented). fMcRae v. Marshall (1891) 19 Can. 1 In two English cases cited in the S. C. 10, reversing (1890) 17 Ont. preceding section (notes 4, 6). the abil- App. Rep. 139, which afiBrmed in (1888) ity of the employer to act upon the « 199] TEEMINATION OF THE CONTRACT. 625 Under this doctrine, the stipulation constitutes no defense to an action for wrongful discharge, if it is proved that the true object of the stipulations in question was expressly stated to be conditional upon his not exercising the reserved right capricious- ly or in bad faith. Andrews v. Belfield (1857) 2 C. B. N. S. 779; Stadhard v. Lee (1863) 3 Best. & S. 364, 32 L. J. Q. B. N. S. 75. See also Koll v. Bush (1895) 6 Colo. App. 294, 40 Pac. 579 (will of master acting on "good faith" said to be the only criterion of the quality of the rservices) ; Alexis Stoneware Mfg. Go. v. Young (1894) 59 111. App. 226 (rule in text is involved in language used by <;ourt) ; Illinois C. B. Go. v. Ely (1904) 83 Miss. 519, 35 So. 873 (rule recog- nized, arguendo) ; Fra/ry v. American Ruhler Go. (1893) 52 Minn. 264, 18 L.E.A. 644, 53 N. W. 1156 (rule recog- nized arguendo) ; Teichner v. Pope Mfg. Oo. (1900) 125 Mich. 91, 83 N. W. 1031 (fact that discharge was actually in good faith was adverted to by the •court). In Crawford v. Mail & Exp. Pul. Go. (1896) 9 App. Div. 481, 41 N. Y. Supp. 325 (employment to write weekly arti- cle in newspaper was to continue two years, provided services were "satisfac- ■tory"), the court said: "Whether the defendant was really dissatisfied with the plaintiff's services, or whether its expression of dissatisfaction lacked ■genuineness, was a question of fact for the jury. . . The contract here could not be terminated at will or pleasure. It could not, in fact, be terminated while the employee's services were sat- isfactory to the employer. If they were really satisfactory, the employer could not effect a lawful dismissal by a false statement of dissatisfaction. It is true thai ordinarily an employer ought to know whether he is satisfied or dissat- isfied with his employee, and that no one else can know as well. But it is -equally true that his assertion is not -conclusive, and that the circumstances attending the assertion may be such as to justify a jury in finding that it was a sham, and that in his secret heart the employer was not dissatisfied, but sim- ply desired, for other reasons, to get rid of his employee. . . . The deter- mination of the main question of satis- faction or dissatisfaction undoubtedly belonged to the employers. But it must M. & S. Vol. I.— 40. be a genuine, and not a sham, deter- mination." The court referred to the statement of Danforth, J., in Duplex & Safety Boiler Co. v. Garden (1886) 101 N. Y. 390, 54 Am. Rep. 709, 4 H. E. 749, that "one who . . . under- takes to fill a particular place as agent . . . may not unreasonably be ex- pected to be bound by the opinion of his employer, honestly entertained." It was considered that these last words embodied a material proviso which qualified the general rule in the sense above indicated. Upon the second ap- peal of this case ([1897] 22 App. Div. 54, 47 N. Y. Supp. 747) the controlling principles of law were declared to have been settled by the earlier judgment. By the court of appeals the decision was reversed on the grounds stated in note 7, infra, without any attempt to deal with the questions raised in the dissenting opinion of Vann, J. (with whom Parker, Ch. J., concurred). As this opinion is believed by the writer to embody the correct doctrine, the follow- ing passage is extracted: ''While the trustees of the defendant had the right to discharge the plaintiff if they were actually dissatisfied with his services, even if they had no reasonable grounds therefor, they had no right to discharge him because they wished to get rid of their contract for some reason other than that named therein as the cause for discharge. If there was an honest dissatisfaction with his services, wheth- er it was reasonable or not, the right to discharge was absolute; but if the services were in fact satisfactory, and the dissatisfaction, as expressed, was dishonest, and a mere pretense to cover a change of management, or to effect an ulterior purpose, there was no right to discharge. The question whether the trustees ought to have been dissatisfied does not arise, but simply whether they were dissatisfied, not with the entire situation, but with the plaintiff. Any evidence, which, when reasonably viewed, tended to show bad faith on their part, and that their alleged dis- satisfaction was a pretense, and not a fact, presented a question for the jury. In Smith v. Rolson (1896) 148 N. Y. 252, 42 N. E. 677, the words 'good faith' were written by the parties 626 MASTER AND SERVAXT. [CHAP. VI. discharge was merely the furtherance of the employer's interests or convenience. Such a situation is presented where it is shown that into a somewhat similar contract, but those words are read by the law into all stipulations which permit one party to terminate a contract if he is not satisfied with the services of the other. . . . When a master discharges his servant in a written communication which purports to give the reason, the presumption arises that the reason given is the only one existing or relied upon. When the trustee notified the plaintiff of his discharge, they said it was because some changes in their work upon the paper were necessary. They made no claim that the plaintiff's work was unsatisfactory, but summa- rily discharged him because a change of method had become necessary owing to the death of Colonel Shepard. What- ever the trustees said to the plaintiff afterward, or even testified to upon the trial, may have been an after- thought, and may or may not have been the real reason for their action. Their letter of dismissal, under the circum- stances, permitted the inference that they discharged the plaintiff for a rea- son not named in the contract nor per- mitted by law. Even if the evidence to rebut this inference was very strong, a question of fact arose for the jury to decide. It was therefore proper for the trial court to ask the jury to find 'wliether there was a bona fide dissat- isfaction, or whether there are marks to your mind sufficient to make you believe that the discharge was a ficti- tious thing, not really based upon any dissatisfaction.' The jury found for the plaintiff upon this question, the appel- late division affirmed the finding, and I think their judgment should stand." In Summers v. Golver (1899) 38 App. Div. 553, 56 N. Y. Supp. 624 (employ- ment was to continue, if the servant's management of the defendant's press- work was "artistically and financially satisfactory"), the court said: "The dis- satisfaction must be real, and it must be suflScient to justify the dismissal of the plaintiff. Mere fault finding by hired critics, coupled with suggestions from the employer, are not sufficient, unless the employer is so far displeased with the general character of the work performed that he would be, in good conscience, justified in dismissing him." The fact that the plaintiff had served the defendant for a period of four months, and that he was given an in- crease of wages, either in pursuance of the contract or for extra labor, was declared to be some evidence that his work was really of the quality de- scribed in the contract. This decision seems to be virtually overruled, so far as New York is concerned, by the de- cision of the court of appeals just re- ferred to. The same remark is applicable to an earlier decision by a lower court, to the effect that an employer cannot relieve himself from liability for the wrongful' discharge of an employee, upon the ground that the latter was to render services satisfactory to him, and that he is the sole judge as to wliether such services were satisfactory, when he has- sworn that he did not dismiss the em- ployee, but told her that he wanted her and afterwards offered to re-employ her. Levin v. Standard Fashion Go. (1891; City Ct.) 39 N. Y. S. R. 191, U N. Y. Supp. 139. For previous trials of the same case see (1889) 25 N. Y. S. R. 817, 4 N. Y. Supp. 867 (1890) 16 Daly, 404, 11 N. Y. Supp. 706. In Zeiss v. American Wringer Co. (1901) 62 App. Div. 643, 70 N. Y. Supp. 1110, the defendant employed the plaintiff to act as its managing sales agent in a certain county so long as the business relations of both should be mutually satisfactory. The defendant reserved the right to appoint other agents if the plaintiff failed to canvass the territory to the defendant's satis- faction, and agreed to give the plain- tiff the exclusive right to the territory so long as he should conduct an eflScient canvass, but stipulated that if he failed to do this to the defendant's reasonable satisfaction he might be discharged. The defendant became dissatisfied, and notified the plaintiff thereof, stating that, while the plaintiff's business was good, there was not enough of it, and giving him the option of letting others in the territory, or himself making oth- er arrangements. The defendant there- after sent others into the territory, who- sold goods to the plaintiff's damage. Held, that the burden of proving that the plaintiff had been properly dis- § 199] TERMIXATIOX OF THE CONTRACT. 627 charged, was not on defendant, but that it was incumbent on the plaintiff to show that the defendant was, or ought to have been, satisfied with the plain- tiff's canvass. Ibid. It is difficult, liow- ever, to see how this decision can be reconciled with that rendered by the court of appeals a year earlier in the Crawford Case, supra. In Gwynn v. HitcJiner (]902) 67 N. J. L. 654, 52 Atl. 997. The court said: "In order to legalize the discharge of either workman before the expiration of his term of service, two elements must have been present in the situation: First, the employers must have been dissatisfied with his work, and, secondly, the dissatisfaction must have been the cause of discharge. Either plaintiff, therefore, would exhibit a good cause of action against the defendants, if it should appear, as a result of the proof in the cause, that there was a contract of employment, that the plaintiff was discharged before the expiration of his term of service, and either that the defendants were not dissatisfied with his work, or that, how- ever this may have been, they did not discharge him because of dissatisfac- tion. There were thus, in each case, two leading questions, to which, among others, proof at the trial on both sides might properly be addressed; namely, whether the defendants were dissatis- fied, and whether, if they were dissat- isfied, they discharged the plaintiff for that reason." It was accordingly held that evidence as to whether the servant was discharged because of the master's dissatisfaction was admissible. In a case where it was provided that the contract of a school teacher might be terminated if the school should not prove satisfactory, it was held that, to justify a dismissal of the teacher upon even this ground, "the dissatisfaction must be real, and not mere whim, ca- price, suspicion, or prejudice." Rich- ardson V. School Dist. No. 10 (1866) 38 Vt. 602, 603. It has been held that a contract of employment conditioned upon the faith- ful and satisfactory discharge of his duties by the employee, and also pro- viding that the employee shall well and faithfully, and to the best of his abil- ity, serve his employer, and devote his entire time to his duties, and reserving to the employer the right of terminat- ing the contract if the business is dis- continued, is not determinable at the mere will or caprice of the employer. Rhodes-Haverty Furniture Co. v. Fra^ zier ( 1900 ) — Tex. Civ. App. — , 55 S. W. 192. That a reservation by the employer of the right to "judge of the faithful- ness and sufficiency of the said con- tractor, and the hands enployed by him," does not authorize the employer to discharge the employee, "captiously" before the end of the year, was laid down in Alexander v. Americus (1878) 61 Ga. 36. In Campbell Printing Press Co. v. Thorp (1888) 1 L.R.A. 645, 36 Fed. 414, Brown, J., expressed a doubt, whether, in cases where the quality of the speci- fied work is a, matter of taste, a court can inquire even into the good faith of the employer's decision. But the point was not involved in the case, and the learned judge somewhat inconsistently referred with approval to the "reason- able modification" of the general rule as to the finality of a vendee's decision re- garding the quality of an article sold to him, viz., that his dissatisfaction must be real, not feigned. See the cases next cited. That a person to whom an article is delivered for the purpose of being tried, the payment of the price being condi- tional upon his being "satisfied," can- not refuse payment unless his dissatis- faction is real, was laid down in Dag- gett V. Johnson (1877) 49 Vt. 348. See also, to the same effect, Hartford Sorghum Mfg. Co. v. Brush (1871) 43 Vt. 528 (vendor agreed to take back an article if vendee did not like it) ; Mc- Clure Bros. v. Briggs (1886) 58 Vt. 82, 56 Am. Rep. 557, 2 Atl. 583. The dissatisfaction must not be capri- cious or mercenary, nor result from a dishonest design, but must be real and in good faith. Lieberman v. Weil (1910) 141 Wis. 635, 124 N. W. 262. In Bridgeford & Co. v. Meagher (1911) 144 Ky. 479, 139 S. W. 750, where the plaintiff, who had been for some time the foreman of the defend- ant's molding shop, entered into a con- tract with it, whereby he was to con- tinue in such position for the term of three years, "or so long as he performs his duties in a successful or satisfactory manner," the court held that the em- ployer could not arbitrarily and with- out good cause terminate the contract. 628 MASTER AND SERVANT. [chap. VI. the employee was dismissed because his assistance was no longer needed;^ or because the employer desired to conduct his business on an altered footing ; * or because the employer wished to favor another person;* or because the employee refused to submit to a reduction in salary. ° The supreme court of Alabama, however, has expressed the opinion that the doctrine above stated is essentially inconsistent with the notion that, -where a contract embraces a stipulation of this kind, the reasonableness of the employer's judgment as to the quality of the work, cannot be inquired into.^ In New York also, the court of appeals, in reviewing a case decided by the supreme court upon the hypothesis that that doctrine was correct, based its decision upon the broad ground that the rule which declares the employer's judg- ment to be final wherever the element of personal taste is involved was not subject to any such exception as the doctrine imports.'" But it is not easy to see what objection can be made, on purely logical 2 Hotchkiss V. Gretna Ginnery £ Com- press Co. (1884) 36 La. Ann. 517; Sax V. Detroit, 0. H. & M. R. Go. (1900) 125 Mich. 252, 84 Am. St. Rep. 572, 84 N. W. 314. 3 The fact that the employer wished to reduce expenses was declared not to be enough to justify a rescission of the contract in Summers v. Golver (1899) 38 App. Div. 553, 556, 56 N. Y. Supp. 624; Crawford v. Mail & Exp. Pub. Co. (1896) 9 App. Div. 481, 41 N. Y. Supp. 325 (see, however, as to the status of tliese two cases in New Yorl< itself, note 1, supra); Gwynn v. Hitchner (1902) 67 N. J. L. 654, 52 Atl. 997. A servant engaged for a determinate period, "so long as he shall satisfacto- rily perform his duties," cannot be dis- charged at the mere volition of the master, because business is dull and the employer cannot afford to go on with the contract. Hydecker v. Williams (1892; C. P.) 45 N. Y. S. R. 637, 18 N. Y. Supp. 586. The desire of the employer to with- draw from the territory in which the plaintiff was employed as a traveling salesman was held not to be a good reason for terminating the contract in Atlanta Stove Works v. Hamilton (1903) 83 Miss. 704, 35 So. 763. iTeichner v. Pope Mfg. Co. (1900) 125 Mich. 91, 83 N. W. 1031 (argu- endo) . 5 Winship v. Portland League Base Ball & Athletic Asso. (1887) 78 Me. 571, 7 Atl. 706. In that case, where the contract reserved to the employers the right to discharge the employee, if from negligence, illness, or from any other cause he became unfit to fulfil the duties required of him, and the right to be the sole judges of the suflSciency of the reason for such discharge, the court held that they had not the right to discharge him without a reason, and that, in judging of the sufficiency of the reason, the law would require of them the utmost good faith. It would not allow them to give a false reason. It would not allow them to falsely pre- tend that he was incompetent or ineffi- cient, when their real reason was his refusal to submit to a reduction of his compensation. Notwithstanding the right of the defendants to judge of the sufficiency of the reason for discharging the plaintiff, "the reason must have been one which, to some extent at least, unfitted him for the discharge of the duties required of him." s Allen V. Mutual Compress Co. (1893) 101 Ala. 574, 14 So. 362. 7 Cratoford v. Mail <£• Exp. Pul. Co. (1900) 163 N. Y. 404, 57 N. E. 616, reversing (1897) 22 App. Div. 54, 47 N. Y. Supp. 747, the governing princi- ples of which were defined in (1896) 9 App. Div. 481, 41 N. Y. Supp. 325. The standpoint of the majority of the court of appeals will be apparent from the § 109] TERMIXATION OF THE CONTRACT. 629 grounds, to a theory which concedes to him the exclusive right of deciding whether his dissatisfaction was well founded, and at the same -time denies that he is protected by a stipulation of the kind in cases where, as a matter of fact, he was not dissatisfied at all.' The two facts — the reasonableness of his judgment as to the existence of a cause for dissatisfaction, and the actual existence of such a cause — are clearly quite distinct and provable by different evidence. For this reason the present writer has no hesitation in declaring his preference for the doctrine illustrated by the decisions collected in note 1. It must be admitted, however, that this doctrine is, in its practical application, subject to one serious drawback, viz., that which results from the extreme difficulty of segregating the cases in which the employer's dissatisfaction was merely unreasonable from those in which it was nonexistent. Where the employer has kept his own counsel, and has neither said nor done anything which would furnish a clue to his actual mental condition, almost the only evi- dence likely to be available for the purpose of proving nonexistence seems to be such as may sometimes be supplied by the fact that, after the discharge, no one else was hired to fill the vacant place, or by the general condition of his business. Such circumstances may possibly be regarded as pointing more or less strongly to the inference that the discharge was prompted by a desire to reduce expenses. But it seems to be rather doubtful whether evidence so indefinite is compe- tent, in a legal sense, to submiit to a jury with reference to such an issue. That a clause of the type now under discussion is no protection to the employer, unless it appears that he actually was dissatisfied, is obviously inferable from the words of the contract itself and with- out the aid of any implication, when it is expressly declared to be a condition of his exercise of the right of discharge, that his opinion as to the quality of the work should have been foriBed "in good faith." » following passage : "It is also apparent the employment upon a week's notice at from a reading of the contract that the any time they so elect." employment was not intended to be that 8 it seems clear from the argument of an ordinary servant to perform work, of the Alabama court (see p. 576 of the labor, and services of all ordinary busi- report), that it failed to comprehend neas or of a commercial nature. . . , the difference between these two pre- There is no provision in the contract dicaments. in any manner limiting the publishers Sin Smith v. Rnlson (1896) 148 N. in the exercise of their judgment as Y. 252, 42 N. E. 677, reversing (1894) to what is satisfactory, but if his serv- 6 Misc. 639, 26 N. Y. Supp. 1131, and ices are unsatisfactory for any reason, restoring the judgment of the New York they are given the right to terminate city court (1893) 6 Mise. 604, 56 N. Y. G30 MASTER AND SERVANT. [chap. VI. A stipulation giving the employer the right to rescind the contract if he is dissatisfied constitutes a valid defense to an action for wrong- ful dismissal, although when he dismissed the employee he may have assigned a wrong reason for the dismissal.^" Compare the cases cited in § 189, ante. The position taken in Ohio is that the dissatisfaction which will warrant a discharge must be a reasonable dissatisfaction, and not an arbitrary one, and that the good faith of the master in claiming the given services to be unsatisfactory will not render a discharge justifiable, if the services as performed were such as ought to have S. R. 606, 26 N. Y. Supp. 884, a the- atrical manager and an actor entered into a con* act of employment for a season, which provided that, if at any time the employer (the manager) "shall feel satisfied" that the employee "is incompetent to perform the duties which he has contracted to perform in good faith, or is inattentive to busi- ness, careless in the rendering of char- acters, or guilty of any violation of rules made by" the employer, the latter might annul it by giving two weeks' no- tice. It was urged on behalf of the defendant that he had the right, under this clause, to discharge the plaintiff at his pleasure, with or without any rea- son, and that the motion to dismiss the complaint should therefore have been granted. This construction of the con- tract was considered not to be justified. It was thought to be sufficiently plain that the qualifying words, "in good faith" were intended to apply to the conduct of the defendant, as if the con- tract had read, "if in good faith the em- ployer shall be satisfied, etc." The court, after observing that this con- struction gave force to the words, whereas, if held to apply to the plain- tiff, they would have no contractual force, but would amount simply to an unnecessary assurance by the plaintiff of his honesty in entering into the con- tract, proceeded as follows: "The claim that the defendant reserved an arbi- trary power to discharge the plaintiff is inconsistent with the presence of any limiting words in the contract. Con- struing the contract as claimed in be- half of the defendant, it is a contract terminable at the will of the defendant, but binding on the plaintiff for the pe- riod designated. If this had been in- tended, the clause is almost wholly su- perfluous. In that view, it was quite unnecessary to introduce any words of condition, or any reference to the con- duct of the plaintiff. It was doubtless intended to give the defendant a wide discretion. The grounds which might exist for reasonable dissatisfaction on the part of the defendant could not readily be formulated in advance, so as to cover all the contingencies. It was reasonable that the defendant should be in a position, if in good faith he felt that the plaintiff did not come up to the requirements of the situation, to discharge him. If the defendant had shown to the satisfaction of the jury that, acting in good faith, he had dis- charged the plaintiff because he was dissatisfied, and that his action was not arbitrary and capricious, he could not have been held liable. But the question whether the defendant acted in good faith was by the contract a material question, and the motion for nonsuit, based on a construction of the contract which eliminated this element, was properly overruled." It was according- ly held that the contract was not with- in the rule which applies to contracts made to "gratify taste, serve personal convenience, or satisfy individual pref- erence." The court referred with ap- proval to the opinion of Barrett, J., in Orinnell v. Kiralfy (1890) 55 Hun, 422, 29 N. Y. S. R. 362, 8 N. Y. Supp. 623, which involved a similarly worded contract with respect to an actress. 10 Corgan v. George F. Lee Coal Co. (1907) 218 Pa. 386, 120 Am. St. Rep. 891, 67 Atl. 655, 11 Ann. Cas. 838. § 200] TERMINATION OF THE CONTRACT. 631 been satisfactory to a reasonable employer.-'^ This decision is obvi- ously opposed to the general current of authority. Two decisions by inferior courts in New York may be said to embody the doctrine that, where the right of dismissal reserved by the master is conditioned upon the contingency of the servant's prov- ing to be deficient in some specific quality, he cannot be arbitrarily discharged.^* Both these cases are based upon the hypothesis that there is an essential difference between a stipulation to this effect, and one which empowers the master to dismiss the servant if his work is not satisfactory. The distinction thus drawn is certainly rather a fine one, and probably would not be approved by all courts. 200. Necessity of showing that the dissatisfaction alleged was cov- ered by the contract. — The question whether the nature or subject- matter of the dissatisfaction which is relied upon by the employee iiLoTce Erie & W. B,. Co. v. Tierney (1905) 29 Ohio C. C. 83, judgment af- firmed in (1906) 75 Ohio St. 565, 80 N. E. 1128. 12 In Brand v. Godwin (1890) 15 Daly, 456, 29 N. Y. S. E. 143, 8 N. Y. Supp. 339, it was held that a, rule of a musical corporation or opera company, constituting a part of a contract with a musician, providing that, "in the event either of incompetency or of such continued illness or disease of physical or vocal faculties as to prevent one from doing service for a period of more than two weeks, the company may in its discretion cancel or annul the contract . . . without being subjected to any claims for damages," and that "the vocal and musical directors shall be the sole judges of the fact and extent of the incompetency," — does not authorize an arbitrary or capricious discharge; and the provisions making the directors sole judges does not preclude a review of the courts. It was considered that the "in- competency" referred to must be such as was produced by physical causes arising after the contract was entered into, and did not mean merely "unsatisfactory." Larremore, Ch. J., said: "Although the vocal and musical directors are by the rule made the sole judges of the fact and extent of the 'incompetency,' . . . they could not make plaintiff 'incompe- tent' by agreeing to pronounce him so. All the circumstances point to an at- tempt, through an ambiguous clause in the instrument, to get rid of an em- ployee who was faithfully performing his contract, because it had become in- convenient to continue the payment of his wages." It was also held that a notice terminating such contract, on the ground that "your work is not musically satisfactory to the board," and stating that the notice was given in the exer- cise of a right under the provision above set forth, was not an exercise of the right to discharge the singer for "in- competency." As the contract gave no right to discharge merely for dissatis- faction, the notice was no defense to an action to recover the contract price. (Leave to appeal was granted in (1890) 15 Daly, 469, 9 N. Y. Supp. 743; but there appears to be no report of any decision by a court of review.) In Brail v. Clausen (1901; City Ct.) 35 Misc. 129, 71 N. Y. Supp. 311, af- firmed by Sup. Ct. in (1901) 35 Misc. 861, 72 N. Y. Supp. 1095, a contract provided for his discharge should the employer "find" the employee "unfaith- ful or improper in the performance of his duties." The ratio decidendi, as stated by the lower court, was that "the true rule applicable to the con- struction of such a contract is that if, for good and sufficient reason, the em- ployer finds the employee unfaithful, that he may then discharge him; that that which the law will say a contract- ing party ought in reason to be satis- fied with, that it will say he is satisfied with." 632 JIASTER AND SERVANT. [chap. VI, as a justification for the servant's dismissal in a given instance was- such as to bring it within the purview of the contract must be de- termined by a reasonable construction of its provisions.^ 1 In Teichner v. Pope Mfg. Co. (1900) 325 Mich. 91, 83 N. W. 1031, plain- tiff was engaged by the defendant to manage a branch of its business for a year under a contract, with the riglit to defendant to terminate such employ- ment at any time for "conduct unsatis- factory to the officers of the company, or for other cause." Plaintiff was after- wards discharged, not because of any fault found with him or with his man- agement, but because the company had abandoned another branch business, and its manager there had had much more experience than plaintiff and it was thought advantageous to place him in charge. Held, that the discharge for the purpose of employing a man with more experience was within the terms of the contract. Discussing the con- tention of the plaintiff that defendant's right to terminate the contract could not be exercised in the absence of some conduct or cause proceeding from, or growing out of his conduct or adminis- tration of his office, and that a desire to favor another was not a cause con- templated by the contract, the court argued as follows: "Had the defend- ant a, right to substitute a more ex- perienced man? Clearly, it had if it was dissatisfied with the conduct of the plaintiff. It has offered proof that it was. But this is met by testimony in the nature of an admission by Cox, made at the time of the removal, which tends to show that it was not dissatis- iied with plaintiff's conduct, though the admission plainly shows that the defendant preferred a man of more ex- perience. The most that can be said of this removal in plaintiff's behalf is that it is a case of 'not loving Caesar less, but of loving Rome more;' in short, defendant's interests would be better subserved by substituting a more experienced man. If this was cavise for terminating the contract within its terms, the court was right in directing a verdict. ... It can hardly be said that the right to discharge when dis- satisfied with conduct is limited to a case of immoral conduct on the part of the plaintiff. It certainly extends to the general conduct of the business as well. It covers incompetency, incapa- city, and neglect. What is meant, then, by the words 'or for other causes!' We are of the opinion that a desire to discontinue or sell its business would be a sufficient cause. So would a. desire to extend it beyond the capacity of the plaintiff to conduct, and it could hardly be said to be satisfied with the conduct of the business in such a case. It may be said that this does not imply any misconduct or failure on the part of the plaintiff, or dissatisfaction with an existing business, on the part of the defendant, but a mere desire to benefit itself by seeking to make better con- ditions already satisfactory, and that this is not a cause within the terms of the contract. But does not this necessarily imply dissatisfaction with existing conditions, when we eliminate from the case the idea that the action of the defendant was based wholly upon a desire to favor another? Is it not a paradox to say that the defendant may remove plaintiff when dissatisfied with the business, but that it is not dissatisfied with the business done by plaintiff when it thinks another man can better it, while it believes the plain- tiff cannot? We are convinced that it was the intention of the parties that the right to terminate this contract when its interests required it should be given to the defendant, and that the evidence shows that its action was in good faith." The fact that a servant refused to comply with a reasonable request with regard to the manner of performing his duties has been held to be a sufficient cause for discharging him on the ground of his not having, as he undertook to do, rendered "satisfactory services." Ken- dall v. West (1902) 196 111. 221, 89 Am. St. Rep. 317, 63 N. E. 683, affirm- ing (1901) 98 111. App. 116. The contract between a teacher and a school district contained a stipulation "that she should leave if the school was not satisfactory." Held, that the com- mittee was not warranted, under this stipulation in dismissing her on account of her personal unpopularity in the dis- trict, or for any reason other than dis- § 201] TERMIXATIOX OF THE CONTRACT. 633 201. Effect of special stipulations other than those simply relat- ing to the satisfactory quality of the work.— a. Unqualified' ngU of discharge. — The question whether there were good reasons for a discharge is evidently quite immaterial, and^ not a proper subject for the consideration of a jury, where the^ contract simply provides that the master may discharge the. servant at any time,^ or on giving a certain notice,^ or "at, satisfaction with her school. Richard- son V. School Dist. No. 10 (1866) 38 Vt. 602. A contract of employment authorizing the employers to discharge the employee without notice or further liability, if he fails to discharge the duties re- quired of him to the employers' satis- faction, either from inability or neglect, does not authorize them to discharge him for failure to give a bond. Kerr V. Sanders (1898) 122 N. 0. 635, 29 S. E. 943. 1 Smith V. Buffalo Street R. Co. (1885) 35 Hun, 204 (held to be error to submit to jury the question whether discharge was proper). In Becnel v. Ashton Plantation Co. (1901) 105 La. 677, 30 So. 152, it was held that a servant engaged for a year under a contract in which it was stipu- lated that the employment might be terminated at any time had no right to any compensation for the portion of the year which elapsed after the em- ployer had exercised his right under this provision. Where a contract of hiring provides that the manager of a banking com- pany shall not be removable unless two thirds of the ordinary committee of management for the time being shall concur in a motion for his removal, he may be removed in the manner in- dicated, when the committee think proper; and they are not responsible to him for the manner in which they exercise their discretion. Commercial Bkg. Co. V. Pollock (1829) 3 Wilson & S. 430, reversing (1822) 1 Sc. Sess. Cas. 1st series, 157. The decision in the lower court, to the effect that the pursuer could not be dismissed without 8 reasonable cause, was based upon the ground that he had given up a lucrative private business, relying upon a promise of a liberal salary. In Soldiers' Orphans' Home v. Shaffer (1872) 63 111. 243, the charter of a corporation provided that the trustees, might remove any employee if the inter- ests of the concern required it. Held, that tliis provision conferred a power which could be exercised only in respect, of employees not hired by a special contract for a, definite term. It did not authorize the trustees to dismiss an employee engaged for a -fixed period,, unless he should be guilty of a breach of duty. This decision seems to be of very questionable correctness. In treat- ing the general and unambiguous words of the charter in question as being sub- ject by implication to the limitation assumed, the court, it is submitted, contravened a fundamental rule of con- struction. 2 In Smith v. Douglass (1871) 4. Daly, 191, where it was held that a referee had improperly awarded damages to the plaintiff on account of his be- ing dismissed for an alleged cause that was unsustained by proof, the court said: "The power to dismiss at dis- cretion, on giving ten days' notice, was absolute, and without the existence of any necessity for the defendants' as- signing any cause; and, although they may have assigned one, as inducing their conduct, which was capricious and unfounded, their right to thus act was none the less assured to them by the agreement." Where it was stipulated that a serv- ant might be dismissed at the pleasure of his employer and without reason assigned, on receiving a fortnight's warning or a fortnight's wages, and he was dismissed on a charge made against him by a coemployee, which he alleged to be unfounded, it was held that he could not recover damages on the ground of having been dismissed, but was en- titled to maintain an action based on the theory that the employer had au- thorized or adopted the proceedings of the coemployee who had brought the. charge against him. Fosdich v. North_ '634 MASTEK AND SERVANl. [cnAP. VI. will," ' or "at pleasure," * or "when he sees occasion." * ISTor is the propriety of the master's action an admissible subject of inquiry, where the contract provides that it may be terminated at any time by either party.® It is also held that either party may terminate a contract at pleas- ure, and without showing that there was any reasonable cause of dis- British R. Co. (]850) 13 Sc. Sess. Cas. 2d series, 281. 3 Wliere an employer engages two per- sons to do certain work, and under the agreement retains the right to discharge them at will, he may discharge one and retain the other in his employ. Leonard V. Sparks (1903) 109 La. 543, 33 So. 594. * A by-law of a corporation providing for the removal of officers by a ma- jority of the whole board of directors ^'at pleasure" constitutes part of the contract of employment of a secretary lit a designated yearly salary, with no special agreement as to the time of service. Douglass v. Merchants' Ins. Co. (1890) 118 N. Y. 484, 29 N. Y. S. B. 944, 7 L.R.A. 822, 23 N. E. 806. It was urged on the part of the plain- tiff that he was in service under a con- tract for a year; that the by-law was not in the way of making such a con- tract effectual; and that when it was made, the power of removal could be exercised to take effect only at the ex- piration of the year. The court rejected this contention, observing that there was no special contract which indicated any purpose to abridge the right of removal at pleasure, given by the by- law, which entered into the contract of employment, and subject to which the plaintiff went into and continued in the defendant's service until this reserved power was exercised. The case was distinguished from Soldiers' Orphans' Home V. Shaffer (1872) 63 111. 243 (note 1, supra), and Martina v. Com- merce F. Ins. Co. (1881) 15 Jones & S. 520. The effect of the latter de- cision was that the by-laws of the defendant company, providing that offi- cers, clerks, etc., should be elected dur- ing the pleasure of the board, did not withdraw from the defendant the power of making special contracts which should be binding for a definite period. 6 Mitchell V. Smith (1836) 5 Sc. Sess. Cas. 1st Series, 927, holding that the servant was not entitled to have the issue of fact tried, whether his master was justified in dismissing him. "There are many things." said Lord Boyle, "which, in the idea of the bank direc- tors, might amount to mismanagement, which do not amount to moral blame. They are entitled to say. You have mis- conducted yourself, we are not satisfied with your management, and we dismiss you, unless there be a solemn covenant providing that he should remain not- withstanding such mismanagement." This decision is more in harmony with the general current of authority, as indicated by the cases in the preced- ing notes, than another one to the effect that a stipulation under which the contract to employ a teacher "is to be good as long ... as the trus- tee sees fit" does not authorize the trustee to terminate the contract ar- bitrarily and without cause. Henry School Twp. V. Meredith ( 1904 ) 32 Ind. App. 607, 70 N. E. 393. The court took the position that there must be "such an occasion for his action as to render his conduct referable to the exercise of a sound official discretion." 6 Killen v. Citizens' L. Ins. Co. ( 1907 ) 30 Ky. L. Rep. 881, 99 S. W. 943. The contract contained, in addition to the general provision stated in the text, one to the effect that it should terminate immediately, without notice or other action by the employer, upon the em- ployee's violation of its terms; and following the signatures of the parties was a typewritten appendix to the con- tract, also signed by the parties, in which it was provided that the employee should receive certain compensation during the year 1905, if he "continues in the service of the company during the year," and that certain acts should ipso facto terminate the contract at the end of any month. Held, that the in- strument was indivisible, that there was no conflict between its different facts, and that the agreement might be ter- minated at any time. ■§ 201] TERMINATION OF THE CONTRACT. 635 agreement, where its contimiance is expressly declared to be sub- ject to tbe condition, "if the parties can agree," '' or "if both like." ' On the other hand, it has been laid down that, if a contract made with the parent of a minor for the services of the latter contains a provision that the master may discharge the minor if he does not like him, it will not be a discharge according to the spirit of the contract, if he tells the minor that he cannot keep him under that contract, .and thereupon makes a new and different contract with him, and em- ploys him under it, without the assent or knowledge of his parent.® h. Right to dismiss conditioned upon existence of a ca/use for dis- missal. — ^Where the contract provides that, if the employer "has -cause to discharge" the servant during the term of his engagement, ^'he reserves to himself the right to do so," the employer may exer- cise the right so reserved by discharging for any cause whatsoever, provided he acts bona fide and without malice.^" But a contract of employment, terminable for specified reasons, of the existence of which the employer was to be the "sole arbiter and judge," entitles the employee to the exercise by the employer of his personal judg- ment on the existence of the specified grounds. It cannot be termi- nated by another employee on his own judgment.^^ Where the contract provides that it may be canceled by the em- ployer when he considers that his interests are "neglected or jeopard- ized," it is for him alone to decide when the situation contemplated has arisen ; and if he dismisses the employee it will be presumed, in the absence of evidence to the contrary, that he acted on good faith.^^ c. Bight to dismiss conditioi%ed upo^i defective performance hy the servant. — A contract which states that, in case of the failure of the servant to perform it fully, it may be determined at the option of the master by giving notice to that effect, does not permit the ter- mination of the contract at the master's option simply, and without his having to show any reason.^* A stipulation which reserves to the master the right of terminating the engagement, if the servant "fails" to qualify himself in a certain 1 Durgin V. Baker (1850) 32 Me. 273; lO Doyle v. Wurtzburg (1899) 32 N. Gates V. Davenport (1859) 29 Barb. S. 107. 160 (fact of bona fide disagreement all li Lipshutz v. Proctor (1905) 95 X. that was necessary to entitle either Y. Supp. 566. party to rescind a contract which pro- 12 International Harvester Co. v. Boai- vided that the servant might leave in man (1905) 122 111. App. 474. <:ase of a disagreement.) ^3 Griggs v. Billington (1868) 27 U. 8 Prows* V. Harwood (1857) 29 Vt. C. Q. B. 520. 219. 9 McDonald v. Montague (1858) 30 Vt. 357. 636 MASTER AND SERVANT. [chap. VI, manner for the performance of his duties, will, as a general rule, be construed as being applicable only to cases in which the "failure" is due to the negligence or wilful misconduct of the servant." The servant's compliance with the term of a proviso limiting the amount of the expenses which he is entitled to while engaged in the performance of his duties is not a condition precedent to his right to be retained in the employment and recover the agreed wages. The only remedy of the master, in the event of the expenses being greater than the proviso permits, is to make a proportionate reduction in the servant's wages. ^^ d. Right of dismissal reserved in the event of the failure of the given enterprise. — In a case where the contract provided that the servant might be dismissed if the crops which he was hired to culti- vate should fail, evidence which showed that the employment had been continued until the completion of all the autumnal work on the mas- ter's farm, and long after the amount of the crops had been ascer- 14 In Loates v. Maple (1903) 88 L. T. N. S. 288, an agreement made on October 28, 1899, provided that the defendant was to have the first claim on the services of the plaintiff as a jockey for the racing seasons 1900, 1901, and 1902, and, in case the plain- tiflf should die, "or shall fail to procure a license during the said term, this agreement shall be at an end." A pow- er was reserved to terminate the con- tract by notice upon paying the retain- ing fee for the current year, and a penalty of £2,000. On November 14, 1901, the plaintiff was severely injured in an accident while riding. On March 17th the racing season commenced for 1902. The plaintiff having in due course applied for his license, the stewards suggested that he should apply when he was sufficiently recovered so as to be able to ride. On April 14, 1902, he applied again, and received his license a few days before he was fit to ride, and rode his first race on May 14th. Held, that the incapacity from the effects of the accident to ride for the period from March 13th to May 14th did not involve such a failure of con- sideration and such destruction of the substance of the agreement as to bring the agreement to an end; and held, further, that the plaintiff had not "failed to procure a license." Discuss- ing the question whether, within the meaning of the stipulation, the plain- tiff had failed to procure a license dur- ing the said term, Wright, J., said: "There is not the least doubt or ques- tion that in one sense he did fail to procure a license for a short period. If the words had been: 'If he shall not procure a license during any part of the said term' no one could liave got out of those words. But did the plain- tiff fail to procure the license? It seems to me that the word 'fail' must have some meaning given to it, and, fairly construed, it points to something in the nature of a failure by reason either of misconduct on his part, or a want of due diligence in trying to ob- tain a license. Now, he certainly was not without a license for any material time whatever. He not only did get his license as soon as he was fit to ride, and even before he was fit to ride; but if he had been fit to ride sooner thaa he was, he could have got his license at any moment. I think that the proper and fair view of the facts is that it was a mere adjournment. ... I do not think that the parties can have meant by this proviso, and I do not think it means on the language of it,, that he was bound to get a license until the time came when he was under some duty or obligation to get it." i^Sabin v. Kendrich (1899) 36 App^ Div. 443, 55 N. Y. Supp. 840. § 201] TERMINATION OF THE CONTKACT. 637 tained, was held to warrant the jury in finding that there had been no such failure as would justify the master in discharging the serv- ant." e. Previoiis consultation between parties a condition precedent to termination of contract. — A clause in a "sli ding-scale agreement" be- tween the representatives of the employers engaged in a certain in- dustry, and their workmen, to the effect that, where differences arise, no notice to terminate contracts shall be given, unless a joint com- mittee of the employers and workmen shall have failed, after consid- •ering the particular question in dispute, to arrive at an agreement, does not apply to a case in which one of the employers finds that he ■cannot continue work except at a great loss, unless his workmen con- sent to accept a reduced compensation.^'' /. Continuance of employment dependent upon acts or forbearances of servant. — A servant whose right to be retained in his employ- ment is stipulated to be conditional upon his continuing to own and hold a certain proprietary interest in his master's business does not cease to hold that interest, within the meaning of the contract, where he merely pledges it for the payment of a debt.^' The question whether a servant has been properly dismissed on the ground of his having broken a stipulation to refrain from doing certain things in the course of his employment is one to be determined by a construction of the words of the stipulation.^' g. Stipulations taking into account the contingency of a termina- tion of the employment. — The mere fact that, under a provision of the contract, the compensation of a servant is to be paid on a certain footing, if the employment should be terminated before the end of 16 Trumlull v. Frey (1904) 71 Neb. any debt in the name of B, or be oon- 754, 99 N. W. 648. sidered as his agent to receive any mon- 'i-T Roberts v. Hill's Plymouth Co. ey on his account," and a proviso that, (1897) 14 Times L. R. (C. A.) 21, in the event of a breach, the agreement affirming (1897) 13 Times L. R. 448. should immediately cease and deter- i« MoMullan V. Dickinson Co. (1896) mine. In an action against B lor ■63 Minn. 405, 65 N. W. 661, 663 (agree- wrongful discharge, it was held that the ment was to hold a specified amount of receipt by A of deposit money from corporate stock). persons to whom he had agreed to let 19 An agreement by which A was ap- houses on account of B was a breach pointed surveyor or agent of B, at a of the agreement. Bray v. Chandler salary of £200, and was, in addition, (1856) 18 C. B. 718. Williams, J., to receive a commission of 5 per cent considered that it was impossible to upon the first year's rent for every house construe the stipulation otherwise than which he should let on B's estate, con- as "an absolute prohibition against the tained a stipulation "that under no receipt of money, on any account or pretense whatsoever should A contract pretense whatever, for the defendant." 638 PIASTER AND SERVANT. [chap. n. the period specified, does not authorize his discharge during the cur- rency of that period.^" D. Teeminatiobt by the act op the servant. 202. Generally. — A servant employed by the day is entitled to leave at the close of any day, and is not bound to prolong his services in order to complete any particular piece of work on which he may hap- pen to be employed.'' A servant may withdraw at any time from a contract which is for any reason not binding on the employer,^ or from a contract which either party may revoke at will (see § 179, ante). The right of withdrawal in the latter instance is of cardinal importance, as being the basis upon which the legality of some strikes is predicated, the theory being that, unless restrained by contractual obligations, a single servant is entitled to cease work, and that what one may do, any number may do.* A servant hired for a definite term cannot be compelled to remain in the service of his master. He, as well as the master, is at liberty to renounce the contract, subject to such legal consequences as may be attached to the renunciation, supposing it to be wrongful.* Such a servant may also, without rendering himself amenable to those con- sequences, abandon the service, if the master violates any of the ex- press or implied obligations which he owes to the servant under the contract. The circumstances under which such a violation is predi- cable are reviewed in chapter vm.'^ 6 so World's Columbian Exposition v. Vnion (1907) 158 Fed. 541; Mills v. Thompson (1894) 57 111. App. 606, United States Printing Co. (1904) 99 where the contract provided that a App. Div. 605, 91 N. Y. Supp. 185. monthly sum should be withlield from ^Illinois C. It. Co. v. Ely (1903) 83 the employee's salary as a guaranty of ^'/?; ^^?,\^^„^°- ^^■ the proper keeping and return of >. ^J Pfl' J^'"'- ^°^^ § ^001, it is uniform, and that, in case of his serv- P^-o-^ided that an employment, even for ices terminating before ^ certain time, ?.'P'"^^i*'™i """J' \^ terminated by . , *= i 1, ij 1, J ''"^ employee at any time, in case of an appraised amount should be de- „„y ^.j/j^f ^^ permanent breach of the ducted for wear and tear. obligations of his employer to him as iWyngert v. J^'orton (1856) 4 Mich, an employee. The same provision is 280 (servant held not to be liable for found in the Code of South Dakota, damages for refusing to continue work ) . § 4900. z Bowman Dairy Co. V. Mooney (J890) The following provisions are con 41 Mo. App. 665 (contract void because tained in the Louisiana Civil Code (art. made with reference to a buisness tiltra 2747 (2718) : A hired servant "at- vires of the employing company). tached to the person or family" of his s Wabash R. Go. v. Hannaiuin (1903) master is "free to depart without as- 121 Fed. 563; Boyer v. Western U. signing any cause." Teleg. Co. (1903) 124 Fed. 246; Dela- Art. 2748 (2719). "Laborers who ware, L. & W. R. Co. v. Switchmen's hire themselves out to serve on plan- § 203] TERMINATION OF THE CONTRACT. 639' Pothier expresses the opinion that a servant is not legally justified in leaving his employment for the purpose of assisting his father and mother, but that, under svich circumstances, his action should be judged by a less rigorous standard than if he had left from motives of laziness or- dissipation, or in the hope of bettering his position.® As to the right of rescission on account of circumstances beyond the control of either party, see §§ 215 to 229 inclusive, post. 203. What constitutes an abandonment of the service. — What consti- tutes an abandonment by a servant is a matter determinable upon substantially the same footing as the fact of a dismissal by a mas- ter; that is to say, by a consideration of the servant's words or con- diict, or of both together.^ tations or to work in manufactories have not the right of leaving the per- son vpho has hired them, . . . until the time has expired during which they had agreed to serve, unless good and just causes can be assigned." As to the rule that the mere fact of a I'ivy having been made upon the mas- ter's property does not justify an em- plovee in abandoning the service, see .Yos/i. V. H. R. Gladding Co. (1898) 118 Mich. 529, 77 N. W. 7 (§ 220, post). In a Scotch treatise of high authority the opinion is expressed that, under the latest of the English mutiny acts, the enlistment of a servant in the regular army is to be regarded as an ordinary breach of contract. Eraser, Mast. & S. p. 325. The violation by an employer of a subsequent contract with a third person having no connection with a contract of employment for a definite term will not justify the employee in refusing to abide by his contract of employment for the remainder of the term. Stix v. Roulston (1891) 88 Ga. 743, 15 S. E. 826. The mere fact that a servant had a difficulty with another person in the service of his employer, and his em- ployer refused, upon his solicitation, to discharge such other person, is not a valid reason for abandoning the service. Mullen V. Oilkinson (1847) 19 Vt. 503. SLouage, art. 170. 1 Where a servant was working under an agreement to forfeit whatever wages might be due, if he left the employ without giving two weeks' notice, it is a question for the jury whether he was chargeable with a wrongful abandon- ment of the service in ceasing work, without giving this notice, while a, piece of machinery with which he worked was being repaired. His right, to recover his wages is to be determined by giving due effect to his conduct and declarations. An undisclosed intention on his part would not affect the right, of the master to treat the contract as- broken upon the facts which came to- his knowledge. Partington v. Wamsut- ia Mills (1872) 130 Mass. 467. Where the evidence showed that a servant hired by the month stopped work before June 1, was paid up to- that day, went home, and gave no in- timation that he considered himself still in defendant's employ, it was held that an action did not lie for services after June 1. 'Newkirh v. 'New York & H. B. Co. (1868) 38 N. Y. 158. A school board is entitled to treat a contract for the employment of a teacher as abandoned, where he has been absent several days without leave. Clark v. School Dist. No. 7 (1857) 29 Vt. 217. But where a servant got the consent of his master to absent himself for a short time, and was absent a few days longer than he expected to be, but held himself subject to his employer's con- trol, and returned and worked for him> again until after the expiration of the time for which he engaged, it was held that the jury was warranted in finding that there was no abandonment of the contract. Thrift v. Payne (1874) 71 111. 408. The employment of a servant engaged to make electrical experiments, who writes his employer that he has been offered greater compensation, and that 640 MASTER AND SERVANT. [chap. VI. The fact that a servant who abandons his employment before the stipulated term has actually expired does so under the belief that, unless some different proposition is made he shall leave his employer's serv- ice the next day, and vpho thereafter performs no service for such employer except in attempting to secure evidence to establish his right to a patent for an electric lamp for which he is to re- ceive a designated sum from his em- ployer when he obtains the patent, which patent is never obtained; and who in the six years following the date of his letter signs a large number of receipts on "account," for "expenses," and for "money advanced," but none for services or experimenting, — ter- minates on the day after the writing of the letter. Freeman v. United States Electric Lighting Co. (1894) 76 Hun, 215, 58 N. Y. S. R. 696, 27 N. Y. Supp. 799. In a settlement case, where a servant, in order to avoid being arrested in bas- tardy proceedings, told his master that he must be off, and asked for money, which was given him, the contract was held to have been dissolved, although he returned nine days afterwards to .get his clotnes, and continued to work till the end of the year. Bex v. East Kennett (1786) 2 Bott, Poor Law, 452. If a servant shall refuse to do his service, that is a departure in law, al- though he stay still with his master. Dalton's Country Justices, chap. 58, p. 129, citing 3 H. 6, 37. That a "roustabout" upon a steamer i.-i riot entitled to recover damages where he left the boat upon the master's roughly commanding him to work or get off the boat, although he was clear- ly unable to work, was held in Natchez & N. 0. Packet stances may exist whieh will amount to a waiver of the notice of dis- charge inferred from such proceedings.^^ But to establish suck waiver there must be clear and satisfactory evidence of facts incon- sistent with the implied notice of dismissal.^* No such inconsistency is predicable, where the servant merely continues to perform his duties until the expiration of the term of notice.^^ Nor is that con- tinuance sufficient of itself to show that a new agreement was made.'^* d. Effect of rules prescribing the length of notice to he given by the servant. — A reasonable rule made by a master with regard to the giving of notice by a servant who is about to leave the employment is binding upon anyone who accepts work with knowledge, actual or constructive, that it is in force." But where a person begins work without such knowledge, the fact that he is afterwards informed of the rule, and continues to work without objection, does not, as a mat- 11 £a! parte Harding (1867) L. R. 3 Eq. 341. iz MacDowalVs Case (1886) L. R. 32 Ch. Div. 366. i3i?e Forster (1887) Ir. L. R. 19 Eq. 240. 14 Hid. i^Gregson v. Watson (1876) 34 L. T. N. S. 143; Pottsville Iron & Steel Go. V. Good (1887) 116 Pa. 385, 2 Am. St. Rep. 614, 9 Atl. 497 (rule in a manufactory that a servant leaving his work without giving fourteen days' no- tice shall forfeit his wages, held reason- able) ; Willis V. Muscogee Mfg. Go. (1904) 120 6a. 597, 48 S. E. 177, 1 Ann. Cas. 472 (rule that employees must work a, six days' notice when leaving the employ of this mill, held to be a reasonable rule for a manufac- turing establishment) ; Diamond Slate Iron Co. V. Bell (1897) 2 Marv. (Del.) 303, 43 Atl. 161; Uunt v. Otis Co. (1842) 4 Met. 464; and cases cited in the following notes. See also § 213, a, post. A servant who has assented to a regulation which requires two weeks' notice of intention to leave the service, and declares that "no person will be considered honorably discharged or en- titled to wages then due unless this regulation is complied with," cannot maintain an action for his labor if he leaves without giving such notice, al- though the employer is not restrained from dismissing him without notice. The agreement to be bound by the rule is not in such a case lacking in mu- tuality. Preston v. American Linen Go. (1876) 119 Mass. 400. In Outrine Hewitt Coal Co. v. Greg- ory (1903) 28 Vict. L. R. 586, a con- tract between a company and each of its workmen was embodied in a set of rules, one of which provided that "every man shall give to and receive from the manager fourteen days notice before termination of employment, provided the rules are observed by the manager and workmen." Two of the three judges were of opinion that, in case the man- ager had at any time during the course of a workman's employment committed a breach of a rule, such workman was entitled to terminate his employment without giving notice, even though the breach did not affect himself personally. It was accordingly held that, in ex- cluding evidence of a breach of rules by the manager on the ground that the breach did not affect the defendant per- sonally, the trial court had committed error. On the other hand, the majority of the court considered that the work- man, when about to leave, was bound to give the manager some intimation of )iis intention to do so. Numerous cases illustrating the doc- trine that a rule is not binding upon a servant to whom it is not known are collected in § 1132, post. As to the effect of a breach of a rule regarding notice, upon the servant's right to recover compensation, see §§ 506, et seq., post. •S 209] TERMINATION OF THE CONTEACT. 653 ter of law, show that he accepted it as a part of his contract.^^ Wheth- er a servant is chargeable with such knowledge is a question of fact to be determined primarily by the jury, or the tribunal which is dis- charging the functions of a jury in the given instance." 209. Obligation where the contract contains no express provision on the subject. — A contract which, either by its express terms or by in- ferential construction, is to remain in force for a year or any other definite period, expires by lapse of time at the end of the year or the stipulated period. With respect to such a contract, therefore, an agreement to the effect that, in default of previous notice, the en- gagement is to be regarded as having been renewed for a second year or further definite period, cannot be implied in the absence of evi- dence of a custom applicable to the employment in question.^ This rule is applicable, although some of the provisions of the contract in- dicate that the parties contemplated the continuance of the employ- ment for a longer period than a year.* The doctrine upon which numerous decisions have proceeded was that the contracts under review, although they contained no specific 16 Collins V. NeiD England Iron Go. (1874) 115 Mass. 23. 17 The circumstances under which a servant is deemed to have knowledge of a rule will be discussed in connection with the subject of employer's liability. See § 1133, post. In Cams v. Eastwood (1875) 32 L. T. N. S. 855, the fact that a copy of the rules in force in a certain factory had been posted in a prominent place which the servants passed every day in going to their work was declared to be very cogent evidence that the contract of service was based on those rules. Under such circumstances it was not to be assumed, even if the servant could not read, that the rules were not bind- ing on him, for they might well have been brought to his knowledge by other means. In Preston v. American Linen Co. (1876) 119 Mass. 400, it appeared that the plaintiff had been in the defend- ant's employ fourteen months, and that he had regularly received his pay in an envelope on which was printed the regulation as to notice. It did not ap- pear that the plaintiff knew of this regulation when he commenced the work, but he testified that he read it soon alter, and knew of it "about all the time he was in the defendant's employ." Held, that it was rightly submitted to the jury as a question of fact whether the plaintiff assented to be bound by the regulation, and that they were rightly permitted to consider the fact that, after knowledge of it, he con- tinued to work as before. The court said: "When first informed of this regulation, if he had refused to be bound by it, and, if it were insisted on, abandoned his work, it could not have been enforced against him; but the fact that for fourteen months he continued to work with a full knowl- edge of it, and without any objection to it, legitimately tended to show an assent to it." Generally speaking, if the receipt which a servant signs at the time of the first payment of wages to him con- tains an agreement to be bound by a certain rule as to notice, he will after- wards be subject to it. Pottsmlle Iron £ Steel Go. v. Good (1887) 116 Pa. 385, 2 Am. St. Rep. 614, 9 Atl. 497 (plain- tiff had himself testified that he knew of the rule). IShortt V. Laery (1891) 11 New Zealand L. R. 19. 2 Cook V. Sydney & County Bank (1882) 3 New South Wales L. R. 273. 654 :MASTER and servant. [chap. VI, provisions with respect to their determination by notice, were to be regarded as being impliedly subject to rescission by a reasonable no- tice. In practice the implication thus entertained has almost always been discussed with reference to one or other of the specific elements reviewed in the following sections. But it might well be referred to the broad conception that, merely as a matter of fair dealing, either of the parties to the contract, if he wishes to terminate the employ- ment, ought to forewarn the other, to the end that he may have an opportunity of taking such steps as he may deem suitable in view of the approaching change of circumstances.^ It is clear that in any jurisdiction in which the rule prevails that a general hiring without mention of time is presumptively a hiring for a year (see §§ 156, 157 ante), the practical result of implying, in any given case, an obligation to give notice is to abridge pro tanto the rights of the party — usually the servant — whose claim is depend- ent upon his ability to establish a contract for a year. On the other hand, such an implication operates so as to enlarge those rights in jurisdictions in which a general hiring is regarded as being termin- able at will. See § 159, ante. It is important, therefore, in weigh- ing the significance of the cases cited in the ensuing sections, and estimating their effect as precedents, to take into account the precise point of view from which they were decided. 210. Obligation as inferred from a specific custom. — a. Generally. — In jurisdictions where the rule as to the presumptive yearly dura- tion of a general hiring prevails (§§ 156, 157, ante), it is conceded that an exception to the rule is predicable "in cases in which the agree- ment of hiring is subject to some stipulation, either express or im- plied by custom, enabling either party to determine the contract by notice." ^ If the employer relies upon a custom in his trade to have rules of the same description as those in question, he cannot intro- 3 For some excellent remarks made salary to £180, to do so, being a dona- from this standpoint by a Scotch judge tion of £30 to his present stipulated with reference to implied obligation of amount of £150." It being proved at a masier to give notice, see § 213, note the trial that, by a general custom of 9, -post. the trade, a yearly hiring is deter- 1 Grove, J., in Buckingham v. Surrey minable by a month's notice at any & H. Canal Co. (1882) 46 L. T. N. S. time; held, that there was nothing 885. in the proviso to exclude the appliea- An agreement was entered into in the tion of the custom to the particular following terms: "A engages to serve case. Parker v. Ibietson (1858) 4 C. B as agent or representative, at the B. N. S. 346, 4 Jur. N. S. 536, 27 L. salary of £150 per annum; also, pro- J. C. P. N. S. 236. Crowder, J., said: vided at the end of the year B find A "This case must follow the ordinary has done sufficient business to justify rule that wherever a contract is made him in recompensing by making up his in a particular trade, all customs which § 210] TERillNlVTION OF THE CONTRACT. 655 duce evidence as to that custom, unless he offers to show that the servant knew of it.^ h. — in the case of domestic servants. — In England it is fully settled that "the contract between the master and a domestic servant is a contract to serve for a year, the service to be determined by a month's warning, or by payment of a month's wages." ^ In several of the cases in which this rule has been applied, the only question discussed was whether the service involved was domestic in its character.* This question is one of fact, to be determined from the whole evidence, and therefore primarily for the jury.^ But their regulate that trade are tacitly incor- porated into the contract, unless by express terms excluded." It was held to be error to leave it to the jury to say whether the parties intended by the proviso to exclude the custom. In relation to the rule of pleading, that proof of a contract subject to a certain qualification does not support a count which does not state such a qualification, the recognition of this exception involves the corollary that an indefinite hiring which, by the custom of the business, is terminable by a three months' notice, cannot be declared upon as a contract to continue the serv- ant in the employment for an entire vear. Metzner v. Bolton (1854) 9 Exch. 518, 2 C. L. E. 685. See the remarliS of Martin, B., on this case in Wheeler V. Bavidge (1854) 9 Exch. 668. 2 Collins V. New England Iron Co. (1874) 115 Mass. 23; Stevens v. Reeves (1829) 9 Piclc. 198. In the latter of these cases the court thus stated its reasons for its conclusion that a servant who had left without giving the cus- tomary notice was not liable in damages to the master: "There was no stipula- tion for any particular time, so that there is no express or implied contract that he would remain for any certain time, unless such contract is to be im- plied from what is set up in evidence as a usage of this and the neighboring factories, that all who are employed shall be held to remain until a fortnight after they give notice of their intention to quit. In order to make this a part of the contract, as the usage supposed is a particular one, and not a general custom, it should have appeared that the defendant knew of the usage when he entered upon the work or before he left it. This is required in order to give effect to a particular usage, so as to operate upon a contract. It is so with the usages of banks, and all other usages not of so general a nature as to furnish a presumption of knowledge. There is no such evidence in this case; on the contrary, it appears that the defendant was a stranger in the coun- try, that he was not informed of any usage, and that no notice of it was posted up among the rules and orders of the factory." 3 Parke, B., in Turner v. Masort (1845) 14 Mees. & W. 112; Littledale, J., in Faweett v. Cash (1834) 5 Barn. &. Ad. 904, 3 Nev. & M. 177. This rule was also affirmed in Foxall v. International Land Credit Go. (1867) 16 L. T. N. S. 637; Smith v. Kingsford (1836) 3 Scott, 279; Fewings v. Tisdal (1847) 1 Exch. 295- Arokard v. Hor- ner (1828) 3 Car. & P. 349; RoUnson V. Hindman (1801) 3 Esp. 235. See also the cases cited in the fol- lowing notes. The general rule whereby domestic servants may be discharged on a month's notice, or on payment of a, month's salary in lieu of notice, does not apply where they are hired by the year. Bur- gess V. St. Louis (1899) 6 Terr. L. R. 451. * For a definition of the word "me- nial," see § 1968, b, post. 6 Williams, J., in Pearce v. Lansdowne (1893) 62 L. J. Q. B. N. S. 441, 69 L. T. N. S. 316, 57 J. P. 760; Lawler V. Linden (1876) Ir. Rep. 10 C. L. 188; and the cases cited infra. In the opinion of a jury to whom Parke, B., left the question, an em- ployer was not justified in giving only a month's notice to a farm bailiff. South V. Drwmmond, reported in the 656 MASTER AJSTD SERVANT. [CHAP. VI. finding may be set aside, or a verdict directed, in cases where only a single conclusion can reasonably be drawn from the evidence.® The incident which results from the rule is implied, in point of law, as soon as it is determined that the servant belongs to the domestic or menial class.'' In a ISTova Scotia case it was deemed to be far from clear whether the English custom allowing the dismissal of a menial servant on a month's notice exists in that Province.' London Times, March 28, 3849. See Smith, Mast. & S. 4th ed. p. 95. Bin Johnson v. Bletikensopp (1841) 6 Jur. 870, a rule for nonsuit was made absolute by a court of review, after a verdict had been directed for the plain- tiff in the court below, upon a con- tract by which the plaintiff was "to have 6s. a week, three bolls of wheat, to set potatoes for his family's use, to have a cow kept, house and firing, to keep the gardens and pleasure grounds in clean and good order, to assist in the stables, and, when required, at hay and corn harvest, and to make himself generally useful." This was held to be an agreement for the hire of a menial servant, and to contain nothing incon- sistent with the general custom that either party may determine that rela- tion upon a month's notice. In Nicoll V. Greaves (1864) 17 C. B. N. S. 27, 10 Jur. N. S. 919, 33 L. J. C. P. N. S. 259, 12 Week. Rep. 961, 10 L. T. N. S. 531, it was held, as a matter of law, that a huntsman hired to take charge of a pack of foxhounds was a menial servant. It was admitted that the case was near the dividing line. In Nowlan v. Allett (1835) 2 Cromp. M. & R. 54, 1 Gale, 72, 5 Tyrw. 709. A verdict finding that a head gardener living in a cottage adjacent to, but not actually forming a part of, his master's house, was a menial servant, was ap- proved. But Lord Abinger, C. B., re- marked that he would have been in- clined to tell the jury that, as a matter of law, such a servant was within the menial class. In Todd V. Kerrich (1852) 8 Exch. 151, 17 Jur. 119, 22 L. J. Exch. N. S. 1, the court approved a general verdict, based on the assumption that a govern- ess engaged at a yearly salary was not ft menial servant. But Pollock, C. B., remarked: "So far as the question is to be treated as a matter of law, a governess does not fall within the rule." In Lawler v. Linden (1876) Ir. Rep. 10 C. L. 188, it was held, as matter of law, that a housekeeper of a large hotel was not a menial servant. Morris, C. J., said: "Whether a person should be considered a menial servant or not depends . . . upon the circumstances of each particular case. It is an im- plication of law attachable to the con- tract." Lawson, J., said: "I cannot consider this plaintiff as an ordinary domestic servant, or menial servant. She is engaged as the housekeeper of a large hotel, and her duty is to super- intend the domestic servants, and at- tend to the general economy of the establishment. It is true she lives in the house, but that is not a decisive test, for the cases show that servants not living within the house come within the rule, while a governess who lives within the house does not. . . . "These large hotels are the creatures of modern civilization, and the usage which regu- lates the relation of a private house- hold does not necessarily apply to them." That a steward in charge of a gentle- man's country house is not a menial servant was stated as a conclusion not admitting of doubt, in Forgan v. Burke (1861) 12 Ir. C. L. Rep. 495. ' This doctrine was laid down ex- plicitly in Nicoll v. Greaves, supra, and is assumed in the other cases cited in the last note. In Williams v. Byrne (1837) 7 Ad. & El. 177, Littledale, J., doubted wheth- er, even in the case of a domestic serv- ant, it could be implied, as a matter of law, that the employment might be determined at any time on a month's notice, it should be stated in the record, and then no doubt the jury would so find it. The doctrine thus suggested does not seem to have been categorically applied in any case. S Fleming v. Bill (1876) 10 N. S. 268. § 210] TERMINATION OF THE CONTRACT. 657 The English rule has heen recognized, though not very explicitly, in a few American cases.® But in one state it has been categorically declared that there is no general custom that a domestic servant hired for one year, with monthly payments of wages, may he discharged, without cause, on one month's notice, or one month's wages paid.^° A custom with regard to the hiring of domestic servants, to the «ffect that, in the absence of special contract, there is a right, on the part either of the master or the servant, to determine the service, at the end of the first calendar month, by notice given at or before the expiration of the first fortnight, has been held to be neither unrea- sonable nor inconsistent with that referred to above, by virtue of which the hiring of a domestic servant is a hiring for a year, with liberty to put an end to the contract by giving a month's notice. This custom has become so well established that the courts will take judi- cial notice of it.^^ c. — in the case of other servants. — Except in cases where domestic servants are concerned, no general custom with respect to the termina- bility of a contract by notice is judicially recognized.^^ In all other 9 In Sathaway v. Bennett (1854) 10 (1827) 4 Bing. 309, 12 J. B. Moore, N. Y. 108, 61 Am. Dec. 739, the de- 552, 2 Car. & P. 607; and the cases cision was to the effect that the rule cited in the latter part of note 6, was not applicable to the employment supra. in question; that is, as between the In one case, Gaselee, J., remarked to proprietor of a newspaper and a car- the eflfect that the understanding that a. rier on a route. contract for domestic service may be That a hiring from month to month dissolved before the end of the year is ordinarily implied in the case of merely by giving notice (see preceding ■domestic servants was stated in Daveny subsec.) does not seem to prevail in V Shattuck (1880) 9 Daly, 66. regard to servants in husbandry. Bees- lOLarkin v. Hecksher (1889) 51 N. ton y. Gollifer (1827) 4 Bing. 309. TTie J. L. 133 3 L.R.A. 137, 16 Atl. 703 same doctrine is assumed without any (rule laid' down with regard to a gar- argument in many of the settlement dener). cases cited in § 156, ante. See, for "In George v. Davies [1911] 2 K. example. Rex v. Birdbrooke (1791) 4 B. 445, 55 Sol. Jo. 481, 80 L. J. K. T. R. 245; Rea; v. Lyth (1793) 5 T. R. B. N. S. 924, 104 L. T. N. S. 648, 27 327; Rex v. Lambeth (1815) 4 Maule & Times L. R. 415, it was held that the S. 315. county iudo-e could take judicial notice In Eathaioay v. Bennett (1854) 10 of tho custom, and if he did so his N. Y. 108, 61 Am. Dec. 739, the court action would not be disturbed. The declined, in the absence of specific evi- court called attention to the fact that dence of a custom, to hold that a con- the custom had been continually put tract between the proprietor of a news- forward and proven since the decision paper and a carrier on a route was in Moult V. Ealliday (1898) 67 L. J. terminable at a month's notice. Q. B. N. S. 451 [1898] 1 Q. B. 125, In some cases, where the circum- 77 L. T. "n. S. 794, where the court re- stances are such that the doctrine under fused' to review the finding of an in- which the operation of the custom per- ferior iudge that the alleged custom mitting dismissal at a month's notice had not been proved. is restricted, as a matter of 1^, to 12 Parke B., in Broxham-f.Wagstaffe domestic servants, would be sufficient <1841) 5 'lur.' 845: Beeston v. Gollyer of itself to protect the servant in ques- M. & S. Vol. I.— 42. 658 JIASTER AND SERVANT. [chap. VI. cases the party who asserts that notice of a certain length was, by virtue of a custom obligatory in the premises, must allege and prove, by affirmative evidence, that such a custom exists, and that the other party had notice, actual or constructive, of its existence.^* tion from a rescission on such a foot- ing, the conclusion indicated by that doctrine may be corroborated by con- siderations which justify the inference that a hiring of a more stable character was contemplated. This point of view is disclosed by the following remarks of the judges in Beeston v. Collyer (1827) 4 Bing. 309, where the servant was a clerk employed by an army agent at a salary of £500 a year. Park, J., said: "Persons in the situation of the plaintiff [a clerk to an army agent] must be supposed to possess superior acquirements, and are entitled to more respect than to be turned off without any reason being assigned." Best, C. J., said: "It would be indeed extra- ordinary if a party in his station of life could be turned off at a month's notice, like a cook or scullion." 13 In Williams v. Byrne (1837) 2 Nev. & P. 139, 7 Ad. & El. 177, W. W. & D. 535, 1 Jur. 578, it was held that where an action is brought for the breach of a contract of hiring to con- tinue a whole year in the first instance, and thereafter as long as the parties please, and either of the parties relies on a custom authorizing him to deter- mine the contract upon reasonable no- tice previous to the end of a current year, such custom must be expressly alleged as a fact on the record. An averment that reasonable notice was given is not enough. That the right to terminate a yearly contract by notice may be predicated from a usage known to the parties, and understood to be applicable to such engagements as the one in question, was recognized, arguendo, in Tatterson v. Huffolk Mfg. Co. (1870) 106 Mass. 57. In Cams v. Eastwood (1875) 32 L. T. N. S. 855, it was held that the trial judge had erroneously refused to admit evidence that there was a well-known custom in the district in question, that workmen in factories like the employer's should give fourteen days' notice be- fore leaving the employment. In Fairman v. OaJcford (1860) 29 L. J. Exch. N. S. 459, Pollock, C. B., is reported as having remarked: "My own experience is that juries in London generally find that clerks are entitled to three months' notice." These words are not found in the report in (1860) 5 Hurlst. & N. 635. In Brennan v. Gilhart-Smith (1892) 8 Times L. R. 284, the jury found upon .the evidence that the editor of a news- paper was entitled by the custom of the profession to a year's notice. But in Foxbourne v. Vernon (1894) 10 Times L. R. 647, the jury found, after hearing a great deal of conflict- ing evidence, that, under the prevailing "practice" regulating the relations of proprietors and editors of newspapers, an editor was entitled to no more than six months' notice. Lord Russell, C. J., considered that no general "custom" in regard to the matter existed. In Mortimer v. Prowett (1856) an unreported nisi prius case cited in Smith, Mast. & S. 5th ed. p. 68, there was evidence that, in the absence of an express stipulation, it was usual to give a newspaper printer one month's, or at least a fortnight's, notice, a pub- lisher three month's notice, and a sub- editor notice expiring at the end of the current year. The jury gave the plain- tiff, who filled all these places, one month's wages. In Chamberlain v. Bennett (1892) 8 Times L. R. 234, a, subeditor was found to be entitled by custom to six months' notice, no special agreement being proved. In Grundon v. Master (1885> 1 Times L. R. 205, the jury found that, in the absence of a special agreement, a com- mercial traveler was entitled, by the custom of the trade in question, to three months' notice. A Free Church minister was found by a jury to be entitled to six months' notice of dismissal, in Tompkins v. Mar- tin (1886) 3 Times L. R. 163. In Nayler v. Tearsley (1860) 2 Fost. 6 F. 41, the plaintiff called a witness to prove that it was customary to em- ploy agents to canvas for advertise- ments, to be paid by a percentage on the advertisements received whenever they were actually inserted, and that § 211] TERMINATION OF THE CONTRACT. 659 d. Custom overridden hy express tertns of contract. — The terms of a contract which by its express words covers a definite period can- not be varied by evidence of a custom entitling the employer to dis- charge the servant on giving a certain notice.'^* 211. Obligation as inferred independently of a specific custom. — Other circumstances which have a bearing upon the question of the proper notice to be given in any given instance are the following: a. The character of the employment. — From the cases as they stand, it is by means clear to what extent this circumstance is to be regarded as an element which in practice circumscribes the operation of the rule prevailing in England with respect to the presumptive yearly duration of a general hiring. See §§ 156, 157, ante. There one explicit decision by a court of review to the effect that this pre- sumption is so far controlling that, in the absence of an express agree- ment or of a custom, the right to terminate by notice a contract of this description cannot be inferred.^ But a different theory seems to it was considered that they were en- next find what that custom is. And if titled to a month's notice; but Wight- you find that it was the custom to give man, J., held such evidence not suflS- three months' notice, you will find a gient. verdict for the defendants.'' In Cunningham v. Fonllanque (1833) In Lamlerton v. Vancouver Temper- 6 Car & P 44, Park, J., observed that ance Hotel Co. (1904) 11 B. C. 67, it it was apparently a usage of trade be- was held that, in the absence of proof tween the printers and the proprietors »* a specific custom or u. special agree- c 4.1, A j.i,„ !„++„.. =>,n,,i,i ment, the manager of a restaurant was of newspapers, that the latter should '^.^^ ^ ^^^^^^.^ ^^ ^^^ give to the former four weeks notice ^^ '^ ^^^^^^ ^^ j^^^ ^^ ^ ^>^^^^^,^ ^^ of taking the work from them or pay ^.j^^^ j,^^. ^^^^-^^ ^^ reasonable notice. them four weeks' wages, but that such yPhere a master relies on the existence usage seems not to be mutual. of ^ usage that his servants shall give In Foxallv. International Land Credit ^ certain notice of their intention to Go. (1867) 16 L. T. N. S. 637, Byles, ig^ve, and this usage, as alleged, is a J., after mentioning in his direction to particular one, applicable merely to such the jury the rule which pravails with concerns as his own within a limited regard to domestic servants, proceeded ^^^^^ jjg ^ugj prove that the servant thus: "Take the case of a clerk, a jjj question knew of the usage when he clerk in some very responsible position, entered upon the work or before he who is employed at a salary of, say, left it. Stevens v. Reeves (1829) 9 £2,000 a year, is he to be dismissed. Rick. 197. without any custom or agreement, at a H Baltimore Base Ball Clui & E. Co. quarter's notice? I do not decide it v. Pickett (1894) 78 Md. 375, 22 L.R.A. as a question of law; but I express an 690, 44 Am. St. Rep. 304, 28 Atl. 279 opinion of fact that the clerk could not ( custom alleged was that professional be dismissed at such a notice ; he would baseball clubs have the right, on ten be entitled to his salary up to the end days' notice, to discharge a player who of the year." ... If you find that does not play satisfactorily). there was in the present case a general 1 In BucHngliam v. Surrey & H. custom of some reasonable antiquity Ca«.a?, Co. (1882) 46 L. T. N. S. 885, the and standing uniform, and sufficiently plaintiff was appointed consulting en- nctorious and well understood that peo- gineer to the defendant company, under Die would make their contracts on the a resolution to the following effect: supposition that it exists, you will "Resolved, that Jlr. J. B. be appointed 6G0 MASTER AKD SERVANT. [chap. VI. have been adopted in several nisi priv^ cases.^ In view of the con- flict of opinion thus disclosed, the utmost that can at present be af- firmed with regard to this point is that, as was remarked by Lord Coleridge in one of his judgments, "there is some authority for say- ing that, as a proposition of general law, reasonable notice is to be implied as a term of such a contract of hiring as this," — i. e., one for the performance of duties of the more responsible description.* It is even questionable whether this statement did not go further than was warranted by the precedents upon which the learned chief jus- tice relied.* In cases where the circumstances negative the inference engineer to the company at a salary of £500 per annum." It was held that as no evidence was offered, on behalf of the defendant, of any custom to de- termine such a contract by notice, the trial judge was bound to direct the jury that the hiring was for a year certain. A motion for a new trial was therefore denied. 2 In Levy v. Electrical Wonder Co. (1893) 9 Times L. R. 495, Lord Coler- idge ruled that a notice of one week was not sufficient in the case of a man- ager of a company, and left it to the jury to say what was a reasonable no- tice. In Byrne v. Schott, cited in Vibert V. Eastern Teleg. Co. (1883) Cab. & El. 1 7, a manager of several shops belong- ing to the defendant was found by a jury entitled to a month's notice. In Lowe v. Walter (1892) 8 Times L. R. 358, the jury, to whom the case was left by Lord Coleridge found that there was no custom governing the length of notice to be given to a foreign correspondent of a newspaper, and that six months was a reasonable notice. In Baker v. Mandeville (1896) 13 Times L. R. 71, Charles, J., while de- clining to give an opinion as to the question whether the editor of a lead- ing journal was entitled to twelve months' notice, as was alleged by the plaintiff, held that three months was a sufficient period in the case of an editor of one of the less important journals. In Landa v. Greenbeg (1907) 24 Times L. R. 441, the engagement of a lady to contribute to a newspaper a weekly column of literary matter for children was held to involve the per- formance of editorial and managerial functions outside the scope of an ordi- nary contributor. Consequently she was entitled to reasonable notice before the engagement was terminated. It was agreed by the parties that, if she were entitled to any notice, three months would be a reasonable period. ^ Green v. Wright (1876) L. R. 1 C. P. Div. 591. * One was Hiscox v.Batchellor (1867) 15 L. T. N. S. 543. There a written agreement to employ a person as an advertising and canvassing agent con- tained no provision as to the notice that should determine the agreement. Byles, J., left the case to the jury, tell- ing them that the notice must be a reasonable one. In this case, however, evidence as to custom was, as the re- port shows, introduced, and presumably this was treated as a factor for the con- sideration of the jury. The other case cited by Lord Coler- idge was Fairman v. Oakford (1860) 5 Hurlst. & N. 635, 29 L. J. Exch. N. S. 429 (see § 157, note 8, ante). There, as he points out, "in the absence of stipulation for any notice, a month's notice was held reasonable to determine an indefinite hiring of a clerk, on the ground that the same clerk had accepted such a notice as sufficient to determine a former indefinite hiring, also without stipulation of any kind. [He laid stress upon the fact that] it is nowhere suggested that the absence of stipula- tion made no notice necessary in either of the hirings, which would have been a short and simple ground, if a sound one, for upholding the verdict in that case." But the omission of the court to advert to an element which it was unnecessary for the purpose of the de- cision to consider scarcely seems to be a circumstance adequate to sustain the large deduction which he proposed to draw from it. § 211] TERMINATION OF THE CONTKACT. 661 of a hiring for a year an obligation to give notice will, it seems, be implied, both in England and the British possessions in which the common law is administered, with respect to all contracts relating to the higher grades of work.^ But apparently this obligation is not A somewhat less ambiguous recog- nition of the right to terminate a general hiring by reasonable notice is to be found in the remark of Burrough, J., in Beeston v. Gollyer (1827) 4 Bing. 309, that, "unless reasonable notice were given, or ground for dismissal assigned, the defendant was bound to go on to the end of the year." But no direct ruling on the point was made, for the reason that, as Best, C. J., remarked, it is "not necessary for us now to decide whether six months,' three months,' or any, notice be req- uisite to put an end to such a contract, because under the circumstances of the present case, after the parties had con- sented to remain in the relation of em- ployer and servant from 1811 to 1826, we must imply an engagement to serve by the year, unless reasons are given for putting an end to the contract." In Crew v. Prospect (1890) 11 New South Wales L. R. (L.) 72, the jury found that three months was a reason- able notice in the case of a municipal overseer of works, appointed at a salary of £130 per annum, payable monthly. This decision was founded upon what was, in the opinion of the present writer, a mistaken view of the purport of Fairman v. Oakford, supra, viz., that there is no presumption that a hiring indefinite as to time is a hiring for a year. B In Creen v. Wright ( see note 3, supra), where the employee was the master of a ship. Lord Coleridge, C. J., thus stated the views of the court: "As to the notice, we think the sound construction of the contract before us is that, except in the single case pro- vided for by its terms, there must be a reasonable notice before it can be put an end to by either party. The rule of construction must be the same for both parties to the contract. If the ship- owner may dismiss the master without notice on the very eve of a voyage, the master may leave the ship without no- tice at the same point of time. But the great inconvenience and heavy loss which might be, and indeed in most cases would be, inflicted on the ship- owner, without any remedy, by such a construction of the contract, if acted on by the master, lead us to believe that such is not and could not be the meaning of the contract, nor the in- tention of the parties to it. The loss and inconvenience to the master fol- lowing upon the construction contended for, though not positively so great, may be relatively very great indeed; and this consideration points to the same conclusion." The maxim, Expreasio unius est exclusio alterius, was also ap- plied to the construction of the contract, and shown to corroborate the inference thus drawn. In Guildford v. Anglo-French 8. S. Co. (1882) 9 Can. S. C. 303, where the plaintiff had been employed to sail a, vessel and supply the crew and pro- visions at so much a month, a new trial was ordered on the ground that the question whether he was entitled to no- tice before being dismissed had not been submitted to the jury. In the absence of any evidence of usage, three months' notice was held to be reasonable in the case of a clerk whose engagement was determined not to be for a year certain. Barnwell v. Parry Sound Luniber Co. (1897) 24 Ont. App. Rep. 110. • The appointment of sewing mistress in a school, being indefinite in point of time, was held to be terminable by reasonable notice, — in this case three months, — in Robson v. Overend (1878) Sc. Sess. Cas. 4th series, 213. That case was followed in Henderson V. Canadian Timber & Saw Mills Co. (1904) 12 B. C. 294, where a finding by the jury that three months' notice was reasonable in the case of a manager of a sawmill was approved by the court. A company in England engaged in fulfilling orders sent from Australia agreed with A that he should act as the company's agent in Australia, and that he should receive a salary of £150 per annum, and a certain commission on orders. Held, that the engagement was a yearly one, terminable upon six months' notice, ending at the expira- tion of the current year. Broadhurst 662 PIASTER AND SERVANT. [chap. VI. recognized as au implied term of a general hiring in those American states in which such a contract is treated as a hiring at will.^ There is, however, some authority for a doctrine to the effect that where the terms and subject-matter of a contract show that, although it was not binding for a fixed period, the parties contemplated a stable engagement, the relation cannot be terminated without reasonable notice.' Other cases bearing upon the subject-matter of this subsection have been reviewed in § 210, subsec. c, ante. h. Period for which the contract was binding. — The general rule is that this period — at all events in cases where it is comparatively short — is the measure of the length of the obligatory and sufficient notice.* c. Period with reference to which the rate of compensation is esti- mated. — In the course of one of his judgments, Pollock, C. B., laid it down that "the general rule is that notice need not be more exten- sive than the period of payment." ^ But it is evident from the con- text that he meant nothing more than that a jury would be justified in taking that period as the measure of a reasonable notice. This doc- V. Rohinson (1903) 29 Vict. L. R. 447. The grounds upon which the incident of terminability was predicated are not ahown by the report. 6 In Martin v. New York L. Ins. Co. (1895) 148 N. Y. 117, 42 N. E. 416, affirming (1893) 73 Hun, 496, 26 N. Y. Supp. 283 (see § 159, note 2, ante), the plaintiff, the -manager of a depart- ment in a large insurance company, as a matter of fact received about a, fort- night's notice. But no reference is made to the subject by the court in its doctrinal statement; and if the ques- -tion whether the employee was entitled to notice had been considered as being in the case, it seems to be an impossible isupposition that the notice actually given would have been regarded as rea- sonable. It has not been intimated, in any of the other cases cited in the same note, that it was subject to tlie qualification implied by an obligation to give notice. 1 Harper V. Bassard (1873) 113 Mass. 187; Chrisfensen v. Pacific Coast Borax Co. (1894) 26 Or. 302, 38 Pac. 127 (both cited in § 152, note 1, ante). In Long v. Kee (1890) 42 La. Ann. 899, 8 So. 610, it was held that the proprietor of a plantation and stock farm who contracts with another as his manager for an indefinite period, the latter to have in lieu of salary all the products of the farm and half the increase of stock, may terminate the agreement and take possession when- ever he is satisfied that the management results injuriously to his property, if he acts reasonably, after due notice, and at the beginning of some designated year. 8 Where the terms of the contract show that the hiring was by the month, the servant is not entitled to more than one month's notice. Guildford v. Ang- lo-French 8. S. Co. (1882) 9 Can. S. C. 303. An assistant superintendent of con- struction work on a railway, engaged by the month, was held to be entitled to a month's notice. McBean v. New- foundland R. Co. Newfoundl. Rep. (1874-84) 501. One hired by the week is entitled to only a week's notice of dismissal. Hol- loway v. Lindberg (1897) 29 N. S. 460; Dalgety v. Busband (1878) 4 Vict. L. R. (L.) 432. 9 Davis v. Marshall (1861) 4 h. T. N. S. 216, per Pollock, C. B. S 211] TERMINATIOX OF THE CONTRACT. 6G3 trine has been recognized in other cases.^" But there is abundant au- thority for the proposition that this element does not possess a de- cisive significance.^^ d. Reasonableness of notice a question of fact.— In cases which do not involve the effect of an express agreement or of a specific cus- tom, the reasonableness of the notice received by the servant is, of course, a matter to be determined as a question of fact.^^ 10 In Robertson v. Jenner ( 1867 ) 15 construed to be notice which contem- L. T. N. S. 514, at nisi prius, the fact jjlates the determination of the service that the hiring was by the weelc was at the time of the next periodical ac- held by Bramwell, B., to justify the counting. inference that a weelc's notice was suffi- That the right to terminate a yearly ■cient. hiring by a quarter's notice is not a In Vibertv. Eastern Teleg. Co. (1883) necessary inference from the fact that 1 Cab. & El. 17, where the terms of the the salary was paid quarterly was laid hiring were indefinite, and the plaintiff's down in Tatterson v. Suffolk Mfg. Co. salary was paid at first by the month, (1870) 106 Mass. 57 (instruction to and afterwards weekly, at a certain the opposite effect held to have been annual rate, a stationery clerk in a properly refused) ; Tatterson v. Suffolk telegraph office was found by the jury Mfg. Co. (1870) 106 Mass. 56 (same to be entitled to one month's notice ruling). In the former case the court upon being discharged in the middle remarked with regard to the instruc- of the year. tions asked for: "They sought ap- In proceedings for voluntary liquida- parently to import into such engage- tion, Cozens-Hardy, J., held that a ments a rule of law analogous to that month's notice was reasonable in the which applies to tenancies of real es- case of a woman employed as the Scotch tate by oral agreement, or to that which representative of & London periodical, governs contracts for domestic service the proof being that the payment of in England. But we are aware of no her salary was reckoned by the week such rule of law applicable to the case." and made monthly. Be Illustrated In Boilings v. Robinson (1884) an Newspaper Go. (1900) 16 Times L. E. unreported English nisi prius case cited 157. in Smith, Mast. & S. 5th ed. p. 68, the In Fairman v. Oakford (1860) 5 damages for the wrongful dismissal of Hiirlst. & N. 635, 29 L. J. Exch. N. S. the editor of a periodical hired at week- 459, where a clerk hired at an annual ly wages were computed on the as- salary, which was paid weekly, had, sumption that he was entitled to six upon being dismissed, accepted a months' notice. month's salary in lieu of notice, and In Wild v. Great Matrix Ruby Min. had afterwards been re-engaged on the Go. (1890) 24 South Australian L. R. same terms except as to the amount of 48, a week's notice of dismissal was the annual salary, it was held that the held to be insuflBcient in the case of a jury had properly found that a month's man engaged at weekly wages to take notice was sufficient to terminate the charge of a mine in a remote part of employment. the country, five weeks' journey from 11 In Harrington v. Churchward the capital where he had been hired. (1859) 29 L. J. Ch. N. S. 521, 6 Jur. Four months' notice was deemed to be N. S. 576, it was held that, although reasonable. a stipulation that salary is to be paid 12 See the cases cited passim in the quarterly usually justifies the inference notes to the preceding subsections, that a, quarter's notice is sufficient, yet Where the annual meeting of the if the contract provides that the com- trustees of a seminary was held in June, pensation is to take the form of a speoi- the fiscal year began on July 1, and the fied percentage of the profits, to be actual work of the year began on Oc- paid when the accounts of such profits tober 1, it was held that a professor are made up, reasonable notice will be whose chair was vacated by the trustees 664 MASTER Alv'D SERVANT. [chap. VI, 212. At what time the notice should be given. — Where it is express- ly provided that a contract covering a deiinite period may be termi- nated by a certain notice, a court will not, in the absence of words indicating that such was the intention of the parties, infer that the no- tice was to expire at the end, or any other particular time, of the stipulated term.^ A similar rule is controlling where the contract is on July 8, and who was soon after- wards notified that his services would not be required for the ensuing year, was not entitled to any salary beyond October 1. Tyng v. Theological iSem- irtary (1880) 14 Jones & S. 250. For a further account of the contract in this case, see § 157, note 5, ante. 1 In Beeston v. Collyer (1827) 4 Bing. 309, the court declined to express any definite opinion as to the time when a notice should mature, in the case of a servant who, after having been orig- inally employed under an indefinite hiring, had continued to hold his po- sition for several years. Best, C. J., however, remarked: "The principles upon which the action for use and oc- cupation proceed are the same as those which formed the ground of my direc- tion to the jury upon the present oc- casion. The contract is for a year at first, and if the parties do not disagree, it goes on from one year to another. It is true that one of the incidents of a tenancy of this kind is that it can only be determined by a half year's notice concluding with that day on which the tenancy commenced. We do not say that such terms are to be en- grafted on contracts for the hire of servants." In Ryan v. Jenkinson ( 1855 ) 25 L. J. Q. B. N. S. 11, it was held that a contract evidenced by a resolution of a board of trustees appointing a school- master, and declaring that he should be paid at the rate of £55 per annum so long as by mutual consent he should retain the ofSce, the appointment to be subject to termination by three months' notice from either party, might be ter- minated at any time by giving the req- uisite notice. It was declared that the rule in regard to tenants of land from year to year was not applicable to such a contract, that rule being ref- erable to the consideration of the great inconvenience which would arise from the nature of the property and the course of husbandry, if it were permis- sible to terminate the relation of land- lord and tenant at any time. On the other hand, it might be of great im- portance that a servant who had done some act not sufficient to justify im- mediate expulsion should be allowed to continue in his service until the ex- piration of the current year. Eeon v. Hart (1869) Ir. Rep. 3 C. L. (Exch. Ch.) 388, affirming (1867) Ir. Rep. 2 C. L. 138, where a written contract by which the plaintiff was appointed agent at a certain salary and commission provided that the agree- ment should "stand good for six months- from the date hereof," and that "six months' notice from either side should terminate the agreement," it was ob- served: "It has been very properly said by one of my brethen, and indeed assented to by the counsel for the plain- tiff, that the notice meant in that con- tract is not to be governed by the same rules as a notice to quit a farm. This- contract was a mercantile agreement, and no authority has been cited to show — and indeed the point has been given up — that it must terminate at any par- ticular time of the year." It was ac- cordingly held that notice expiring at any time after the end of the first six months was good. In a New Zealand case it was held that, where a person is employed at an' annual salary, with an agreement that "three months' notice on either side shall terminate the agreement," it is not necessary that the notice shall be given so as to expire at the end of the year. Zeigler y. Monokton (1885) New Zealand L. R. 4 S. C. 213. In Forgan v. Burke (1861) 12 Ir. C. L. Rep. 495, an agreement of hiring at an annual salary, to which was ap- pended the clause "three months' notice required on each side," was construed as meaning not that the year's engage- ment inferred from such a hiring might be terminated by three months' notice at any period of the year, but that three months' notice was to be given on either side if it was desired to determine the- employment at the end of the year. § 212] TERMINATION OF THE CONTRACT. 665 decided to be one which is impliedly subject to termination by notice.* Where a servant is given leave of absence for a longer period than that which measures the notice on which, under the contract, his en- gagement is terminable, and is then told that his services will not be required at the end of that period, he is deemed to have received due notice.* Where the contract provides that the servant is to be taken on trial for a specified period, and that if the trial is satisfactory he is to be employed for a fixed term, the master is not under any such duty with regard to notifying the servant of his dissatisfaction at the end of the period of trial that if he fails to give such a notification he will become definitely bound to employ the servant until the expira- tion of the stipulated term.* A different construction, it was con- sidered, could not be adopted without doing violence to the principle that a court is not at liberty to supply words to defeat an express contract. That a contract for iive years, ter- minable at the end of the first year by either party upon giving the other three months' notice, is not effectually ter- minated unless the notice is given be- fore the end of the year, and that no- tice given at the end of the year is not sufficient, was held in Scott v. ^"e^o- foundland, Newfoundl. Rep. (1884-96) 230. 2Loioe V. Walter (1892) 8 Times L. R. 358. The case of Forgan v. Burke (preceding note) was cited by counsel in support of his contention that the notice was not sufficient unless it ex- pired at the end of the year. i-.ord Coleridge said that the two cases were distinguishable on the ground that the one before him was merely an engage- ment at a yearly salary, and the other an engagement under a special contract for a year. But the more correct ground of distinction would seem to be that the Irish decision embodies simply the conclusion of the court regarding the construction of the given contract, and was not intended as an affirmation of any general rule. The ruling in Loxve v. Walter is in conflict with the decision in Broadhurst V. Robinson (1903) 29 Vict. L. R. 447. See § 211, note 5, ante. But the rationale of that decision is not clear. A special custom applicable to do- mestic servants in England is mentioned at the end of subsec. b, of § 210, ante. 3 Williins V. Scinde, P. & D. R. Co, (1885) 1 Times L. R. (C. A.) 383, affirming Willis v. Gornbe (1884) 1 Times L. R. 36. The servant's conten- tion was that the notice to determine his engagement could not be given until the expiration of the leave of absence. i Carter v. Weher (1904) 138 Mich. 576, 101 N. W. 818. In that case it was held (1) that, as the defendant had for nearly three months while the contract was in full force neither ob- tained nor sought the benefit of the contract, the plaintiff was bound to infer therefrom that the employment was unsatisfactory; and (2), that the fact of the defendant's having received and failed to answer written communi- cations sent by plaintiff through the mails did not estop the defendant from subsequently contending that the serv- ices were unsatisfactory, and hence that he was not bound for the additional term. With regard to the latter of these points, the court reasoned thus: "Defendant did not voluntarily accept these communications. Plaintiff mailed them, and the postman delivered them. Defendant never replied to them, never used them, and never opened them. He simply preserved them. To make the principle of estoppel applicable, it must be held that from defendant's silence, from his failure to answer the com- munications, plaintiff had a right to infer, and did infer, his desire to con- tinue the contract. Plaintiff had no 666 MASTER AND SERVANT. [chap. VI. A notice given in pursuance of an express stipulation is of course effective, even though it may have been given before the performance of the services was commenced.^ 213. Obligation to give notice under the law of Scotland. — a. Ex- press agreements as to notice. — A special stipulation with regard to notice is binding on the employer and the servant alike, whether it has been inserted in the contract of hiring, or merely expressed in a rule published in some appropriate manner.' h. Obligation to give notice to prevent tacit relocation of contract for a definite period. — This subject is discussed in § 236, post. c. Obligation in respect to contracts for a fixed period, where the question of tacit relocation is not involved. — In some instances a serv- ant who has been hired under a contract which by inferential con- struction is binding for a definite period may be dismissed on rea- sonable notice.^ In others it would seem that no notice whatever is necessary.' right to draw any inference from de- fendant's silence, unless defendant was under an obligation. . . . While politeness will ordinarily induce a man to answer letters, he has the legal right to ignore them, and to determine for himself whether he will answer them. Cases may arise in which this right is of great value, and the courts are not at liberty to destroy it. No inference may be drawn, therefore, merely because one does not return or answer a letter received by him." In another case it was held to be error to instruct the jury, in substance, that notice of dissatisfaction must have been given within the sixty days, since the employer is entitled to a reasonable time, to be determined by the jury, after the expiration of the sixty days, to give this notice. Baldwin Fertilizer Co. v. Cope (1900) 110 Ga. 325, 35 S. E. 316. A stipulation with the employer, that "should my service prove unsatis- factory at the expiration of six months from date you are at liberty to cancel this contract ... by your giving me thirty days' notice of such inten- tion," was held to authorize notice thirty days before the expiration of the six months, followed by a discharge at the termination of such period. Stark- loeather v. Emerson Mfg. Go. (1906) 132 Iowa, 266, 109 N. W. 719 (disap- proving the instruction of the trial judge, that the plaintiff could not be discharged until thirty days after the end of the six mouths). ^ Dees V. Board of Education (1906) 146 Mich. 64, 109 N. W. 39. 1 Fraser, Mast. & S. p. 63, citing Jack V. Umpherston (1837) 6 Sc. Sess. Cas. 1st series, 348; Raeburn v. Reid (1824) 3 Sc. Sess. Cas. 1st series, 69 ; Ander- son V. Moon (1837) 6 Sc. Sess. Cas. 1st series, 169; Milloy v. Sneddon (1839) 2 Swinton, 381; Leadhitter v. Garnkirh Goal Co. (1841) 2 Swanton, 620; Hamilton v. Outram (1855) 17 Sc. Sess. Cas. 2d series, 798. Compare the cases cited in § 208, d, ante. 2 In Gamphell v. Fyfe (1851) 7 Sc. Sess. Cas. 2d series, 518, an editor engaged at a yearly salary was held to be entitled to reasonable notice. Fifteen days was held by all the judges to be insufficient. One of them refused to say positively that forty days would have been enough, or that six months would have been required. Where a coalmaster discontinued the working of a pit, and gave notice to his manager that his services would no longer be required, it was held that the manager was entitled to three months' wages in lieu of three months' notice as being reasonable notice under the circumstances. Forsyth v. Heath- try Knowe Coal Co. (1880) 7 Sc. Sess. Cas. 4th series, 887. The only specific ^ 213] TERMINATION OF THE CONTRACT. 667 d. In cases where the servant was not hired for a fixed term. — As regards domestic servants, the invariable practice has been said to be that the contract is terminable as, in England, by giving a month's notice, or by paying a month's wages.* In the case of other classes of servants with regard to whom no general custom has been estab- lished, the rule seems to be now settled that the party who desires to terminate the contract is bound to give the other reasonable notice, and no more.* ■evidence offered as to the usual notice fidence, I apprehend that the connection in such cases was that it was the prae- of the parties might be brought to a tice to give three months' notice. The close by either of them, upon reason- court was of opinion that, although able and equitable notice being given this could not be said to be a custom of the period of its termination. If in the legal sense, it was important such notice were not given, then corn- evidence with regard to the point to pensation must be due in respect of the be determined, since, if it can be ascer- failure to give it." Moffat v. Shedden tained what is commonly stipulated in (1839) 1 Sc. Sess. Cas. 2d series, 234. such cases, this is indicative of the The doctrine embodied in these re- amount that is reasonable. marks was categorically adopted in a In Mackenzie v. Baird (1906-07) l^*'^'" <=ase, where it was held that a Sc. Sess. Cas. 838, the court held that contract for the employment of a school- a factor managing an estate was en- master implied an obligation on the titled to at least six months' notice, P\^.* °* ^'l^ employer either to give .,,..,. . ,, , notice, or to make a pecuniary allow- the decision being put upon the ground ^^^^ .^ j;^^ ^^ notice, when he meant that his principal duties, such as the ^.„ terminate the contract without alleg- collection of rents, occur at intervals j^g f^ult on the part of the servant. of six months. Morrison v. Alernethy School Board 3 The provision in the education act (1876) 3 Sc. Sess. Cas. 4th series, 945 of 1882, to the effect that teachers in (notice of three months was held sufB- the board schools cannot be dismissed cient) . It was considered by Lord without the specified notice, is not ap- Deas that the doctrine thus adopted plicable to a teacher appointed ad was a fortiori conclusion in view of the interim for a, certain period. Roison rule as to the necessity of notice to pre- V. School Board (1900) 2 Sc. Sess. Cas. vent tacit relocation in the case of con- 6th series, 411. tracts for a fixed period. "The object * Lord Gifford in Morrison v. Aher- in both classes of eases," said the nethy School Board (1876) 3 Sc. Sess. learned judge, "is the same, to give the Cas. 4th series, 945, 963. servant a fair opportunity of looking 5 Where there are no special pro- out for and obtaining another situation, visions in the school's deed of con- instead of being thrown suddenly and stitution, and the contract of employ- unexpectedly upon the world, with, it ment bears no indication of a contrary may be a wife and family to support, intention, masters in private schools and no means, either from savings or are deemed to hold office during the otherwise, of supporting either himself pleasure of the managers, subject to or them. It is even more necessary reasonable notice on either side. Bell's that this rule should be applicable to Principles, § 2189; Mason v. Scott the higher class of servants, such as (1836) 14 Sc. Sess. Cas. 1st series, 343; managers and other officers of banks, Woodside Institution v. Kiellar (1865) insurance offices, railway companies, 4 Sc. Sess. Cas. 3d series, 67. and many other companies and em- So also in a case where the engage- ployers, than to those in an inferior ment of a tutor was held to have been position, because it is much more ex- terminable at pleasure. Lord President pedient and much more common that Hope said: "So soon as there was no such persons should hold their appoint- mutual satisfaction, no mutual con- ments during pleasure than that serv- 668 MASTER AND SERVANT. [chap. vi_ e. Form of notice. — It is not necessary that the notice should be given in any particular form. It may be conveyed "either verbally, or by writing, or rebus ipsis et factis. If either party show by hi& conduct that he means not to renew the contract, and the other inter- pret, or ought to have interpreted, such conduct accordingly, that will be held warning as effectual as written notice itself." ^ ants of an inferior class should do so; and there is a clearer implication in the one ease than in the other that a con- siderable period of employment is rea- sonably to be expected, although not actually stipulated for. In all cases of exuberant trust, it is important for the master or employer that he should be able at any moment to stop the act- ings and intromissions of his servant, and the higher the position of the serv- ant the more necessary this power comes to be. But, on the other hand, the higher the position of the servant the greater is the expediency, on grounds of public policy, that he should not be discouraged from accepting and con- tinuing in such precarious employment by the additional risk of being left at any moment vrithout either time or means to enable him to look out for and obtain another situation. All this ap- plies, I think, in a high degree to a master or head master in a public school. To tempt men of learning and ability to agree to hold such an office at the pleasure of their employers, — especially at the pleasure of a popular board, — it is expedient that they should feel assured that the lavr will allow them the means of subsistence for at least some limited period after they have been dismissed without cause as- signed. The voluntary liberality with which the directors of many institu- tions treat their officials when they dis- continue their services can hardly be expected from a school board. A school- master, moreover, is peculiarly help- less if driven to seek employment out of his own element. His learning and his habits disqualify him, rather than otherwise, for many occupations to which other professional men might readily turn." Two cases, Pollok v. Commercial Bkg. Co. (1822) 1 Sc. Sess. Gas. Ist series, 157, and Mitchell v. Smith (1836) 5 Sc. Sess. Cas. 1st series, 927, which, as affirming without qualification the right to dismiss at pleasure employees of a high grade, were apparently in conflict with the doctrine thus laid down, were distinguished on the ground that the question of notice was not. raised in either of them. In Mollison v. Baillie (3885) 22 Scot. L. R. 595, it was held that a sub-factor,, not being one of those servants whose hiring is with reference to the legal terms of the year, might be dismissed on reasonable notice at any time. See also Roison v. Overend (1878) 6 Sc. Sess. Cas. 4th series, 213, where an indefinite contract for the hire of a schoolmistress was held to be ter- minable by reasonable notice. 6Fraser, Mast. & S. p. 59. The learned author oflfers the following il- lustrations : If a gentleman tells his- coachman he is to give up his carriage at Whitsunday, this is sufficient notice to the coachman that his services will not be necessary after that term. If a writer says that he is to give up business at a particular period and re- tire to the country, this is sufficient notice to his clerk to provide himself with employment elsewhere. A serv- ant, by entering into a contract with a third party, the performance of which is incompatible with continuing the dis- cbarge of his duty to his master, is held thereby to give notice of his in- tention to quit the service; the enlist- ment of the servant aifords an example. Macdonell v. Dixon (1805) M. App. Mut. Cont. 3. In Anderson v. Wishart (1818) 1 Murray, 429, the court refused to inter- fere with the finding of a jury that the fact of a servant's having applied to a third party to see if the latter could get a place for him was not suffi- cient to show that he had received warning. In Maclean v. Fyfe (1813) 1 F. C. (Sc.) 698, a gardener, having ascer- tained during the autumn that his mas- ter intended to let the garden, and had advertised it, applied for service else- where. He received no direct notice or §§ 214, 215] TERMINATION OF THE CONTRACT. 669 214. Under French law as administered in Quebec. — In this Cana- dian Province, a contract for services of vyhich the duration is not defined may be terminated by either party by giving such notice as has been fixed by local usage/ or, in the absence of any specific usage, by giving a reasonable notice.* By an express statutory provision, a school teacher is entitled to two months' notice of the intention of the board by which he is em- ployed, to terminate the contract at the end of the scholastic year (Quebec Stat. 35 Vict. chap. 12, § 7). A stipulation which pur- ports to bind him to leave without the notice so prescribed is null and void.^ This notice must be given at least two months before the •close of the current scholastic year, under the authority of a resolu- tion of the commissioners, duly passed and entered upon their regis- ters. Otherwise the engagement will remain in force for the ensuing year.* T. Teeminatioit by oe on accottnt of the death oe physical dis- ability OF ONE of the PAETIES. 215. Effect of death. Generally. — The general rule is that "con- tracts bind the executor or administrator, though not named." ^ To this rule it is agreed that the contract of service constitutes an excep- tion. "Where, however, personal considerations are of the founda- tion of the contract, as in cases of principal and agent and master and intimation to quit his place, and, hav- Walsh (1887) 16 Rev. Leg. (Q. B.) Ing failed to obtain another engagement, 34. he continued in his master's employment i School Gomrs. v. Desmeules (1888) nine days after the end of the year. 15 Quebec L. R. 226, 17 Rev. Leg. 84, The court were unanimously of opinion 12 Legal News 371. that there was here nothing sufficiently 1 Parke, B., in Siioni v. Kirkman clear to be construed as equivalent to (1836) 1 Mees. & W. 423; Willes, J., regular warning. No certain inference in Farrow v. Wilson (1869) L. R. 4 could be deduced from the inquiries of C. P. 744; Yerrington v. Oreene (1863) -the servant, as it was common with 7 R. I. 589, 84 Am. Dec. 578; Harrison servants, when they had not made up v. Conlan (1865) 10 Allen, 85. their minds, to inquire after other situa- An independent contract which does tions; and as to the unsuccessful at- not involve skill, and which binds the tempt to let the garden, that was to heirs, executors, and administrators of he regarded by the servant as no more the party, and can be completed within than "a hint that he might be looking a reasonable time, is not extinguished ■out for another situation. by the death of either party. Billings's ILacoste, J. C, in Montreal v. Davis Appeal (1884) 106 Pa. 558. (1896) Rap. Jud. Quebec 6 B. R. 177, A contractor agreeing to build a house 192 citing 25 Laurent, 511, Guillouard, may be required by the administrator Louatre 718. to finish the same after the death of zpaauin v Hull (1888; County Ct.) the owner of the land. Cooper v. Jar- 11 Le^al News (L. C.) 354. man (1866) L. R. 3 Eq. 98, 36 L. J. SL^ Com-missaires de I'Ecole v. Ch. N. S. 85, 2 Eng. Rul. Cas. 243. 670 MASTER AND SERVANT. [OHAP. VI, servant, the death of either party puts an end to the relation ; and in respect of service after the death the contract is dissolved, unless there he a stipulation, express or implied, to the contrary." Both parties are regarded as being discharged from their obligations, "not in breach of the contract, but by implied condition." ^ Under such cir- cumstances, though the promise is in words positive, the exception to the general rule is allowed "because from the nature of the contract it is apparent that the parties contracted on the basis of the con- tinued existence of the particular person." * The more general prin- ciple of which this doctrine is an illustration has been thus stated: 2 Willes, J., in Farrow v. Wilson (1869) 38 L. J. C. P. N. S. 326, L. R. 4 C. P. 744, 20 L. T. N. S. 810, 18 Week. Rep. 43 (farm bailiff). "All contracts for personal service which can be performed only during the lifetime of the party contracting are subject to the implied condition that he shall be alive to perform them; and should he die, his executor is not lia- ble to an action for the breach of con- tract occasioned by his death." Pol- lock, C. B., in Hall v. Wright (1858) El. Bl. & El. 746, 793. This dictum was quoted with approval by Kelly, C. B., in Robinson v. Davison (1871) L. R. 6 Exch. 269, and paraphrased by Holmes, J., in Grove v. Johnston (1889) Ir. L. R. 24 Eq. 352, 355. In Siloni v. Kirkman (1836) 1 Mees. & W. 418, 423, 2 Gale, 51, it was stated that the only exception to the liability of executors on a contract of a testator, broken after his death, is where per- sonal skill or taste is required. As to the rule that the death of the principal or agent terminates an agency, unless it is coupled with an interest, see Evans, Agency, pp. 100 et seq.; Story, Agency, §§ 488 et seq.; Mechem, Agency, §§ 240 et seq.; Wharton, Agen- cy, SS 101 et seq. 3 Blackburn, J., in Taylor v. Caldwell (1863) 3 Best. & S. 820, 6 Eng. Rul. Cas. 603. The following passage from the judgment in this case may also be quoted: "There is a class of contracts in which a person binds himself to do something which requires to be per- formed by him in person; and such promises — e. g., promises to marry, or promises to serve for a, certain time — are never in practice qualified by an express exception of the death of the party; and therefore in such cases the contract is in terms broken if the prom- isor dies before fulfilment. Yet it was very early determined that, if the per- formance is personal, the executors are not liable. Byde v. Windsor (1597) Cro. Eliz. pt. 2, pp. 552, 553. See 2 Williams, Exrs. & Admrs. 5th ed. 1560, where a very apt illustration is given. 'Thus,' says the learned author, 'if an author undertakes to compose a work, and dies before completing it, his ex- ecutors are discharged from this con- tract; for the undertaking is merely personal in its nature, and, by the in- tervention of the contractor's death, has become impossible to be performed.' For this he cites a dictum of Lord Lyndhurst in Marshall v. Broadhurst (1831) 1 Tyrw. 348, 349, and a case mentioned by Patterson, J. in Went- worth V. Cock (1839) 10 Ad. & El. 42, 45, 46. In Hall v. Wright (1858) El. Bl. & El. 746, 749, Crompton, J., in his judgment, puts another case. 'Where a contract depends upon personal skill, and the act of God renders it impossi- ble, — as, for instance, in the case of a, painter employed to paint a picture, who is struck blind, — it may be that the performance might be excused.' It seems that in those cases the only ground on which the parties or their executors can be excused from the con- sequences of the breach of the contract is that from the nature of the contract there is an implied condition of the continued existence of the life of the contractor, and, perhaps in the case of the painter, of his eyesight. In the instances just given, the person the continued existence of whose life is necessary to the fulfilment of the con- tract is himself the contractor, but that does not seem in itself to be necessary to the application of the principle; as § 216] TEEMIXATION OF THE CONTRACT. 671 "Where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fvilfilment of the contract arrived, some particular specified thing continues to exist, so that, when entering into the contract, they must have contemplated such continuing ex- istence as the foundation of what was to be done — there, in the ab- sence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as sub- ject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor." * 216. Death of individual master.— The general rule accepted in all jurisdictions in which the common law prevails is that the death of an individual master operates as a dissolution of the contract of hir- ing.* This rule is subject to two exceptions, viz.: (1) Where the contract contains an express stipulation the effect of which is to keep is ilustrated by the following example: In the ordinary form of an apprentice deed, the apprentice binds himself in unqualified terms to 'serve until the full end and term of seven years be fully complete and ended,' during vi^hich term it is covenanted that the appren- tice his master 'faithfully shall serve;' and the father of the apprentice in equally unqualified terms binds himself for the performance by the apprentice of all and every covenant on his part. (See the form, 2 Chitty on Pleading, 7th ed. 370, by Greening.) It is un- deniable that, if the apprentice dies within the seven years, the covenant of the father that he shall perform his covenant to serve for seven years is not fulfilled; yet surely it cannot be that an action would lie against the father? Yet the only reason why it would not .is that he is excused because of the apprentice's death." Language similar to that in the text was used in Yerring- ion V. Greene (1863) 7 R. I. 589, 84 Am. Dec. 578 (contract to employ a person as clerk and agent, dissolved by death of either party). 4 Blackburn, J., in Taylor v. Caldwell, ubi supra, note 3. i Farrow v. Wilson (1869) L. R. 4 C. P. 744; Burd'ett v. Yale (1863) 6 Al- len, 125; Harrison v. Conlan (1865) 10 Allen, 85; Harris v. Johnson (1896) 98 Ga. 434, 25 S. E. 525; Campbell v. Faxon (1906) 73 Kan. 675, 5 L.R.A. (N.S.) 1002, 85 Pac. 760. See also the decisions cited in § 514 post to the ef- fect that a servant whose master dies during the currency of the stipulated term can recover only a pro rata com- pensation for the period during which lie has actually worked. In Williams, Exrs. & Admrs. 10th ed. vol. 1, p. 626, it was laid down that by the death of a master his servant is discharged, and therefore the executors and administrators of the former can bring no action to enforce the contract of service after his death. Strange to say, the only authority cited is Went- worth, Exrs. 14th ed. p. 141, in which no judicial expressions of opinion are referred to. In Babcook v. Goodrich (1879) 3 How. Pr. N. S. 52, it was held that a contract for the employment of the plaintiff to cut garments in the shop of a merchant tailor was purely personal, and that the death of the employer jus- tified his executor in ending the con- tract and refusing to go on with its performance. The court said: "As a. general rule, if a contract is so far personal that the representative of one of the parties to it is not responsible in damages for refusing to complete its performance, the representative of the other party is not so responsible for a like failure, in the absence of evidence of intention to bind the representative. Evidence of such intention may be fur- MASTER AND SERVANT. [chap. VI. nished by the terms of the contract, or implied from its nature. This contract did not, in terms, bind the representa- tives, nor can it be fairly inferred from its nature that the parties intended to continue it beyond the life of either. The business in reference to which it was made depended largely upon the reputation and personal management of both parties. Without express power ■conferred by will, the business could not be continued by the representative, ex- •eept for such period and in such man- ner as might be necessary to close it. Stedman v. Feidler (1859) 20 N. Y. 437; Bolinghroke v. Kerr (1866) L. R. 1 Exch. 222; Williams, Exrs. & Admra. 7th ed. 1791. Nor was the business of such a character that its continuance after the death of O'Hara could have been in the reasonable contemplation of the parties." In Lacy v. Getman (1890) 119 N. Y. 109, 6 L.R.A. 728, 16 Am. St. Rep. 806, 28 N. Y. S. E. 546, 23 N. E. 452, re- versing (1888) 17 N. Y. S. R. 603, 1 N. Y. Supp. 883, the court, after show- ing by an examination of the authori- ties that the accepted doctrine was that the death of a servant dissolved the contract, proceeded thus: "If that be ■so, on what principle shall the master be differently and more closely bound? . . . The same reasoning which re- lieves the servant's estate relieves also the master's, for the relation consti- tuted is personal on both sides, and con- templates no substitution. If the mas- ter selects the servant, the servant chooses the master. It is not everyone to whom he will bind himself for a year, Tjnowing that he must be obedient and render the services required. Submis- sion to the master's will is the law of the contract which he meditates mak- ing. He knows that a promise by the servant to obey the lawful and reason- able orders of his master, within the scope of his contract, is implied by law; and a breach of this promise in a material matter justifies the master in discharging him. Rex v. St. John (1829) 9 Barn. & C. 896. One does not put himself in such relation for a fixed period without some choice as to whom he will serve. The master's habits, character, and temper enter into the consideration of the servant before he Wnds himself to the service, just as lis own personal characteristics mate- rially affect the choice of the master. The service, the choice, the contract, are personal upon both sides, and more or less dependent upon the individuality of the contracting parties, and the rule applicable to one should be the rule which governs the other. If, now, to such a case, — that is, to the simple and normal relation of master and servant, involving daily obedience on one side, and constant direction on the other, — we apply the suggested test of possi- bility of performance in substantial accord with the contract, the result is not different. It is said that if the master dies his represenatives have only to pay, and anyone may do that. But under the contract that is by no means all that remains to be done. They must take the place of the master in ordering and directing the work of the farm and requiring the stipulated obedience. That may prove to effect a radical change in the situation of the servant, as it seems to have done in the present case, lead- ing the plaintiff to the verge of refus- ing to work further for either widow or executrix, whose views apparently jan- gled. The new master cannot perform the employer's side of the contract as the deceased would have performed it, and may vary so far, from incapacity or fitful temper or selfish greed, as to make the situation of the servant ma- terially and seriously different from that which he contemplated and for which he contracted." In Yerrvngton v. Greene (1863) 7 R. I. 589, 84 Am. Dec. 578, it was held that where the contract was to employ the plaintiff as clerk and agent for sale, the continued existence of both parties for the whole stipulated term was the basis upon which the contract proceeded; that when the employer died no action lay against his administrator for refusing to continue the employ- ment. The court said: "This employ- ment could continue no longer than the business in which the employer was en- gaged and the plaintiff retained. The intestate, when living, could, by the contract, have required the services of the plaintiff in no other business than that in which he had engaged him, and with no other person than himself. It would seem, then, necessarily to follow that when the death of the employer put a stop to this business, and left no legal right over it in the administrators, except to close it up with the least loss to the estate of their decedent, they S 216] TERMINATION OF THE CONTEACT. 673 it in force as against the master's personal representatives;* (2) where the subject-matter of the contract is of such a nature as to show that it was intended to subsist until the work in Question should have been fully performed.* -were, by the contract, bound no longer to employ the plaintiff, any more than he to serve them. The act of God had taken away the master and principal, the law had revoked his agency, and stopped the business to which alone his contract bound him; and if he would serve the administrators in winding up the estate, it must be under a new con- tract with them, and under renewed powers granted by them. Any other result than that this contract of service was upon the implied condition that the •employer, as well as the employed, was to continue to live during the stipu- lated term of employment, would in- volve us in the strange conclusion that the administrators might go on with the business of their intestate, in which the plaintiff must continue with powers unrevoked by the death of his prin- cipal, or that he, with new powers from them, was bound by the contract to serve them as new masters and in a different service, and that they were bound to grant him such powers, and •employ him for the stipulated time in such service." In Campbell v. Faxon (3906) 73 Kan. 675, 5 L.E.A.(N.S.) 1002, 85 Pac. 760, a contract which provided that the em- ployee should manage the employer's drug store, that the engagement might 'be terminated at any time by either par- ty, and that the salary of the em- ployee should consist of a share of the proceeds of the business, was held to have been dissolved by the death of the •employer, and to be without any bind- ing effect upon the administrator of the 'GStEtt© In Casta v. Murray (1905) 47 Or. 57, 81 Pac. 388, 883, a contract to care for a stallion was held to have been terminated by the death of the owner of the animal. The general provision of the Califor- nia Civil Code on this subject runs as follows: § 1996. Every employment in ■which the power of the employee is not •coupled with an interest in its subject is terminated by notice to him of (1) -the death of the employer, or (2) his legal incapacity to contract. By an M. & S. Vol. 1.-^3. amendment taking effect July 1, 1901, it was provided: The parties to a con- tract of employment may, however, in writing, provide that it shall, notwith- standing the death of the employer, con- tinue obligatory for and against his heirs and personal representatives, pro- vided their liability shall be restricted to property received from and under him. A contract of employment of a sales- man by a mercantile firm is not one in which the power of the employee is coupled with an interest, within the meaning of this section. Louis v. JUl- felt (1891) 89 Cal. 547, 26 Pac. 1095. See also Re McPhee (1909) 156 Cal. 335, 104 Pac. 455, motion to dismiss appeal denied in (1908) 154 Cal. 385, 97 Pac. 878 (contract to cut timber). The provision of S. D. Code, § 4962 (Comp. Laws, § 3773), is the same as the original section in the California Code. 2 In the nisi prius case of Damson v. Reeves (1892) 8 Times L. R. 391, a con- tract was held to be binding after the death of a master who had contracted on behalf of himself and his executors. 3 In Toland v. Stevenson (1877) 59 Ind. 485, where a decedent had engaged the plaintiff to nurse and care for him- self and his family during a period of sickness, it was held that the duration of the contract did not depend upon the continued existence of the employer. In the opinion of the court, it was a reasonable inference that the decedent intended that the employment should last until the members of the family should no longer need any attention. On the ground that the death of the master did not interrupt the progress of the engagement, it was held in a Mississippi case that where A agreed to work for B one year for a certain sum, and before the expiration of the year B died, and A finished his period of service, A was entitled to recover the entire sum agreed upon for the year's services, out of B's estate. Eill V. Robeson (1844) 2 Smedes & M. 541. The report does not state whether the continuation of the service was with C74 MASTER AND SERVANT. [ClIAP. VI. In Scotland it has been intimated, but never explicitly decided, that the death of a master does not operate so as to release his serv- ants instantaneously from their obligations, and that they are bound to continue the performance of their duties for a reasonable period in all cases where serious inconvenience or positive damage will re- sult from a sudden withdrawal from the employment.* This point tlie consent of the personal representa- tives of the master. Unless it was upon that footing, the case is clearly opposed to the general current of au- thority. In Pugh V. Baker (1900) 127 N. C. 2, 37 S. E. 82, the court laid it down that a contract by which a landowner hires a man for a definite term to make crops is binding on the personal repre- sentative of the employer, where the performance of the stipulated services is continued after the employer's death. The following statement of doctrine in 8 Am. & Eng. Enc. Law, 2d ed. p. 1008, was approved : "Under a contract of employment for a specified term, the employee may recover from the personal representative of the employer as such for the whole term, though part of the services were rendered after the em- ployer's death.' The court observed: "Especially do we hold that that prin- ciple of law is a sound one when ap- plied to the hiring of persons by the ov\ners of land by the year to make crops." It also stated that there were numerous authorities for the rule. But in the Encyclopa;dia no case is cited ex- cept McDaniel v. Parks (1858) 19 Ark. 671. There the only point actually dis- cussed was whether the administrator was liable in his official capacity, or personally, in respect of tlie services rendered after the employer's death. The court did not consider the question whether the action for those services should be on the original contract made with the employer, or on that made with the administrator, who, so far as can be gathered from the report, had made arrangements for the continuance of the services. It is not apparent, in- deed, that the materiality of this ques- tion was appreciated. The case, there- fore, is a very unsatisfactory one to adduce as the foundation of the broad rule laid down in the Encyclopaedia. It is submitted that the only ground upon which the three cases last cited can be sustained is that, having regard to the character of the work to be per- formed, the parties might reasonably be presumed to have intended that tlie contract should, in any event, subsist tliroughout the whole of the agreed term. The broad rule formulated in the EncyclopiEdia is manifestly inconsistent with the authorities cited in note 1, supra. It is very questionable, how- ever, whether the circumstances pre- sented in these cases were such as to justify a departure from the general doctrine illustrated by those authorities. The situation involved was essentially different from that presented in the In- diana case cited at the beginning of this note; for there the contract had respect to the performance of a specific piece of work, the completion of which was to fix the time when the engage- ment ended. That a contract to serve as an inden- tured servant, entered into in pursuance of 111. act 1807, is not terminated by the death of the master, but passes to his legatees, executors, or administra- tors, but not to an heir at law, was held in Plioshe v. Jay (1828) Breese (111.) 207, 208. But this decision had reference to a species of contract which really resulted in involuntary servitude, and is of no significance now that such servitude has been declared illegal in the United States. * In his dissenting judgment in Hoej/ V. MaoEwan (1867) 5 Sc. Sess. Cas. 3d series, 814, Lord Deas stated, arguendo, that, in his opinion, a contract for do- mestic service was not absolutely and to all effects dissolved by the master's death. He observed that if such a dis- solution resulted, the servants would he entitled to leave at once, thus caus- ing great inconvenience to the house- hold. He also considered that servants of other kinds are not entitled instant- ly to leave their service on the death of their master, regardless of the injury which would accrue to the work in which they were engaged and to the in- terests of tlieir master's representatives. § 21G] TERMINATION OF THE CONTRACT. 675 has not, so far as the author is aware, engaged the attention of Eng- lish or American judges. But, in view of the definite and categorical terms in which they state the effect of the master's death in dis- solving absolutely the contract, it may be asserted with some confi- dence that, in spite of those considerations of expediency which make strongly in favor of an acceptance of the theory of Lord Deas, they would refuse to qualify the general rule in the sense proposed, if the question should ever be directly presented to them. That theory, however, is to a certain extent reflected in the Codes of two of the American states.* In Quebec a contract for the hire of personal services is, in some cases, terminated by the death of the party hiring, according to cir- cumstances.' By the Civil Code of Louisiana, art. 2749 (2007), it is declared that "all contracts for the hire of labor, skill, or industry, without any distinction, whether they can be as well performed by any other as by the obligor, unless there be some special agreement to the con- trary, are considered as personal on the part of the obligor, but herit- able on the part of the obligee." Under this provision a servant who is discharged, without a "serious cause of complaint," by his employ- er's executor or administrator, is entitled to recover on the same foot- ing as if he had been so discharged in the employer's lifetime.'' It has been laid down that the death of one of two joint contract- ors who have agreed to employ the plaintiff as agent to sell articles for a specified period does not discharge the survivor from the obli- gation of the contract. The court distinguished the case from those in which the engagement is of a "strictly personal character, requir- ing personal skill or capacity." ' None of the judges forming the ma- The same provision is found in S. D. jority of the court expressed any opin- Civ. Code, § 4963. ion on the subject. Under this section, notice of the S By § 1998 of Cal. Civ. Code, it death of the employer puts an end, as is provided: An employee, unless the a general rule, to an employment from term of his service has expired, or un- month to month. Weithoff v. Murray less he has a right to discontinue it at (1888) 76 Cal. 508, 18 Pac. 435. In any time without notice, must continue this case it was held that a ditch ten- his service after notice of the death or der's continuance of work for five incapacity of his employer, so far as months after the appointment of an is necessary to protect from serious in- administrator was unreasonable, and jury the interests of the employer's sue- that he was not entitled to have his cessor in interest, until a reasonable rights adjusted with reference to the time after notice of the facts has been section. communicated to such successor. The « Quebec Civ. Code, art. 1668. successor must compensate the employee Teie v. Lanux (1893) 45 La. Ann. for such service according to the terms 1343, 14 So. 241. of the contract of employment. 8 Martin v. Hunt (1861) 1 Allen, 418. 676 MASTER AND SERVANT. [chap. vi. 217. Death of member of employing firm of partners. — ^The decisions as to the effect of the death of one of the members of an employing partnership are curiously conflicting. In one English case it was held that a contract appointing an agent for the sale of an article on commission for a specified period was subject to the condition that all the parties so long lived, and that it did not contemplate the con- tinuance of the agency by the executor after the death of the agent, or by the surviving partner after the death of either member of the firm.^ In a later case the ratio decidendi vras the principle that "if in any particular case the contract is one which has relation to the personal conduct of the contracting party, then the death of that party puts an end to the contract ; if, on the other hand, it has no such re- lation, the death of the contracting party has not that effect." * The rationale of the decision seems to have been a presumption of fact; but the very brief remarks of the court do not show distinctly its actual standpoint. As the former of the situations thus predicated results from the great majority of contracts which create the relation of master and servant, the English doctrine as now settled may be taken to be that the death of a member of an employing partnership will, in the absence of an express stipulation, ordinarily be presumed to involve a dissolution of existing contracts with its servants. In Scotland the death of a member of a firm is deemed to dissolve ^Tasher v. Shepherd (1861) 6 Hurlst. ner was bound by a covenant to teach & N. 575, 30 L. J. Exch. N. S. 207 (sur- an apprentice a trade, was disapproved, viving parties not bound to continue and the fact that it antedated Taaker employment). In this case "the judges v. Sheplierd, supra, was adverted to. did not go upon the ground that the 2 Lord Alverstone, Ch. J., in Phillips case fell within the principle of those v. Alhamhra Palace Co. [1901] 1 K. B. cases in which the contract has been 59, 63. There a partnership, consisting held to be put an end to by reason of of the defendants and another person, the personal skill of the parties being carried on the business of music-hall involved. They only said that it might proprietors under the name of the A. be so. They expressed no opinion upon Company. The plaintiffs, a troupe of it. The real ground of the decision music-hall performers, entered into a was that the contract had reference to contract with the A Company to give the existing partnership business only." certain performances at the company's Kennedy, J., in Phillips v. Alhamira music hall. The plaintiffs had no Palace Co. [1901] 1 K. B. 59, 64. See knowledge of the persons of whom the next note. company consisted. After the making In Ontario it has been held, on gener- of the contract, and before the time for al grounds, and without any reference performance arrived, the defendants' to the character of the services, that partner died. Held, that the contract a contract of hiring entered into with a was not of such a personal character on firm by a commercial traveler is put the part of the partnership as to be put an end to by the death of one of the an end to by the death of the deceased partners. Burnet v. Hope (1885) 9 partner, and that it would be enforced Ont. Rep. 10. An earlier decision in against the defendants, the surviving Connell v. Owen (1854) 4 U. C. C. P. partners. 113, to the effect that a surviving part- § 217] TERMINATION OF THE CONTEACT. G"7 its contracts with servants. The principle relied upon is that the duties undertaken by a person who agrees to serve tw^o or more par- ties are of a personal character, and can be rendered only to both or all of them.* The doctrine adopted in ^N^ew York is that a servant engages to serve the partnership, and not its individual members.* In California, contracts of service entered into with a partnership are considered to be discharged by the death of a partner. This doc- trine is based upon a conception which has no special or exclusive re- lation to contracts of this description, viz., that the death of a part- ner produces a legal dissolution of the partnership.* In Georgia the supreme court has adopted the doctrine propounded by Mr. Wood (Mast. & S. § 165), viz., that a partnership is not necessarily dissolved by the death of a partner, and that a discharge of its contracts with its servants will or will not result, according as the evidence may show that the partnership was or was not dissolved by the death.® In Massachusetts the position taken is that it cannot be ruled, as matter of law, that a contract of service with a partnership is dis- solved by the death of a partner. The decision cited proceeded upon the ground that a contract with a firm is "a contract with the mem- bers who compose it;" that a joint contract to employ the plaintiff is not ended necessarily by the death of one of the contractors ; and that "there is no universal necessity that death should have a greater effect when the joint contractors are partners." It was conceded that "if the death naturally would put an end to the business, as it so frequently does, very possibly it might end the employment." But SHoey v. MacEwan (1867) 5 Sc. Sess. 6 Louis v. Elfelt (1891) 89 Cal. 547, Gas. 3d series, 814 (employee paid by 26 Pac. 1095. salary and percentage on the profits of » Griggs v. Swift (1889) 82 Ga. 692, the firm during the period of his serv- 5 L.R.A. 405, 14 Am. St. Rep. 176, 9 ice). S. E. 1062, where a contract for the em- For the information of American ployment of a mercantile agent in a lawyers, it should be mentioned that in foreign city was held to have been Scotland a partnership is regarded as a dissolved, for the reason that there was distinct entity, a "legal person." See no evidence that the partnership was Green's Enc. of Scots Law, sub voc. intended to subsist after the death of Partnership, p. 155, and the remarks one of the members, of Holmes, J., in Hughes v. Gross The only case cited by Mr. Wood in (1896) 166 Mass. 61, 32 L.R.A. 620, 55 support of his doctrine is Camphell v. Am. St. Rep. 375, 43 N. E. 1031. Baird (1827) 5 Sc. Sess. Gas. 1st series, iGrc'cnburg v. Early (1893) 4 Misc. 311. But this is not in point, as it re- 99, 30 Abb. N. C. 300, 303, 23 N. Y. lates merely to the effect of the vol- Su'pp 1009- Mason v. Secor (1894) 76 untary retirement of one partner. See Hun,' 178, 57 N. Y. S. E. 333, 27 N. Y. § 264, post. Supp. 570. 678 .MASTER AND SEE^ ANT. [chap. vi. as it appeared that, in the case under the review, the business had gone on without a break, and both parties had assumed that the eon- tract was not ended by the death of the partner, it might be inferred that the original contract was still in force.'' In a Pennsylvania case it was held that the death of a partner did not discharge the firm from a contract for the employment of an agent for a definite period.' In the judgment of the present writer, the only doctrine which har- monizes with the conception of a contract of service as one which im- plies delectus personce is that, in the absence of an express stipulation, a dissolution of any ordinary contract of that description should be presumed to result from the death of a member of the employing firm. The peculiar quality and incidents of such a contract point strongly, if not decisively, to the conclusion that, unless the parties have so provided, a contract by A to serve B and C ought not to be construed as implying that A intends to assume the obligation of serving B or G after the death of either of them. What appears to be a fatal objection to the views of those courts which have refused to hold that a dissolution of contracts of service is a presumptive eon- sequence of the death of a partner is that they have failed to take due account of this aspect of the matter. As to the effect of the death of one of the partners of an employ- ing firm upon the contract of apprenticeship, see under "Appren- tices," § 2204, post. 218. Death of servant. — The authorities are in complete agreement as to the doctrine that a contract of hiring is dissolved by the death of the servant.^ The appropriateness of this doctrine to cases in which "> Bughes v. Gross (1896) 166 Mass. agreed upon, the obligation would be 61, 32 L.R.A. 620, 55 Am. St. Rep. 375, discharged. So, if one person should 43 N. B. 1031. agree to wait and tend upon another ^Fereira v. Sayres (1843) 5 Watts personally for a year, and the person & S. 210, 40 Am. Dec. 496. to be waited and tended upon should 1 Where a covenant is become impos- die before the expiration of the time, sible to be done by the act of God, as, the other party would be absolved from where ... [a person] doth cove- his undertaking." Knight v. Bean nant to serve another seven years, and (1843) 22 Me. 531, 636. he die before the seven years be expired. In Earrison v. Conlan (1865) 10 Al- by this the covenant is discharged." 1 len, 85, it was observed that there is an Shep. Touch. 180. exception to the rule as to the liability "If the stipulation be for the per- of personal representatives, when the formance of an act which the party contract of the deceased requires, from alone is competent to perform, if pre- its nature or for other reason, to be per- vented by the act of God from perform- formed by him or to him, personally: ing it the obligation is discharged; as, as, if he engages to compose a book or if one man should agree to work for to make a painting or engraving, or en- another for a specified time, and should gages to pay another, during a specified die before the expiration of the period time, for attending on hi? person, and S 218] TERMIXATION OF THE COXTltACT. 679 for no other service. In these and like Traill (1807) 24 Se. Seas. Gas. 4th cases his representatives are held an- series, 837. swerable for breaches of his conduct An agreement by which two person.-; during liis life, and not for breaches agree to act as agents of another person thereof after his death. His deatn ends for the sale of his goods for a weekly such contracts." salary, commissions on sales, and various In Mendenhall v. Dams (1909) 52 allowances, is terminated by the death Wash. 169, 21 L.R.A.(N.S.) 914, 100 of one of the agents. Keon v. Eart Pao. 336, the general rule was recog- (1867) Ir. Rep. 2 C. L. 138, affirmed nized, but it was held to be subject to in (1869) Ir. Rep. 3 C. L. (Exch. Ch.) the qualification that, in a case where 388. the consideration for services has been In the California Civil Code it is pro- paid beforehand by the employer, the vided as follows: § 1997. Every em- servant's estate must return the un- ployment is terminated (1) by the ex- earned portion of the consideration. piration of its appointed term; (2) by In Stubbs V. Holywell R. Co. (1867) the extinction of its subject; (3) by L. R. 2 Exch. 311, 16 L. T. N. S. 631, 36 the death of the employee; or, (4) by L. J. Exch. N. S. 166, 15 Week. Rep. his legal incapacity to act as such. 869 (Kelly, C. B., observed, arguendo, Sec. 1991. Where service is to be ren- that the contract for the employment dered by two or more persons jointly, of a civil engineer was "no doubt" dis- and one of them dies, the survivor must solved by his death ) . act alone, if the service to be rendered See also Wolfe v. Bowes (1859) 20 N. is such as he can rightly perform with- Y. 197, 75 Am. Dec. 388; Tipton v. out the aid of the deceased person, but Feitner (1859) 20 N. Y. 423 (doctrine not otherwise. assumed, arguendo) ; Lacy v. Getman The corresponding provisions of the (1890) 119 N. Y. 109, 6 L.R.A. 728, 16 South Dakota Civil Code are §§ 4962, Am. St. Rep. 806, 23 N. E. 452 (doc- 4960. trine recognized, arguendo) ; Clarh v. By the French Civil Code, § 1795, it Gilbert (1860) 32 Barb. 576, affirmed is provided that a contract for the let- on this point in (1863) 26 N. Y. 279, ting of work expires by the death of 84 Am. Dec. 189; Yerrington v. Greene the workman, the architect, or the con- (1863) 7 R. I. 589, 84 Am. Dec. 578 tractor. (doctrine assumed, arguendo) ; and the By act 1668 of the Quebec Civil Code cases cited in the following notes. it is provided that a contract for the Compare also the following decisions hire of personal services is terminated as to independent contracts: Dickin^ by the death of the party engaged. son V. Calahan (1852) 19 Pa. 227 (ad- In one of the cases arising under the ministrators of lumber manufacturer English poor law formerly in force, the not bound to fulfil contract for supply doctrine applied was that, for the pur- of lumber during a specified period) ; pose of enabling a pauper to acquire Jarrell v. Farris (1839) 6 Mo. 159 a settlement, a continuance of the serv- ( contract for delivery of saw logs held ice, and not a new contract, was to be not to be enforceable after the con- inferred, where he had been hired for a tractor had been killed during an alter- year, and after his master's death com- cation by one of the contractees ) . pleted the year's service under his mas- Where a landlord agreed to give a ter's executor. Reoo v. Ladock (1742) servant possession of a farm rent free, Burr. Set. Cas. 179. In another case and to hand over to him the horses and of this type, it was held that where a farm implements and the first year's servant hired for a year continued to crop without payment, it was held that serve the master's widow and son after the arrangement came to an end when his death, there was a continuation of the servant died, and that the landlord the same service. Rex v. Eardhorn became entitled to immediate possession (1810) 12 East, 51. But having regard of the farm and the chattels thereon to the peculiar juridical standpoint in which had been handed over to the such cases, it would clearly be improper servant, and to hold them against a to infer any essential conflict of doc- trustee in bankruptcy, when the serv- trine, as between these decisions and ant's estate was sequestrated several those which involve the obligation of months after his death. Torrance v. masters and servants inter se. GSO MASTER A]S'D SERVAXX. [chap. vi. the work to be done demands special skill, or any other peculiar quali- fication, is particularly manifest.* But its operation is not restricted to such cases.' As to the doctrine that an apprenticeship is a personal trust be- 2 In Tasker v. Shepherd ( 1861 ) 6 belonged to the class of skilled labor. Hurlst. & N. -575, 30 L. J. Exch. N. S. In such instances the impossibility of -07, the general principle was reeog- a substituted service by the represen- nized that, in cases where the personal tative of the servant is very apparent. skill of one of the parties is involved. The master has selected the servant by the contract is put an end to by his reason of his personal qualifications, and death. ought not, when he dies, to abide the In Martin v. Hunt (1801) 1 Allen, choice of another, or accept a service 418, the court remarked: "There is a which he does not want. While these well-known class of cases where . . cases possess, with a single exception, the death of one of the parties dis- that characteristic, I do not think they charges the contract, or excuses its fur- depend upon it. Fahy v. North (1855) ther performance. Such is the case 19 Barb. 341, was a contract for farm where the engagement is of a strictly labor, ended by the sickness of the serv- personal character, requiring personal ant, and quite uniformly the general skill or capacity; as a contract to write rule stated is that the servant's agree- books for a publisher, or a contract by ment to render personal services is dis- a physician to cure a particular disease, solved by his death. There happens a and the like." total inability to perform. It is with- The element of personal skill was also out. the servant's fault, and so further a.dveTted to in FarroiD V. Wilson (1869) performance is excused, and the con- L. E. 4 C. P. 744, 746 (farm bailiff) ; tract is apportioned. If, in this case, Wolfe V. Bowes (1859) 20 N. Y. 197, Lacy had died on that day in July, his 75 Am. Dec. 388 (potmaker in glass representative could not have performed factory) ; Babeock v. Goodrich (1879) his contract. McMahan, surviving, 3 How. Pr. N. S. 52 (cutter of garments would have been free to say that he in tailor's shop). bargained for Lacy's services, and not In Oilman v. Wilber (1882) 1 Dem. for those of another, selected and chosen 547, the question whether a contract by by strangers, and either the contract a school-teacher to give tuition to pupils would be broken or else dissolved. I was extinguished by his death was ad- have no doubt that it must be deemed verted to, but not decided, the point dissolved, and that the death of the actually determined being that the servant bound to render personal serv- executor might, in the exercise of a ices under a personal control ends the reasonable discretion, fulfil the con- contract, and irrespective of the inquiry tracts. whether those services involve skilled A contract for the hire of a man and or common labor; for, even as it re- his wife may be rescinded after the spects the latter, the servant's character, death of the wife, where her personal habits, capacity, industry, and temper, services and attentions to the defendant all enter into and affect the contract were viewed by the defendant as being which the master makes, and are ma- more agreeable and efficient than the terial and essential, where the service services of strangers could be, and might rendered is to be personal, and subject be considered an essential part of the to the daily direction and choice and benefits which the defendant was to control of the master. He was willing receive. Parker v. Macomier (3892) to hire Lacy for a year; but Lacy's 17 R. I. 674, 16 L.E.A. 858, 24 Atl. personal representative, or a laborer 464. tendered by him, he might not want at 3 Lacy v. Getman (1890) 119 N. Y. all, and at least not for a fixed period, 109, 6 L.R.A. 728, 16 Am. St. Rep. 806, preventing a discharge. And so it must 23 N. E. 452. There the court, after be conceded that the death of the serv- adverting to certain decisions, said : ant employed to render personal services "Almost all of these cases were marked under the master's daily direction dis- by the circumstance that the services solves tlie contract." § 219] XEKillNATION OF THE COJs'TEACT. 681 tween the master and the apprentice, and therefore dissolved by the death of the latter, see § 2212, ipost. 219. Bodily or mental incapacity of the master. — The reported de- cisions do not throw much light upon the eifect of the master's bodily sickness upon the rights and obligations of the parties. But there are some circumstances under which it may, on general principles, be presumed that such a sickness would become a material factor. For example, if the nature of the stipulated services was such that they manifestly could not be rendered unless the master remained in good health, the fact of his being overtaken by sickness would, it is apprehended, constitute a sufficient excuse for an entire or a partial nonperformance of the contract on his side.^ Again, if the master suffered from a malady so serious as to compel him to discontinue the business in which the servant was assisting him, a dissolution of the contract by the act of God would unquestionably be predicated. On the other hajid, it may be presumed that, wherever the servant's ability to render the stipulated services is dependent on the master's ability to do something which can only be done if he continues to possess a certain amount of health and strength, the servant would be justified in revoking the contract if the master, either from disease or accident, should become incapable of performing his own work. There can be little doubt, moreover, that a servant whose duties in- volve personal intercourse with his master would be discharged from his obligations, if his master were attacked by some disgusting or contagious disease which rendered his work abnormally disagreeable or dangerous. That a contract of service is not terminated by the subsequent in- sanity of the master has recently been held in Illinois, the court be- ing of opinion that such a contract is not governed by the rule which prevails in regard to contracts of agency.* But the very distinction 1 That no action lies on an agreement a year over and above what he was promising to pay for tuition for a receiving under the contract, it would specified time, if during the whole of hardly be contended that immediately that time the promisor was prevented upon the adjudication of insanity he by illness from attending and receiving could have abandoned the contract and the tuition, was held in Steioart v. Lor- gone into the service of a rival dealer ing (1862) 5 Allen, 306, 81 Am. Dec. 747. in butter and cheese, without incurring a Sands v. Potter (1897) 165 111. 397, any liability to appellant for so doing. 56 Am St. Eep. 253, 46 N. E. 282, One party cannot le held bound and affirming (1894) 59 111. App. 206. The the other released." The court refused court said: "The fact that one party to attach any significance to the fact to a contract becomes insane during that ihc master was unable, by reason its performance does not necessarily of his insanity, to exercise an option either suspend or annul such contract, given by the contract to discharge the If appellee's services were worth $5,000 servant upon payment of certain dam- 682 MASTER AND SERVANT. [CHAr. VI, thus relied upon shows that this decision, if correct, must at least be taken with the qualification that the power of the servant to per- form any servic'es which imply the exercise of agency is suspended by the insanity. The necessity of conceding such a qualification is calculated to induce some doubt as to the soundness of a doctrine which involves the singular consequence that any servant — and there are many such — whose functions are, in whole or in part, substan- tially those of an agent, will, when his master becomes insane, be re- duced to an inaction more or less complete, while at the same time he will remain for all other purposes subject to the obligations of the contract. 220. Bodily or mental incapacity of the servant, considered as an event operating so as to dissolve the contract. — There is a considerable amount of authority for the doctrine that, under some circumstances, the incapacity of the servant operates in the same manner as his death, and dissolves the contract altogether. In this point of view it has been laid down that a dissolution is produced by an incapacity which is permanent and absolute,* but not by an incapacity which is merely temporary.* ages and a percentage of profits for six months thereafter. As to the extent to which the relation- ship of principal and agent is affected by the insanity of the principal, see Wharton, Agency, § 99; Mechem, Agency, § 253; Chitty, Contr. 13th ed.' p. 171. lln CucJcson v. Stones (1858) 1 El. & El. 248, 253, one of the counsel in his argument suggested, as a hypothet- ical case, that after the first week of service the plaintiff had been struck with paralysis, continuing for the rest of the term, and argued that he could not claim his wages for the rest of the term. Lord Campbell, Ch. J., inter- posed the remark : "That would be such a permanent disability as would prob- ably amount to a dissolution of the contract on account of its performance, becoming impossible." But the more formal language used by him in his judgment is merely to the effect that the master may determine the contract if the servant becomes permanently in- competent. See § 220b, note 7, post. In Fenton v. Clark (1839) 11 Vt. 557, where the servant's sickness had been prolonged beyond the end of the stipulated period, the court said : "These services being of a personal character, the contract could not be performed by another, and as the plaintiff was dis- abled to perform it himself, by reason of sickness, which was the act of God . the contract was discharged." In another passage of the opinion it is observed that the contract was "an- nulled by the act of God." But a phrase also used is that the master was "excused from performance.^* There is nothing to show that the court was aware of the importance of distinguish- ing between the different juridical con- ceptions reflected in its language. In Prior v. Flagler (1895; C. P.) 13 Misc. 115, 68 N. Y. S. R. 199, 34 N. Y. Supp. 152, affirming (1894) 10 Misc. 496, 63 N. Y. S. R. 622, 31 N. Y. Supp. 193, the plaintiff was engaged as chief cook for the winter season at a health resort in Florida, and, three weeks after be began work, met with an accident which disabled him for the rest of the season. An agreement by the employer to pay him his stipulated salary if he would resign his employment, held to be void for lack of consideration. The court said: "When the plaintiff became disabled, the contract of employ- ment was dissolved, each of the parties S 220] TERMINATION OF THE CONTRACT. 683 thereto being released from further per- formance. ... He then had no em- ployment to resign, no right of return to service to yield." In O'Connor v. Briggs (1903) 182 Mass. 387, 65 N. E. 836, the plaintiff had sustained an injury during the last month of the year for which he had been hired, and remained entirely in- capable of work for nearly two months. After partially recovering, he returned to the service of the same employer, but did not resume his former duties, as he was incapable of performing them. The court, proceeding upon the ground that the original contract had been dis- charged by his incapacity, refused to accept his contention that there had been any implied renewal of that con- tract when the . second year began. See also the Canadian case cited in note 3, infra. 2 In Cuckson \. Stones (1858) 1 El. & El. 248, it was conceded by both parties that the contract in question was not dissolved by the plaintiff's tem- porary sickness. In Loates v. Maple (1903) 88 L. T. N. S. 288, one of the points discussed was whether the incapacity from the effects of an accident, to ride for the period from the 17th of March until the 14th of May, involved such a failure of consideration and such destruction of the substance of the agreement as that the agreement itself came to an end. Wright, J., said: "Now, the cases are not at all easy to reconcile upon this very vexed and very ancient question of how far and what kind of incapacity or supervening impracticability destroys a contract where there has been no actual rescission. . . . Strictly on the facts of this case, I cannot think that the proper conclusion is that the contract came ipso facto to an end be- cause of the temporary incapacity of the jockey. The incapacity was one which, in the opinion of the doctor, would have come to an end within about a month from the commencement of the flat-rac- ing season, and it has not been suggest- ed that there was anything specially im- portant or specially essential in the meetings which take place at the com- mencement of the flat-racing season. I think that the matter must be regard- ed with reference to the nature of the employment and the length of the term for which the agreement was made. I suppose it must be in everyone's knowl- edge that the profession of a jockey is a dangerous one, and that they frequently meet with accidents; and an agreement to serve for three j-ears, or rather not an agreement to serve, but to give an employer, so to speak, the call for three years, must very often be quite an unmeaning and worthless agreement, if a temporary incapacity for a week or even a month is to put an end to it. Jockeys must constantly meet with accidents, and perhaps even in the biggest race. The whole purpose of an agreement like this may very well be frustrated by a jockey becom- ing ill for an hour, or even for a minute, either just before or in the course of the most important race of the whole period of the year, and yet I think it would be quite inconsistent with the authorities if I were to hold that a partial incapacitation of that kind had destroyed the contract." In Fisher v. Monroe (1891; C. P.) 16 Daly, 461, 12 N. Y. Supp. 273, re- versing (1890) 32 N. Y. S. R. 236, 11 N. Y. Supp. 207 (action for wrongful dismissal), an actress sought to excuse her failure to attend a rehearsal on the ground that, when directed to do so, she was "physically exhausted;" but it did not appear that this exhaustion continued to the time of the rehearsal. Held, that a mere temporary disability would not necessarily "work a dissolu- tion" of the contract, but that, as the plaintiff had failed to show a sufficient excuse for nonattendance at the re- hearsal, a verdict in her favor could not be sustained. The court said: "It would therefore appear to be necessary in every such case to inquire whether or not the presence of the employee in the employer's service during the continu- ance of the disability was material and essential to the prosperity of the enter- prise in which the services were re- quired, and, if such presence was not so material and essential, the employer is not relieved from his obligation to accept the services of the employee when the latter, upon his recovery, offers to continue." In Spindel v. Cooper (1905; Sup. Ct. ) 46 Misc. 569, 92 N. Y. Supp. 822, it was declared that an illness of two weeks did not operate per se as a dis- solution of the contract. In several English cases it was held that absence from work on account of sickness did not prevent a servant from 684 MASTER Aiv'D SERVANT. [chap. VI. In some states of fact it will be immaterial whether the rights and liabilities of the parties are determined with reference to this notion or to that which is discussed in § 220b, post. But circumstance ob- viously may be presented in which the practical results may be very different, according as the circumstances are considered from one or other of the alternative points of view. A striking illustration of this statement is afforded by a recent case in which the supreme court of Canada took the position that, for the purposes of the doctrine under which an illness which permanently incapacitates an employee is treated as producing ipso facto a dissolution of the contract, an ill- ness which incapacitates him during the whole period of its continu- ance, and ultimately proves fatal, is to be deemed permanent, al- though both he himself and his physician may believe it to be merely temporary, and its mortal nature is not disclosed until a few days before his decease. The conclusion arrived at was that his personal representative was not entitled to claim his wages in respect of any part of the period of his incapacitation.* It is submitted, however, that none of the authorities on the subject lend any support to the acquiring a settlement under the poor law formerly in force. Rex v. Ozle- worth (1752) Burr. Sett. Cas. 302; Rex V. Christchurch (1760) Burr. Sett. Cas. 494; Rexv. Sudhrooke (1803) 1 Smith, 59, per Le Blanc, J.; Rex v. Sutton (1794) 5 T. R. 657 (contract not dis- solved by servant's loss of reason forty days before the end of his year). In none of these cases was any distinction taken between incapacity which did, and incapacity which did not, involve a failure of consideration. 8 Dartmouth Ferry Commission v. Marks (1904) 34 Can. Sc. 366, reversing (1903) 36 N. S. 158. In that case the disability of the employee had continued seven months before his death. The views of the majority of the court are stated in the following extract from the judgment of Davies, J. : "That truth is now admitted, and is beyond controversy, that on and after the 15th of December, when Captain Marks ceased working, he was permanently disabled from doing his work he had contracted to do. In law, this disable- ment is termed the act of God. It not only, in my opinion, justified the com- mission in formally determining the contract, if they had chosen to take that course, but, by rendering it im- possible that he could ever afterwards discharge his duties under his contract, the permanent disablement determined and ended the contract. The considera- tion which moved the commission to promise wages was gone. The mutuality necessary for longer continuance of the contract ceased. Captain Marks could not be sued by the commission for non- performance by him of his promise to serve them in the capacity of captain of one of their steamers. He could plead to any such action, disablement or incapacity by the act of God. The same result would have followed if he had become insane, or had lost the physical use of his limbs. The fact of the disablement arising from occult internal troubles cannot make any dif- ference. There is no analogy between such permanent disablement and tem- porary sickness. The law permits the latter, on the ground of common human- ity, to be offered as an excuse for not discharging duty temporarily, and suf- fers the disabled party to recover wages for the time he is temporarily away from his work. But while releasing the permanently disabled workman from damages for the nonperformance of his contract, it does not permit him to recover wages without doing work. No case can be found so deciding. We are asked to create a precedent. This § 220a] TERMINATION OF THE CONTRACT. 685 theory that the discovery of the permanent character of an illness previously regarded as temporary operates retrospectively in the man- ner asserted by the court. On the contrary, it is apparent, from the language used in all the other cases in which the permanency of an illness has been adverted to as a material element, that the courts have regarded the contractual obligations of the parties as remain- ing unaltered until the fact of the permanency has been actually ascertained, whether it be by the lapse of time, or by a disclosure of the serious character of the illness.* In other vpords, although it eventually proves to be permanent, is considered as being merely temporary while its true character is unknown. The writer there- fore ventures to express his concurrence with the views embodied in the reversed judgment of the ISTova Scotia court.* 220a. — considered as an excuse for nonperformance of the con- tract. — A contract to perform services which the servant alone can render, or which, according to the understanding of the parties, as gathered from the subject-matter and the words of the contract, the master is not bound to accept from any other person, is deemed to be subject to the implied condition that the servant shall be capable of performance at the time or times appointed. His failure to per- permanent disability goes to the very month's notice, or a notice to terminate root of the consideration for the promise it under the agreement because he was on the part of the commission to pay permanently 111. Now the defendants wages. The covenant on the part of contend that they can fall back on the the employee to serve as master [i. e., fact that illness was probably permanent of a ferry-boat] was not one independent from the first, although no one knew of the employers." that it was permanent, or acted on that 4 This remark is intended to apply basis. Permanent illness is a, good both to the eases in which permanent ground for discharging an employee, illness is regarded as producing a dis- And if an employee is sued by the em- solution of the contract, and to those plover for not performing the contract in which such an illness is viewed as a — that is, for the breach of it — perma- valid ground of dismissal. In the nent illness is a good defense. He would present connection it is manifestly im- be excused from its performance by the material which of the alternative ju- act of God. But I think an employer, ristic conceptions is supposed to have in the case of illness of a servant, must been adopted. elect. He may discharge the employee, 5 The following remarks of Graham, and, if an action is brought for the dis- .1., may be quoted: "The defendants missal, permanent illness will be a de- also contended that they were not liable fense. While death ipso facto termin- to pay, because he was permanently ates the contract, I think permanent ill, and that permanent illness ipso illness does not. At what stage would ■facto terminated the contract. Now, it be terminated? Here, by retaining no one knew that he was permanently him in their employ, and not requiring ill, until the week before he died, and him to work, — and that often happens, the evidence tends to show that it was — they treated the illness as temporary treated as a temporary illness up to illness." Maries v. Dartmouth Ferry that period. He was not discharged. Commission (1903) 36 N. S. 172. . . . They might have given him one 686 MASTER AND SERVANT. [chap. vi. form such services, therefore, is excused by the supervention of disease, either bodily or mental, which destroys his capacity for performance.^ This doctrine is applicable not only to contracts in- 1 See the passage quoted in note 2, ness by the act of God is an exception infra, from the judgments of Barons by way of excuse out of the contract.'' Bramwell and Cleasby, in Robinson v. Tlie authority principally relied upon Davison. was Taylor v. Caldwell (3803) 3 Best In Boast v. Firth (1868) L. R. 4 C. & S. 826, 6 Eng. Rul. Cas. 603. For P. 1, an action against the father of extracts from the judgment of Black an apprentice for a breach of the cove- burn, J., see § 215, note 3, ante. nants of the indenture, a plea to the In a case involving the contract of effect that the apprentice was prevent- a foreman in a shoe factory, the court ed from performing the service cove- said: "We think, as matter of law, it nanted for by permanent illness, which must be deemed to have been a qualified was the act of God, was held good, such and conditional contract. It related illness being an answer to an absolute to the personal services of the plaintiff, and unconditional covenant for per- These could be performed by no one ex- sonal service. Montague Smith, J., cept him. The work to which they re- said: "The covenant is of a personal ^'^}^^ """'d ^^ '^°"^A another; but , J. J J. iu 1 his own services could be rendered by character depending on the personal „^ ^^^ ^^^^^ j^.^^^j^ ^j^ ^^^,j ^^ serviceandattendanceoftheapprent.ee. ^^^^^^^^ by ^im only so long as ho Such service might be prevented by the ^^^ ^f sufficient health and capacity, permanent illnes.s or death of the ap- ^yg think, therefore, that it was im- prentice, both of which would be the pijed that inability from sickness or act of God. It seems to me that it must disease to perform the services on which be taken to have been in the contem- the contract depended would be u, suffi- plation of the parties when they entered cient excuse for nonperformance on his into this covenant, that the prevention part and on that of the defendants." of performance by the act of God should Johnson v. Walker (1892) 155 Mass. be an excuse for its nonperformance. 253, 254, 31 Am. St. Rep. 550, 29 N. If the matter had been quite barren of E. 522. authorities, I should have come to that In Poussard v. Spiers (1876) L. E. conclusion." Brett, J., said: "In sup- 1 Q. B. Div. 410, it was conceded that port of the demurrer in this case, it a singer who had been unable from sick- has been argued with much force that ness to attend performances of opera the covenant is absolute and uneon- was not liable as for breach of contract, ditional, and therefore that, though the For other cases in which physical apprentice was prevented by the act incapacity was explicitly asserted or of God from performing the stipulated assumed to be a valid excuse for the services, still the defendant is bound nonperformance of the contract, see §S to pay damages. If the first propo- 519 et seq. post, in which the right of sition could be sustained, the second, the servant to recover for the work I apprehend, would follow. But the actually done by him is discussed, first is denied on the part of the de- For cases affirming the proposition fendant. It is said that, \vhere the that rules under which a servant who contract is for personal services, and leaves without giving a certain notice both parties must have known and con- forfeits his wagfes are not applicable templated at the time of entering into where his abandonment of the service it that the performance of the services is caused by sickness, see § 507, post. was dependent on the servant's con- Reference may also be made to several tinuing in a condition of healtli to make English cases in which articled law it possible for him to render them, and clerks are held to have sufficiently served a disability arises from the act of God, their time, in spite of protracted periods tlie nonperformance of the contract is of illness and absence from work. E,v excused; and that this is a contract parte Matthews (1830) 1 Barn. & Ad. of that nature. I agree with both those 160; Ex parte Hodge (1838) 2 ,Tur. propositions. I think permanent ill- 989; Anonymous (1803) 9 L. T. N. S. § 220a] TERil [NATION OF THE CONTRACT. 687 Tolvmg services which demand the exercise of the higher mental faculties,^ but also to those which relate to manual labor.^ The extent to which the operation of the doctrine is affected by a provision in the contract allowing the servant to perform his duties by deputy will depend upon the nature of the disabling illness. The authorities show that, if the illness overtakes him before he has ap- pointed a deputy, his failure to perform the contract is deemed to be excusable or not, according as the resulting disability is or i^ not of such a nature as to incapacitate him from thereafter makinti an appointment* But it does not inure to the advantage of a serv- 324; Ex parte Beddoe (1865) 13 Week. Rep. 873, 12 L. T. N. S. 711. The Civil Code of Quebec (art. 1668) provides that a contract for the hire of personal services is terminated vrhen the party engaged becomes, without fault, unable to perform the stipulated services. 8 In Hall V. Wright (1859) El. Bl. & El. P. 746. 793, 29 L. J. Q. B. N. S. 43, Pollock, C. B., observed: "A eon- tract by an author to write a book within a reasonable time or by a painter to paint a picture within a reasonable time, would, in my judgment, he deemed subject to the condition that, if the author became insane, or the painter paralytic, and so incapable of perform- ing the contract, by the act of God, he would not be liable personally in dam- ages, any more than his executors would be if he had been prevented by death." The learned chief baron was one of the dissentient judges in that case, but the principle he enunciated appears to have been one to which the majority as- sented, and his doctrinal statement was afterwards approved by Kelly, C. B., in Robinson v. Davison (1871) L. E. 6 Exch. 269, where it was held that the husband of an artist who had agreed to play the piano at a concert, and was unable from illness to perform the agreement, was not liable in damages for such nonperformance. The grounds of that decision were thus stated by Bramwell, B. : "This is a contract to perform a service which no deputy could perform, and which in case of death could not be performed by the executors of the deceased; and I am of the opin- ion that, by virtue of the terms of the original bargain, incapacity either of body or mind, in the performer, with- out default on her part, is an excuse for nonperformance." The whole con- tract between the parties," said Cleasby. B., "was based upon the assumption by both that the performer would con- tinue living and in sufficient health to play on the day named. This was really the very foundation of the promise; and where the foundation fails, the promise built on it must fail also." See also i^palding v. Rosa (1877) 71 N. Y. 40, 27 Am. Rep. 7 (disability owing to sickness held to excuse opera singer for failure to give stipulated performances ) ; Poussard v. Spiers (1876) L. R. 1 Q. B. Div. 410 (similar disability preventing a singer from at- tending the final rehearsals and tlu' opening performances of a new opera, declared, arguendo, not to constitute breach of contract). S Dickey v. Linscott (1841) 20 ile. 453, 37 Am. Dec. 66 (damages not re- coverable from farm servant who had been sick for four months out of a term of seven) ; FaJiy v. North (1855) 19 Barb. 341 (farm hand held to be excused by sickness for not workin'x for the stipulated period). * Grove V. Johnston, (1889) Ir. L. R. 24 C. L. (C. A.) 352, an action against the sureties of a barony cess collector, on a bond for the due per- formance of the duties of the office, the defendants pleaded that immediately after the delivery to the collector of the warrant in respect of which the alleged liability on the bond arose, and before he could collect any of the monej's sued for in the action, he became, and con- tinued, a lunatic, and wholly incapa- citated from acting tinder the warrant, and was not able to collect, and did not in fact, collect any of the moneys sued for, and that the defendants were thereby discharged from liability on «S8 MASTER AXD SERVANT. [cnAP. VI. ant whose inability to complete the performance of his contract was caused by a physical condition which he must ha^'e foreseen when he accepted the given employment.* The effect of sickness upon the servant's right to recover the agreed compensation is discussed in §§ 519 et seq., 'post. 220b. — considered as a ground for rescinding the contract. — In one of the older English text-books it is laid down that "if a servant retained for a year happen within the time of his service to fall sick, or be hurt or disabled by the act of God or in doing his master's business, yet the master must not therefore put such servant away."^ This broad language, however, requires con- siderable qualification. An analysis of the decisions as a whole the bond. Held, that the defense was good. Fitz Gibbon, L. J., said (p. 366) : T cannot agree that the defendant's liability is affected by the provision enabling the collector to appoint a deputy. The appointment of a deputy ■would only have been one way of per- forming this collector's duty. If his lunacy incapacitated him from doing the work in person, it equally incapaci- tated him from appointing a deputy; and I cannot hold every collector bound to anticipate his own disability by ap- pointing a substitute beforeliand, nor can I assume that the deputy's author- ity would survive notice of the prin- cipal's lunacy. I rest my judgment on the broad ground that every man au- thorized by a grand jury to collect cess is supposed to be and to continue compos mentis, — capable of doing the work, — and that common sense and the common understanding of the transac- tion imply that he is to remain 'liable to collect' the rates so long only as he is by nature capable of performing his duties." Naish, L. J., said (p. 368) : "It Is contrary to reason to suppose that, where a man who has been ap- pointed an agent for a particular pur- pose becomes a lunatic, he can be held liable for his subsequent failure to act." The court distinguished Belfast BIcg. Go. v. Hamilton (1883) Ir. L. R. 12 C. L. 105. There, in answer to a sug- gestion of a breach of the bond of barony cess collector, alleging that he did not duly collect all the public mon- eys that he was by warrant required to collect, the defendant pleaded that, by reason of complete paralysis, he was rendered permanently incapable of collecting the said moneys, or of ap- pointing a deputy to collect them. Held on demurrer, that the defenses were bad. The grounds of the decision were thus stated by May, Ch. J.: "In the present case the question arises. Was there any contract here for the personal services of the Defendant Hamilton as an individual, and to the exclusion of any substitute, agent, or assistant? . . . It appears to me that all that the county required was a due collec- tion, which might be made by any proper person, the collector being, how- ever, responsible. The defendant al- leges, indeed, that his paralysis was so complete that he could not even ap- point a deputy, as he is empowered to do by the 148th section of the grand jury act; but it appears to me that the fact that the collector is enabled to ap- point a deputy excludes the idea that his personal services were absolutely required, and that the case, therefore, cannot be included within the same category as that of an apprentice, a musician, or a painter, in which a substitute would be inadmissible. I think, therefore, that this allegation of illness does not afford an answer to the action." ^Jennings v. Lyons (1876) 39 Wis. 553, 20 Am. Rep. 57, where the plain- tiff's wife, who had been hired, together with himself, was incapacitated from work by pregnancy already existing at the time when the contract was made. iDalton's Country Justices, chap. 58. p. 141, cited in 5 Burn's J. P. p. 522. f 220b] TEEMIXATION OF THE CONTKACT. 689 shows that the doctrine actually adopted by the courts is more pre- cisely and accurately expressed by the following propositions: (1) The fact of a servant's having become temporarily unable, by reason either of sickness or accident, to perform his duties, does not constitute a valid reason for dismissing him. In determining whether the disability in a given instance should be deemed tem- porary in the sense contemplated by the rule, regard is to be had not only to the absolute duration of the disability itself, but also to the length of the stipulated term of the employment, and to the nature of the agreed services.^ The cases cited below indicate that English courts have gone to great lengths in sustaining the rights 2 In Ryan v. Dayton (1856) 25 Conn, was not sufBcient, in point of law, to 188, 65 Am. Dec. 560, it was lield that warrant the rescission of a contract, a farm servant engaged for a year could In Gaynor v. Jonas (1905; Sup. Ct.) not justifiably be dismissed on the 104 App. Div. 35, 93 N. Y. Supp. 287, ground of his being absent for ten days, the defendant was held not to be war- In Goode V. Downing (1904) 5 Terr, j-anted in discharging, on account of an L. Rep. 505, it was held that a bar jji^ggg ^f ^ day and a half, a milliner tender engaged by the month could not jjj^g^ f^^ ^jji-ge months. The opinion justifiably be dismissed on account of ^^^ expressed that "the illness which an absence of five days. ^^jj .^^^jf ^ ^^^^^^ i„ dismissing his In Miller V. GiAere (1884) 36 La. J J^ something more than Ann. 201, where the overseer of a plan- i j f i.„ i j„ tation had been on duty only eighteen a mere temporary malady of short dura- days in two months, the court conceded tion compared with the entire period that possibly this of itself was not of service contemplated by the agree- sufficient cause for "discharge, as the ment." sickness did not appear to have serious- In Leake v. Eoldsworth (1873; ly interfered with his work afterwards. Victoria) 4 Australian J. R. 86, a In Bassett v. French (1895; C. P.) verdict in favor of a druggist's assis- 10 Misc. 672, 64 N. Y. S. R. 292, 31 N. tant who had been dismissed on account Y. Supp. 667 (character of employment of a short absence (length not stated) not stated), where the plaintiff in an was sustained. action for wrongful dismissal had, after In Reg. v. Wintersett (1783) Cald. his dismissal, entered another employ- 298, the master had refused to accept ment and, while in that employment, the services of a farm laborer, on the had been incapacitated for two weeks, ground that he had been unable to work it was held that his former master was during the first month of his year. The not entitled to have the damages re- court did not directly decide whether duced by tJie amount of the wages for this refusal was justifiable under the the two weeks during which he was circumstances. The actual point deter- unable to work. The court did not mined was that a new contract had been directly decide whether the second mas- made by consent, and that the laborer, ter might, if he had so desired, have having served only eleven months out canceled the contract, but seems to have of the year, was not entitled to a settle- regarded the case as falling within the ment. rule to which it referred, that a servant Where a servant is granted leave of cannot be dismissed on account of a absence on account of disability caused "casual disposition." The reduction of by an accident, and furnishes a sub- damages was disallowed on the ground stitute who is accepted by the master that as a matter of fact, the plaintiff as satisfactory, the mere circumstance had 'not been dismissed. that he fails to return a.t the expira- In Svindel V. Cooper (1905; Sup. Ct.) tion of the specified period, will not, 46 Misc 569 92 N. Y. Supp. 822, it of itself, warrant the master in refus- waa held that an illness of two weeks ing to allow him to resume work when M. & S. Vol. 1.^4. 690 MASTER AND SERVANT. [chap. VI. of employees engaged for considerable periods and occupying re- sponsible positions.^ A doctrine more favorable to the employer seems to prevail in Massachusetts.* lie actually does present himself. To justify such a refusal, it must appear that the master had good reasons, under the given circumstances, for believing that the servant would not return at all. Johnson v. Crookston Lumber Co. (1904) 92 Minn. 393, 100 N. W. 225 (disapproving an instruction, that, if the jury found that plaintiff asked for ten days' lay-off, and did not return at that time, the defendant had a right to believe that he had quit, and a verdict must be rendered for the defendant). 3 In iStorey v. Fulham Steel Works Co. ( 1907 ) 23 Times L. R. 306, affirmed in (1907) 24 Times L. R. (C. A.) 89, the plaintiff was engaged as the man- ager of the defendant's works for five years. After about two years of the term had expired, he fell ill, and was absent from time to time. Two or three months later his illness (a nervous breakdown) became more serious, and a physician ordered complete rest for a considerable time, and special treat- ment. He showed his employers a cer- tificate of the physician to this effect, and left his work. His employers then gave him three months' notice of the termination of the contract. The phy- sician's certificate did not state whether, in his opinion, the plaintiff would be able to resume work, and, if so, when; nor was there anything In it to show that he thought the plaintiff would not recover before the end of the term. After about four months the plaintiff was again fit for work, and tendered his services, which were refused. On the ground that, at that time, "the circumstances were not such as to jus- tify the defendants in thinking that the plaintiff would never be able to per- form the remainder of his agreement," Channell, J., held that he was entitled to recover as for a wrongful dismissal. He adverted to the fact that the agree- ment was for a definite term, and con- tained no provision for putting an end to it by notice. It was clear, as a mat- ter of law, that if such an agreement was made, and the servant was absent from time to time through illness, the loss fell upon his employer. That was clear in the case of an illness that was admittedly temporary. In the case of a permanent illness, or if some injury happened to the servant, permanently incapacitating him from doing the work, the employer could give the no- lice then and there. If the illness under an agreement, such as that in the case before him, was of such a character as to indicate that the servant never would be able to perform his contract, and something had to be done at once to supply his place, the contract could be put an end to by the employer. That was not the present case. 4 In Johnson v. Walker (1892) 155 Mass. 253, 31 Am. St. Rep. 550, 29 N. E. 522, where a foreman of the gang- room in a shoe factory, hired for a year, had been discharged, the court reasoned as follows: "Whether a tem- porary illness of a few hours, or in some instances perhaps of a few days, would in all cases come within the im- plied condition, we need not consider. In the present case the plaintiff was sick about seven weeks, and during all that time, as the exceptions state, was incapacitated from work in the defend- ants' shop. We think that, as matter of law, this constituted such an inter- ruption of and failure to perform his contract on the part of the plaintiff that the defendants were justified in terminating it, and employing another person in his place. If the defendants had not paid the plaintiff all that was due him at the time when he was taken ill, his illness would have operated as an excuse, so that, notwithstanding the nonperformance of his contract, he could have maintained an action against them for the amount due him. Fuller V. Brown (1846) 11 Met. 440; Har- rington V. Fall River Iron Works Co. (1875) 119 Mass. 82. But the fact that he was incapacitated by causes beyond his own control, or, as it is termed, by the act of God, did not deprive the defendants of their right to terminate the contract, or oblige them to keep his position for him till he recovered. The right of the defendants to terminate the contract did not depend on giving notice to the plaintiff, but on the fact that he had become unable to render the services on whose continuance the contract depended." In view of the decisions cited in the preceding note, it would seem to be § 220b] TERMINATION OF THE CONTEACT. 691 (2) Although there may be no sufficient ground for supposing that the disability of the employee will be permanent, he may be dismissed where his absence from work has already continued so long as to have caused serioiis inconvenience or injury to his em- ployer's business. The dividing line between the cases decided from this standpoint and those discussed in the preceding paragraph is quite shadowy, and it is perhaps impossible to reconcile the two groups upon any reasonable footing.^ extremely improbable, to say the least, that an English court would in this instance have affirmed the justifiability of the dismissal, as a matter of law. 5 In Jeter v. Perm ( 1876) 28 La. Ann. 230, 26 Am. Eep. 98, where the over- seer of a plantation had been discharged after he had been ill for several months, the court said: "We think his being unable to attend properly to the busi- ness for which he was employed justified his discharge. The physicians who were in attendance upon him were of the opinion that he would soon be restored to health, and the evidence is that he was restored to health. But the neces- sity for active exertions in order to secure the crop which was then under way was urgent, and we do not think that the defendant was called upon to wait for an event which might or might not happen, and which, if it did not happen, would result to the detriment of his interests. We must judge of his rights at the time he exercised them; and upon this point we are clear that he had the right to discharge him when he did." In Manson v. Downie (1880) 12 So. Sess. Cas. 4th series, 1103, where a salesman hired for a year by a seeds- man and nurseryman had fallen sick during the busy season, and remained unable to work for two months, it was held that the employer was entitled to treat the contract as terminated. Lord Moncrieff said: "There was some dis- cussion as to whether the notice of dis- missal was sufficient. But I hardly think it proper to treat it as a ques- tion of dismissal. I think the true question is whether a two months' ab- sence was a breach of the contract of service. And on that point, though it would be harsh to treat every accidental absence as a breach. I think two months' absence ample to warrant the master in holding the engagement at an end. It is true it was no fault of the pursuer that he could not attend in his place. Still, the counterpart of the defender's obligation was attend- ance, and if the pursuer failed to at- tend from any cause, however innocent, the defender was liberated." In Carr v. Hadrill (1874) 39 J. P. (Q. B. ) 246, it was assumed by the court that a servant hired by the week, who had been absent for five weeks, might justifiably have been discharged. The court did not intimate any opinion as to the general question how long a period of disability in the case of such a servant entitles the master to rescind the contract. But in an Australian case it has been explicitly laid down that absence for one entire week on account of illness constitutes a sufficient ground for rescission. Whim Well Copper Co. V. Pratt (1910) West Australian L. E. 166. In McGarrigle v. McCosker (1903) 83 App. Div. 184, 82 N. Y. Supp. 494, affirmed in (1904) 178 N. Y. 637, 71 N. E. 1133, it appeared that the dis- charged servant (a salesman) had been ill for something over two weeks before his discharge, and that during a period of about eighteen months he had been absent two or three weeks at a time on account of illness. Held, that this was a sufficient ground for discharging him. The court said: "It is an elementary proposition that one must show a per- formance before he becomes entitled to- recovery for breach of a contract. Plain- tiff's illness, although through no fault of his own, deprived the defendant of something for which he had contracted; and it cannot be said that a master must wait upon the condition of his servant's health, unreasonably, to avoid suffering any damages in an action against him for a breach of contract." In an Alabama case the court ob- served that the sickness of the plaintiff. 692 MASTER AND SERVANT. [chap. VI. (3) An employee may be dismissed on account of a merely tem- porary disability, if, by reason of the peculiar nature of the stipu- lated work, his absence constitutes so serious a detriment to the em- ployer as to go to the root of the consideration.* a traveling salesman, for a, protracted period, disabling him from making sales during the appropriate season, as con- templated and intended by the contract, might perhaps have authorized the de- fendants to abandon the contract. Brig- ham V. Carlisle (1884) 78 Ala. 243, 247, •56 Am. Rep. 28. The language is, it is submitted, unnecessarily cautious. The rule in the text is also recognized in Seaver v. Morse (1848) 20 Vt. 620; Huhbard v. Belden (1855) 27 Vt. 645; Miller v. Oidiere (1884) 36 La. Ann. 201 {arguendo) ; Hunter v. Waldron (1845) 7 Ala. 756 (right of discharge conceded, arguendo, but, curiously enough, in somewhat doubtful terms). In Scotland, according to Prof. Bell (Principles, § 179), sickness or in- evitable accident "will excuse nonper- formance by the servant for a short time; but if the inability should con- tinue long, and a substitute should be required, the master will be discharged from his counter obligation to pay wages." By the Codes of two of the American states it is provided that every employ- ment is terminated by the legal in- capacity of the employee to act as such. Cal. Civ. Code, § 3997; S. D. Civ. Code, § 4962. «In Poussard v. Spiers (1876) L. R. 1 Q. B. Div. 410, a singer engaged for a new opera was unable, owing to the condition of her throat, to attend several of the rehearsals, and the four per- formances on the first four nights, in which her part was taken by a sub- stitute. On the following day the plain- tiff was vrell enough to perform, and tendered her services, which were re- fused. She then brought an action for wrongful dismissal. The jury found, inter alia, that the employment of Miss L. by the defendants under the circum- stances was reasonable. Held, that the plaintiff's inability to perform on the opening and early performances justified the defendants in rescinding the con- tract. Blackburn, J., said (p. 414) : 'We think that, from the nature of the engagement to take a leading, and, indeed, the principal female part, . . in a new opera which, as appears from the terms of the engagement^ it was known might run for a longer or shorter time, and so be a profitable or losing concern to the defendants, we can. with- out the aid of the jury, see that it must have been of great importance to the defendants that the piece should start well, and consequently that the failure of the plaintiff's wife to be able to perform on the opening and early performances was a very serious detri- ment to them. . . . And we think that the question whether the failure of a skilled and capable artiste to per- form in a new piece, through serious illness, is so important as to go to the root of the consideration, must to some extent depend on the evidence; and is a mixed question of law and fact. . . . Now, in the present case, we must consider what were the courses open to the defendants under the cir- cumstances. They might, it was said on the argument before us (though not on the trial), have postponed the bring- ing out of the piece till the recovery of Madame Poussard, and if her illness had been a temporary hoarseness in- capacitating her from singing on the Saturday, but sure to be removed by the Monday, that might have been a proper course to pursue. But the ill- ness here was a serious one, of uncer- tain duration; and if the plaintiff had at the trial suggested that this was the proper course, it would, no doubt, have been shown that it would have been a ruinous course; and that it would have been much better to have aban- doned the piece altogether than to have postponed it from day to day for an uncertain time during which the theater would have been a heavy loss. The re- maining alternatives were to employ a temporary substitute until such time as the plaintiff's wife should recover; and if a temporary substitute capable of performincr the part adequately could have been obtained upon such a pre- carious engagement, on any reasonable terms, that would have been a right course to pursue; but if no substitute capable of performing the part adequate- 220b] TERMINATION OF THE CONTRACT, 693 An employee may be dismissed where liis incapacity arises from bodily or mental conditions -which will in all probability be perma- nent. Under these circumstances, the right of discharge clearly exists, -whatever may be the nature of the stipulated services, and for whatever length of time the employee may have been engaged.'^ ly could be obtained, except on the terms that she shoulfl be permanently engaged at higher pay than the plain- titt's wife, in our opinion it follows, as a matter of law, that the failure on the plaintiff's part went to the root of the matter, and discharged the defend- ants." In Bettini v. Gye (1876) L. R. 1 Q. B. Div. 183, the plaintiff, an operatic singer, had agreed to sing in "both public and private, from March 30, 1875 to July 13, 1875," and to be in London for rehearsals at least six days before the beginning of the season. Owing to sickness he arrived four days late. Held, on demurrer, that the stipulation as to rehearsals did not go to the root of the matter, so as to be- come a condition precedent to the de- fendant's obligation to perform the con- tract, but that it was one for which compensation must be sought in dam- ages. It was conceded that attendance ■ at rehearsals might have been a con- dition precedent, if the engagement had been only to sing in opera or for a few performances. But a different con- clusion was indicated by the considera- tion that the engagement was to sing in theaters, concert halls, and drawing rooms, from March 30 to July 13, and not to sing anywhere out of the theater, without permission, for the whole of the current year. It was pointed out that the effect of this latter provision was that, at the time when the plaintiff's services were refused, he had already been deprived of the opportunity of earning anything for three months. Compare also the following general remarks made, arguendo, by Bramwell, B., in a case involving the right of charterers to throw up their charter party on account of the grounding of the ship and the stoppage of the voyage: If "A enters the service of B, and is ill, and cannot perform his work, no action will lie against him; but B may hire a fresh servant, and not wait his recovery, if his illness would put an end, in a business sense, to their busi- ness engagement, and would frustrate the object of that engagement. . . . So, if A engage B to make a drawing, say of some present event, for an il- lustrated paper, and B is attacked with blindness which will disable him for six months, it cannot be doubted that, though A could maintain no action against B, he might procure someone else to make the drawing. So of an engagement to write a book, and in- sanity of the author.'' Jackson v. Union U. Ins. Co. (1874; Exch.) L. R. 10 C. P. 125, 145, 6 Eng. Rul. Cas. 650. Statement approved by the court of appeal in Hioreii v. Fulham Steel Works Go. (1907) 24 Times L. R. 89. Tin Cuckson v. Stones (1858) 1 El. & El. 248, Lord Campbell laid it down in the judgment delivered for the court, that if a servant has been struck with disease, "so that he can never be ex- pected to return to his work," the mas- ter may dismiss him. Approval was also expressed of the statement made by Willes, J., in Harmer v. Conieliti.^ (1858) 5 C. B. N. S. 230: "If the plain- tiff, from unskilfulness, had been wholly incompetent to brew, or, by the visita- tion of God, he had become, from pa- ralysis or any other bodily illness, per- manently Incompetent to act in the capacity of brewer for the defendant, we think that the defendant might have determined the contract." The right of a master to discharge a servant on the ground of incompetency arising from mental disease was af- firmed in Lyon v. Pollard (1874) 20 Wall. 403, 22 L. ed. 361. It was held that a woman employed as the super- intendent of a large hotel might be dis- charged for insanity, or for mental in- capacity to perform her part of the contract, whether her condition was due to natural infirmities or to the use of opium, and that the defendant's remedi- al rights were not restricted to an ac- tion against her on the contract. The court said: "The plaintiff was em- ployed to perform important and specific duties. ... If she rendered herself or otherwise became, incapable of per- 694 MASTER AND SERVANT. [chap. VI. The operation of the foregoing rules may, of course, be super- seded by the special terms of the given contract.* An employment which is indefinite in respect of duration, but stated to be terminable by giving a certain notice, is deemed to be continuous, and terminable only in the manner specified. It is not brought to an end by the servant's absence, owing to sickness, for a period exceeding that of the stipulated notice; and if upon his re- turn the master refuses to accept his services, he is entitled to a week's pay in lieu of notice.' The circumstance that the wife of the servant falls sick, and he is obliged to remove to another place for the sake of her health, will not justify him in withdrawing altogether from the performance of the contract.'" 220c. Right of employer to refuse to allow an employee to perform services while temporarily incapacitated. — Both on principle and au- thority, it seems clear that, even though the circumstances may not be such as warrant a total rescission of the contract, the employer is entitled to refuse the services of a sick or disabled employee as long as he remains incapable of performing the stipulated services in an efficient manner.' forming these duties, that of itself au- thorized defendant to rescind or ter- minate the contract. . . . The contract on lier part implied some capability of performing the duties she had assumed, of rendering some service. If she could render none, defendant was not bound to continue it even for the thirty days which the termination of it by notice required." In ReoB V. Hulcott (1796) 6 T. R. 583, counsel argued that insanity was not a legal ground for discharging a farm servant and cited in support of this doc- trine the judgment of Lord Kenyon in Rex V. utton (1794) 5 T. R. 659. That learned judge thereupon explained that what he had intended to lay down was merely that the master could not, of his own authority, discharge a servant for that cause; and that the discharge, if allowable, must be made through a justice acting under his statutory power. 8 Where a contract between a base ball club and a player provided that the club would not "release" the party of the second part within the time speci- fied, under any circumstances, and the ball player agreed not to serve as such with any other party during the time of the contract without defendant's con- sent, it was held that the contract was not simply one for personal services, subject to the rule that the illness of the party who has obligated himself to ren- der such services terminates the con- tract. Egan v. Winnipeg Baseball Club (1905) 96 Minn. 345, 104 N. W. 947. The testimony was to the effect that the word "release" is used as the equiv- alent of "discharge," in contracts of this kind. In that case, however, the question whether the contract might have been rescinded if the plaintiff had been wholly incapacitated was not in- volved, since, although he had not played baseball, he had performed oth- er services, and his employer had made no attempt to rescind. ^Carr v. Hadrill (1875) 39 J. P. (Q. B.) 246. 10 Hays v. Marsh (1837) 11 La. 369, 373. 1 In Bohinson v. Davison ( 1871 ) L. R. 6 Exch. 269, Bramwell, B., expressed the opinion that the employer, as well as the employee, was absolved from the obligations of the given contract. "It is admitted" said he, "that this lady was §§ 220d, 221] TERiirXATION OF THE CONTRACT. 695 220d. Incapacity supervening after a wrongful dismissal. — ^Where a servant, after having been wrongfully dismissed, was incapacitated from work while in the employ of another person, it was held that his incapacity, although it might have been such as would have justified his original employer in dismissing him if he had been retained up to the time when it supervened, could not, in an action for the wrongful dismissal, be treated as a ground of defense, whether it was relied upon as a valid reason for rescinding the con- tract, or as a circumstance which relieved him, either entirely or in part, from liability for his breach of the contract.^ G. Tekmination' by or on accottstt of other oiegumstances BEYOND THE CONTEOL OF THE PARTIES. 221. Epidemics and other overpowering natural calamities. — A servant is justified in abandoning his employment when it becomes abnormally dangerous, owing to the prevalence of a dangerous epi- demic disease.^ A similar rule would doubtless be applied in a case where the master's premises were rendered unsafe by an earthquake, a storm, a flood, or any other overwhelming catastrophe arising from physical causes. On the other hand, an occurrence of this descrip- tion releases the master from his obligations, if its effect is to render performance of the contract impossible, but not if it merely aug- ments considerably the difficulty of performance.^ not fit to play; that it would have been of God, the obligation to perform it dangerous to her life to go to the con- was discharged. . . . The plaintiff cert, and if she had gone that she could was under no obligation to imperil his not have played efficiently. I think un- life by remaining at work in the vicin- der such circumstances we may well ity of a prevailing epidemic so danger- hold that it was part of the bargain, ous in its character that a man of ordi- not merely that she should be excused nary care and prudence, in the exercise from playing, but that she should not of those qualities, would have been justi- be at liberty to play. It cannot be, fied in leaving by reason of it; nor does surely, that she would have had a right it make any difference that the men to insist on performing her engagement who remained there at work after the as best she could, however ineffectually plaintiff left were healthy, and con- that might have been, and then demand tinued to be so. He could not tlien have payment of her fee from Mr. Robinson, had any certain knowledge of the ex- ^Bassett v. French (1895; C. P.) 10 tent of his danger. He might have been Misc. 672, 1 N. Y. Anno. Cas. 270, 31 N. in imminent peril, or he might have Y. Supp. 667, affirmed in (1898) 155 been influenced by unreasonable appre- N. Y. 46, 49 N. E. 325 (only points hensions. He must necessarily have of procedure discussed). acted at his peril, under the guidance 1 In Lakeman v. Pollard (1857) 43 of his judgment. The propriety of his Me. 463, 69 Am. Dec. 77 (outbreak of conduct in leaving his work at that time cholera in neighborhood), the court must be determined by examining the said: "If the fulfilment of the plaintiff's state of facts as then existing." contract became impossible by the act 2 This distinction is the rationale of 006 MASTER AND SERVANT. [chap. VI. With reference to article 2750 (2721) of the Louisiana Civil Code, which declares that a servant who leaves without having a "just cause of complaint against the employer" shall forfeit his wages, it has been held that sickness in the family of the servant is not sufficient to justify him in leaving.* 222. Destruction or deterioration of master's property. — A long-es- tablished rule of the common law is that, "where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burdensome or even impossible." ^ But this rule is- now conceded to be subject to an exception in cases where the ability of the contractor to perform the contract depends upon the existence of some specific thing. Under such circumstances the parties are presumed to have entered into the agreement upon the understand- ing that it is to be no longer obligatory if that thing ceases to exist.* a decision in which the prevalence of smallpox was held not to excuse a school district from liability on a contract with a teacher, the performance of which the district had prevented by closing the school. Dewey v. Union School Dist. (1880) 43 Mich. 480, 38 Am. Rep. 206, 5 IM. W. 646, the court said: "Beyond controversy the closing of the schools was a wise and timely expedient; but the defense interposed cannot rest on that. It must appear that observance of the contract by the district was caused to be impossible by act of God. It is not enough that great difficulties were encountered, or that there existed urgent and satisfactory reasons for stopping the schools. . . . Admitting that the circumstances jus- tified the officers [in closing the schools], and yet there is no rule of justice which will entitle the district to visit its own misfortune upon the plaintiff. Pie was not at fault. He had no agency in bringing about the state of things which rendered it eminently prudent to dismiss the schools. It was the misfortune of the district, and the district, and not the plaintiff, ought to bear it. The occasion which was presented to the district was not within the principle contended for. It was not one of absolute necessity, but of strong expediency. To let in the defense that the suspension precluded recovery, the agreement must have provided for it. But the district did not stipulate for the right to discontinue the plaintiff's pay on the judgment of its officers, how- ever discreet and fair, that a stoppage of the schools is found a needful meas- use'to prevent their invasion by disease,, or to stay or oppose its spread or pro- gress in the community; and the con- tract cannot be regarded as tacitly sub- ject to such a condition." SEays V. Marsh (1837) 11 La. 373. 1 Blackburn, J., in Taylor v. Caldwell (1863) 3 Best & S. 826, 833, 6 Eng. Rul. Cas. 603. 8 Taylor v. Caldwell, ubi supra (own- ers of music hall which they agreed' to let certain person have the use of on specified days, held to be released from their obligation by the burning down of the hall before the first of those days). See also Appleby v. Myers (1867) L. R. 2 C. P. 651, reversing (1866) L. R. 1 C. P. 615 (owners of premises on which plaintiff had agreed to erect machinery, held to be excused from further performance of contract after the premises, and a portion of the ma- chinery then in process of erection, had been destroyed by fire). In JUlUs v. Midland R. Co. (1882) 7 Ont. App. Rep. 464, the plaintiff was engaged for "the season," as master of a specified steamer for $1,000. Before the close of the season the steamer was burnt. In an action for breach of contract it was held that he was not lEEMIXATION OF THE CONTEACT. 697 Whether a given ease falls within the domain of the general rule, or within the exception thereto, is a question to be determined from the provisions and subject-matter of the contract.^ entitled to more than a proportionate share of the salary agreed upon, inas- much as the contract was subject to the continued existence of the vessel, and performance was excused by its destruction without the default of the defendant. The rationale of the de- cision was that the stipulated services were to be rendered by him as master of a particular vessel, and not generally as master of any vessel owned by the defendants to which he might be as- signed. By the Codes of two American states it is provided that every employment is terminated by the extinction of its sub- ject. Cal. Civ. Code, § 3997; S. D. Civ. Code, § 4962. 3 In Turner v. Goldsmith [1891] 1 Q. E. (C. A.) 544, the defendant, a shirt manufacturer, by contract in writing, agreed to employ the plaintiff, and the plaintiff agreed to serve the defendant as agent, canvasser, and traveler on the terms, first, that the agency should be determinable by either party at the end of five years by notice; secondly, that the plaintiff should do his utmost to obtain orders for and sell the various goods "manufactured or sold by the de- fendant as should from time to time be forwarded or submitted by sample or pattern to T." It was further provided that the plaintiff should be remunerated by such commission as was specified in the contract. After about two years the defendant's manufactory was burned down, and he did not resume business, and thenceforth did not employ the plaintiff, who brought an action for damages for breach of contract. Held, by the court of appeal, reversing the decision of Grantham, J., that the ac- tion was maintainable, and that the plaintiff was entitled to substantial damages; for the defendant, having agreed to employ the plaintiff for five years, did not fulfil that agreement un- less he sent him a reasonable amount of samples to enable him to earn his commission; and that the defendant was not excused from fulfilling his agree- ment by the destruction of his manu- factory by fire. Lindley. L. J., said: "Here the parties cannot be taken to have contemplated the continuance of the defendant's manufactory as tlie foundation of what was to be done; for, as I have already observed, the plain- tiff's employment was not confined to articles- manufactured by the defend- ant." Kay, L. J., said : "If it had been shown that not only the manufactory, but the business of the defendant, had been destroyed by vis major, without any default of the defendant, I think that the plaintiff could not recover. But there is no proof that it is impossi- ble for the defendant to carry on busi- ness in articles of the nature mentioned in the agreement. The contract is pe- culiar; it is to employ the plaintiff for five years certain, with power to either party to determine the employment at the end of that time by notice. The de- fendant has ceased to employ the plain- tiff within the five years, and contends that a condition is to be implied that the manufactory must continue to ex- ist. The plaintiff is not seeking to im- port anything into the contract; the de- fendant seeks to import the implied condition I have mentioned. I cannot import any such condition. If it had been proved that the defendant's power to carry on business had been taken away by something for which he was not responsible, I thould say that there was no breach of the agreement." A similar point of view is indicated by the decision in Madden v. Jacobs (1900) 52 La. Ann. 2107, 50 L.E.A. 827, 28 So. 225, where a clerk hired by a partnership for a year was held en- titled to the salary accruing for the residue of the period, after his employ- ers' business house and stock of goods had been burned and the firm had been dissolved.' The plaintiff, said the court, "was discharged because the firm went out of business and no longer had need of his services. This was not sufficient. TJotchlciss v. Gretna Ginnery & Com- press Co. (1884) 3C La. Ann. 518: Sherburne v. Orleans Cotton Press (1840) 15 La. 360. The dissolution and going out of business by the firm was not necessarily the result of the burn- ing of their house and stock of goods. . . . Another house is generally easy 698 MASTER AND SERVANT. [CIIAP. VI. The extent of the servant's right to recover for work already per- formed when the master's property was destroyed is dealt with in § 526, post. 223. Bankruptcy of master.— A contract of hiring is not dissolved by the issuing of a commission of bankruptcy against the master.' But as the necessary operation of such a proceeding is to render the master unable to perform personally the obligations of the contract, it may clearly be treated by his servants as a wrongful dismissal.* to secure, and other goods may be had by means of money and credit. It is not shown that the fire forced suspen- sion of business and dissolution, though we are not to be understood as express- ing the opinion that, had the same been shown, it would have relieved de- fendants. For aught we know, defend- ants might have continued business had they chosen to. The dissolution of the firm and its retirement from business may liave been purely voluntary. It does not appear that defendants even sustained a loss by fire. Insurance poli- cies usually protect wholly or partially against such loss. The record is bar- ren of information on these points." But upon the analogy of the decision in Taylor v. Caldwell, supra, it may probably be assumed that, if an actor is hired to perform a certain number of times during a specified period, at a designated theater, both the employer and employee would be discharged from their obligations if the "theater were burned down. A similar result would doubtless follow if a field upon which a man had been hired to do certain work should be covered by a landslide or swept away by a flood. In School Directors v. Crews (1887) 23 111. App. 367, it was held that where a district school is broken up because of the failure of the directors to furnish another room, upon the destruction of the sclioolhouse by fire, the teacher may recover under his contract, although he has kept and can furnish no schedule. The ratio decidendi was that the duty of the directors to keep a school in oper- ation is not abrogated by the destruc- tion of the school house, if a suitable room can be procured elsewhere. But in Hall v. School Dist. No. 10 (1887) 24 Mo. App. 213, a school-teacher was held not to be entitled to recover wages in respect of the term after the burning of the schoolhouse, the reason assigned being that the contract contemplated its continued existence. An allegation in an answer in an ac- tion for damages for wrongful dismissal, that defendant met, to a great extent, with a, failure of crops during the con- tract period, is not an allegation of such failure as gave him a right to terminate the contract, which provided' for such termination in case of a failure of crops. Trumbull v. Frey (1904) 71 Neb. 754, 99 N. W. 648. IRex V. St. Andrew (1788) 2 T. E. 627 (settlement case) ; Thomas v. Wil- liams (1834) 1 Ad. & El. 685, 3 Nev. & M. 545. In the latter case it was urged by counsel that § 48 of the bank- rupt act (6 Geo. IV. chap. 16), which enabled the commissioners to pay all servants of the bankrupt such wages as might be due at the time of the com- mission, showed that contracts of hir- ing and service were considered to be terminated by bankruptcy, and that the great inconvenience and hardship would be suffered by merchants who became bankrupts, if they should continue all their lives liable to the numerous per- sons whom they may have been com- pelled by misfortune to discharge from their employ. This contention did not prevail. Denman, Ch. J., said: "We are of opinion that this section only oper- ated to legalize the humane practice which prevailed before the passing of the act, of paying clerks and servants full six months' wages out of the estate, and that it has made no alteration in the legal effect of the contract of hir- ing." As to the extent to which an agency is revoked by the principal's bankrupt- cy, see Wharton, Agency, § 98; Evans, Agency, p. 102; Mechem, Agency, §§ 263 et seq. 2 The bankruptcy of an employer and his inability to proceed with his busi- ness whereby an employee is thrown out §§ 223a-224a] TERMINATION OF THE CONTRACT. 699 Under the French law as administered in Quebec, bankruptcy is not considered as a case of force majeure, which puts an end to the engagements resulting from the contracts entered into by the bank- rupt prior to his bankruptcy. This principle is especially applicable to the contract for the hire of services.* 223a. Bankruptcy of servant.— It has been held that the bank- ruptcy of an agent is not per se a defense to an action for wrongful dismissal, even though the agent is to receive moneys on account of his principal. Such a situation was conceded to be "awkward" and "inconvenient," but the fitness of the agent to perform his duties was deemed to be a question for a jury.^ In the case of a servant, this particular question could only arise where he was doing busi- ness in his own account for a portion of his time. Under such cir- cumstances, it is apprehended that the rule thus laid down with regard to agents would be followed. 224. Insolvency of an individual employer. — The insolvency of an individual employer does not operate so as to put an end to the con- tract.^ But his servants are entitled to treat as a breach of his obli- gations the altered conditions of service which it necessarily pro- duces.* 224a. Compulsory winding up of employing company. — An order for the compulsory winding up of a company is notice of discharge to of employment constitutes no defense to met de Santerre, n. 230-239, et seq.; 3 an action by the employee for a breach Lyon-Caen et Renault, n. 540; Grenier, of the contract. Re Silverman (1899) 287. 101 Fed. 219. i M'Call v. Australian Meat Go. "Where a contract for employment is (1870) 19 Week. Rep. 188. terminated by a banki-upt, the unearned ^ Vanuxem v. Bostwick (1887) 4 salary of an employee for the balance of Sadler (Pa.) 532, 19 W. N. 0. 74, 7 the contract year may be liquidated Atl. 598. and proven as a claim in bankruptcy ^ Re Silverman (1899) 101 Fed. 219. against the bankrupt's estate." Cout- There employers who had assigned their urie V. Roensch (1911) — Tex. Civ. property to a trustee for the benefit of App. — , 134 S. W. 413. their creditors vpere held to \\e liable, as In a Scotch case we find the follow- for a breach of the contract, to a serv- ing remarks: "A man undertaking to ant who had been dismissed by the pay a salary for personal services to trustee. But on general principles it be rendered becomes disabled from per- seems sufficiently clear that the servant forming his obligation by bankruptcy, would have had a right of action in any That may arise from innocent causes; event, if he had elected to refuse to but it is a personal default against all work under the trustee. The question the creditors, and the sufferers are en- whether he was retained or dismissed titled to come against the sequestrated by the trustee seems to be material estate, and rank, according to perfectly only in so far as it bears upon the settled rules, for the value of what they measure of damages. Any services ren- liave lost." Lord Inglis in Eoey v. Mac- dered to the trustee by persons pre- P.wan (1867) 5 Sc. Sess. Cas. 3d series, viously in the employment of the in- 814, 817. solvent must be taken to have been »2 Guillouard, n. 729 et seq.; 7 Col- rendered under a new contract. 700 MASTER AXD SERVANT. [chap. VI. the servants of the company, where the business is entirely given up.^ This rule applies, though the liquidator, without continuing the business, employs the servants in analogous duties, with a view to reconstruction.* But where the business is continued after the winding up, and the former servants are actually employed in the business, the old contract between the company and its servants is deemed to remain in force, and notice of discharge must be given pursuant thereto.' 225. Appointment of receiver and manager of business of employ- ing company. — The question whether the appointment of a receiver and manager of the business of a company, upon the application of the debenture holders, operates in every case, and as a matter of law, as a dismissal of the servants and officers of the company, appears to be still unsettled.^ 1 Chapman's Case ( 1866 ) L. E. 1 Eq. 346, and the cases cited in the next note. iUacDmoalVs Case (]886) L. R. 32 Ch. Div. 366; Yelland's Case (1867) L. R. 4 Eq. 350; Ex parte Logan (1870) L. R. 9 Eq. 149. As to the effect of a voluntary wind- ing up, see § 264, post. 3 Ex parte Harding (1867) L. R. 3 Eq. 341. lln Beid v. Explosives Co. (1887) L. E. 19 Q. B. Div. 264, (C.A.) 3 Times L. R. 588, the plaintiff was in the service of the defendant company under a con- tract which provided that his employ- ment might be determined by six months' notice. A manager and receiv- er was appointed by order of a court, at the instance of holders of debentures of the company. The plaintiff, by the instructions of the manager, continued for more than six months to discharge his former duties, at the same salary. The business was then sold to a new company, and the plaintiff was dis- missed without notice. In an action for wrongful dismissal, it was held that the appointment of a manager and re- ceiver operated to discharge the serv- ants of the company, but that the plain- tiff could not recover damages, as he had been engaged at the same salary and for the same kind of work for more than six months afterwards. The jury found in favor of the plaintiff, but the trial judge decided that the service of the plaintiff under the person appointed as manager and receiver could not be treated as a continuance of his service to the company. He afterwards came to the same conclusion as to the effect of the appointment of that person and another as liquidators. From the fol- lowing passage in the judgment of Lord Esher, M. R., it seems scarcely possible to draw any other conclusion than that he regarded the appointment of a man- ager and receiver as operating in every instance as a wrongful dismissal: "We have to consider what is the legal effect on a contract such as that between the plaintiff and the company, of the ap- pointment of a manager and receiver by the court at the instigation of debenture holders or mortgagees. If there wen- one mortgagee of a business he might, on the failure of the mortgagor to com- ply with the terms of the mortgage agreement, take possession of the busi- ness. What would be the effect of that on the servants of the mortgagor, who had contracts entitling them to notice of dismissal? Would the fact of the mortgagee taking possession be equiva- lent to dismissal by the mortgagor? We have tried to test that by the case of an employer who has servants in the same position, and who shuts up his business. That would amount to a wrongful dismissal, and would give the servants a right of action. So the fact of a mortgagee taking possession of the business of the mortgagor would be equivalent to a dismissal of the serv- ants, and, as this would occur by the default of the mortgagor, it would be a wrongful dismissal, and would give a. S 226] TERMINATIOX OF THE CONTRACT. 701 226. Execution sale of employer's property. — It has been lield that a contract of employment with a company for a definite period is not abrogated by the mere fact that the company's property was sold on execution, when it does not appear that the company was insolv- ent or unable to procure the servant a place with the purchaser.* It would seem, however, that, even if the contract is not actually abrogated as a result of the execution sale, the servant would be entitled, under some circumstances at least, to rescind the contract on the ground that the sale of the master's property had rendered him unable to perform the contract in the manner originally con- templated. In this point of view the fact that the servant might possibly have obtained a similar position under the purchaser is apparently not material. That fact is significant only in relation to the question of the amount of damages recoverable in an action for wrongful discharge. In the case cited it would seem, on the analogy of the decisions as to the effect of the winding up of a company (see § 224:3,, ante), that such an action might have been maintained. But, however this may be, the right of the servant to rescind the con- tract whenever the situation above referred to exists appears to be reasonably clear. right of action. Is the result different when a receiver or manager is appoint- ed by the court on behalf of a great number of mortgagees? In that case, in order to avoid the diflBculty of a num- ber of mortgagees acting independently, the court acts on behalf of all, and appoints a manager in the interest of all, but the effect is the same as in the case of a single mortgagee who takes possession. It seems to me, therefore, that the result of such an appointment is to discharge the servants from their service to their original employer, and that, as in the other cases I have put, there is a wrongful dismissal for which an action would lie." But Fry, L. J., after observing that the appointment of such a receiver and manager was equiva- lent to an entry on a mortgaged busi- ness by the mortgagee, said he did not think that every such entry was neces- sarily equivalent to a dismissal of all the mortgagor's servants. It would de- pend upon the particular circumstances of each case. But in the case under review there was nothing at the time of the appointment of the receiver to indicate that his possession was likely to be of a temporary character. There was, on the contrary, every prospect that he would continue to manage the business until it was sold as a going concern by the mortgagees. The ap- pointment, therefore, in this instance, did determine the plaintiff's service, and was equivalent to a wrongful dismissal by the company. The above statement of the effect of the observations of this learned judge as to the impossibility of laying down any general rule on the subject is taken from the Times L. K. in which his views on the point are ■ brought out more distinctly and at greater length than in the official re- port. In Rolfe V. Canadian Timher <& Saio Mills (1906) 12 B. C. 363, the court held, upon the authority of the above case, that the appointment of a receiv- er on behalf of debenture holders oper- ated as a wrongful dismissal of a serv- ant of the defendant. I Nash V. H. R. Gladding Co. (1898) 118 Mich. 529, 77 N. W. 7 (servant not justified in abandoning the employ- ment ) . 702 MASTER AND SERVANT. [CIIAP. VI. 227. Imprisonment of servant.— a. Where he is guilty of the crime charged. — The effect of a servant's imprisonment, so far as it affects his own liahility, has heen thus stated by an eminent Scotch text writer: "If a servant is put in prison for a crime of which he is found guilty, then, as the contract is broken through his own fault, he is liable in damages, and the master is free from the contract. But if, on the other hand, he is carried to prison on suspicion of being guilty of a crime of which he is ultimately acquitted, he is not liable in reparation to the master, because there was no fault on his part." ^ This statement, however, must be taken to be subject to qualification in cases where the servant is imprisoned, at the mas- ter's instance, under the provisions of a statute which, for the pur- pose of enforcing the contract, attaches a criminal quality to certain kinds of misconduct committed in the course of the employment. The authorities, as a whole, show that such an imprisonment does not dissolve the contract.* 1 Eraser, Mast. & S. p. 322, citing 2 Hutch. 174; Bell's Principles, § 181; Rex V. Barton-upon-lrwell (1814:) 2 Maule & S. 329. He also refers to the following statement of a distinguished French jurist: "Lorsqu'un serviteur a 6t6 mis en prison, ou a StS obligS de fuir pour gviter un dgcret de prise de corps donnfi centre lui, il faut distin- guer: S'il a 6tS dSclarg convaincu du crime pour lequel il a 6t6 dficrfit^, c'est en ce cas par son fait qu'il a €t6 obligS d'abandonner le service de son maitre, et il doit par consequent 6tre tenu de dommages et intfirets de son maitre s'il en a souffert: mais s'il a 6t6 absous, ou m6me si I'affaire n'a pas 6t6 poursuivie, il est dans le cas de ceux qui ont quittg par une force majeure, il n'est tenu d'aucuns dommages et intfirSts." Poth- ier, Louage, No. 172. From the following note, however, it will be apparent that the learned au- thor was not justified in citing Rex v. Barton-upon-lrwell as an authority for his statement of doctrine. The absence of a. servant for some days towards the end of his year, by reason of a commitment on a charge of bastardy, was held to prevent him from obtaining a settlement. Rex v. Sorth Cray (1785) 2 Bott, Poor Laws, 4.^0. 2 In Rex V. Barton - upon - Irwell (1814) 2 Maule & S. 329, there was held to be no dissolution of the contract, where the master procured the com- mittal of the servant, and afterwards applied to have him released, and took him back without any fresh agreement. Lord Ellenborough said: "It would be clearly against the policy of the law,, if the servant by his own act of delin- quency should have the power of dis- solving the contract. The justices have that power; but they have not exer- cised it, as they might have done under 20 Geo. II. chap. 19, § 2. The imprison- ment of the servant was so far from being a cessation of the service, that perhaps his labor might have been re- quired of him by the master even while- he was in prison." Bayley, J., said: "The commitment did not free the serv- ant from his contract, to go wherever he pleased after the imprisonment ceased. That would be allowing him to avail himself of his own wrongful act."' The rule that the contract is not dis- solved by the commitment of the serv- ant to prison under 4 Geo. IV. chap. 34, was also laid down in Bex v. Halloicr (1825) 2 Barn. & C. 739; Ex parte Bak- er (1857) 7 El. & Bl. 697, 3 Jur. N. S. 514, 26 L. J. Mag. Cas. N. S. 193, s. c. and s. p. (1857) 2 Hurlst. & N. 219,. 3 Jur. N. S. 937, 26 L. J. Mag. Cas. N. S. 155; Vmmn v. Clarke (1866) L. R. 1 Q. B. 417; Cutler v. Turner (1874) L. R. 9 Q. B. 502, 43 L. J. Mag. Cas. N. S. 124, 30 L. T. N. S. 706, 22 Week. Rep. 840. In the case last cited, Arch- ibald, J., argued as follows : "It has- § ^'27] TEEMIXATION OF THE COXTEACT. 703 b. Where he is not guilty of the crime charged. — Whether the de- tention in prison of a servant wrongfully charged with a crime en- titles the master to rescind the contract is a question to he deter- mined with reference to the various evidential elements involved. In one of the American states it has been held that, although in the situation supposed the servant is free from fault, a valid cause for his dismissal arises if his imprisonment entails an absence from work so prolonged as to be unreasonable in view of the requirements of his master's business.^ But except in so far as this special consid- eration may be controlling, the rights and liabilities of the parties been said that the suffering of the imprisonment for three months by im- plication puts an end to the contract of service; but that seems to me to be altogether at variance witli the in- tention of the legislature as here ex- pressed. A severe remedy by imprison- ment is given in order to enable the parties to enforce the contract; but, because the party is not compelled by application of that punishment to fulfil tlie contract, it does not follow that the contract is annulled. There might be a longer time to serve, for which the master would be entitled to compensa- tion, and that contract is not put an end to by implication." A diflferent view was adopted by Pol- lock, C. B., and Martin, B., in Reg. v. Youle (1861) 6 Hurlst. & N. 753, 30 L. J. Mag. Cas. N. S. 234. S Leopold V. Salkey (1878) 89 111. 412, 31 Am. Rep. 93. There A agreed in writing to work for B for three years as superintendent and manager of B's business as a manufacturer and dealer in clothing, the contract providing that he was to devote himself entirely to the business, giving his whole time, atten- tion, and skill thereto. After A had been at work for about a month and a half, he was arrested and put in jail, where he remained about two weeks, when he was released on bail. B mean- while, as this was the busiest part of the season, had employed another per- son in A's place. A thereupon brought an action to recover damages for a breach of the contract. Held, that B had a right to treat the contract as abandoned; that B's refusal to receive A into the employment on his return was sufficient notice of B's election to treat the contract as abandoned; and that A could not recover, even though the imprisonment was without his fault. After referring to the danger of serious loss which had been incurred, owing to the absence of the superintendent at fhe busy season of the year, the court pro- ceeded thus: "In our opinion, therefore, the failure of appellee to perform the services he had covenanted to perform, from the 12tn to the 25th of January, 1875, was a substantial breach of his covenant. Appellee has averred in his declaration, ability, readiness, and offer to perform, and his undertaking being an entire one, it was incumbent on him to make the averment and support it by proof. ... It may be conceded that appellee was put in jail without his fault; yet this would not relieve him of his covenant to give his whole time, attention, and skill to appellants' business. It is not claimed to have been through appellants' fault that he was put in jail, and there is no reason, therefore, why appellants' business should suffer in consequence of it. He might have guarded against this by an exception in his covenant, but he did not do so. The rule is it is a good defense to an action on a covenant or contract, that the obligation to perform the act required was dependent upon some other thing which the other party was to do and has failed to do. And the defense is good, although the omission of the other party to do the thing required of him was produced by causes which he could neither foresee nor control. . . . There is a class of cases where a party contracting to render personal services, after part performance, becomes dis- abled by inevitable casualty, and is thereby prevented from fully completing liis contract, has been held entitled to recover for the services actually ren- dered, upon a quantum meruit. Fenton 704 MASTER AND SERVANT. [chap. VI. would presumably be governed by the general rule that, where the law interposes to prevent the performance of a contract, but such prevention is only temporary, the parties are not excused from per- formance after the law has ceased to operate.* 228. Other acts of public authorities. — a,. Authorities of state in which parties reside. — In the note below are collected several cases which illustrate in various connections the scope of the principle that a contract of hiring is dissolved by any "act done by public authority, which renders the further performance of the contract impossible." ^ V. Clark (1839) 11 Vt. 557; Eulhdrd V. Belden (1855) 27 Vt. 645; Dickey v. Liiiscott (1841) 20 Me. 453, 37 Am. De.c. 66; Wolfe v. Howes (1859) 20 N. Y. 197, 75 Am. Dec. 388. But these furnish no warrant for the position that the laborer can, in such case, recover upon the contract for a failure to pay for future services vi^hich he has been prevented from performing. On the con- trary, they proceed upon the theory that the contract is discharged by the in- evitable casualty, and therefore allovi' the party to recover simply for what he has earned. . . . Where neither par- ty is at fault, the absence of the servant from the master's employ, without his consent ( by whatever cause occasioned ) , for an unreasonable length of time, we are of opinion, authorizes the master to treat the contract as abandoned; and what, in such case, is an unreasonable length of time, depends upon the nature and necessities of the business in which the servant is employed. Under the facts here proved, a much shorter time than that during which appellee was confined in jail might, in our opinion, be regarded as unreasonable. Under different circumstances, absence for a much greater length of time might fur- nish no cause for abandonment, — the question always being. Does the delay so affect the interests of the master that the performance of the residue of the contract by the servant would be a thing different in substance from what the master contracted for?" Another point determined' was that a promise by B to continue A in his service if he would return by a certain time, such promise not being accepted by A, was not valid, by reason of the want of consideration and mutuality. It was a mere offer, which might be withdrawn at any time before it was acted on; and such offer constituted no estoppel when A had not changed his condition for the worse on the faith of it. i Baylies v. Fettyplace (1811) 7 Mass. 325 (involving the effect of an embargo on a charter party). 1 Melville v. DeWolf ( 1855 ) 4 El. & Bl. 844. There the plaintiff had signed articles to serve, at specified monthly wages, on a seeking voyage to the Pa- cific Ocean and back, till the ship's re- turn to the United Kingdom, or for a term of three years. The captain was sent home from Monte Video by a naval court constituted under the mer- cantile marine act of 1850, to be tried for shooting one of the crew. Plaintiff was sent home by the court from the same place, as witness against him, and attended the trial in this country. When the trial was over, the ship was in the Pacific, and plaintiff could not practically return. Lord Campbell, Ch. J., said (p. 849) : "By authority of the British legislature he was then sepa- rated from the ship at a foreign port, and sent to England, without any rea- sonable possibility of his ever being able to rejoin the ship during the voyage in which she was engaged. . . . After he was sent home from Monte Video to England, he neither served under the articles actually nor constructively; and, as from that time the relation of employer and employed could not be renewed within the scope of the original hiring, we think that the contract must then be considered as dissolved by the supreme authority of the state, which is binding on both parties." That an injunction issued at the in- stance of a government official, forbid- ding a corporation from doing business any longer, on account of its having failed to comply with a statutory pro- § 228] TERillNATIOX OF THE CONTRACT. 705 b. Authorities of foreign state. — In one case the question whether the crew of a ship upon which an embargo had been laid by a foreign "vision, operates as a dissolution of its that of the corporation; an independent •contracts with employees by the sov- agency guided by its own motives, and -ereign power of the state, and renders not the act of the company producing performance on either side impossible, its own death." was held in People v. Globe Mut. L. Ins. This decision was relied on in Kansas Co. (]883) 91 N. Y. 174. The court Union L. Ins. Co. y. Burman (1905) 73 said: "As it is thus evident tliat a man C. C. A. 69, 141 Fed. 835, where a dis- may be, in some sense, the occasion, or solution of the contract of hiring was ■even the indirect cause, of his own death, held to have resulted from a decree of and in the same sense blamable for it, ^ court avoiding an agreement by which without its being, in a legal sense, and ^^le business of the plaintifl''s former considered as a vis major, his own act; employer had been transferred to the so a corporation may be said, through defendant. the conduct of its officers, to have in some i„ Wood v. Iowa Bldg. & h. Asso. sort, occasioned by its own corporate (1905) 126 Iowa, 464, 102 N. W. 410, death, while yet it would remain true j^ which it was held that where the 1;hat its dissolution by the independent defendant corporation, in employing force of the state would be not its own plaintiff, for a term of years, to solicit act, not at all the product of its own business, for remuneration to be paid -volition, and not a breach by it of its from the expense fund, reserved the ■contract previously unbroken, — especial- right to change its method of doing ly is this true as between the company business when required to do so by a .and its own officers contracting with it. change in the state laws or rule of any One of these may be innocent himself supervising officer, a statute making it of any wrongful act or neglect, and yet necessary to abolish such expense fund it is inherent in the nature of his con- terminated the contract by which plain- tract that he takes the risk of such act tiff was entitled to compensation from or neglect on the part of the other offi- such fund. ■cers as may tend, under the law, to pro- In a case where plaintiff was em- duce a dissolution, if such dissolution ployed as a teacher for nine months, and in fact occurs. That possibility entered after eight months had expired the into his contract when made, and be- school was closed by order of the board longed to it as an inevitable condition, of health on account of the prevalence for its complete performance depended of smallpox, the result being that plain- upon the corporate life, and that under tiff, though ready and willing, was un- "the law upon the fulfilment of the able to complete his contract, it was law's conditions. In the event of such held that the obligation of the school •corporate death the motive of the state district under the contract was dis- or the cround of its act is wholly im- charged. School Dist. No. 16 v. Howard material Its risk was upon the con- (1904) 5 Neb. (Unof.) 340, 98 S. W. 666. tractor whatever its cause or occasion; In answer to the contention of counsel and, however it may have been provoked that the case was within the principle •or induced, it must be deemed the act of Baylies v. Fettyplace (1811) 7 Mass. of the state, and not of the corporate 325, the court said: "Whether this rule body. And it is the independent act of should apply to a contract for personal the st&te for although the reserve may services in all cases we are not called have fallen below the prescribed level, upon to determine; but, even if it a dissolution is not the necessary con- should be applied in this case, the dis- sequence. That may follow, or may not trict would still not be in default, as it follow. The superintendent of insur- offered to allow the defendant in error ance may make the certificate which sets to teach the remaining months of his the law in motion, or may withhold it. term after the order of the board of The matter lies within his sole discre- health had been recalled." tion and control. He may act or not. For a case turning upon the doctrine as he chooses; but if he does, it is that no breach of an agreement to do his act, and not the company's; depend- work is predicable as to either party, «nt wholly on his volition, and not on where an independent contractor is M. & S. Vol. I.— 45. 706 MASTER AND SERVANT. [ciiap. vi. government were entitled to abandon their contracts was left un- determined.* Presumably, however, the right of abandonment is at least predicable whenever the embargo is likely to continue for a period so protracted that it would be unreasonable to hold either the employer or the employed to their contract.^ A contract for the hire of a seaman is annulled when his ship is- captured by an enemy.* 229. Acts of third persons. — There is authority for the doctrine that some classes of servants at least may be justified in terminating the employment on account of the existence of conditions which are merely disagreeable and annoying. But the scope of the doctrine- is quite obscure, and from the very few decisions which bear upon the subject nothing more can safely be inferred than that it is only xmder very exceptional circumstances that an abandonment on thisi ground is excusable.^ stopped in the prosecution of the work 558, 56 Am. Dec. 96, a female servant by the authority of the state, see Jones was held to be justified in leaving on V. Judd (1850) 4 N. Y. 411. account of having been annoyed by Under the poor law formerly in force the rudeness and improper conduct in England, an order of removal under of a member of another family living the law of settlement put an end to the in the same house as her master, service. Rex v. Eenilworth (1788) 2 On the other hand, it has been laid T. R. 598. down that an assault upon a child of an ^ Beale v. Thompson (1804) 4 East, employee not residing on the employer's. 546, affirmed in (1813) 1 Dow, P. C. premises, by one not under the employ- 299. er's control, and not by his direction, 3 In this connection the analogy of the knowledge, or consent, is not a justifl- cases which deal with the effect of an able cause for leaving the employment embargo upon the obligation of a char- before the expiration of the term for ter party might, it would seem, be re- which he was employed. State, Mather^ lied upon. See 2 Parsons, Contr. *.?05. Prosecutor, v. Brokaw (1881) 43 N. J. * See Abbott, Shipping, 14th ed. 262, L. 587 (held erroneous to leave ques- 263; Waclachler, Shipping, 4th ed. 235. tion of justifiability to the jury). iln Patterson v. Gage (1851) 23 Vt. OHAPTEE VII. IMPLIED CONDITIONS OF AN EMPLOYMENT CONTINUED AFTER THE EXPIRATION OF THE TEEM ORIGINALLY SPECIFIED. A. DOCTEINES APPLIED I.\ COMMON-LAW JURISDICTIONS. 230. General rule enunciated. 231. Duration of continued employment. a. Generally. 6. Effect of the requirements of the statute of frauds. c. Pleading. 232. Rate of remuneration under continued employment. a. Generally. h. Change in locality or character of service. c. Invalidity of original contract, effect of. 233. Terminability of continued employment. 234. Resumption of employment under the same master after an interval. 235. Continuance of same vpork under a different employer. B. Doctrines applied in civil law jubisdictions. 236. Scotland. u.. Generally. 6. Necessity of giving notice to prevent tacit relocation. 237. Louisiana. 238. Quebec. A. Doctrines applied iw commoit-ea"w jueisdictiows. 230. General rule enunciated. — It is fully settled that, in all cases in which a servant is sh9wn to have continued, after the expiration of the period for which he was at first hired, to render similar serv- ices without explicitly entering into a new agreement, a prima faciei presumption arises that he was re-engaged upon the same terms and conditions as under the original contract.^ Verbal evidence has been ^Adorns V. Fitzpatrich (1891) 125 Ins. Co. v. Parker (1900) 92 Md. 22, N. Y. 124, 26 N. E. 143; Douglass v. 47 Atl. 1042; Houston Ice & Brewing Merchants' Ins. Co. (1890) 118 N. Y. Co. v. ^HcoUni (1906) — Tex. Civ. App. 484, 7 L.R.A. 822, 23 N. E. 806; Eunt- — , 96 S. W. 84; Fitch y. Martin (1905) ingdon v. Glaffin (1868) 38 N. Y. 182; 74 Neb. 538, 104 N. W. 1072, and the Vail V. Jersey Little Falls Mfg. Co. cases cited passim in this and the fol- (1860) 32 Barb. 564; Lichtenhein v. lowing sections. Fisher (1895) 87 Hun, 397, 34 N. Y. In one case, where an employee after Supp. 304; Wallace v. Floyd (1857) 29 the expiration of the year for which Pa. 184, 72 Am. Dec. 620; Travelers' he had been employed, continued in the 707 708 MASTER AND SERVANT. [chap. vn. held to be admissible for the purpose of rebutting this presumption. cv 'en in cases where the original contract was in writing. 2 Several of the decisions go no further than to assert that the orig- inal hiring and the continuance of the employment are facts from \v'hich a jury is entitled to infer the formation of a second contract.^ Jjut having regard to the overwhelming weight of explicit authority service of the employer without any new during the year in question, and at the iir different arrangement, it was ob- same wages, until discharged, a con- served that a contract for another year tention that there was no evidence that on the same terms arises by implication any contract was made with defendant of law. Kelhi v. Cartilage Wheel Co. was untenable. (1900) 62 Ohio St. 598, !57 N. E. 984. In Wright v. Elk Rapids Iron Co. The phrase "implication of law," as (1902) 129 Mich. 543, 89 N. W. 335, liere used, appears to be somewhat evidence of the previous hiring of a wanting in precision. The court clear- discharged employee by the year, and ly did not mean that there is any im- of the continuance of that arrangement plication "juris et de jure" under the from year to year thereafter, was held given circumstances, for it cites Adams to be competent to show that at the V. Fitzpatrick, supra, in which the ap- time of his discharge he was employed propriate inference is spoken of as a by the year, and not by the month, presumption of fact. In an earlier Michigan case it had It is not error to admit in evidence been laid down that, where the em- the document in which the original ployment is continued after the expira- contract was embodied, for the purpose tion of the year originally stipulated iif showing the terms of the contract in a written contract, without a renew- under which plaintiff performed the la- al of the contract, the contract is com- bor. Hermann v. Littlefleld (1895) 109 petent evidence upon the issue as to Cal. 430, 42 Pac. 443. whether or not the second hiring was A servant who is hired for one month, for a year. Tallon v. Grand Portage ;ind works one day over the month, and Copper Min. Co. (1884) 55 Mich. 147, is then discharged, is entitled to his 20 N. W. 878. wages for the full month. Halter v. In Lynch v. Eimer (1887) 24 111. Ooody (1911) 4 Sask. L. R. 161, 17 App. 187, it was ruled that the terms West. L. Rep. (Can.) 261. of the original contract may be con- In Broughton v. Brantford (1869) 19 sidered by the jury in ascertaining the U. C. C. P. 434, a servant of a corpora- terms of the continued employment, tion duly appointed, in the first place. In Sines v. Wayne County (1885) 58 under the corporate seal, was held to be Mich. 503, 25 N. W. 485, it was held in office during the second year, under that the jury were warranted in finding his original appointment. that a renewed employment was intend- If a servant continues in the service ed to continue for the same period as of the master after the expiration of the original one. the written contract, upon a verbal Evidence that a person employed by agreement, the rights and the liabilities the year, at about the expiration of his of the parties are not governed by the term of employment, requested employ- written agreement which governed the ment for "this year," in answer to prior employment. Borg v. Stranss which the employer said, "You are all (1910) 247 ill. 462, 93 N. E. 296. right; go on with the work,"— was held 2 £fo!e V. Sheehan (1894) 41 Neb. to be sufficient to go to the jury on the 102, 59 N. W. 554. issue as to whetner the plaintiff was i In Dunton V. Derhy Desk Co. (1904) employed under an oral contract for a 186 Mass. 35, 71 N. E. 91, in an action year. Embrey v. Hargadine-McKittrick by a servant for breach of a contract Dry Goods Co. (1905) 115 Mo. App, of hiring for a year, it was held that, 130, 91 S. W. 170. as the plaintiff had worked under a con- Plaintiff had been in defendant's em- tract for the previous year, and con- ploy as manager for one of his plan- tinued to work in the same capacity tations for eight years, and for the year § 230] EilPLOYilEXT CONTINUED AFTER TEEM. 709 m favor of the theory that the continuance of the employment raises a presumption of fact which is controlling unless rebutted by posi- tive evidence, it is perhaps not unreasonable to suppose that the form and scope of those decisions were determined by the footing upon which the action of the trial judge happened to be reviewed by the appellate tribunal. The presumption that there is a renewal of the entire contract, when the employment is continued, does not arise in a case where the given services were rendered after the master had, in the exercise of a right reserved, terminated the original engagement by giving the servant notice, stating at the same time that the servant's assist- ance might be needed in the future, but that the matter could not then be determined. Under such circumstances it is a question for the jury whether the master intended to waive his right, or whether there was merely a hiring for so long a time as work could be found for the servant.* The doctrine applied in two cases is that no presumption regard- ing the incidents of a continued employment arises where the serv- ices are rendered to a partnership of which the original employer of the servant has become a member.'' ]899 received $500 as wages. About additional services, or for the employer January 1, 1900, plaintiff asked defend- to so word his notice as to indicate that ant if he was to manage his plantation whatever services should be performed for the next year, and was told he could after that date should not be considered stay if he wished. Plaintiff managed as a waiver." the plantation until January 1.3th, when 6 In Mason v. Secor (1894) 76 Hun. he was discharged, and was paid by the 178, 27 N. Y. Supp. 570, it was held defendant for thirteen days' service at that, as no express contract of eraploy- the rate of $500 a year. Held, that the ment for a year had been made by the evidence was sufficient to authorize the partnership, it was entitled to terminate jury to find that a contract for a year's the employment before the expiration service had been made between the par- of a year. ties. Lee v. Hampton (1901) 79 Miss. In Lioht'enhein v. Fisher (1896) 6 :12], 30 So. 721. App. Div. 385, 39 N. Y. Supp. 553, it In one case it was laid down that, was held to be erroneous for the trial where an employee has worked under a judge to decline to charge the jury, as contract which has been extended from requested by the defendant, that the >ear to year, the fact that his salary fact that the plaintiff remained in the was paid after the lapse of the extend- employment of the firm after June 1, c^d period, is evidence which tends to 1892, the date of the formation of a establish the fact of renewal for a fur- partnership between his original em- ther year. Fish v. Mnnlnjf (1906) 128 ployer and another person, at the same 111. App. 549. wages as those which he had received 4 haubaoh v. Cedar Rapids Hupply Co. before that time, raised no presump- (1904) 122 Iowa, 643, 98 N. W. 511. tion that the firm had employed him The court observed that ''it was per- to May 1, 1893, the date when his eon- fectly competent for the parties to tract with his original employer ex- make a new contract with reference to pi red. VIO MASTER AND SERVANT. [chap. vii. 231. Duration of continued employment. — a. Generally. — The pre- sumption that, where the relationship of master and servant is con- tinued after the expiration of the agreed term, the parties intend that the renewed engagement shall subsist for the same period as that covered by the original contract, is entertained not only in cases in which the duration of the first employment was fixed by an ex- press stipulation,^ but also in cases in which that duration is itself a matter determinable with reference to a presumption of fact, as, 1 In an old case it \¥as decided that is, if it be put an end to adversely, ii a person retain a servant for a year, and not by agreement, by a notice ex- et sic de anno in annum quamdiu am- piring vpith the current year. Hovp long babus partibus plamerit, and the cm- such notice must be, we need not de- ployment extends into a second year, termine." the retainer holds good for another In Douglass v. Merchants' Ins. Co. year, and that it is not to be regarded (1890) 118 N. Y. 484, 7 L.R.A. 822, as a retainer for a year certain and 23 N. E. 806, the court after stating afterwards at will. Cotes v. Sadler that the incidents of the original con- (1667) 2 Keble, 16; Bacon, Abr. Mast, tract indicated that a year's service & S. (A) (driver of coach). was contemplated, observed: "The A contract to serve as a reporter to terms would presumptively be the same a newspaper one whole year from a each subsequent year, except so far as certain day, and so from year to year modified by the parties; and without to the end of each year commenced, so some reserved right of termination, it long as the parties shall respectively may be assumed that his service was please, is a yearlj' service so long as not terminable without cause until the it lasts. Williams v. Byrne (1837) end of any current year." 2 Nev. & P. 139, 7 Ad. & El. 177, W. "The general rule is that, where one W. & D. 535, 1 Jur. 578. In that case is hired for a year, and continues in the legal effect of the contract was held the service after his term expired, with- to have been correctly set out in a dec- out any new contract, the first con- laration which alleged that the employ- tract is renewed by the acquiescence of ment was to be for one year from a the parties for another year." Hodge certain date, and so on from year to v. Newton (1888) 14 Daly, 372, 373. vear to the end of each year commenced, In Adams v. Fitzpatrick (1891) 125 while the plaintiff should be so em- N. Y. 124, 34 N. Y. S. R. 859, 26 N. E. ployed, reckoning each year to com- 143, the court said: "When one serves mence at the day named. Littledale, another under a contract for a year's •T.. said: "It appears not to be dis- service, and holds over, continuing in puted that the parties were, at any the same service after the expiration rate, bound to the end of the first of the year, there is a presumption an- year. I think their position was the alogous to the presumption in the case same in all the subsequent years. There- of yearly leases, that the parties assent fore, when any year had commenced, the to the continuance, through another service was to run on to the end. And year, of the contract of service." The this was to continue as long as the same language is used in Kellogg v. parties pleased, that is, till one of them Citizens' Ins. Co. (1896) 94 Wis. 554, determined the engagement by reason- 69 N. W. 362. able notice expiring at the end of the "The rule is that, where one is hired current year." Patteson, J., said: "It for a year, and continues in the service is an employment for a year, and so after his term has expired, without any on from year to year, the year begin- new contract, the first contract is re- ning on a day named. The words, newed by the acquiescence of the parties 'while the plaintiff should be so em- for another year, the continuance in ployed,' are satisfied by a power to the employment of the hirer, with the put an end to the employment in the consent of the latter, . . . being way warranted in the contract; that equivalent to a new hiring for the same ^ 231] EMPLOYilENT C0^'T1^■UED AFTER TERM. 711 where the hiring took place in one of those jurisdictions in which a general hiring is, in the absence of countervailing evidence, treated time, on the same terms." Wallace v. implication being founded upon the same Devlin (1885) 36 Hun, 275. considerations upon which a tenant who In a headnote written by the supreme holds over is deemed to hold on the court of Nebraska, the rule is stated terms of the original demise. The truth thus: "Where service, under a con- then, was that every month Stuart tract of employment for a fixed period, worlted, he worked under a new con- tontinues after such period has ex- tract, not express, but implied." pired, it is presumed to be under the Where there is evidence going to same contract." Home P. his. Co. v. sliow that services were actually ren- Barher (1903) 67 Neb. 644, 60 L.R.A. dered during a certain period, the fact 927, 108 Am. St. Rep. 716, 93 N. W. that the employee had written a letter 1024. to the defendant's solicitor, in which "\^1iere the original hiring is for -