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Action for Wages and Wrongful Dismissal.

463 simply, is a hiring for a year, yet a custom to discharge upon notice may be engrafted on such general hiring though the contract be in writing, if the terms are not inconsistent with the custom; and, they are not inconsistent where the hiring was at a yearly salary, stipulating for a gratuity at the end of a year on approval. Metzner v. Bolton, 9 Exch. 518; 23 L. J., Ex. 130; Parker v. Ibbetson, 4 C. B., N. S. 346; 27 L. J., C. P. 236. The custom must be 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. Foxall v. International Land Credit Co., 16 L. T. N. S. 637, Byles, J. Whether a written contract excludes the custom, is for the judge, and not for the jury, to decide. Parker v. Ibbetson, supra. When, however, the hiring is expressly for a time certain, a custom of the trade for a master or a servant to determine it at any time without notice is inadmissible to control the contract. Peters v. Staveley, 15 L. T., N. S. 275; M. T. 1866, Q. B. In Fairman v. Oakford, ante, p. 462, Pollock, C. B., observed "that juries in London usually find that clerks are entitled to 3 months' notice." 29 L. J., Ex. 460. Accord. Foxall v. International Land Credit Co., supra. In Darke v. Grosvenor Hotel Co., Q. B., T. T., 1865, ex. rel. editoris, the court awarded the secretary of that public company 3 months' salary in lieu of notice. In the case of the employment of an advertising and canvassing agent, the jury found that a month's notice was sufficient. Hiscox v. Batchelor, 15 L. T., N. S. 543. It was in this case said to make no difference, whether the remuneration is by salary or commission; S. C. Id. cor. Byles, J. See, however, Rhodes v. Forwood and Ex pte. Maclure, cited post, p. 464. On the question of notice it may be material to consider whether there exist a contract of service between the parties. See on this point, R. v. Negus, L. R., 2 C. C. 34, and cases there cited. See also further, sub. tit. Work as agents, post, pp. 526, 527.

It has never been decided whether, on a hiring for a year without any express contract as to notice, if the service continue beyond the first year, either party can determine the contract at the end of the current year without notice, or whether a reasonable notice ought to be given previously. See Beeston v. Collyer, 4 Bing. 309. A contract "for one whole year, and so from year to year so long as the parties should respectively please," can only be determined at the end of a current year; Williams v. Byrne, 7 Ad. & E. 177; and semble, by reasonable notice; Id. 182. An agreement between master and servant, "to be binding between the parties for 12 months certain from the date, and to continue from time to time until 3 months' notice be given by either party," may be determined by 3 months' fotice expiring at the end of the first year. Brown v. Symons, 8 C. B., N. S. 208; 29 L. J., C. P. 251. An agreement "for 12 months certain, after which time either party should be at liberty to terminate the agreement" by 3 months' notice, may be determined without notice at the end of the 12 months. Langton v. Carleton, L. R., 9 Ex. 57, diss. Kelly, C. B. Sed quære. An agreement of hiring for 6 months and "6 months' notice from either side to terminate the agreement," may be determined at any time after the expiration of the first 6 months. Keon v. Hart, I. R., 2 C. L. 138, C. P.; Ir. Ex. Ch. I. R., 3 C. L. 388; and see Ryan v. Jenkinson, 25 L. J., Q. B. 11.

Where the master has dispensed with the plaintiff's services before he has entered on the service, and has refused to abide by his contract, the servant may bring an action on the contract before the time for its commencement has arrived. Hochster v. De La Tour, 2 E. & B. 678; 22 L. J., Q. B. 455. Accord. Frost v. Knight, L. R., 7 Ex. 111, Ex. Ch. An offer by the plaintiff to serve is unnecessary; readiness and willingness to serve, which implies ability, is sufficient. Wallis v. Warren, 4 Exch. 361.

If a servant misconduct himself, the master may turn him away without

any warning. Spain v. Arnott, 2 Stark. 256. A refusal to obey a lawful order (as to remain at home at a certain time, or to do a proper day's harvest work, &c.) is a good ground of dismissal; S. C.; Lilley v. Elwin, 11 Q. B. 742; however reasonable or urgent the excuse for the servant's wilful absence may be. Turner v. Mason, 14 M. & W. 112. If a clerk wrongfully claim to be a partner, the master may dismiss him forthwith as clerk. Amor v. Fearon, 9 Ad. & E. 548. So, where a clerk disobeys a direction to apply remittances in a particular way; Smith v. Thompson, 8 C. B. 44; or, a traveller neglects immediately to remit sums collected, in accordance with the terms of his engagement; Blenkarn v. Hodges' Distillery Co., 16 L. T., N. S. 608, Byles, J.; or sells his employer's goods (wines) to a brothel-keeper; Id.; or, where a servant embezzles, though his wages due exceed what he has embezzled. Brown v. Croft, 1 Chitty, Prac. of the Law, 82. The master is not bound to assign the cause at the time of the dismissal; and where good ground for dismissal existed at the time, it is immaterial whether or not it was the real cause. Ridgway v. Hungerford Market Co., 3 Ad. & E. 171. See Spotswood v. Barrow, 5 Exch. 110. Where the payment of wages was to be at the rate of 50l. per month, it was held that subsequent misconduct was no answer to an action for wages which had then accrued due, because there was a vested right to each month's wages, when the month had elapsed. Taylor v. Laird, 1 H. & N. 266; 25 L. J., Ex. 329; Button v. Thompson, L. R., 4 C. P. 330. This may, however, be altered by the terms of the hiring, as where the plaintiff was employed on the terms that he should give 14 days' notice, and if he left without notice should forfeit all wages due the wages were ascertained on each Thursday up to that day, and paid on the following Saturday; the plaintiff worked on Friday and left without notice; held that he forfeited the wages earned up to Thursday as well as those subsequently. Walsh v. Walley, L. R., 9 Q. B. 367. Where a master, having a right to discharge his servant for misconduct, condones the act of misconduct and retains the servant, he cannot afterwards discharge him for the same act. Phillips v. Foxall, L. R., 7 Q. B. 680, per Blackburn, J.

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The bankruptcy of the master is not a dissolution of the contract of hiring. Thomas v. Williams, 1 Ad. & E. 685. Dissolution of the partnership of the employers is not necessarily a breach of the contract of the firm to employ the plaintiff; at all events, if plaintiff entered into the service of the altered firm, this is evidence in proof of a defence of voluntary exoneration from the first contract before breach. Hobson v. Cowley, 27 L. J., Ex. 205. But, dissolution of partnership, has been held to be a breach of an agreement to teach a business, contained in an agreement of apprenticeship. Couchman v. Sillar, 22 L. T., N. S. 480, E. T. 1870, C. P.; see also Eaton v. Western, 9 Q. B. D. 636, C. A. If there be an agreement for service between the plaintiff and A. and B., then in partnership, the death of one of the partners puts an end to the contract, though the service was for a time certain; and no action can be maintained against the survivor for not employing the plaintiff. Tasker v. Shepherd, 6 H. & N. 575; 30 L. J., Ex. 207. But a voluntary parting with the business, is a breach of the contract to employ. Stirling v. Maitland, 5 B. & S. 840; 34 L. J., Q. B. 1. See Cook v. Sherwood, 3 F. & F. 729; 11 W. R. 595, C. P. E. T. 1863. But an agent or servant paid by commission on the profits of the business carried on, cannot sue his employer for giving up the business before the expiration of the term for which he was engaged; Rhodes v. Forwood, 1 Ap. Ca. 256, D. P.; nor for giving it up without notice. Ex pte. Maclure, L. R., 5 Ch. 737; L. Leith, &c. Shipping Co. v. Ferguson, 13 Sc. C. of Sess. Cases, 1850, p. 51.

In contracts for personal service it is an implied condition that the death

Action for Wages and Wrongful Dismissal.

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of either party shall dissolve the contract. Farrow v. Wilson, L. R., 4 C. P, 744. The plaintiff was hired as a farm bailiff, by A. at weekly wages, with a stipulation for 6 months' notice or 6 months' pay it was held that the contract was dissolved by A.'s death, and that the stipulation as to notice did not apply. Id.

Where an apprenticeship is dissolved by the death of the master during the term, no part of the premium paid is recoverable from his executors; Whincup v. Hughes, L. R., 6 C. P. 78. In Hirst v. Tolson, 2 Mac. & G. 134; 19 L. J., Ch. 441, an articled clerk was allowed to prove against the estate of his master, an attorney, who died during the articles, for the proportionate part of the premium the clerk had paid. Sed quære, for this decision was founded on an erroneous view of the rule at common law. See judgments in Whincup v. Hughes, supra. Incapacity in a servant from illness, arising after a contract for personal service, absolute in its terms, had been entered into, is an answer to an action for its breach. Boast v. Firth, L. R., 4 C. P. 1. So, in the case of a contract involving personal skill; as a pianoforte player. Robinson v. Davison, L. R., 6 Ex. 269. But, where from the circumstances it can be given, the employer is entitled to reasonable notice of such disability. S. C., per Brett, J., at N. P. Id. p. 271. Incapacity of the servant from sickness is not a determination of the contract, nor, will it justify dismissal without regular notice; semble R. v. Wintersett, Cald. 298. So, where a person entered into service as a brewer for a term certain at weekly wages, and became disabled by illness for several months, but afterwards was employed by the defendant as before,-held, that this involuntary inability did not suspend the right to wages; nor negative the allegation of readiness and willingness to serve. Cuckson v. Stones, 1 E. & E. 248; 28 L. J., Q. B. 25. But, permanent disability, such as paralysis, &c., would have justified putting an end to the contract; per cur. S. C. Total inability to perform his duty will not prevent a servant from recovering wages for the time he actually served, where the agreement is not for any specific term. Bayley v. Rimmell, 1 M. & W. 506. A seaman disabled in the course of his duty is entitled to wages for the whole voyage; Chandler v. Grieves, 2 H. Bl. 606, n. Inability to perform his duty by reason of incompetency or ignorance will justify the dismissal of an artificer, notwithstanding a contract for a term, where he was hired on the express representation that he had the requisite skill. Harmer v. Cornelius, 5 C. B., N. S. 236; 28 L. J., C. P. 85; and where a person is employed to do something requiring skill, there is an implied warranty that he possesses the requisite skill; per curiam, S. C. Where the contract of yearly service is determined by consent in the middle of a quarter, there is no necessarily implied contract to pay pro ratâ; but a jury may infer such an agreement from circumstances. Lamburn v. Cruden, 2 M. & Gr. 253: Thomas v. Williams, 1 Ad. & E. 685.

Where a contract of apprenticeship provides that the apprentice's father shall provide him with board and lodging, but is silent as to the place where the apprentice is to be taught, the master is bound to teach him at or near the place where the business was carried on, at the time the contract was executed. Eaton v. Western, 9 Q. B. D. 636, C. A. But, it seems it is otherwise where the apprentice resides in his master's house. Id. 641, per Hannen, P.; Coventry v. Windal, Brownl. 67.

As to agreements for service within the Stat. of Frauds, s. 4, see post, p. 468. See also the Employers & Workmen Act, 1875 (38 & 39 Vict. c. 90), as to the contracts to which that act applies.

Damages.] A dismissed servant may (and, if he can, ought to) enter into another service; per cur., in Hochster v. De la Tour, 2 E. & B. 690; 22 L. J.,

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Q. B. 458. He is not entitled to his full salary for the unexpired period of the contract for service, but that is to be reduced by the probabilities of his having other employment during such service. Hartland v. General Exchange Bank, 14 L. T., N. S. 863, Willes, J. See Yelland's Case, L. R., 4 Eq. 350; Ex pte. Clarke, L. R., 7 Eq., 550; and Ex pte. Logan, L. R.. 9 Eq. 149. In Gandell v. Pontigny, 4 Camp. 375; 1 Stark. 198; where wages were payable quarterly, the clerk, who was tortiously discharged in the middle of the quarter, was allowed, on a tender of his services, to recover for the whole quarter. But this decision, which is inconsistent with those above cited, is not now followed. See Smith v. Hayward, 7 Ad. & E. 544; Goodman v. Pocock, 15 Q. B. 576; and 2 Smith's L. C., 8th ed., pp. 45, et seq.

Defence.

The defence of dismissal for misconduct must be specially pleaded; Rules, 1883, O. xix., r. 15, ante, p. 283.

It is a good defence that the servant has already recovered damages for wrongful dismissal from the service; for he cannot by subsequently tendering his services recover for a continued refusal to employ him throughout the original time of service; Barnsley v. Taylor, 37 L. J. Q. B. 39. See, however, Unwin v. Clarke, L. R., 1 Q. B. 417, 423, per Blackburn, J.

By the Merchant Shipping Act, 1854, ss. 2, 189, no person (except the master or pilot), engaged in any capacity on board ship, can in general sue in a superior court for his wages, where they do not amount to 50l.; but this defence must be specially pleaded. The term "claim for wages" in 31 and 32 Vict. c. 71, s. 3, (2), has been held to include a claim for wrongful dismissal. The Blessing, 3 P. D. 35. Sed quære.

ACTION FOR NOT ACCEPTING GOODS.

On a contract of sale of goods and chattels, the obligations of the seller are-1. To deliver, or preserve for delivery, to the buyer; 2. To perform warranties express or implied; 3. Neither wilfully to misrepresent nor fraudulently to conceal anything relating to the thing sold. The obligations of the buyer are-1. To accept the article sold; and 2. To pay the price. The precise time of the change and vesting of the property, and the risk of loss (periculum rei vendita), are also questions incidental to this

contract.

Though the price to be paid, may in part consist of an article to be given in exchange, the entire contract is in substance one of sale, and (except as to the form of claiming upon it) may be so treated. Bach v. Owen, 5 T. R. 409; Pothier, Contrat de Vente, par. 30. But, a mere exchange cannot be treated as a sale. Harrison v. Luke, 14 M. & W. 139. The subject of warranties has been already under consideration, ante, pp. 436, et seq. That of misrepresentation and fraud will be found post, sub. tit. Defences to simple contracts-Fraud and Action for Deceit. The remaining obligations, and the evidence relating to them, are the subject of this and the next following heads.

At common law, and independently of the Stat. of Frauds, a sale of personal property is good, though the bargain be oral. Blackstone thus lays down the common law (2 Comm. 447-8)-If the vendor names the price and the vendee agrees to give it, the bargain is struck, and neither is at liberty to be off, provided immediate possession be tendered; but if neither

Contract of Sale.

467 the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases. But if any part of the price is paid down, if it be but a penny, or any portion of the goods be delivered by way of earnest, the property of the goods is absolutely bound by it, and the vendee may recover the goods and the vendor the price. An examination of the authorities supports the statement of Blackstone. See Shep. Touchst. 224-5; the cases cited, per cur., in Thorpe v. Thorpe, 1 Lutw. 252. The old authorities in 1 Reeves, Eng. L. 166; 3 Id. 372-4; Noy's Maxims, 87 ; Bạch v. Owen, 5 T. R. 409, 410.

Several cases in Brook's Ab. (cited in 5 Vin. tit. Contract and agreement) throw light on the law of sales without writing. Thus, a mere oral agreement for sale, without paying or giving day of payment, is not a binding bargain; 1 Dyer, 30, pl. 203; 5 Vin. 506, pl. 4; Id. 509, pl. 3; but the contract binds if a future day for payment is fixed; Id. 510, pl. 4; so, if the buyer produces and begins to count the money; Id. Ib., pl. 5; so, if he goes to fetch the money with consent of the seller; Id. Ib., pl. 6.

It is observable, however, that the earlier dicta chiefly relate to simple oral sales for ready money, which supposed immediate performance on both sides, and in such cases neglect to perform on one side, released the other; but at the present time a contract for sale is good, although neither the money be paid or a day expressly named for payment. Kent (2 Comm. 492) says, that when the terms are agreed upon and bargain struck, and everything to be done by the seller is complete, "the contract becomes absolute without payment or delivery, and the property and risk of accident vest in the buyer." And it is now settled that, by a contract for the sale of specific ascertained goods the property immediately vests in the buyer and a right to the price in the seller, unless it can be shown that such was not the intention of the parties. Gilmour v. Supple, 11 Moo. P. C. 551, 566; Accord. Calcutta, &c. S. Navig. Co. v. De Mattos, 32 L. J., Q. B. 322, 329, per Blackburn, J. See also Simmons v. Swift, 5 B. & C. 862, per Bayley, J.; Tarling v. Baxter, 6 B. & C. 360.

The doctrine, however, that the property is changed on the making of an effectual bargain, applies only to cases where the article sold is ascertained and in esse at the time; for if the bargain requires anything further to be done by the seller, as to make the article, or to set apart, or ascertain the price of the goods sold, by weight, number, measurement, selection, or otherwise, the property does not pass until they are in a state fit for delivery. Blackburn on Contract of sale, 152; Gilmour v. Supple, supra; Jenner v. Smith, L. R., 4 C. P. 270; 2 Kent Comm. 495, 496, 504. But, if it appear from the agreement that the intention of the parties is that the property shall pass presently, the property does pass, though there remain acts to be done by the vendor before the goods are deliverable. Blackburn on Contract of Sale, 160; and see Young v. Matthews, L. R., 2 C. P. 127 ; Turley v. Bates, 2 H. & C. 200; S. C. sub. nom. Furley v. Bates, 33 L. J., Ex. 43. The cases on the vesting of property by sale are collected, post, p. 486, and sub. tit. Action for conversion of goods, where also will be found the cases on Lien and Stoppage in transitu. The subject of delivery is treated of under the heads of Action for not delivering goods, and for goods sold and delivered, post, pp. 489, 494, et seq.

Points often arise respecting the effect of a contract or negotiation relating to a sale, contained in a written correspondence. On this some

cases have been already cited under a former head, ante, pp. 287, et seq. The rule is, that as soon as an offer by A. is accepted by B., in a letter duly posted and addressed by B. to A., the contract is complete, although the letter may not reach A. Duncan v. Topham, 8 C. B. 225; Dunlop v. Higgins, 1 H. Ľ.

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