2. Claim on a Building Contract, and for Extras. 1. The plaintiff claims the contract price of £250 in respect of the painting and decorating of the defendant's house, No. 13, Royal Crescent, Brighton, done by him under a contract of the 5th of May, 1880. 2. The plaintiff also claims £81 for extra work of the same description done upon the said premises by the plaintiff at the defendant's request. Particulars of the said extra works, exceeding in length three folios, are delivered herewith. The plaintiff claims £250 and £81. Defence. 1. It was a term of the said contract of the 5th of May, 1880, that the plaintiff should not be entitled to any money under it in respect of work done until such work had been approved by A. B. the architect, and his certificate in writing given. 2. The work in respect of which the plaintiff sues in this action has never been approved by the said A. B., nor has he given his certificate in writing. 3. The defendant did not order any of the extras claimed for. 4. It was also a term of the said contract that the plaintiff should not be entitled to recover for any extra work unless the same were ordered in writing by the said A. B. 5. A. B. did not order any of the said extra works in writing. 3. Claim by a Commercial Traveller for his Salary and Commissions. 1. On the 3rd of November, 1880, the plaintiff entered the defendant's employment as a commercial traveller at a salary of £150 a year, payable half-yearly, and a commission of 21 per cent. upon all orders he obtained. 2. From the said date to the 3rd of May, 1881, the plaintiff obtained orders to the value of £5000. The plaintiff claims: (1) £75, half-a-year's salary; and (2) £125 for commissions. Defence. 1. The defendant employed the plaintiff at a salary of £150 a year, payable half-yearly, and a commission of 21 per cent. upon the nett profit realised upon all orders he obtained. 2. The nett profit realised upon the said orders was £1000. 3. Before action brought the defendant paid to the plaintiff the sum of £50 on account of his salary and commissions. 4. The defendant brings into Court the sum of £50, and says it is sufficient to satisfy the plaintiff's claim herein. Reply. The plaintiff joins issue upon the defence. 4. Claim against Defendants in the Alternative for Literary Services. 1. By an agreement made on the 5th of April, 1880, between the plaintiff and the defendant N., who was duly authorised by the defendant P. to act as his agent in that behalf, it was agreed that the plaintiff should be employed by the defendant P., at a salary of £ a month, to assist the defendant P. by his literary labour in the advocacy of the views of the U. K. A. Society. 2. Thenceforth until the month of December, 1881, the plaintiff was employed by the defendant P. in a variety of ways in advocating the objects of the said association, and there accrued due to the plaintiff under the said agreement the sum of £. 3. In the alternative, the plaintiff says that the defendant N. warranted that he was authorised by the defendant P. to engage the plaintiff upon the terms already stated, whereas in fact he had no such authority, and the plaintiff in consequence is unable to obtain any remuneration for his said work and ser The plaintiff claims: (1) £210 from the defendant P.; or (2) The sum of £210 from the defendant N. by way of damages. 5. Claim by an Author against Publishers. 1. On the 30th of July, 1880, it was agreed by and between the plaintiff and the defendants that the plaintiff should write for the defendants a work of fiction, to be published by them in monthly shilling parts, and that the plaintiff should receive, as remuneration for his literary labour, the sum of £150, to be paid upon the publication of the last of the said monthly parts. 2. The last of the said monthly parts was published before action brought. The plaintiff claims £150. Wrongful Dismissal (a). 1. Claim by a Clerk for Wrongful Dismissal. 1. The plaintiff was engaged by the defendant on the 1st of January, 1880, as a clerk in his warehouse, at a salary of £100 hiring presumed to be for a year. (a) An indefinite hiring in the case of servants (other than menial An inservants), without mention of time, is presumed as a matter of fact which definite may be rebutted by other circumstances to be a hiring for one year, and the fact of the wages being payable monthly does not necessarily make any difference. In every case, however, the terms of the hiring are for the jury, who must take the usages of the particular trade into consideration. In the case of a hiring "at two guineas a week for one year," Bramwell, B., told the jury they might find a weekly hiring. (Robertson v. Jenner, 15 L. T. N. S. 514.) So a hiring "at £2 a week and a house' has been held to be a weekly hiring. (Evans v. Roe, L. R. 7 C. P. 138.) If during the year, where the service is yearly, the servant is dismissed without cause, he is entitled as damages to his wages to the end of the year. But if the servant leave the service without cause or is discharged by the master or by a magistrate's order for good cause during the year, he cannot recover any of the current wages. (See Smith's Master and Servant, 3rd ed., p. 178.) With regard to menial or domestic servants it is generally understood Menial (except where a different custom is proved to prevail) that though the contract is for a year, it may be dissolved by either party on giving a servants may be discharged with a month's warning. Who are menial servants. A custom to dis charge on notice may be engrafted on a general hiring. Hiring for twelvemonths. Master not bound to a year, and upon the terms that he should receive six months' notice or six months' salary in lieu of notice. 2. On the 3rd of February, 1880, the defendant dismissed the plaintiff without any notice, or wages in lieu of notice. The plaintiff claims £50. month's warning, or on the part of the employer by giving a month's wages. (Beeston v. Collyer, Bing. 313; Fawcett v. Cash, 5 B. & Ad. 908.) A governess has been held not to be a menial servant within the meaning of this rule. (Todd v. Kerrich, 8 Ex. 151 ; 22 L. J. Ex. 1); but a head gardener and huntsman have been held to be such servants. (Nicol v. Greaves, 33 L. J. C. P. 259; 17 C. B. N. S. 27: Johnson v. Blenkinsop, 5 Jurist. 870; Nowlan v. Ablet, 2 C. M. & R. 54.) The notice may be given at any time, i.e., need not be given at the end of any month from the commencement of the service. In such cases, if the master without reasonable cause dismisses the servant without notice, the latter is entitled to recover a month's wages beyond the arrears (if any). (Robinson v. Hindman, 3 Esp. 235.) A general engagement of an agent at a specified sum per annum simply, is a hiring for a year; but a custom to discharge on notice may be engrafted on such hiring if the terms be not inconsistent with the custom. A stipulation for a gratuity at the end of the year has been held to be not inconsistent with such custom. (Metzner v. Parker, 9 Ex. 518; 23 L. J. Ex. 130; Parker v. Ibbetson, 27 L. J. C. P. 236 ; 4 C. B. N. S. 346.) It is a question for the judge whether a written contract excludes such a custom. (Parker v. Ibbetson, supra.) But when the hiring is expressly for a certain fixed time a custom to determine it before without notice is inadmissible. (Peters v. Staveley, 15 L. T. N. S. 275.) Clerks in London are said to be entitled to three months' notice. (Per Pollock, C.B., who stated in Fairman v. Oakford, 29 L. J. Ex. 459-60, that juries in London generally find to that effect.) In Hiscer v. Batchelor, 15 L. T. N. S. 543, the jury found that an advertising and canvassing agent was only entitled to one month's notice. A contract of hiring for one whole year, and so on from year to year as the parties should respectively please," can only be determined at the end of any current year and upon reasonable notice. (Williams v. Byrne, 7 Ad. & E. 177.) An agreement for "twelve months certain, after which time either party should be at liberty to terminate the agree ment," by three months' notice, may be determined by three months' notice terminating after the end of the twelve months. (Langton v. Carleton, L. R. 9 Ex. 57, Kelly, C.B., dissentiente.) The master of a ship was hired under a contract providing that "should owners require captain to leave the ship abroad, his wages to cease on the day he is required to give up command.” In an action by the captain for wrongful dismissal without notice, but not for misconduct, it was held that he was entitled to reasonable notice. (Green v. Wright, 1 C. P. Div. 591.) As to agreements for service for over twelve months, see 4th section of the Statute of Frauds, which requires them to be evidenced by writing. A dismissed servant or agent will not necessarily be entitled to his full salary or wages for the unexpired term of the contract, as it is liable to be reduced by the probabilities of his having other employment during such period. (Hartland v. General Exchange Bank, 14 L. T. N. S. 863; Hochester v. De la Tour, 22 L. J. Q. B. 458; 2 E. & B. 690; and see Yelland's case, L. R. 4 Eq. 350; Ex parte Clarke, L. R. 7 Eq. 550 ; and Er parte Logan, L. R. 9 Eq. 149.) The master is not bound to assign the reason for dismissal at the time thereof, and where a good cause for dismissal in fact existed at such Defence. 1. By the said agreement the defendant was only entitled to one month's notice. 2. The defendant, on the 3rd of January, 1880, gave the plaintiff one month's notice to leave his said service. Reply. The plaintiff joins issue upon the statement of defence. 2. Claim by a Domestic Servant for Arrears of Wages and Wrongful Dismissal. 1. The plaintiff has suffered damage by the defendant wrongfully dismissing him from his situation of a cook without one month's notice, or one month's salary in lieu of notice, viz., £15. 2. At the time of his dismissal the defendant owed the plaintiff the sum of £20 for six weeks' wages then in arrear. time, it is immaterial whether or not it was the real cause. (Ridgway v. Where a master having a right to discharge his servant for misconduct condones it, and retains the servant, he cannot afterwards discharge him for the same misconduct. (Phillips v. Foxall, L. R. 7 Q. B. 680.) In contracts for personal service it is an implied condition that the death of either party shall dissolve the contract. Therefore, when A. was hired by P. at a working wage, and it was agreed that the service was to be determined by six months' notice and six months' wages, it was held on the death of P. that his personal representatives were not bound to continue A. in their service or pay six months' wages. (Farrow v. Wilson, L. R. 4 C. P. 744.) assign any reason for dismissal. Misconduct no answer to claim for wages which are due at the time. Misconduct servant. |