Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 58 online

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Probate Jurisdiction, and is void if grant of administration ii void: Sigcmr*
ney v. Sibley, 82 Am. Dee. 248.

Harmon v. Salmon Falls Mantjpaotueing Go.

[85 Maims, 447.]

Regulation or Manufacturing Corporation that Employees must
Give Notice before quitting the company's employment, or else forfeit
their wages accrued, is valid and binding upon employees with notice.

Clause that Wages Accrued shall be Forfeited is Essential in order
that regulation of employer that employees shall give notice of intention
to leave bis employment may be a defense in an action for the wages.

One Willfully Violating Contract, and thereby Exposing Htmctt^
to Agreed Penalty or forfeiture, can obtain relief neither at law nor in

Recovery of Compensation for Services Performed on Contract
Broken by the plaintiff can be had only where there has been no willful
violation, or where performance has been waived, or other legal excuse

Employee is Bound by Notice of Employer's Regulations, otherwise
valid, without signing them.

Employee Continuing to Work for Employer after Printed Copy of
Employer's Regulations were delivered to him, must be considered as
having agreed to them.

Stipulation in Employer's Regulations that Payment of Wages shall
not be made without compliance therewith is a sufficient clause of for-

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1853.] Uabmon v. Salmon Falls Mto. Co. 719

Boras* or Pboof is on Employee to Show that he left by employer's
permission, or had worked as long as he agreed to, when seeking to
recover compensation for services performed, if he had notice of employ-
er's regulation requiring notice of intention to quit, and stipulating a for-
feiture of wages in default thereof.

Objection that Contract is not Mutual in Cass of Regulation of
Employer requiring notice of employee's intention to quit, because the
employer may discharge employee without giving him notice, is unten-
able. It is not necessary that each party to a contract assume precisely
the same obligations.

No Limitation of Tims during Which Employee was not to be Paid
being inserted in employer's regulation providing for such forfeiture if
the employee gives no notice of intention to quit, it will be intended to
operate upon all the wages earned subsequent to the last settlement.

Sum Allowed to Employee for Board, "in addition" to ''thirteen
cents per piece " for weaving, is a payment in part for services in weav-
ing, and will be forfeited, together with other wages.

Assumpsit by F. L. Harmon and Almeda, his wife, to recover
the value of services performed by her before marriage. She
worked for the defendant eighteen days, and during that time
wove fifty-seven pieces, which at thirteen cents apiece amounted
to seven dollars and forty-one cents. Ten cents for board was,
in addition to this sum, due her, and this action was brought to
recover seven dollars and fifty-one cents. The day before she
commenced work, a printed copy of the company's regulations
was delivered to her by the company at their counting-room.
The material portions of these regulations are set forth in the
opinion. Eighteen days after commencing labor she quit the
employment. At that time she was not sick, and had not
" given or worked out " the notice stipulated in the regulations.
On these agreed facts the case was submitted to this court for

Luques, for the plaintiffs.

J. N. Goodwin, for the defendants.

By Court, Shkpley, C. J. The case is presented for decision
upon facts agreed; the amount claimed is small. The princi-
ples involved are alleged to be of importance. It is not difficult
to perceive that they may be so. A corporation or an individual
employing several hundreds of persons may have contracted to
furnish large quantities of manufactured goods for sale or ex-
portation at certain times; and if the persons employed to per-
form the labor may, in violation of their agreements and without
loss of wages, leave the machinery at rest until other persons
can be procured to take their places, no confidence can be re*

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720 Harmon v. Salmon Falls Mfg. Co. [Maine,

posed in the manufacturer's ability to fulfill his contracts, and
he can obtain no indemnity for losses occasioned by the fault of
others. To offer to such an employer the right to have a legal
contest, and the chance thereby to recover damages for the in*
jury he may be able to prove that he has suffered by a violation
of each laborer's contract, is little less to him than solemn mock-
ery. The manufacturer and all his laborers would know that
the trouble and expense of such suits would prevent any attempt
in that mode to obtain redress. The only valuable protection
which the manufacturer can provide against such liability to
loss, and against what are in these days denominated " strikes,"
is to make an agreement with his laborers, that if they willfully
leave their machines and his employment without previous no-
tice, all or a certain amount of wages that may be due to them
shall be forfeited. "While courts of justice should not attempt
by construction to make such agreements between the employer
and those employed, they should not shrink from the duty of
causing them, when fairly made, to be honestly and faithfully
executed; or attempt by construction to aid a party to avoid
the penalty to which he has agreed to expose himself for a will-
ful violation of his contract.

The rule of law that one who makes a contract must perform
it before he can maintain an action founded upon it, unless he
can present a legal excuse, is too important for the prosperity of
business, for the security of honest dealings, and for the main-
tenance of good order in the community to be lightly regarded.
If there has at any time appeared to be a relaxation of it, that
has long since ceased to be so in this state.

One who will willfully violate a contract, and thereby expose
himself to an agreed penalty or forfeiture, can not expect to
obtain relief by the rules of moral right and wrong, or by those
of equity jurisprudence or the common law.

There is, indeed, a class of cases in which a party who has
violated his contract has been permitted to make it the founda-
tion of a suit to recover compensation for services performed
by virtue of it. These are cases, so far as they rest upon sound
legal principles, in which there has been no willful violation, or
in which there has been a waiver of that performance, or other
legal excuse.

It appears to have been supposed by some, without just rea-
son, that the cases of Hunt v. The Otis Company, 4 Met 464,
and of Fuller v. Brown, 11 Id. 440, exhibited a relaxation of the
law affirmed in the cases of Stark v. Parker , 2 Pick. 267 [13 Am.

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1853.] Habmon v. Salmon Falls Mfg. Co. 721

Deo. 425], and of Olmstead v. Beale, 19 Id. 528. The case of
Hunt v. The Otis Company, supra, appears to have been decided
upon the ground that the regulation of the company " did not
contain in its terms the stipulation that in case of quitting
without giving the four weeks' notice, the wages accrued should
be forfeited." While it is said, " had this been the case, the
plaintiff would then fall within the penally." It is also stated,
if the construction then given to the regulation should produce
injurious effects to the defendants, " they have only to enlarge
their rule by adding to it a clause of forfeiture of wages ac-
crued, and a requisition that operatives entering into their
service shall sign it." This last remark is relied upon as de-
ciding that the regulations of a company will not be binding
upon those employed unless they signify their assent by sub-
scribing to them. That this could not have been the intention
• of the court is quite apparent, for the whole case rests upon
the position that the plaintiff was bound by the regulations of
the company not subscribed by him. If he were not so bound,
the regulations, whatever might have been their true construc-
tion, could have presented no defense, and the elaborate opin-
ion to ascertain and enforce the adopted construction would
have been a useless production.

That a person may be bound by a regulation, stipulation, or
notice to which he has not subscribed his name is shown by
many decided cases: by insurance cases, in which the party as-
sured has been uniformly held to be bound by the stipulations
contained in his policy; by cases against common carriers, when
their notices have been held to operate upon the rights of em-
ployers who have knowledge of them; and by a variety of other

The case of Fuller v. Brown, supra, so far as it respects the
point now under consideration, only decides that a stipulation
to give four weeks 1 notice before leaving, and to work four
weeks afterwards, and then receive his pay, would not be vio-
lated if he left by reason of sickness.

It will be in season to consider whether the latter clause of
the instructions, stating that he " was entitled to recover his
wages without deduction for damages," and to which exceptions
were taken, can command assent when it shall be properly pre-
sented: BaUerman v. Pierce, 3 Hill (N. Y.), 174.

The argument for the plaintiffs insists that the regulations of
the company did not become a part of the contract between it
and the female plaintiff. It is a fact agreed that a printed papef

Am. Dbo. Vol. LVm— 46

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722 Harmon v. Salmon Falls Mfg. Co. [Maine,

containing the regulations of the company was delivered to her
before she commenced to work. In these regulations were the
following clauses: "Any person intending to leave the com-
pany's employment must give notice to her or his overseer two
weeks, at least, previous to leaving, and continue to work until
the expiration of the notice. Those who leave contrary to this
regulation (cases of sickness excepted) will not be settled with
or paid till such notice is regularly given and worked out. The
foregoing regulations will be regarded as an express contract
between the corporation and all persons in its employ; and all
who continue to work for the corporation will be considered as
agreeing to the terms here stated, particularly those relating to
the hours of labor and notice of leaving."

The female plaintiff, by continuing to work for the company
after these regulations were delivered to her, must be considered
as having agreed to them, and therefore, as having expressly
agreed that she was not to be paid till the required notice had
been regularly given and worked out. She can not now avoid
the effect of that agreement and maintain an action without
proof of a compliance with its terms.

It is agreed that she "did not give or work out the notice
required by said paper, and that she was not sick." It is said
that the regulations do not contain any clause of forfeiture.
The word " forfeiture" is not found in them, nor was it neces-
sary. An agreement that payment shall not be made without a
compliance is equally effectual as a bar to the action. It is
also said that it does not appear that she did not leave by con-
sent of the company, or that she did not work as long as she
agreed to. It is not agreed or proved that she did leave by its
consent, or that she had agreed to work for a time specified,
which had expired; and the burden of proof rests upon her to
show that she left by permission, or that there was a special
contract respecting the time during which she was to continue
to labor.

The argument asserts that the regulations were not binding
upon her, because the contract was not mutual; that the com-
pany could discharge her without giving her any notice.

The position is quite novel, that a contract will not be valid
unless each party assumes precisely the same obligations.

Tt is further urged, if there must be a forfeiture of wages, it
can extend to no more than the wages of two weeks. The con-
tract contained in the regulations will not admit such a con-
struction. There is no limitation of time during: which she was

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1853.] Harmon v. Salmon Falls Mfg. Co. 728

not to be settled with or paid, and the court is not at liberty to
insert one. It was undoubtedly intended to operate upon all
the wages earned subsequent to the last settlement, and such is
its necessary effect.

It is moreover earnestly urged that the plaintiff may recover
the ten cents allowed for board. It appears from the agreed
statement that she was to receive " thirteen cents per piece " for
weaving, and that "said company, in addition, allowed said
Almeda ten cents for board." The sum allowed for board ap-
pears, therefore, to have been allowed as payment in part for
her services for weaving.

Plaintiffs nonsuit.

Tenoty, Wills, Howard, and Appleton, JJ., concurred.

Regulations of Employees, Validity and Effect of.— Employers, espe-
dally those engaged in the business of manufacturing, often impose upon
their employees regulations, such as that in the principal case, requiring a
notice of a stipulated length of time of the intention of the employee to leave
their service, and generally providing that in default of the notice the em-
ployee shall incur some forfeiture or penalty. No reason is apprehended
why such a regulation should not be binding, if it can be shown to form a
part of the employee's contract. And no case has held a stipulation of this
sort void when it fulfilled the above requirements, and did not otherwise
transgress the laws of the contract relation. Per as these regulations do not
possess the taint of invalidity. They are not void for lack of mutuality, as
was urged by counsel in the principal case, nor are they repugnant to public
policy. Indeed, their scope and purpose is often, if not always, in a direc-
tion highly beneficial to manufacturing interests, liable as they are to the
peril of strikes and uprisings among the employees. They are also not with-
out an ultimate benefit to the laborer himself; for what makes the manufac-
turer more certain of his profit insures the laborer a greater certainty of his
wages and of future employment. The employer's regulation requiring notice
from his employee of intention is therefore not against public policy. But
should the employer attempt to impose a regulation or stipulation against
public policy, it would not, of course, be binding upon the employee, though
he should agree to be bound by it, as in Roesner v. Hermann, infra.


Therefore, in Roesner v. Hermann, 10 Biss. 486, it is held, that a contract
between an employer and his employee, by which the employee, in consid-
eration of his employment, releases and discharges his employer from all
liability for damages for injury or death of the employee, resulting from the
employer's negligence, is void, as against public policy.

Wages are hot Forfeited unless It be so Stipulated. — We now
proceed to discuss the regulation requiring notice from the employee of inten-
tion to quit the employer's servioe. In the first place, as was decided in Hunt
v. Otu Co., 4 Met. 464, which is cited in the principal case, there will be no
forfeiture of the employee's accrued wages by reason of such a regulation,
unless the forfeiture is expressly stipulated in the regulation. But if the em-
ployee fail to give the requisite notice upon leaving the service he will be

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724 Harmon v. Salmon Falls Mfg. Co. [Maine,

liable to hie employers for all damages oaosed by his not giving the notice,
and in a suit against them for his wages the amount of such damages may
be deducted therefrom. The hiring in the present case was for no definite
period, so the employee could not be held to have forfeited his wages by reason
of his having left before the completion of his agreement. The counsel for the
employers, who were the defendants in the action, nevertheless attempted to
evade the effect of the absence of the stipulation imposing forfeiture. " The
counsel for the defendants ingeniously contends," say the court, "that this
was a hiring for a certain time, commencing with the plaintiff's engagement
with the company, and terminating in four weeks after notice given by her
of her intention to finish the contract, and therefore, though uncertain as to
length, is to be treated as certain, because capable Of being rendered cer-
tain." And by means of this argument the counsel sought to bring the case
within tho rule that an express contract for the performance of work for a
definite period of time must be fulfilled before the employee is entitled to
compensation for his services. The court, however, did not sustain the coun-
sel's view, but held that the contract was one " of indefinite and uncertain
duration, terminable at the pleasure of the plaintiff, on giving four weeks
notice to quit It wants two principal ingredients of the rule above men*
tioned— definiteness and certainty."

Amount of Forfeiture should not be Excessive.— The amount of
forfeiture should not be an unreasonable and oppressive exaction. A forfeit-
ure which covers all the wages due at .the time of leaving is " open to the
objection that the employer may have been in arrears, and thus enabled to
profit by his own wrong. * * * It would not be reasonable to make the
forfeiture cover a very long period." And where the workman is employed
at piece-work, and not paid by fixed wages at given periods, the stipulated
damages must be for some fixed amount or maximum: Richardson v. Woeler,
26 Mich. 90.

Where Employee Employed by Week u to Forfeit All Wages Due in
default of notice of intention to quit, if the wages of the workmen were ascer-
tained on Thursday, but not paid till Saturday, a workman who has worked
a week from Thursday till Thursday, but leaves on Friday, will forfeit the
wages due: Walsh v. WaUey, L. R., Q. B., 367; see Saunders v. Whittle, 24
Week. Rep. 406; Oregson v. Watson, 34 L. T„ N. 8., 143.

What Notice or Knowledge of Regulation is Sufficient to Bind
Employee. — If the employee be ignorant of the regulation of the company
requiring a notice of his intention to quit he will not be liable in damages to
the company for a breach of the rule: Stevens v. Beeves, 9 Pick. 198. In this
case counsel for the plaintiff contended for the employee's liability, on the
ground that such a regulation was a usage not only of the factory in which
he was employed, but of factories in the vicinity. Of this argument, Parker,
C. J.« in delivering the opinion of the court, said: "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 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 country, 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:" Id. 200, 201; see also
Collins v. New England Iron Co., 115 Mass. 23. But where the employee

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1853.] Harmon v. Salmon Falls Mfg. Co. 725

agrees to conform to the regulations of his employer commonly in use, he is
bound to conform to a rule which the evidence shows existed in this and
similar establishments: Corel v. Maretxek, 4E.D. Smith, 1. And a particu-
lar custom may be proved without direct evidence that it was known to the
opposite party if the party offering the evidence contends that he can prove
from all the evidence in the case that it must have been known to him?
Dodgt v. Favor, 15 Gray, 82. See also, on this subject of usage and custom,
Woods on Master and Servant, sec 05.

In the principal case, evidence that the employee continued to work after
a printed copy of the regulations was delivered to him was held sufficient to
■how that he had agreed to them. But such evidence would not be oonclu*
sive. Thus in Bradley v. Salmon Falls Mfg. Co., 30 N. H. 487, it is held
that evidence that a party had in his possession a paper containing printed
regulations of the manufactory in which he was employed as a laborer is not
conclusive evidence that the contents were known to him. " Without doubt,
it was evidence from which an inference might well have been drawn that
the plaintiff did read the paper. But whether he did so oi not was still, upon
the evidence, an open question; and whether he could read or not was, as the
judge who tried the cause correctly ruled, a question not of law but of fact:"
Per Woods, C. J. So the fact that the employee was informed of the rules
after he commenced work, and continued to work without objection, may be
competent evidence that he assented to the rules as a part of the contract;
but it is open to explanation, and does not conclusively, as a matter of law,
show such assent, and that he agreed to forfeit his wages if he left without
notice: Collin* v. New England Iron Co., 115 Mass. 23.

Sickness as Excuse for Lack of Notick.— If the regulation be silent as
to the employee's sickness as affecting the necessity of the notice, the em-
ployee will not be liable in damages, or to a forfeiture of wages in case of a
failure to give notice, if his abandonment of the service was caused by his
sickness: Fuller v. Brown, 11 Met. 440. Generally, the regulations make a
special exception of such a case. But if the laborer expressly agree to send
word to his overseer, even in case of sickness, stating the cause of his absence,
or in default thereof to forfeit his wages, he will incur such a forfeiture if,
when absent on account of sickness, but yet able to send the required notice,
he fail to do so: Noon v. Salitbury Mills, 8 Allen, 340.

Arrest, Conviction, and Imprisonment for Crimb will Exonerate a
workman from the duty of giving to his employers two weeks' notice before
leaving their service, under a contract by the terms of which he has agreed to
give such notice or not claim any wages due. " The stipulation dearly had
reference only to a voluntary abandonment of the defendant's employment,
and not one caused vi majore, whether by visitation of God or other control*
ling circumstances. It may be said that in the case at bar the conimission
of the offense for which the plaintiff was arrested was his voluntary act, and
that the consequences which followed after it and led to his compulsory de-
parture from the defendant's service are therefore to be regarded as bringing
this case within the category of a voluntary abandonment of his employ-
ment. But the difficulty with this argument is, that it confounds remote
and proximate causes. The same argument might be used in case of inability
to continue in service, occasioned by sickness or severe bodily injury. * * *
The true and reasonable rule * * * is this: To work a forfeiture of wages,
the abandonment of the employer's service must be the direct voluntary act,
or the natural and necessary consequence of some voluntary act, of the person
employed, or the result of some act committed by him with a design to

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726 Harmon v. Salmon Falls Mfgl Co. [Maine,

terminate the contract or employment, or render its farther prosecution im«
possible. But a forfeiture of wages is not incurred where the abandonment
is immediately caused by acts or occurrences not foreseen or anticipated, over
which the person employed had no control, and the natural and necessary
consequence of which was not to cause the termination of the employment
of a party under a contract for services or labor:" Per Bigelow, C. J., in
Hughes v. WameuUa Mills, 11 Allen, 201.

Abandonment of Service, What Con stitute s— Mere Temporary Ab-
sence No Abandonment. — Whenever the employee has not left his em-
ployer's service, he has not committed a breach of the regulation. The ques-
tion whether he left his master's employ without notice, within the meaning
of the regulation, is to be determined by evidence of his acts and declara-
tions, but not of his undisclosed intentions: Partington v. WameuUa Mills,
110 Mass. 467. These regulations do not have reference to a temporary ab-
sence. In case of a temporary absenee without leave, the operative may
properly be discharged, but there can be no forfeiture, under the agreement,
of the wages then earned: Heber v. United States Flax Manufacturing Co.,

Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 58 → online text (page 81 of 116)