John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

. (page 14 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 14 of 77)
Font size
QR-code for this ebook


both parties (o). The signature may be on one part of the
memorandum or agreement; the terms of the employment
may be on another ; and the signature need not have been
put to attest or verify the contract. A draft agreement
between plaintiffs and a company was prepared ; a minute
of a resolution to engross, sign, seal, and execute the agree-
ment was entered in the company's books ; and at the next
board meeting the chairman signed the minute thus : " Read
and confirmed ; Claud Hamilton." Held that, though the
signature might have been intended merely to be in compli-
ance with the requirements of the Companies Act, 1862, s.
67, it satisfied the Statute of Frauds (p).

The fact that an agreement otherwise within the statute
has been partially performed, does not take it out of the
statute (q). But when work has been done — whether it was



(o) Cranr. v. Fowcll (1868), L. 11. (1857), 6 H. of L. 238 ; 27 L. J. Ch.

4 C. P. 123. A clause in articles of 46 ; Johnson v. A])jjle/ji/, see note (c).
association that Mr. W. E. "shall (cj) Boydell \. iJrurnniond (1809),

be solicitor of the company, kc," 11 East, 142. The equitable doctrine

does not create a contract between of part performance is applicable only

the plaintiff and the company. It to sale of land, not to contracts of

is res inter alios acta, of which the service. Britain v. Ilossitcr (1879),

former cannot take advantage. Etey 48 L. J. Q. B. 362 ; 40 L. T. 240 ; 27

V. Positirc Government Sceuriti/ Life W. K. 482. (Agreement verbally on

Assurance Co. (1876), L. 11. 1 Ex. Saturday to serve for a year ; eni-

D. 20, and 88 ; 45 L. J. Ex. 58, and ploynu-nt to commence next Monday ;

451 ; 33 L. T. 743 ; 34 L. T. 190 ; plaintilf served for part of ayearand

24 W. K. 252 and 338. As to then was dismissed ; held that the

evidence of appointment of officer, contract was within sec. 4 of the

Browningv. Great Central Mining Co. Statute of Frauds, and that the case

(1860), 5 H. & N. 856 ; 29 L. J. Ex. was not taken out of the Statute by

399. part performance.) Here all wages

(y) Jones v. Victoria Graving Dock due up to dismissal were paid. See

Co. (1S77), L. R. 2 Q. B. D. 314 ; 46 Wood's Master and Servant, pp. 357

L. J. Q. B. 219 ; 36 L. T. 347 ; 25 —374.
W. R. 501 ; Ridgway v. TVharton



110 THE LAW OF MASTER AND SERVANT.

done within a year or not — and an action is brought on an
express or implied agi'eement to pay for the worth of the
work actually done, the absence of writing is no defence to
the action (r).

The statute was intended to exclude the mistakes and con-
flicts of evidence which arise when there is no complete
written record of a contract. The object of the statute would
be defeated, the evils which it was designed to avert would
be introduced, if it were permissible to vary, add to or subtract
from the wTitten words by verbal testimony, and if one of the
parties might say, "This was qualified by an arrangement made
at the time ; " or " our meaning was not completely expressed
by the written agreement, and was so and so." In Giraiid
V. Richmond{.s), the written agreement between a master and
his clerk stated that the latter should receive a certain annual
salary, increasing each year ; the clerk sought to show that
it was agreed that the salary should be paid quarterly ; the
Court would not receive evidence with this view, nor would
it infer such an agreement from the fact that the salary had
been paid quarterly. The consideration for the promise must
be stated ; if the agreement merely mentions the promise on
the part of one person, without stating the consideration —
e.g., if it merely says, " A. B. hereby promises to be groom to
C. B. for two years," it will not be enforced against A. B. (/).

The above principles must be taken with some reserva-
tions. Men rarely commit to writing all that they intend and
agi'ee to ; they do not write out what may be taken for granted;
cela va sans dire holds as to many things which good sense
would imply. The law recognises this fact, and if a jury
are of opinion that a contract was made with reference to a
particular custom, it will be regarded as part of the contract.
Whether such a custom exists, and whether the contract was
intended to embody it, is a question of fact for the jury (u).

('/•) Cliitty on Contracts, lltli Ed., E. 693. Sec cliap. XII.
57. in) Ahholt v. Bates (1874), 43 L.

(s) (]84fj), 2C. H. 83r>. .I-'O. P. 150, as to "necessaries" in

{t) Sykcs V. JJixon (1839), 9 A. k articles ol' appreuticesliip, R. v.



FORMATION OF THE CONTRACT. Ill

A term in the contract may be the rules of the establish-
ment or workshop in which a workman is engaged (.r),
Knowledge of such rules by the servant must be shown ; e.g.,
by proving that the rules were stuck up in a prominent place
in the workshop, and that the workman could read.

It will be seen hereafter that a contract of hiring and
service is lyriind facie a contract for a year [y).



Contracts of Seamen.

Agreements with seamen have been the subject of the
special attention of the Legislature. By section 149 of the
Merchant Shipping Act of 1854, they must be in writing,
except in case of ships of less than eighty tons register
tonnage, exclusively employed in the coasting trade of the
United Kingdom. The Merchant Shipping Acts contain
many regidations with respect to the form of and particulars
in agreements with seamen. They are mainly comprised in
sections 14G — 167 of the Merchant Shipping Act of 1854
(17 & 18 Vict, c. 104), sections 7 and 8 of Act of 1873 (36 &
37 Vict., c 85), and section 26, subsection 5 of Act of 1876
(39 & 40 Vict., c. 80). These agreements are exempt from
the Stamp Act (Merchant Shipping Act, 1854, section 9, and
33 & 34 Vict., c. 97. s. 3).

Under the 2 Geo. II., c. 36, which required all agreements
for wages between captains and their crews to be in
writing, it was decided in WJdte v. Wilson (z), that a con-
tract which did not mention, besides the money wages, the
fact that a sailor was to get "the average price of a negro
slave " was void. It seems probable that an agreement not
in writing would now be binding (a).

Stoke iqmb Trent (1843), o Q. V,. 303, (//) Chapter XIV.

as to custom as to holidays ; Grantv. (z) (1800), 2 B. & P. 116. See also

Maddox (1846), 15 M. & W. 737 as Elsworth v. Wollmorc (1803), 5 Esp.

to usage as to payment in theatrical 84.

profession. (a) Pollock and Bruce's Edition of

{x) Carus v. Eastwood (1875), 32 Maude and Pollock ou Shipping,

L. T. 855. vol. I., 196.



112 THE LAW OF MASTEU AXD SERVANT.



Contracts of Apprenticeship.

The 5 Eliz. c. 4, s. 25, required that the binding of
apprentices should be by indenture.

As has been stated in Chapter III., where there was an
expressed or implied agreement to teach a person a trade, the
Courts held that a defective contract of apprenticeship — that
is, a contract not sufficient to support a settlement — existed.
The 54 Geo. III., c. 96, s. 2, declares that " it shall and may-
be lawful for any person to take or retain or become an
apprentice, though not according to the provisions of the said
Act ; and that indentures, deeds, and agreements in writing
entered into for that purpose, which would be otherwise
valid and effectual, shall be valid and effectual in law, the
repeal of so much of the said Act as is herein last above
recited notwithstanding." The indenture must be executed
by the infant (b).

As contracts of apprenticeship are for more than a
year, they must be in writing. For the reasons stated in
Chapter XL, with respect to stamps, the consideration must
be stated correctly in the indenture.

The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 142,
prescribes regulations as to the indentures of apprentices to
the sea. By section 143, they are exempted from stamp
duties (c).

(6) R V. Kcynshavi (1804), 5 Phillips v. Jones (1834), 1 A. & E.

East, 309. As torecoveiingcoiiiiiL'n- 333; Jlcrrrison v. James [1362), 7 U.

satioii for boy's labour or for board & N. 804 ; 31 L. J. Ex. '248.

during probation, Kcenc v. Parso^is (c) Part II. L'hap. IX. For prece-

(1819), 2 Stark. 506; Wilkins v. deiitsof indentures, see I. Crabb. 290,

Wells (1825), 2 C. k P. 231 ; Earratt 302, 305, 306.
V. Burghart (1828), 3 C. & P. 381 ;



CHAPTER X.

CORPORATIONS.

Contracts of hiring and service by corporations
must be under seal, if the contracts be of an unusual
or important character (a). Contracts of hiring and
service, in the case of trading companies, need not be
under seal.

"The seal is required," as Rolfe, B., explains in Mayor of
Liullotv V. Charlton (6), "as authenticating the concurrence
of the whole body corporate." The principle that a seal
must be used in contracts is stated in unqualified terms in
some ancient authorities (c) ; but it has been subjected to
important exceptions, the exact limits of which are not easily
determined. The following exceptions, however, seem to be
established : (1.) Contracts of trading companies entered into
for the purposes for which they are established need not be
under seal. This exception is now clearly recognised (<^/) ;
and it would seem that the old rule is obsolete so far as
trading companies are concerned. Actions by a gas company
for the supply of gas {e), by a colliery company (/) against an
engineer who had agreed to erect pumping engines, by a

(a) See generally as to contracts of fol. 12.

corporations, Bacon's Abridg. "Cor- {d) Rolfe, B., in Mayor of Ludlov)

porations," E. 3, and Viner's Abridg. v. Charlton, see note {h).
"Corporations," K. The rule held (e) Beverley v. The Lincoln Gas

good in equity as well as at law ; Co. (1837), 6 A. & E. 829.
JFimic V. Bamjiton (1747), 3 Atk. ( /) South of Ireland Colliery Co.

473. V. iVaddlc (18C8), L. R. 3 C. P. 463 ;

(b) (1840), 6 M. & AV. 815. L. R. 4 C. P. 617.

(c) For example, 13 Hen. VIII.,



114 THE LAW OF MASTER AND REUVAXT.

tradin<T company on a parol agreement to supply provisions
for a passenger ship (g), and for the supply of goods
against a company having power to purchase goods (h),
were held to be maintainable, though the contracts were not
under seal. " These exceptions," said Bovill, C. J., in South
of Ireland Colliery Co. v. Waddle (i), " apply to all contracts
by trading corporations entered into for the purposes for
which they are incorporated."

(2.) When a contract is partly executed in such circum-
stances that the doctrine of part performance would apply,
and is of such a nature as to be the subject of an action for
specific performance, it will bind a corporation, though it be
not under seal.

I have taken from Mr. Justice Lindley's judgment, in Hunt
V. Wimbledon Local. Board (k), the above description of a
class of cases which it is exceedingly hard to define. It was
once supposed that a clear distinction existed between exe-
cutory and executed contracts, corporations being not liable
under the former if the contracts were not under seal, while
they were liable for the latter.

This distinction, which is approved of in East London
Waterworks v. Bailey (l), is no longer recognised. It has
been decided that a person who enters upon and pays rent
for corporate property, vmder a demise for years, made on
behalf of a corporation, but not under their corporate seal,
becomes tenant from year to year (m) ; and in the view of
Kelly, C. B., when a person so contracts Avith a corpora-
tion by parol that the contract is enforceable in equity against

((/) Australian Royal Mail Co. v. statutes of the coniiinny expressly

MarzMi (1855), 11 Ex. 228. jnovidod that all contracts for more

(h) Jn ri'. t'oalnuit Co., claim of than i'SOO should have the common

Ehbw Vale Co. (1869), I-. \\. 8 Jvi- seal attixed to them.

14. U) (1878), L. \{. 3 C. r. D. 208,

(/) See note (/"), and remarks of 214.

Lindley, ^., in hunt v. Wimhlnlon (I) (1827), 4 I'.ing. 283. See ro-

Board, woib {k). In Cramp/un v. T/ic marks of Ahirtin, 15., in Dijtc v. ,S7.

rarna Railu-uy Co. (1872). L. li. 7 Ch. Pancras Guardians (1872), 27 L. T.

Aji. 562, ail action liy a contractor on 342.

a contract not under seal was held (//() Ecclrsia.s/ ical Coinvu'ssiuitcrsv.

not maintainable in equity. But the Moral (1869), L. R. 4 Ex. 162.



CORPORATIONS, 115

it, the other party is bound by any stipulation made by
him in consideration of the liability so imposed upon the
corporation (/?). That the parol contracts of corporations,
which have been acted upon, will sometimes be enforced
in favour of and against them, seems clear from Marshall
V. Corporation of Qaeenboroiujli (o), Steevens Hospital v.
Dyas ip), and other authorities. But the limitations of this
exception are far from certain (g).

(:3.) Corporations of all kinds may enter into binding con-
tracts not under seal, if they relate to matters of trifling im-
portance or frequent occurrence, or transactions in which
it would be impossible or highly inconvenient to make use of
a seal (r).

Apparently, from the earliest times, this exception has
existed. The Year Books show that the judges were not at
one as to the limit or the reasons of the exception (.s). But
it has long been the unquestioned right of corporations, or at
all events such of them as had heads, to engage subordinate
servants without the use of a deed. Thus, a cook or a butler,
or a ploughman, might be engaged by parol. In the notes
below will be found the chief instances in which the question
has been considered with respect to hiring and service (0-

Unions and Guardians of Poor.

By the a k 6 Will. IV., c. 69, s. 7, and 5 t 6 Vict., c. 57, s. IG,
Guardians of the Poor are made corporations. They are

(n) S. C. at p. 1(36. by deed, for othenvise tliero -n-oiild be

(o) (1823), 1 Sim. & St. 520. many deeds." In 4 Hen. VII. f. 17,

\ji) (1863), 15 Ir. Ch. 40.5. and 7 Hen. VII. f. 9, the rule is

{q) See judgnieut of Bramwell, L. justified in the case of tlie employ-

J., and Brett, L. J., in Hunt v. ment of servants, "because there is

Wimbledon Local Board (1878), nothing divested out of their (the cor-

L. R. 4 C. P. D. 48. jioration's) possession." See also

(?•) This is recognised in many //orav. /i-y, 1 Ventris, 47.

cases; for example, J/ayor 0/ iurf/ow; (/) Perhaps there ought to be

V. Charlton (1840), 6 M. & W. 815. another division including cases of

(s) In 4 Hen. VII. f. 6. The utility amounting to necessity. See

reason given by Townsend, J., is AVightniau, J. , in C/rtrtc v. C'«c^;^<?W

"these things do not require to be Union (1852), 21 L. J. Q. B. 349.

I 2



IIG



Tflli LAW OF MASTER AND SEUVANT.



liable on all contracts of trlHiiig consequence, and of frequent
occurrence, whether under seal or not, as is illustrated by
Clarke v. The Cackjield Union (u), and Nicholson v. The
Bradfield Union {x) ; but all contracts of importance, or
of an unusual character, should be under seal. Claims
for making a plan of the parishes of a union {y),
have been disallowed when the contracts were not under
seal {z).



M unicipal Corpora tions.

They are not, like tradingcompanies, wholly exempt from the
operation of the rule of common law, that contracts of corpora-
tions must be under seal. They may, no doubt, engage by
parol a door-keeper, for example, or enter into a binding con-
tract for some unimportant purpose, or relating to a matter of
constant occurrence ; but the authorities cited below show that



(«) (18.'52),21 L. J. Q. li.349. Con-
tracts with tradesmen not under seal
to i)ut up certain water-closets in con-
nection with workliouse ; guanlians
liable.

(r) (1866), L. Pw. 1 Q. K. 620 ; 35
L. .1. Q. B. 176. Defendants held
liable for ])rice of coals supplied bv
])hiintitr under contract n(jt under seal.

(y) Paine v. Tlw Strand Union
(18'46), 8Q. B. 326; 15 1.. J. M. C.
89 ; 10 Jur. 308.

(j) The other chief cases on the
subject are these : Samlrrs v. ^7.
Neots Union (1846), 8 Q. B. 810 ;
15 L. J. M. C. 104. (Action lies
for iron gates sujijilied to defen-
dants and aixepted, though contract
not under seal.) Lainprrll v. lliUc-
riraii Union (1849), 3 Ex. 283; 18
I.. .1. Ex. 282. (Action for extra
work l)y a buikhir ; defemlants not
liable, the order not being under
seal.) Smart v. Tlir Wist Ham
Union (1855 and 1856), 24 !-. .1. Ex.
2')1 ; 11 Ex. 867. (dnardians ap-
jiointed plaintiff collector of poor
rates, not under seal, to be jiaid by



a certain poundage ; .action for un-
paid poundage not maintainable.)
Haiqh v. The North Birrh'y Union
(18.<8), 28 L. J. il B. 62 ; E. B. k
E. 8?3. (Accountant employed by
guardians to audit accounts of the
Union ; held that plaintiff could re-
cover for his services, the work being
incidental to the puri)oses for which
the corporation was created.) Dyte
V. St. Faiicras (Juardians (1872)
27 L. T. 342. (Resolution passed
by Infirmary Committee, and ap-
proved by defendants also by resolu-
tion, that ]>laintiff be appointed medi-
cal oflicei' for three months ; plaintiff
entered upon his duties, and per-
fornu'd tliom for three months ; con-
tract not under seal : no action
lay.) Some of the reasons given,
t'.'/., the reasons given by Martin, B.,
seem not sustainable. Austin v.
lirlhnal f/nrn I'uion (1874), L. K.
!» C. P. 91 ; 43 E. J. C. 1'. 100; 29
L. T. 807 ; 22 W. K. 4(i6. (Appoint-
ment of a clerk to woikhouse ; no
action lay, becnnse appointment not
under seal.)



CViKroHATloNS.



117



they cannot appoint a solicitor, or conclude any other con-
tract of a special and unusual character, without employing
the corporate seal (a).



Local Boards and Urban Authorities.

The 38 & 39 Vict. c. o5, s. 174, enacts that with respect
to contracts made by an urban authority under this Act, the
following regulations should be observed, viz. : — " (1.) 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 : (2.) Every such contract
shall specify the work materials matters or things to be
furnished had or done, the price to be paid, and the time or
times within which the contract is to be performed, and shall
specify some pecuniary penalty to be paid, in case the terms
of the contract are not duly performed : (3.) Before con-
tracting for the execution of any works under the pro-
visions of this Act, an urban authority shall obtain from
their surveyor an estimate in writing," &c., as to the pro-
bable expenses and annual repairs : (4.) " Before any con-



(a) Mayor of Ludlow v. Charlton
(1840),6M. &W. 815 ; Arnold v. Mnyor
of Poole (1842), 4 M. & G. 860. (An at-
torney could not succeed in an action
for work and labour in opposing cer-
tain bills in parliament in pursuance
of instructions from mayor and mem-
bers of town council, the contract not
being under seal.) But see Favicll
V. E. ('. E. Co. (1848), 2 Ex. 344 ; 17
L. J. Ex. 223 ; B. v. Mayor of' Stam-
ford (1844), (J Q. B. 433. ' (Reso-
lution to increase town clerk's salary
in lieu of compensation ; such a con-
tract mu.st be under seal.) M. v.
Lichfirld (1843), 4 Q. R. 893. (A
resolution of the town council suffi-
cient authority to warrant payment of
costs to attoMiiy.) Shiilh v. Carta-yiifhl.
(1851), 6 Ex. 927 ; 20 L. J. Ex. 4ul.
(Plaintiff sued as coal meter of King's
Lynn. His appointment not under



seal, but evidence of it by entry in
books of the corporation ; held that,
not being a servant but an officer of
the corporation, he could not be ap-
pointed without deed.) See, how-
ever, Thames Haven Co. v. Hall
(1843), 5 M. & G. 274, and R. x. Jus-
tires of Cumherland (lSi7), 17 L. J.
Q. P>. 102 ; Mayor of Kidderminster
V. Hardwick (1873), L. K. 9 Ex. 13.
(Contract by jdaintifls letting certain
tolls, not under seal ; nut binding on
defendant, the highest bidder.) Cle-
menshaio v. Corporation of Dublin
(1875), 10 Irish C. L. 1. (Defendauts
emploj'cd plaintiff to promote a bill in
j)ailiament to etialile defendants to
purchase gas work and become vendois
of gas ; contract not under seal ; not
binding.) This last case nudnly turned
on a question of ultra vires.



118 THE LAW OF MASTER AM) SERVANT.

tract of the value or amount of i'lOO or upwards is entered
into by an urban authority ten days' public notice at thB
least shall be given, expressing the nature and purpose
thereof and inviting tenders for the execution of the same ;
and such authority shall require and take sufficient secu-
rity for the due performance of the same : (5.) Every con-
tract entered into by an urbiln authority in conformity with
the provisions of this section, and duly executed by the other
parties thereto, shall be binding on the authority by Avhoni
tlio same is executed, and their successors and on all
other parties thereto and their executors administrators
successors or assigns to all intents and purposes," »S:c.

So much of this section as relates to sealing is not directory
only ; it is imperative. Hence, when a local board — an
urban authority under the Public Health Act of lS-i8 and
the Public Health Act of 1875 — verbally directed their
surveyor to employ the plaintiff, an architect, to prepare
plans for new offices, it was held by the Court of Appeal,
that the contract could not be enforced, owing to non-
compliance with the statutory re(|uircments ; although the
jury found that the local board had authorised their surveyor
to procure the plans, and ratified his acts, that the new
offices were necessar_y for the purposes of the defendants, and
that the plaintiff's plans were necessary for the erection of
the buildings (b).

Contracts hy Companies under (he Ar(s of 1862 (md 1867.

The 37th section of the latter Act runs thus : " Contracts
on behalf of any company under the principal Act may be
made as follows : (that is to say) ; ( I. ) Any contract which if
made between private persons would be by law required to
be in writing, and if made according to English law to be
under seal, may be made on behalf of the company in writing

(6) Hunt V. ]\'ii,ililril(})i Lnml Yonnr) V. Corporation nf Lramington
Board (1878), L. li. 1 C. 1'. D. 48 ; (1882), 8 Q. B. D. 57i>.



CORPORATIONS. 119

under the commou seal of the company, and such contract
may be in the same manner varied or discharged. (2.) Any
contract which if made betAveen private persons would be by
law required to be in writing, and signed by the parties to be
charged therewith, may be made on behalf of the company in
writing signed by any person acting under the express or
implied authority of the company, and such contract may in
the same manner be varied or discharged. (3.) Any con-
tract which if made between private persons would by law
be valid although made by parol only, and not reduced into
writing, may be made by parol on behalf of the company by
any person acting under the express or implied authority of
the company, and such contract may in the same way be
varied or discharged. And all contracts made according to
the provisions herein contained shall be effectual in law, and
shall be binding upon the company, and their successors, and
all other parties thereto, their heirs, executors, or adminis-
trators, as the case may be."



Companies under the Companies Clauses Act.

The 8 & Vict., c. 10, s. 97, enacts as follows :— " With
respect to any contract which, if made between private
persons, w^ould be by law required to be in wa-iting, and
under seal, such committee (see section 95) or the directors,
may make such contract on behalf of the company in
writing, and under the common seal of the company, and in
the same manner may vary or discharge the same : With
respect to any contract which, if made between private
persons, would be by law required to be in waiting, and
signed by the parties to be charged therewith, then such
committee or the directors may make such contract on
behalf of the company in writing, signed by such committee,
or any two of them, or any two of the directors, and in the
same manner ma}' vary or discharge the same : ^^'ith respect



120 TBi: LAW OF MASTER AXD SERVANT.

to any contract which, if made between private persons, would
by law be valid although made by parol only, and not reduced
into writing, such committee or the directors may make
such contract on behalf of the company by parol only, without
writing, and in the same manner nuiy vary or discharge the
same" (c).

(c) See Bill y. Darcnth rnVnj suing for salary which had not been
Railimy Co. (1856), 1 H. & N. determined at a general meeting in



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 14 of 77)