John Macdonell.

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

. (page 16 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 16 of 77)
Font size
QR-code for this ebook


do the tilings necessary for the completion of the contract."
So if a man engages to work, and goes to great expense,
and he is only to be paid by the measure of the work
he has performed, the contract pre-supposes and implies an
obligation to supply the work.

A review of the authorities as to this point discloses no
definite rule. Each case must be decided on its merits. It
is the duty of the Court to decide by reference to the words
of the documents, and of a jury by looking at all the facts, or
tbc practices of mankind, to say whether it was intended
that work should be found, or a servant or labourer should
bo retained. When a servant is engaged in order to perform
duties in regard to a certain definite business rather than to



Kent of tlie company, in consideration roinniission on all goods ordered,

of wliich lie was to receive a fixed thronfjh them ; the comjiany was

salary and 10 per cent, commission on wound up voluntarily before the

the nett profits. Before the end of the end of the three years; Bacon,

five years the company was wound nji. V.-C, held that D. and (K were

Agent entitled to claim for salary, but entitled to compensation for com-

not entitled to claim against the roni- mission for the unexpired jiortion of

l)a7iy for loss of commission, inasmuch the three years. He distinguished

as the contract h^ft the company I'ree the case I'rom Maclurca Case, on

to determine the extent of their Imsi- the ground that there the servant

ness. ) //) re relent Floor I'/ofh Co. had sti))ulated lor salary and coni-

(1S72), 41 L. J. (Jh. 47G ; 2t3 L. T. mission.)

N. S. 467. (Company engageil D. (;)) See Ajiiiendix.

and G. as commercial travellers for (v) (ISGo), !.. K. 1 Q. V>. 195.
three years ; they were paid by a



THE CONSIDKUATION. 131

give his services in general, tlie dunition of the contract is
naturally regulated by the duration of the thing itself. Ser-
vants are for the business, and not the business for the
servants. It -would be improbable in most cases that it was
imderstood that a business was kept up merely or mainly
to give employment to them. When a contract is one
of agency rather than of hiring and service, the natural
inference would seem to be that the employer is free to
terminate the relation at any time, provided the employment
be not coupled with an interest.

Contracts of hiring and service will not be enforced
if they are for illegal or immoral purposes.

Most contracts of hiring and service and work and labour
which have been pronounced void, on the ground that they
are offensive to morality, have related to sexual morality.
But the principle is not confined to cases of this sort ; the
maxim ex turpi causd non oritur actio holds good gene-
rally. The application of it to contracts of hiring and
service and work and labour is simple, when the contract
is on the face of it, or necessarily, immoral. Thus, in
Poplett V. Stockdale (r), the plaintiff sued for the expense of
printing an immoral book called " The Memoirs of Harriette
Wilson," coQtaining the history of a celebrated prostitute ;
and the Court refused to assist the plaintiff. " Every ser-
vant, to the lowest, engaged in such a transaction, is pre-
vented from receiving compensation." Equally clear are
the cases in which statute law is broken. Thus, it has
been held that a printer cannot recover the cost of printing
a pamphlet upon the first and last leaves of which he
had not, in compliance with the 39 Geo. III., c. 70, sec. 27,

(r) (1825), E. & Moo. 337 ; 2 C. k It. v. Norfhirinc/Jicld (1831), 1 B. &
r. 198 ; Forbes v. Johncs (1802), 4 Ad. 912 ; Bradshaw v. Hayward
Esp. 97. Assumpsit Avill not lie to (1842), Car. & M. 591.
recover the price of obscene prints.

K 2



132 THE LAW OF MASTER AND SERVANT.

printed liis name (.s). So, too, it was held that a person
could not recover money advanced for tlie bringing out of
Italian operas at a theatre, which he must have known was not
licensed as required by 10 Geo. II.,c. 28, and 28 Geo. III. c. 30 (t).
The chief difficulty arises when the object of the contract is
not necessarily or manifestly immoral. A lessor, for example,
sues for the rent of lodgings which he knows are to be used
for the purposes of prostitution (u). A washerwoman washes
and does up clothes for a woman known to be a pros-
titute (.r). An owner of a brougham lets it to a prostitute to
enable her to ply her calling (y). The cases in which facts
such as these have been proved, have not been consistent ; but
the true rule seems to be laid down by the Court of Exche-
quer in Fearce v. Brooks (z), — an action by coachmakers for
the hire of a brougham let to one who used it for immoral
purposes — that the plaintiff cannot recover if an article were
supplied with a knowledge that it was to be used for such a
purpose. The application to cases of hiring and service is
obvious. No one could recover for services which he knew
were given in furtherance of an immoral object.

It is impossible to enumerate here all the kinds of con-
siderations which have been pronounced invalid as being
•contrary to public policy. The views of the Courts as to this
have varied from time to time. Some judges have claimed

(.f) Bcjislcij V. Bignohl (1822), 5 U. (t) DcBegnis v. Armistcad (1833),

A Aid. 335. Seealso J«e?iv. Rcscoux, 10 liiiig. 107.

(28 Chas. II.), 2 Lev. 174. Contract {«) Girardy v. lUcJuirdson {1793),

" to beat J. 8. out of a close." Cope 1 Esp. 13.

V. Bou-lands (183G), 2 M. & W. 149. (x) Lloyd v. Johnson (1798), 1 B.

{Unlicensed broker in London cannot & P. 340.

recover coniniission.) IlarriiK/lon v. (?/) Pcarccv. Brooks (1866), L. R.

Victoria Graving Dock Co. (1878), 1 Ex. 213.

L. R. 3 Q. B. D."549 ; 47 L. J. Q. B. (;) See note ()/). See also Waxcgh v.

594. (Plaintiir, an ent^incer of rail- ;\/wm (1873), L. R. 8 Q. B. 202; 42

way company, .sued the defendants L. .1. (J. B. 57. The dictum of EUen-

tipon a contract for commission in borou^'h, C. J., in Boirry v. Bcnnel

consideration of his using liis in- (]8(JS), 1 Camp. 348, that it must be

Iluence to induce the railway com- shown not oidy that the ]>luintiir had

pany to accept tlie defendants' not ice of the defendant's immoral

tender for the repair of shii)s ; no calling, but that he exjiected to be

light of action, though the jury found p:iiil from the jirolits derived from it,

lluxt this rcntract liad not "in fart cannot be regarded as correct,
alfected the mind of the jilaintilf.)



THE CONSIDERATION. l'}3

almost uncontrolled power to dccule what is puLlic policy.
Others have declined to go beyond the lines of past decisions. .
The doctrine has been acted upon with respect to marriage
brokage bonds, contracts in restraint of trade, insurances by
sailors of their wages, and sales of offices (a). The following
are two of the most important classes bearing upon the
subject of this book : —

(1.) Contracts for sale of i)uhlic offices.
At Common Law contracts for the sale of public offices
are null and void {])). The Legislature has also declared
that such transactions are invalid; see 12 Rich. IL, c. 2;
5 & 6 Edvv. VL, c. IG, and 49 Geo. IIL, c. 126. The Act of
Edward VI. enumerates a large number of public offices, and
imposes (sec. 1) a penalty for the buying and selling of them.
Bargains, sales, promises, bonds, agreements relating to such
transactions are declared void. The 49 Geo. III., c. 12G, ex-
tended the provisions of 5 & 6 Edw. VI., to all offices in the
gift of the Crown (sec. 1), and declared that persons buying,
selling, receiving, or paying money or rewards for offices were
guilty of misdemeanors. An agreement which stated that
the defendant held the office of " customer " at Carlisle in
trust for the plaintiff, and by which the defendant promised
to appoint such deputy as the plaintiff should nominate,
and to empower him to receive the salar}^ was held to
be illegal at Common Law, and contrary to the two first-
named statutes (c). So, too, where the defendant promised
the plaintiff, who was master joiner at His Majest3''s dock -yard
at Chatham, in case the defendant should succeed tlie plaintiff
in his post, to allow him a certain annual share of the profits
of the office. Lord Loughborough refused to recognise that
there was a good consideration, and declared the agreement
invalid {d). For similar reasons the Courts have declared

(«) For discussion of the subject, J. Ch. 868.
see o]iinious of the judiies in Egcrton (c) Gayforth v. Fearon (1787), 1 H.

V. Brownlow (1853), 4 H. of L. 1. B. 328.

(fc) Coke, Litt. '234a ; Corporation (d) Parsons v. Thompson (1790), 1

of LivayoolY. JVr ig Id {1S59), 28 L. H. B. 322.



134



THE LAW OP MASTER AND SERVANT.



that agi-ecments for a sale or an assignmcut of the profits or
emohiments of such offices (e) are invahd. But in order to
come within the principle, the offices must be really of a
public character. In GrenfeRv. The Dean and Canons of
Windsor (/), it was proved that the defendant, M., a Canon
of Windsor, had granted his canonry and the profits of it to
the plaintiff's to secure a sum of money. There was no cure
of souls ; the only requirement was residence within the
Castle, and attendance at chapel twenty-one days a year.
Lord Langdale held the agreement to be valid; the duties not
having been shoAvn to be in any way for the benefit of the
public, or the maintenance of the dignity of the sovereign (cj).



(2.) Coniracfs hi restraint of trade.
Contracts which are in general restraint of trade are
void.

It will be seen from the note below, that the origin of the
rule is uncertain, and that its exact limitation was not
always understood (A). But since the decision in Mitchel v.



(e) Pahnerv. Bate {1821), 2 T,. &
B. 673. (Sale of profits of clerk of
the iieace. )

(/) (1846), 2 Beav. 544.

(y) See also Zow V. Low (1735), 3
P. W. 391 ; Blackford v. Preston
(1799), 8 T. R. 89 ; Ilanincjton v.
Duchastel (1781), 1 Bro. C. C. 124 ;
iSw. 139 11.; Flar/.i/v. (hlhua{n90),
3 T. K. 631 ; Jraldo v. Marfiib
(1825), 4 B. & C. 319 ; Thomson
V. Thomson (1802), 7 Yes. 478 ;
Card V. Hope (1824), 2 V,. & C.
6(il ; 4 D. & 1!. 164 (a Jwl of sale
of ship in service of East India Com-
pany) ; Jlichardsonv. Mcllisfu (1824),
2 Bing. 229 ; 6W;;r;- v. lleiUy (1829),
2 Sim. 560 (salary of assistant ])ar-
liamentary counsel to Treasury not
assignable); A', v. Charrctic {\%iSi),
13 Q. B. 447 ; Gracinc v. U'roughton
(1855), 11 K.x. 146 ; 24 L. J. E.\. 265 ;
CoTfioration of Livcrjiool v. ]l'ri(iht
(1859), 28 L. J. Ch. 868. (For other



cases under the above Acts, .see
Cliitty's Statutes, Vol. iv., edited by
Lely.)

(ii) As to the difference of opinion,
see Jollyfc v. Broad. (1621), Cro. Jac.
596.

Mr. "arsons suggests (Contract
2, 748) tliat the law as to re-
straint of trade grew out of the
English law of appicnticesliip, by
whii'li no ])erson ^•o\\\^\ exercise any
regular trade or handicraft, except
alter a long ajjprenticeshiji, and
generall}' a formal admission to the
pro])er guild. " If he had a trade,
lie must continue in tliat trade, or
liavo none. To rcliii([uisli it, llicrc-
forc, was to throw himself out of em-
])loyment ; to fall as a burtlien upon
the community ; to become a pauper."
Tile principle was not, perliaps, defi-
nitely laid down until 1711, when
MUcitf.l V. Pitijnolils was decided ;
but it is stated long before tlie ])ass-



CONTRACTS IN RESTRAINT OF TRADE. 135

lieymlds (i), in the King's Bench, in 1711, tlic following
principles licave been established : — (1.) That all contracts in
general restraint of trade are void ; (2.) That particular or
limited restraints, if for good consideration, are valid.
" Frimd fade," to quote the language of the Court in
Hilton V. Echershy (k), " it is the privilege of a trader in a
free country, in all matters not contrary to law, to regulate
his own mode of carrying it (his trade) on, according to his
own discretion and choice. If the law has in any matter re-
ofulated or restrained his mode of doing this, the law must be
obeyed. But no power short of the general law ought to
restrain his free discretion." Hence the Courts have refused
to give effect to agreements by which persons professed to
surrender this right.

(1.) The first requisite of valid agreements in any way in
restraint of trade is that they must be partial as regards
space. Even if limited in time, a contract unlimited as re-
gards space will be void. Thus, a bond by which a person
bound himself not to follow, or be employed in, the business
of a coal merchant for nine months after he should have
left his employment, was held bad (/). But the Courts will
enforce an agreement to take an apprentice, servant, or clerk
or traveller, on condition that he shall not solicit custom from
the master's customers after or during his engagement, or
set up the same trade in opposition to his employer in the
immediate neighbourhood.

(2.) The restraint or limitation must be reasonable. This
is a question of law for the Court (m). The test will be
whether the limit imposed is in excess of what is required

iug of the 5tli of Elizabeth— the first exercising trades, except tliey were

reported case bearing date 1415(2 free of the city. See Introduction.

Hen. v., f 0, pi. 16)— and at Com- (i) 1 P. W. 181 ; 1 Smith's L. C,

mon Law there was no such restric- 8th Ed. 417. For reasons of the

tion. In Owen, p. 143, the doctrine distinction, IFard v. Byriic (1839),

is based on the words of Magna o M. & W. 54S.

Charta. Probably it arosc^ out of (/•) (1856), 6 E. &; B. 6Q ; 25 L. J.

the necessity of putting limits to the Q. B. K'9.

practice of corporations by bye-laws, (1) IVard v. Byrne ; see note (t).

and otlicrwise preventing persons {in) Parke, B., in Malhui v. May



136 THE LAW OF MASTER AND SERVANT.

for the protection of the party in favour of whom it is made.
" Whatever restraint," it has been said, " is larger than the
necessary protection of the party, can be of no benefit to
either; it can only be oppressive; and, if oppressive, it is in
the eyes of the law unreasonable " (n). Agreements not to
carry on business of perfumer and hair merchant within
London or Westminster, or GOO miles from the same (o) ; not
to be employed as coal merchants for nine months (2?);
not to carry on trade as brewer, Szc, in Sheffield or else-
where for ten years (q), have been held void. On the
other hand, agreements by vendors of a patent process of
manufacture, not to carry on in any part of Europe a manu-
facture with the same object as the patent (r) ; not to carry
on business as a surgeon within ten miles of a place for
fourteen years (s) ; not to practise as attorney within London
or 150 miles of it(t); not to carry on business in horse-
hair within 200 miles of Birmingham (u) ; not to carry on
trade as a milkman for twenty-four months within five miles
of Northampton Square (y), have been held valid. The de-
cision of the Privy Council in Collins v. Loche (z), illustrates
the mode of dealing with this question. Certain persons
carrying on the business of stevedores in Melbourne, entered
into an agreement with a view to prevent competition. One

(1843), 11 M. & W. at p. 668 ; (n) Harris v. Parsons (1862), 32

Tallis V. Tallis (1853), 1 E. & 13. IJ.^av. 328 ; 32 L. J. Ch. 247.

3'Jl ; 22 L. J. Q. B. 185. (?/) Proctor v. Sargnit (1840), 2 M.

(n) Tindal, C. J., in Horner v. & G. 20. As to wliat is meant by

<7?mvs (1831), 7 Bing. 743 ; see also carrying on business, see Turner v.

Parke, B.'s, judgment in Mallnnv. Evans (\9,52), -iK kK b^2■, Arn-yx.

May (1843), ll M. k W. 653. Lnmjpml (1854), Kay, 663 ; 23 L. J.

(o) Pricey. GrccJi (1839), 16 M. k Cli. 837. As to mode of measure-

■\V 346 nicnt of distance, Atk'jns v. Kinnicr,

(p) iVnrd V. Byrne (1839), 5 M. (1850), 19 L. J. Ex. 132 ; DuUjnan

& \V .-548 V. Walker (1359), 28 E. J. Oh. 867 ;

(n) Ilinde v. Gray (1840), 1 ]M. & Mouflct v. Cole (1872), E. R. 8 Ex.

G. 195. 32 ; 42 L. J. Ex. 8. As to how

(r) Leather Cloth Co., v. Lorsont far .such contracts may be partly sus-

(1869), L. R. 9 En. 345; 39 L. J. tained and iiartly rejected. Price v.

(jl, 86 ''?'•'•«"• (1847), 16 M. k W. 346 ;

is) Davis V. Moxon (1793), 5 T. Mallan v. Mny (1843), 11 M. k W.

R 118 653 ; Nickolls v. Strefton (1847), 10

'(t) Bmm V. Gay (1803), 4 East, Q. B. 346.
190 (.) (1879) E. 15. 4 Ap. 674.



CONTRACTS IX RESTRAINT <)V TRADE. 137

provision was tliat, if any merchant refused to allow the
stevedoring of any ship consigned to them to be done by the
party entitled to it luidor the agreement, but should require
any other of the parties to the agreement to do it, the party
doing the work should give an equivalent to the persons so
losing the stevedoring of an amount to be determined by
arbitration. The Judicial Committee thought this not un-
reasonable. "It provides in a fair and reasonable Avay for
each party obtaining the benefit of the stevedoring of the ships
to which by the contract he was to be entitled. Each party
might in turn derive benefit from this clause, and one of the
four firms would always get the profit of the ship stevedored,
though the work might be done by another of them. As
regards the merchant, also, he can have his ship stevedored
by the party whom he may require to do it, at least there is
no prohibition against his having it so done." Another pro-
vision in the agreement was, that the parties to it would not
" undertake or be in any way concerned in or interfere in the
stevedoring, either in whole or in part, of any ship or vessel
consigned to any of the said persons or firms otherwise than
according to the provision in that behalf hereinbefore con-
tained." " The covenant in such cases," said the Court, " re-
strains three of the four parties to the agreement from exer-
cising their trade, without giving any profit or benefit to
compensate for the restriction to either of the four, whilst the
combination they have thus entered into is obviously detri-
mental to the public, by depriving the merchants of the
power of employing any of these parties, who are pi'obably the
chief stevedores of the port, to load their ships, unless in each
case they employ the one of the four to whom the ship, as
between themselves, has been allotted, however great and
well founded their objection may be to employ him. Such a
restriction cannot be justified upon any of the grounds on
which partial restraints of trade have been supported. It is
entirely beyond anything the legitimate interests of the
parties required, and is utterly unprofitable and unnecessary
at least for any purpose that can be avowed."



138 THE LAW OF MASTER AND SERVANT.

There must be a consideration for a contract in partial
restraint of trade. It was once supposed that tlie considera-
tion must be " adequate." It has, however, long been settled
that the Courts will not inquire into the adequacy or suffi-
ciency of the consideration {((). It is enough that it is not
merely nominal or colourable.

The restraint may be indefinite in point of time ; a man
may bind himself not to practise a certain trade in a district
for his whole life-time (6). Indeed such agreements are very
common in the case of the sales of goodwills of businesses.
Yet the element of time is not wholly unimportant. When
the question is whether a contract is reasonable or not in
point of space, it may be material to know how long the
restraint is to be in force {c).

An agreement to restrain A. from exercising his trade is
obviously different in substance from an agreement binding
A. not to use a secret process discovered or purchased by B. ;
and Courts of Equity have always prevented persons making
use of trade secrets contrary to an agreement (d). Thus A.,
who sells a jDatent to B., may be bound by a promise not to
divulge the process to any other person.

The question sometimes arises whether a contract of service
may be enforced, if the consideration be partly illegal or
immoral. Suppose a person is engaged to buy spirits abroad
and smuggle them into this country ; it would no doubt be
held that the two acts were incapable of separation, and that
the whole contract was void (e). But if it be possible to
separate the legal from the illegal part of the consideration
— if there be, in substance, separate considerations for sepa-
rate contracts — a Court will enforce one part of the contract
and reject the other.

(a) Gravel ij v. Barnard (1S74), ^wic {r) ; Bryson v. Whitehead {li22),
L. R. 18 K(|. .018. 1 Sim. k St 74 ; Uest, C. J., in Homer

(b) HUchiock V. C'okcr (IHS7), (> A. v. Ashford (18'_>5), 3 Biii;^. 322,
fc E. 438 ; Cattle v. Tourle (ISGH), 327.

L. K. 4 Vh. 0;:4. [r) Loake on Contracts, 779; R.

(c) Pnnior V. Sarijcnl (1840), 2 v. Nartkwingfidd (1831), 1 B. & Ad.
M. & G. 20. 912.

(d) Leat/ur Cloth Co. v. Lorsont, see



CONTRACTS IN RESTRAINT OF T15AT)]:.



ini)



APPENDIX A.



Cases of Mutualitii.



No CONSIDKRATION.

V. IFliitcomh (1828), ;■) Bing.
34, 3 C. & P. 289. Defendant signed
a written agreement to the fol-
lowing effect : " I agree to remain
with Mrs. Lees, of 302, Regent
Street, for two years from the date
hereof, for the purpose of learning
the business of a dress-maker."
No binding agreement ; tliere
being no obligation to teach, and
no consideration being expressed.

Sykes V. IHxou (1839), 9 A. &
E. 693 ; 1 P. & D. 463. Memo-
randum of an agreement in the
following terms : " I, William
Bradly, of Sheffield, do agree that
I will work for you and with John
Sykes, of Sheffield, manufacturer
of powder-flasks, at such work as
he shall order and direct, and no
other person whatsoever from this
date hencefortli during and until
the expiration of twelve months,
and so on from twelve months'
end to twelve months' end, until I
shall give the said John Sykes
twelve montlis' notice in writing
that I shall quit his service."
Agreement was a nudum factum,
and could not be enforced.

Williamson v. Taylor (1843),
5 Q. B. 175. Defendants, owners
of a colliery, hired plaintiff to hew
coals at certain rates, according to
work done, and plaintift" agreed to
continue defendant's servant all
the time the pit should be laid off
work, and, when required, to do a
full clay's work on every working
day. Defendants not obliged to
employ plaintiff foi: a reasonable
niunber of working days during
the term.

Aspdin V. Austin (1844), 5 Q.
B. 071. The plaintiif agreed to



Consideration.

J'ilkin(jtvnv.Scott{l84iJ), 15 M.&;
W. 657. Plaintiffs agreed with L.
tliat he should serve tiieni for seven
years ; that he should not during
tliat term work for any oilier person
without the license of the ]ilain-
tifl's ; that it sliould be lawful for
the plaintifl's to deduct from his
wages any fines, &c. ; and that the
plaintifl's should have the option of
dismissing him from their service
on giving a month's notice or a
month's wages. Held that, look-
ing to the provisions of the agree-
]nent, there was an undertaking
to employ L. for seven years.

Hartley v. CumlniiKis (1847), 5
C. B. 247; 17 L. J. C P. 84.
Agreement between plaintift' and
A. that A. should serve for seven
years at a given rate of wages, and
not \\'ork or serve any other i)erson
without master's consent ; in con-
sideration of which plaintift' agreed
to pay A. 24s. per week for certain
work ; plaintift' to be at liberty, if
A. were sick, or if A. discontinued
the trade, to retain any other
person in A.'s place, without pay-
ing him wages. The agreement
not void for want of mutuality, or
for being in unreasonable restraint
of trade.

R. V. Welch (1853), 2 E. & B.
357 ; 22 L. J. M. C. 145. R.Whit-
taker, in consideration of £Z lent
or advajiced to him by cer-
tain persons nieiitioned in the
agreement and of wages to be
paid by them, agreed to serve
them and no one else, without
their consent, for twelve months
and during and until the ex-
piration of three months from
notice of his desire to termi-



140



THE LAW OF MASTER AND SERVANT.



No Consideration.
iiiaimfacture for the defeiulant
cement, and the defendant, on
condition of his faithfully ])er-
fonniug the aforesaid contract,
covenanted to pay the plaintitf the
weekly sum of £4 durin;.; the two
years followin<f the date of the
agreement, and the weekly sum of
£5 during the next year follow-
in,i,', and to receive him into part-
nership, &c., at the expiration of
three years. Plaintiff also agreed



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 16 of 77)