John Macdonell.

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

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to instruct defendant in the art of
manufacturing cement on con-
dition that defendant should not
engage in the manufacture other-
wise than under plaintiff's manage-
ment, or with his consent. By a
deed subsequently executed, de-
fendant covenanted with plaintitf
to perform the several stipulations
and agreements in the first agree-
ment. Breach alleged that de-
fendant wrongfully discharged
plaintiff from the service of de-
fendant, and prevented him from
manufacturing cement, &c. No im-
plied covenant to retain the plain-
lilf two or three years in the de-
fendant's service, though the de-
fendant was bound by the express
words to pay the plaintilf the
stipulated wages during those
periods, if he jierformed, or was
ready and willing to perform, the
condition precedent on his j^art.
The princijile allirmed in the case
is higjdy doubtful. The Courts
to-day would no doubt imply a
C(jvenant to retain.

JUuiin v. Sayles (1844), ;") Q. B.
685. Deed by which pLiintilf
covenanted that his son should
serve the defendant for live years
from tlie date of the agreement in
the art of a dentist-surgeon, and
attend for nine hours a day, and
the defendant, in consideration of
the services to be performed by
tlie plaintiff's son, covenanted to
pay certain wages, lireach that
the defendant refused to permit
the son to remain in hia .service.

nate the service. The employers
agreed to pay on Saturday night
ill every week during the term all
such wages as the articles made
by ^V'llittaker amounted to. There
was a proviso that either party
to the agreement might, after
twelve months, give three months'
notice. Held that tlie agreement
might be enforced by magistrates
under the 4 Geo. IV., c. 34, and
was not void for want of mutuality
{Elderton v. Emmens (1847), 4
C. B. 479 ; (1848), C. B. 160 ;
(1853), 4 H. of L. 624. Count
in a declaration on assumpsit on an
agreement that in consideration
that the plaintiff had agreed to
become the permanent solicitor of
the defendant's company for re-
Avard, &c., the company promised
to retain and employ the plaintiff
as such permanent solicitor, &c. ;
breach, that the company wrong-
fully refused to continue him in
his employment as the solicitor of
such company. This count not
supported by proof of a resolution
that plaintitf " be appointed per-
manent solicitor to the company ; "
" permanent " meaning " no other
than a general employment, as
distinguished from an occasional
employment in particular matters:"
"Wikle, C. J. Second count on an
agreement that, "from January
theii next the plaintilf, as the
attoiney and solicitor of the
company, should receive a salary
of £100 per annum in lieu of ren-
dering an annual bill of costs for
general Imsiness transacted by him
for the company as sucli attorney
and solicitor, and should for such
salary advise and act for the
company on all occasions in all
matters connected with the com-
I)any, and he should attend the
secretary and the board of di rectors
when required." The Court of
Common Pleas arrested judgment
on a count for wrongful dismissal
settiu'' forth this aLtreement. The




Held, on juotion in arrest of
judf^ment, tliat there was no
covenant corresponding to tlie
breach. See, however, Mclntifrc
V. Bdcher, 32 L. J. U. 1^ 254 ;
JFortliington v. Sndlow, 31 L. J.
Q. B. 134 ; and Cronipton, J., iu
Evvinens v. Eldcrton, 4 H. of L.,

p. (;24.

Fayne v. New South JJ'ales Coal,
dx., I'o. (1854), 10 Ex. 283. De-
fendants agreed with plaintiffs that
plaintiffs should have defendants'
ship-brokering business at Sydney
upon certain terms, and that de-
fendants would provide plaintitls
with free passage to that fjort ;
void, plaintiffs not being bound to
serve defendants.


Exchequer Chamber reversed the
judgment of the ('omnion Pleas ;
the House of Lords aflirined the
judgment of tlie former. The
company was bound to continue
tlie lelatiou for a year, but not
boun<l to supply jdaintiff witli
business as solicitor, or emidoy
him when it had occasion to em-
ploy solicitor.

irhitfle V. FrauJdand (1862), 31
L. J. M. C. 81 ; 2 B. & S. 4!) ; 5
L. T. N. S. G39. Agreement by
appellant to serve the respondent
exclusively until the exjiiration of
twenty-eight days' notice, and, on
the part of the respondents, to pay
wages fortnightly, and not to dis-
charge without twenty-eight days'
notice ; implied promise to find
ap])cdlant work.

Thomas v. Vivian (1873), 37
J. P. 228. T. agreed to serve V.
for a year ; but if V, ceased to
carry on works from being unable
to find ore, or from any other
cause, V. to be at liberty to termi-
nate the contract. See also Ex
parte Bailey (1854), 3 E. & B.



It is impossible to state all the duties of masters and ser-
vants. They vary with the nature of the employment ; they
arc regulated partly by usage ; they are also laid down in a
multitude of Acts of Parliament. A few of the principal
duties of masters at Common Law may be here stated. They
correspond to rights belonging to their servants. They are
implied conditions in all contracts of hiring and service, and
unless the contrary be stipulated, they are part alike of
Avritten and verbal contracts.

It is the duty of a master to pay to his servant the
wages or salary agreed upon. No presumption that
wages or salary is payable arises from the mere fact
that services are performed or work is done for

It is not certain that the second of these propositions ex-
presses correctly the purport of the authorities. They are
not quite consistent. Thus, in Viner's Abridgement (a), it is
said that "every such retainer (as a servant) will be pre-
sumed to be in consideration of Avagcs unless the contrary
appears." It has been said, too, that when a man bestows
his labour for another, he has a right to recover compensa-
tion for that labour (/>). On the other hand, there are autho-

{(i) Vol. V. p. 362, citing Pi«c7i07(,'s (h) Ponchcr v. Norninn {\h2^), ?i

Case, 9 Kfipoits, 86b (whicli socnis 15. & C. 744 (ixctioii by certilicated

.scarcely in imint). See Lc Blanc J., convcynncer for work done) : "The

in A". V. Shinfirld (1811), 14 East, general rule," said the Court, "is,

r,47_ ' that any man who be.stow.s his labour


rities wliicli go to show — and tliis seems the true view — that
service, however long continued, creates no claim for remu-
neration without a bargain for it, either expressed, or implied
from circumstances showing an understanding on both sides
that there should bo payment (c). It is highly doubtful
whether there exists any presumption on the subject ; if it
exist, it is not irrebuttable, and it appears to be only the con-
clusion to which general usage and knowledge of the world
warrant juries in arriving.

Service is usually performed in the expectation of receiving
wajres, and in most cases it would be correct, looking to
usage, to say that there was an implied promise to pay them.
But one may serve another out of gratitude or affection ; one
may intrude one's services upon another, or render them with-
out his privity or assent. It is not uncommon for persons
to work for years in the mere hope that they will be remem-
bered by a testator in his will. A person, too, may serve for
a time on the understanding that he is on probation, and
that nothing is to be paid to him in the meantime. In every
contract of hiring and service are presumed a request and
promise to pay; but in a multitude of cases there is, in fact,

for another lias a viiijht of action to Courts against infening a jiromise to

recover compensation for the labour. pay froni the mere fact that services

There are two exceptions to that are rendered, is shown by Lamburn

rule, viz., physicians and barristers." v. Crudeii (1841), 2 M. & G. 253;

((•) Martin, 11., in Reeve v. Beeve 2 Scott, N. P.. 533. (Servant engaged

(1858), 1 F. & F. 280, and Foonl v. at a yearly salary payable quarterly ;_

Morlcy (1859), 1 F. & F. 496 ; see also about a month after the termination of

Higgins v. Hopkins, note [d). Slaves one of the years of his service, he

who came to this country, and who tendered hisresignation; after another

brought actions in the time of Lord month the resignation was accepted ;

Mansfield and Lord Kenyon against nothing was said as to tlie remunera-

their masters for remuneration, were tion for the time which hud elapsed

always nonsuited in the absence of since the termination of the last

proof of a special agreement to pay. year's service. Held that "no new

Rex v. Thames hiffon (1785), 4 contract arises by implication of law

Doug. 300; Alfred v. St. James upon a simple dissolution of a special

(1799), 3 Esp." 3. In tlie latter contract of hiring and service, in

case a promise to pay wages was resi)ect of services performed under

proved, and it might" be inferred such special contract previously to

that, previous to the promise, no re- its being dissolved.") See, on the

muneration was intended. See as to other liand, Bayleijx. Rimmell (1836),

the contrary doctrine in the American 1 AI. & W. 506.
Courts, Wood. 107. The bias of our


neither request nor promise. Often the parties never give a
thought to their legal position until their relation is ended by
a quarrel or death. The question is one of fact : was there
an agreeipent or distinct understanding that the person who
does the work should he remunerated ? Obviously this can
be determined only by considering the whole circumstances,
the situation and relationship and condition of the parties ;
and the character and value of the services performed. When
people do work for another with his knowledge — say, labour
in his fields, or paint his house— they, as a rule, expect
to be paid for it ; the law will infer a promise to pay for
such work (d). But this is not inevitable ; and the true
view seems to be, that if a person " does work on the order
of another, under such circumstances, that it must be pre-
sumed that he looks to be paid as a matter of right by him,
then a contract would be implied with that person " (e). This
rule may not be of much assistance in determining cases as
they arise ; it is difficult to state any clearer rule as to the
circumstances in which the law will raise an implied promise
to pay.

Tro?7i- done fur Relatives and Friends.

Frequently, when work is done for relatives or friends, it
is hard to say whether wages or remuneration is due. The
difficulty is one not of law, but of fact, which it is for a jury,
on a review of the Avholc circumstances, to settle. In several
American cases, attempts are made to lay down rules of law as
to the circumstances in which it is proper, and as to the rela-
tives for whom it is right to presume that services are or are
not rendered for hire. " In all cases," says Mr. Wood, in his
" Law of Master and Servant," summarising several decisions

(d) Jliygins v. Hopkins (1348), 3 do but put thcni on » Is thut cvi-
•^^ jgg dcnce of a contract to pay for

(e) Tlie words of Pollofk, C. V>., in cleaning? " See Bradshaw v. Hay-
Taylor v. Laird (IS.'ir,), 25 L. J. Kx. i/v,n/ (1842), Ciir. k M. r,91 ; Slokrv.
329 may lie (juotcd : "One cleaii.s J'itmiiistcr {17-26), 2 liott.lSH ; Ji. v.
another's shoes ; what can the other Wcyliill (1759), 2 Bott. 185.


" where compensation is claimed for services rendered for
near relatives, as a fatlier, brother, grandfather, &c., the law
Avill not imply a promise, and no recovery can be had unless
an express contract, or circumstances equivalent thereto, is
shown" (/). "Where the parties stand to each other in
the relation of members of tlic same family, as brothers,
father and son, or father and daughter ; or, if inmates of the
same family, though only remotely related, there is prim.d
facie no implied promise to pay for labour done " (<j). All
attempts to lay down any rule based upon relationship are, it
is submitted, futile. A son renders services to his father; a
sister acts as housekeeper to a bachelor brother ; a daughter
remains in her father's house after coming of age, and does
household work ; a granddaughter goes to reside with her
grandfather {h) ; it is impossible in such cases to determine
solely from the relationship of the parties whether there is a
right to payment. An endless variety of circumstances ma}'
affect the answer to the question whether there is a contract.
Probably no clearer principle can be stated than that which
is laid down in Davies v. Davies (i). The plaintiff and his

(/) P. ]15. would take care of plaintiff's house,

(g) Ditto, p. 121. At what degree open the windows, air it, and show it

of relationship does the presumption to persons who applied to see it, a

hegin or end ? Does it e.\tend to handsome present, and subsequently

work done by a niece for an aunt or gave him £2. Mansfield, C. J.,

uncle? After much vacillation on tliought there was no evidence of a

the subject, the Scotch Courts have, contract, and that the plaintiff

according to Jjord Fraser (Treatise of trusted to defendant's generosity.

I\Iaster and Servant, 2nd ed., p. 21), The jury, however, gave a verdict

finally adopted the view that, for the plaintiff ; and the Court

" when there is a clear proof of ser- thought that there was evidence

vice rendered, and no wages paid, of a contract to do the work for

wages are due, unless it be madi; a reasonable recompense). JL v.

out that there was an agreement Sow (1S17), 1 B. & Aid. 178. (An

tliat the services should be gra- illegitimate child, hired for a year

tuitous." liy the wife of the reputed father at

(h) Ridgway v. English, 22 N". 50s. wages, continued for three years

J. 409 ; Davis v. Goodcnow, 27 Vt. to do work, but, after the first year,

715 ; Robinson v. Cushman, 2 Denio, not paid wages ; lield that the

l^Q. sessions were warranted in finding

(i) (1839) 9 C. & P. 87. The fol- that, after the first year, she was

lowing are some decisions to the living as u child with her father, and

same eflect : Jcivry v. Busk (1811), not iis a servant with her master.

5 Taunt. 302. (Defendant promised to See remarks of Bayley, J.) Bradshaw

make to the plaintiff, a glazier, if he v. Hayicard (1842), Car. k M. 591-.


wife, who boarded and lodged in the Louse of the defendant
the brother of the plaintiff, and assisted him in his business
sued for reward for their services. The defendant pleaded a
set off for board and lodging. In leaving the question to the
jury, Mr. Justice Williams said, " Neither the services on the
one hand, nor the board and lodging on tlie other, can be
charged for, unless the jury are satisfied that there was a con-
tract." Such a contract must, it is submitted, be proved,
in the ordinary way.

Work done hy Persons of Skill in the Exercise of their

English law knows almost nothing of the difference between
liberal and illiberal professions, which plays so important a
part in Roman law. In the latter the liheralm stiulia in-
cluded the professions of rhetoricians, grammarians, geometers,
secretaries, librarians, schoolmasters (/•) ; for their services no
remuneration was presumed. With the exception of the ser-
vice of barristers, already referred to, no such distinction
exists in English law. Perhaps, indeed, a difference of fact
may exist between certain kinds of skilled and unskilled
labour. The latter may more often be given gratuitously.
In the great majority of instances, a person who does work
and employs professional skill for the benefit of another,
will be entitled to reasonable remuneration, even if there

(Action for waqes liy female .servant was at liberty to keep fowls, &c.

a^aiiis^t defendant, an innkeeper; Plaintiff left defendant, but returned,

Cre.sswell, J., told the jury that the and nothing was said as to wages ;

question was whether there was a ruled by Jlartin, B. , that it was for

contraet of hiring or not, and allowed the plaintitf to establish that there

the defendant's counsel to cross- was an luiderstanding or contract as

examine as to wiiether plaintifl" was to whether she should be paid wages,

not defendant's mistress, witli a view See also R. v. .S7. Mary, 2 Boll. 275 ;

to show that there was no contract /■'. v. Slokrshij (1796), 6 T. K. 757 ;

of service.) Foord v. Mor/n/ (IS:,9), 11. v. Zy«r/(r//«//oM (1793), 5 T. B.

1 F. & F. 40fi. (IMaintilf lived 447. As tl) board, iViWio/s v. Coolu-

with defendant as a housekeeper ; han, 10 Met. Mass. 449.
nothing said as to wages; but plain- {k) Dig. 50, 13, 1.

tiff received board and lodging, and



be no express «igreemcnt ; the inference beini,' generally
irresistible in regard to skilled work, that it was understood
such services were to be paid for(/). Here, too, however,
there is no absolute presumption in law.

Remuneration left to Eniployer\'i Discretion.

A servant may leave it to the discretion of his employer to
say whether he is to be paid. If it be clear from the terms
of the agreement or the whole circumstances that the em-
ployer is the sole judge whether any and, if so, what remune-
ration is to be paid, no action will lie : the servant cannot
even claim to recover reasonable remuneration for what he
has done. Nulla promissio potest consistere, quce ex voliintate
2Jromittentis statum capit. Thus, a person who had ren-
dered services to a committee under a resolution that " any
service to be rendered by him should be taken into conside-
ration, and such remuneration be made as should be deemed
right," was incapable of recovering for his services (in).

{/) IJrown V. Nairnc (1S39), 9
C. k F. 264. (Action by broker
for procuring charter ; no special
agreement as to remuneration ; left
to the jur}"- to say what was the cus-
tomary remuneration, or, if no
custom, what was reasonable remu-
neration.) Hinrjcstonx. KcUi/ {I8i9),
IS L. J. Ex. 360. (Action for work
aiul labour by an attorney who had
rendered professional services to
jdaintitf at a contested election ; evi-
dence by defendant that the services
were rendered gratuitously ; direction
by the Judge tliat the plaintiff was
entitled to a verdict unless the de-
leudant made out that the services
were to be given gratuitously ; held
a misdirection, and the true question
for the jury was, whether, taking
all the evidence together, the pkintitf
was to be paid for his services.
Baron Parke's dictum, " If the de-
icndant makes it doubtful only
whether the services were to be

gratuitous, it is enough," seems open
to question. The rule seems to ])e thnt
the burthen of proof is always on the

(??!) Taylor \. Bmtrr (JS13), 1 1^1.
k S. 290 ; see also Peacock v. Pea-
cock (1809), 2 Camp. 65. (A law-
stationer said to his son, on his
coming of age : " You shall liave
fifteen shillings a week until Octo-
ber ; the books must then be made
up, and you shall liave a share ; we
need not talk of the share until Octo-
ber comes ; we shall .settle it then ; "
held by Lord Ellenborough that the
son was entitled to some share, and
that it was for the jury to say
what was a just and reasonable pro-
portion.) Bryant v. Fliqht (1839), 5
M. & W. 114. (Plaintiff wrote to
defendant as follows: "I hereby
agree to enter your service as a
weekly manager, commencing next
^londay, and the amount of payment
I am to receive 1 leave entirely to

L 2



It is a question for the Judge, if the contract be in writing,
and for the jury, if otherwise, to say what was the intention
of. the parties, and whether it was intended that remunera-
tion should be claimed as a right. If wages or remuneration
are made dependent on the certificate of a third person, it
must be procured before an action can be brought. In other
words, the obtaining of the certificate is a condition precedent.
Tlius, in (hven v. Boiucn {n), where the agTeement was that
the amount of remuneration should be left to a third person, an
action for the recovery of wages failed because it did not appear
that he had been requested to fix the wages. So, in Moryan
V. Birnie(o), an action having been brought against the defen-
dant, who had agreed to pay for buildings erected by the
plaintiff, on production of the architect's certificate that
the work was done to his satisfaction, it was not suffi-
cient that the architect had checked the plaintiff's charges

you ;" held (Pavke, B., dissenting),
that the (lefi'ndant was bound to pay
tho iihiintiil' something for histronble,
and lliat tlie jury, in an artion on a
quantum meruit, might decide wliat
tlie defendant, acting bond fide, would
or ought to have awarded. ) Jluberts v.
Smith (18.=59), 28 L. J. Ex. 164.
(I'laintilf agreed to accept ]iost of
sc'Tctary to a company at a salarj' of
two hundred pounds, "rommencing
at tiie present date, if the company
he completely registered, and put
into operation ; if not, I .shall he
satislied with any remuneration for
my time and trouble you may think
me de.serviiig of and your means can
afford." IJefendant rejilied : "It is
distinctly agreed and undei'stood that
if the company is not formed and
can-ied out, that part of your letter
wliich alludes to your salary be null
and void, and that at the expiration of
threi- months it is entirely left to me
to give unto you such sum of money
as i may drcm right as ('onqH'n.satiou
for labour ilone, in the event of the
comj>any not being carried out, or of
making any further advance for the
continuing of the same." The com-
jiaiiy was Jiot registered or "carried

out." No action lay for salary or
conipensiition.) ii*.'' 2)arte Metcalfe
(1856), H K. k P.. 287. (Refusal to
grant mandamus to Local Board of
Health to pay reasonable remunera-
tion to a ])erson wdio jiresided at the
first election of the board ; the board
having, under the 11 & 12 Vict. c.
03, s. 30, discretion as to what
thev thought reasonable.) Bird v.
Mcbahcy a!5-i!"). 2 C. ^ K. 707 ;
' llau-limjs v. L'iKtndkr (1854), 9 l"2x.

(;0 (1820), 4 C. & r. 93 ; see also
L(iH(lo)i- I'rdmiray Co. v. Bailey
(1877), J>. \\. 3 Q. B. D. 217; 47
\u J. M. C. 3 ; 37 L. T. 499 ; 26
AV. H. 494 ; and as to the power to
rescind unilcr the blaster and Ser-
vant xVct of 1867, and Employers
and Workmen Act of 1875, arbitra-
tion clauses ; Wilson v. Glasi/oir
Traiiurcnj Co. (1878), 5 K. 981.

(o) (1833), 9 Hing. 672 : MothUl v.
Dicl-smi (1853), 13 C. B. 375 ; Forbes
V. Milne (1827), 6 S. 75 : (lady
engaged a servant on condition that
lie oljtaincd a certilicatc of character
I'rom his last employer ; no cause
of action unless such certilieate ob-



and had sent them to the defendant ; there was no certificate,
and the action therefore couKl not lie.

Gvdtuitu'S, and Work done in Exiieddtlon of Le(j<icu>^.

No action will lie to recover gifts or gratuities. It is not
always easy, however, to ascertain what are gifts or gratuities ;
that a particular sum is spoken of as a gratuity does not
necessarily decide that it is not of the nature of wages {'p).
Presents or gratuities to a servant under age cannot be
deducted by a master from wages. Thus, in one case in
which a master gave to a maid of all work a silk dress, and
paid for coach fares to her mother's house, it was held that
he could not deduct these sums from her wages {q).

We need not examine here all the decisions as to services
rendered in expectation of a legacy. Few general principles
can be extracted from the authorities. Tiic question in
every case appears to be whether the person who rendered
the services trusted to the generosity of him for wliom he
worked, or whether there was an implied understanding
(or, to be more accurate, a contract), that remuneration was
to be given him (r). If the work were done on the strength

(;?) (1862), Lake v. Campbell, 5 legacy, cannot afterwards resort to

L. T. N. S. 583 ; Parker v. Ibbctson his action.") Baxter v. Gran (1842;,

(1858), 27 L. J. C. P. 286 ; 4 Jur. 4 Scott, N. K. 374 ; 3 U. & il 771.

N. S. 536. (Action for -vvork and labour hy a

[q) Hcdijky V. IIuU (1829), 4 0. k surgeon against executors of a lady

P. 104. whoni he had attended ; no bill

{r) Le Sage y. Co ussmaker (17^4), I was sent in durin^i; the lady's

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