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

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Esp. 187. (Assumpsit for work and lifetime, plaintilf being in hoi)es

labour by a stockbroker ; defence tliat that she would leave him a legacy ;

theservices were gratuitous, and done jury gave plaintiff £250 damages,

solely with a view to a legacy : lield Court refused to disturb the verdict,

by Lord Kenyon, that it was a (jues- Tindal, C.J., observed : "The plain-

tion for the jury.) Osboni v. Gover- tiff probably hoped and expected

nors of Gui/s Hospital (1726), 2 to receive a legacy ; but, this lio})e

Stra. 728. (Action for work and la- failing, I see no reason wliy he

hour in transacting Mr. Guy's stock should not be held, to be remitted to

affaii-s. Eaymond,'C. J., directed the his legal right." " The ordinary pre-

jury to decide what was the under- sumption is that services are ren-

standing between the parties ; "a man dered in expectation of a rennme-

who expects to be made amends by a ration, unless the contrary is proved :"


of the expectation of a legacy, and executors were to pay
such clauns, thi."y might be disalloweil in their accounts (.s).

Remuneration fo r Work done wider a Contract
Terminated l)y Mutual Consent, dr.

If a contract of hiring and service be dissolved by mutual
consent, a servant may recover wages jrro rata. Such also
is the case when he is dismissed without proper cause before
the end of the term (though he may also recover damages
calculated with reference to the loss he has sustained) ; or,
when a servant, without having actually done all which he
agreed to do, has performed services which are of value,
and by which his master has benefited (t).

Remuneration fur Extra Wo)i\

What is a fair day's work is to be ascertained by reference
to the agreement, or to custom. Failing that, it is a question
of what is reasonable in the circumstances. Of, a
servant njust be allowed a reasonable time to eat and
sleep (x).

Whetlicr he must work on Sunday depends also on the
nature of his employment and usage. A servant may recover
remuneration for work done out of hours, or outside the scope
of his regular employment (?/). But in order to entitle him to

Coltinan, J.). Sludlcrvas x. Jl'ri(jhl faction dl' tlic lioiid. Tlic trstator hiul

(185(t), 12 Jieav. .^j.58 ; and DalUiKjcr by liis will diiectcd that all debts and

V. fit. Albyii (1879), 41 L. T. N. \S. legacies .should be paid.
406. (0 ^^'*^ <'s to this. Fa nisirorth v.

(s) As to beciuests in satisfaction Garrard (1S()7), 1 t^anip. 38 ; Munro

of wages, sec Koper on Legacies, 4th v. Butt (1858), 8 E. k K 738; and

Kd. I(i2(j and 10r<:3 : also Cliancijs the notes in Smith's L. C. to Cutter

(Jasc (1717), 1 l\ W. 408. (A master v. Powell.

being indebted to his man-servant for (.c) IVilson v. Sutisoii (1844), 6 D.

wages, £100, gave him a Ijond for the 125t) ; Parsons, 2, 41 ; and see as to

.t;iOO, as dui! for wages, and after- this, C> Eiiz. c. 4, ss. 12 & 13. Fra-

wards, by will, gave £51)0 for long and scr's blaster and Servant, p. 408.
tiithful services. Lord Chancellor (y) Wood, 172.

King held that this was not in satis-



recover, the services must clearl}^ not be such as he is bound
to perform under his contract of hiring and service ; the
services must be wliolly diffei-ent from these either in kind
or amount. Otherwise an agreement for extra remunera-
tion will be nudum pactum ; there will be no consideration
for it, (a promise to do what one is bound to do forming
no consideration), and it will not be en forced (z). Harris
V. Carter (a) illustrates this principle. The plaintiff, a sailor
had signed articles for a voyage out and home at £8 a month.
Several of the crew deserted at the outward port, and the
captain, to induce the plaintiff and others to stay, agreed
to articles for the homeward voyage at £6 a month. It was
held by the Queen's Bench, that it was the duty of the plaintiff
to perform the contract into which he had originally entered
for the outward and homeward voyages, and that the subse-
quent promise was void for want of consideration. " Had
the plaintiff," said Lord Campbell, " been relieved from the
obligation which he had contracted towards the shipowners,

(::) Chap. X.

(«) (1854). 3 E. & B. .559 ; 23
L. J. Q. 13. 295 ; Bell v. Drummond
(1791), 1 Teake, 63. (Plaintiff acted
as deputy to clerk of commission-
ers of land tax, at salary of £100.
New duties afterwards imposed upon
the plaintiff : held that this raised no
implication that servant was entitled
to additional salary.) Harris v.
Watson (1791), 1 Peake, 102. (No
action will lie on a ])romise by a cap-
tain to a sailor of extra wages if \w
would ]ierform extra work). Elsworth
V. Wuolnwrc (1803), 5 Esp. 84. (Sea-
men cannot recover extra wages in
virtue of any usage or custom.)
sulk V. Mcyrkk (1809), 6 Esp. 129
and 2 Cam]). 317. (Promise by de-
fendant, a captain, to divide among
ci'ew the wages of two men who had
deserted ; no action lay. "They had
undertaken to doallthej'- could under
all the emergencies of the voyage."
Ellenborougli, C. J.) Frazcr v. Hattmi
(18.57), 2 C. B. N. S. 512 : 26 L. ,T.
C. P. 22(i. .Agreement by plaintilf
to serve as steward tor three years on

board defendant's shi}) Gustos at £3 a
month; stipulation that lie should, if
required, be transferred to any other
sliip in the same employment ; during
tlie three years, plaintiff was trans-
ferred to the ship Dauntless ; by a
second agi'eenient the captain pro-
mised to pay plaintiff £4 a month :
held that there was no consideration
for tlie second agreement.) Carter v.
Hall (1818), 2 Sta. 361. (Plaintiff, pur-
ser's steward on board one of tlie king's
ships, in receipt of a salary from the
Crown : held that lie could not re-
cover extra remuneration from the
defendant, the purser, thougli there
was evidence that it was usual for
the purser to pay one ])ound for
I'very gun by way of annual salary).
The Araminta (iS54), 18 Jur. 793.
(.Master of a ship distributed the
amount of wages forfeited bj'- de-
serters among those sailors who wouM
manage the ship home : held that the
owners were entitled to deduct the
amount from the wages due.) Money
V. Htnnan (1867), 5 S. L. K. 32.

152 THE LAW OF :master and servant.

he might have entered into a fresli contract, and, under some
circumstances, the captain might have had authority to bind
the owners by entering into afresh agreement on their behalf
with him. Had there, for instance, been an entire change of
the voyage, it might have been so. But here there were no
circumstances of that kind. The voyage remained the same
voyage for which the men had shipped ; there was no con-
sideration for a promise to the pLaintiff ; and the captain
liad no authority to bind the owners." So, too, a promise
to pay a pilot unusual remuneration for services which he
was bound by statute to render to a ship would be held
void (h). The question has generally arisen between owners
of ships and seamen, when the latter, owing to desertion or
other causes, have refused to proceed on a voyage unless
they were paid extra remuneration. The Courts have always
held that promises made in such circumstances are invalid.
There is authority for saying tho.t if payments are made
by a captain under such a contract, they may be recovered by
the owner (c). If, however, extraordinary services be required
and rendered, if risk far in excess of what was contemplated
have to be encountered, if the work to be performed be clearly
additional to the servant's duties, a promise to pay extra
Avages will be enforced. The limitations of the principle
stated in Harrifi v. Carter, will be understood by comparing
it with Hartleys. FonsonJnj (d). The crew of a ship was
reduced from tliirty-six (the number on board when she sailed
from Liverpool) to nineteen, only four or five of whom were
able seamen. The captain entered into an agreement with
certain of the seamen to pay them increased wnges if they
would continue to navigate the ship. The agreement was
held binding. "If there had been merely additional labour,
and the voyage dangerous to life from this excess only,"
said Lord Campbell, " I should have thought that the new
contract was not binding on the master any more than on

(b) Mfiuil<- k I'olloc.k, 4lli oil., ]). (c) The J nnninta, see note (a).

64G; but see the Jonyc Andrics {d) (1857), 7 E. & B. 872; 26 L.

(1857), Swa. 226. J. Q- B. 322.


the owners. But I think that wc must take it, from tlie
finding (that it was unreasonable fur a ship (jf 1,04.5 tons to
go to sea with only nineteen men), that tiie plaintiff and the
remaining crew were not bound under these articles to proceed
on the voyage, and so were free men and at liberty to make
a fresh bargain " (c). There is nothing to hinder a seaman
recovering for salvage services, and any stipulation in an
agreement by which he consents to abandon his right, will
be Avholly inoperative (/).

Entire and Divisible Contracts of Service.

A contract of service may be entire and indivisible, that is,
the consideration may be dependent on the entire fulfilment
of the contract — the entire fulfilment of the j)romise given by
one party being a condition precedent to the fulfilment of
any part by the other (g). It may be severable or divisible,
that is, the consideration may be susceptible of apportion-
ment according as the contract is more or less carried out.

The terms of the contract may make it perfectly clear
whether it is divisible or not. For example, a man may engage
to do work at so much an hour or a day, or so much a foot,
in which case he is free to leave off at any time and claim the

(c) Sec also The Providence (1825), case of a person perfectlj' free when lie

1 Hag. Ad. 391. (Second mate entered into tlie agreement.)
succeeded tu the otlice of chief mate (/) 17 & 18 Vict., c. 104, .s. 182,

during the voyage ; no alteration in and sec. 2. live Florence (1852), I'i

contract with reference to change of .Jur. 572. (Ship abandoned at sea ;

office ; held entitled to rate of \vages subsequently recovered by her crew :

given to chief officers in similar voy- held that crew were entitled to be

ages.) Cluttcrbuck V. Coffin {IM2), 3 rewarded as salvors.) See also the

M. L G. 842. (Plauitiif engaged by ^ame view taken in The Vrcde{\%&\),

commander of a brig of war to serve 30 L. J. P. 209, and Hanson \. Roy-

as cook, at tlie rate of £12 a year clcn (1867), L. R. 3 C. P. 47 ; 37 1..

beyond tlie rating of a seaman : J. C. P. 66. (Captain died during

action for wages ; defence tliat there voyage ; first mate took his place and

was no con.sideration ; but held that appointed A., an able seaman, second

the plaintiff could recover, this not mate ; held that A. could recover

being a case in which the plaintiff second mate's wages.)
contracted to do work which he was {g) See Smith's L. C. vol. ii. p. 1.

already bound to perform, but the


value of the Avork which he has dom-. If the contract, on the
other hand, be that the one party sliall do the whole of a
certain amount of work, and that the other shall pay for
the whole — if one promise a lump sum for a detinite and
complete thing — it is different. No one would say that a
portrait-painter could sue for his labour upon an unfinished
picture, or that a watch-maker emj)loyed to repair a watch
could be entitled to recover before he had completed his work.
He cannot sue for the wdiole remuneration, because he has not
performed the whole work ; he cannot recover on a quantum
meruit, because the contract is entire. Thus, a workman who
had agreed to repair and make perfect chandeliers for £10,
was held not entitled to recover anything, though the jury
found that he had done work to the value of £'o (ji). The
rule appears to be, that if a contract be for a certain defined
time, even if the rate of compensation be at so much a day or
week, it is indivisible, nnd full performance is a condition pre-
cedent to recovery, in the absence of some custom to the con-
trary. Thus, to refer to the leading case of Cutter v. Poivell {%),
the executrix of a sailor, who was hired as second mate for
a voyage from Jamaica to Liverpool for thirty guineas, failed
to recover a proportionate part of his wages in these circum-
stances : The sailor had died before the whole voyage was
completed ; the contract was held to be entire ; the per-
formance of the whole service was a condition precedent,
and in the absence of proof of any usage to pay proportionate
suras, his executrix could recover no part of the thirty
guineas. So, too, sailors, who IkuI agreed not to demand
their wages or any part thereof, until they arrived at the
port of discharge, were held to be incapable of recovering
■wages pro raid if their ship were lost, or the voyage from
any cause were not brought to completion (/.:). An early

(/t) Sinclair V. Bowles (\S2'J), '.» 1!. C. vol. ii. ]>. 1.
& C. 92; 4 M. k K. 1. Tliis case, (/■) Abbott on Sliipj.inr; (Prentice's

liowever, partly turned on the form of cd.), 464 : .see, however, Chaiidler v,

the action. Orfvoi (171)2), 2 H. HI. 606, n.

(i) (1795), 6 T. II. 320; Smith's L.


case, which strikingly ilhistrates this doctrine, is Throf/-
morton v. Countess of Flyniouth {I). The Earl of Plymouth
had appointed a person, of whom the plaintiff was adminis-
trator, to collect rents at a salary of £100 a year. He died
after serving three c[uarters of a year. The administrator
sued the Earl's administratrix for remuneration pro rata.
The Court held that nothing was due. The most frequent
illustration of the doctrine occurs in the case of domestic
servants hired for a definite time. If dismissed for mis-
conduct, they forfeit all right to any wages which have not
accrued due, even for the time which they have served {m).
On the other hand, if a contract be not to do a specific work
for a specific sum, or work for a definite term ; if the work be
in its nature apportionable, and no remuneration be fixed
upon ; if the parties obviously intended payment to keep
pace with accrual of benefit ; if there be no express contract
or custom to complete work before any remuneration is paid ;
if something be done under a special contract which is not in
strict accordance with it, but from Avhich benefit has been
derived ; the performance of a part will entitle a Avorkman
to partial payment. A shipwright was employed to repair a
ship ; no sum for the total repairs was fixed ; after having
completed a portion of the work, he refused to go on till he
was paid for what he had already done ; it was held that he
could recover on a quantum meruit (n).

According to the maritime law, freight was the mother of
wages, and if the former w-ere not earned, neither were the
latter (o). The Court of Admiralty, especially in Lord
Stowell's time, sought to prevent the harsh consequences of
this principle (p). In the exercise of an equitable jurisdic-

(l) (1686) 3 Mod. 153 ; 1 Salk. 65. titled to the suit.)

(»!) Chap. XXllI. Croclccr v. (n) Roberts v. Havelock (1832), 3

Mohjiiru.!- (1828), 3 C. & P. 470. B. & Ad. 404.

(Plaintill" hired for a year and pro- (o) See The Juliana (l?>-2-2), 2 Dod.

vided witli a livery suit ; wroni^fully 504 ; ilaelachlan, 215.

dismissed withiu the year ; couid not {p) The Neptune (\S-2i), 1 Hag.

maintain trover for suit. Of course, 227 ; and see cases cited in Lord

lie might have brought an action for Stowell's judgment in TM Juliana,

being prevented from becoming en- note {o).


tion, the Admiralty Court, decided tliat Avhen a voyage was
described in the articles of agreement by reference to various
ports of delivery, a proportionate claim for the payment of
wages attached at each of them, and that all attempts to
prevent this by special contracts were ineffectual and void (q).
The Legislature has abolished the rule that wages are depen-
dent on the earning of freight. The Merchant Shipping Act
of 1854, 17 & 18 Vict., 104, sec. 18?, says : " No right to
wages shall be dependent on the earning of freight ; and every
seaman and apprentice who would be entitled to demand and
recover any wages if the ship in which he has served had
earned freight, sliall, subject to all other rules of law and
conditions applicable to the case, be entitled to claim and
recover the same, notwithstanding that freight has not been
earned ; but in all cases of wreck or loss of the ship, proof
that he has not exerted himself to the utmost to save the ship,
cargo and stores shall bar his claim." Section 184 of the same
Act says : " If any seaman or apprentice to whom wages are
due under the last preceding enactment, dies before the same
are paid, they shall be paid and applied in the manner herein-
after specified with regard to the wages of seamen who die
during a voyage."

By the maritime law, a sailor's wages could not be with-
held or reduced because he was sick or had been disabled by
an accident in the course of his duties (;•). This is still so if
a seaman remain on board, unless the sickness or accident
be the result of his own default. If any temporary detention
of a vessel by force — for example, by an embargo or capture
followed by recapture — occurs, the seamen will be entitled,

(<2) The Jidiana; Ahhott on Shii>- (1824), 1 Hag. 248; The Mhurra

ping, Prentice's ed., p. 46.5. (1825), 1 Hag. 347; George Home

(r) read V. Eden, Abbott on (IS'j:)), 1 Hag. 370; HUhjard v.

Shipping, 4G7, I'rentice's ed. ; Chan- Mo>nU (1828), 3 C. & P. 93 ; Sinclair

dler V. Grieves, .sec note [k), supra. Tlie v. Bowks (1829), 9 B. & C. 92 ; Friiice

following arc tlic chief cases on tliis Frederick (1832), 2 Hag. 394 ; Jesse

snh\evt:—ni(l!cy.IIei'/hhnan(l8i)-l), v. A'oy (1834), 1 Cr. M. & R. 316;

2 East, 145 ; Appleby v. IJodds (1807), Butlon v. Thompson (1869), L. R. 2

8 Ea„st, 300 ; Countess of JIareourt C. P. 330.


not only to their own full wages, but also to wagos f(jr the
period of detention (.s).

Reinimeration for vjork Unskilfully Done.

For work which is executed unskilfully or improperly, or
not in such a manner as was bargained for, a workman will
be entitled to recover only the reasonable value of his
services. The rule, as laid down in some early cases, was
different. If the work were executed under a special contract,
the employer, it was said, must pay the stipulated price and
obtain compensation by resorting to a cross action. But
since the decision of the King's Bench in Basten v. Buffer (f),
a more reasonable rule has been recognised. That was an action
by a carpenter against a farmer who had employed him to
roof a barn. Evidence Avas offered at nisi prius, with a view
to show that the Avork was improperly done. The evidence
was rejected. The Court of King's Bench set the verdict for
the plaintiff aside on the ground that the evidence should
have been admitted ; and in the subsequent case of Farns-
uvrth V. Garrard (u), Lord EUenborough stated thus the
correct rule : " If there has been no beneficial service, there
shall be no pay ; but if some benefit has been derived,
though not to the extent expected, this shall go to the
amount of the plaintiff's demand, leaving the defendant to
his action for negligence. The claim shall be co-extensive
with the demand." In illustration of this, Monneypcnny v.
Hartland (x) may be mentioned. There it Avas held by
Abbott, C.J., that a surveyor whose estimate of the cost of a
bridge turned out to be incorrect to a considerable amount,
owing to his not having examined the nature of the soil,
could recover nothing. So in Bracey v. Carter ( y), it was

(s) Beale v. Thomjyson (1S04), 4 terials employed, in rebuilding the

East, 546 ; Maclaclilaii, 231 ; i\laude front of a liouse, which, when finished,

& Pollock, 4th ed. I. 2-23. -was in great danger of falling.)

(t) (1806) 7 East, 479. (a-) (1S24) 1 C. & P. 352.

(u) (1807) 1 Camp. 38. (Action {y) (1840) 12 A. & E. 373 ; see

for work and labour done, and ma- a\so Le Loirw Bristoio{\'i,\s), ^Ca.m]}.


decided that a solicitor guilty of negligence, by reason of
which all tlie previous steps taken in an action entrusted to
him became useless, could obtain nothing for his labour.

In the Admiralty Court it is well understood that a
seaman may wholly forfeit, by drunkenness or other miscon-
duct, his right to wages. Desertion formerly always involved
this result {z) ; but the JMerchant Shipping Act has invested
the Court with discretion as to this ((()• It is said to have
been laid down by Lord Stowell (6) that " any acts which will
justify a master in discharging a seaman during the voyage
Avill also deprive the seaman of his wages." This rule, how-
ever, is not followed, at all events in the case of ordinary
seamen. Thus a common sailor will not, though a mate
or other person in authority might, forfeit his wages foi-
having been once drunk. To warrant this there must be
habitual drunkenness or mutinous conduct, or gross dis-
obedience, or conduct endangering the safety of the ship (c).

In TIu! Thomas Wortldngton (d), Dr. Lusliington thus
indicates the principles on Avhich the Court acts : " Cases,
indeed, may occur, even in this Court, where the misconduct
may be of so gross a description that, independent of any
actual loss sustained by the owners, the entire forfeiture of
wages would ensue ; as, for instance, if a master had at-
tempted to commit barratry ; or if throughout a voyage he
had shown gross incapacity, or had been constantly drunk.

134. (Valuo of goods lost liy a be unnecessary to counterclaim,

servant (IfilucU'd iVi/iu wages due ; it (z) Thr I'm rl (TiS04), 5 ('. Koli.

being part of the agreement between 2'24 ; Mailil. on Merchant Shipping,

plaintilf and defendant tliat the '240.

former shoidd jiay out of his wages (a) 17 & IS Vict., c. 104, s. 243.

for the value of goods which were in- (6) T/ic Knicr (1799), 2 C. IJob.

trusted to liim, and which were lost 2r)l. Dr. Lusliington in T/ir Jilak^

by his negligence.) JJuncan v. Blini- (18:J0), 1 W. Koh. 73. No such

dell (1820), 3 Sta. 6 ; Chaprl v. e.vpressions are found in the report

Hickrs (1833), 2 Cr. & M. 214 ; Clr- of Thr J-Jxcln; in 2 C. Kob. 2(il.

worth V. Pid-ford (1S40), 7 M. & W. (c) The Malta (1828), 2 Hag. If.S ;

314; Turner v. Diaper (1841), 2 M. The Owdol ier {}Si5), 3 Hag. 190;

&G. m ; Newton V. FurslmlSii), The Jllakc (1839), 1 W. ]!ob. 73;

12 M. & W. 772. It is submitted Maclachlan, 231.

that in cases where the original ((/) (184S), 3 AV. Kob. 128, 133;

contract was to y)ay so much, subject Macladiian, 231.
to certain deductions, it would still


In eitlicr of these cases, would this Court be justified in
pronouncing for any part of his wages under the contract?
Unquestionably not ; and, if any such case came before me,
I should not hesitate for a single moment in rejecting his
claim in toto."

It is sometimes laid down that a master cannot set-off, by
way of equitable defence, damage sustained in consequence
of goods having been lost by a servant's negligence (e). Now^
however, under the Judicature Acts, Order XIX., r. 3, " a
defendant in an action may set off, or set up, by way of
counterclaim against the claims of tlie plaintiff, any right
or claim, whether such set-off or counterclaim sound in
damages or not, and such set-off or counterclaim shall have
the same effect as a statement of daim in a cross action, so
as to enable the Court to pronounce a final judgment in the
same action, both on the original and on the cross claim.
But the Court or a Judge ma}-, on the application of the
plaintiff before trial, if in the opinion of the Court or Judge
such set-off or counterclaim cannot be conveniently disposed
of in the pending action, or ought not to be allowed, refuse
permission to the defendant to avail himself thereof" (/).
Under the Employers and Workmen Act, 1875 (38 & 39 Vict,
c. 90, s. 3, subs. 1), the County Court " may adjust and set-ofif,
the one against the other, all such claims on the part either
of the employer or of the workman, arising out of or inci-
dental to tlie relation between them, as the Court may find
to be subsisting, whether such claims are liquidated or unli-
quidated, and are for wages, damages, or otherwise" (g).

(c) Le Loir Y. Bristoic (1815), 4 made ver-

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