John Macdonell.

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

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in Tanker v. Slie^^herd and in Hohmn v. Coivlcy (/.•). There

Taylor v. Caldwell (lSt)3), 3 B. & S. pica of exoiieiatioii, even if dis.soiu-
826, 835 ; 32 L. J. (^ 15. 164. tion of jiartneiship was a breach of
(c) Baxter v. Barjidd (1747), 2 contract." JJubbiv v. Foster (1844),
Stra. 1266 ; /i'. V. 67t/?-^- (1774), Bur. 1 C. & K. 353. (A., B., and
S. S. 782. C. jiartners. D. engaged to serve
(/) (1862), 7 H. & X. 707 ; 30 them a.s foreman for twelve years ;
L. J. Ex. 207. C. quitted the business, and l3. con-
{</) Bollock on Contracts, p. 64, tinned to serve A. and 1!. Blaintiif
(/() Wood, 308. sued A., B., and C. on the original
(i) (1861), 6 H. &, N. 575 ; 30 L. -1. agreement : Coleman, .)., ruled "C.'s
Kx. 207 ; nee also Jiaicl 1718071 v. jVo/ss going out of the concern did not per
(1861), 30 L. J. Ch. 71*7. (Dissolu- ,vc jint an end to the agreement. D.
tion of partnershij) of solicitors entitled to sue A., B., and C") See
amounts to a discharge of client.) also J/on/ v. McEvun, 4 .lune, 1867 ;
(A) (1858), 27 L. .1. Kx. 205, 208. :> WmcjiIi. 814 ; 31) Jur. 450. (Agree-
(I'laintiff agreed witli defendants, ('. nunt between a lirm and theii-
and Al., to serve' for seven years ; L. cleik ; the clerk engaged i'or five
<anie into the lirm in place of Jl. ; years, at a salary of £300 a year, and
]ilaintiff signed a memorandum, percentage of prolits ; the firm dis-
which stated "that, in consideiation .solved by death of one oi' i\w. part-
that a n<:w agreement is entered into ners : held inter alia that the con-
with the new lirm, he was willing to tract of .sei-vice, being per.sonal, was
cancel the old agreement, evidence of determined.) Ji. v. »S7. Martinn


may seem some reasons against it where a change in the
partnership involves no change in the duties of the servant ;
and it may be urged that the decision in Tasker v.
Shepherd turned on the construction of the particular contract
before the Court, which was made with reference to partner-
ship business, and in which was a proviso that the servant
should be paid according to the profits of the firm. But, on
principle, it seems clear that a contract in wdiich A. contracted
to serve B. and C, would not be binding between A. and C.

There are few authorities with regard to the question
whether, if a master assumes partners, they will have the
rio-hts of masters over servants. The law upon the subject
is thus stated in Eraser's LaAV of Master and Servant (Z):
" He (a partner) cannot assume partners who will have the
right of masters over domestic servants, governesses, or
perhaps over clerks. It is part of such agreements that the
servant shall do tlie work of the master who hires him, and of
him alone. With regard, however, to artisans, it has been found
that they cannot consider themselves free, although their
master assume a partner along with himself, who will have
the rights of a master. This is a contingency to be looked for
and expected ; and it would often be productive of ruinous
consequences, if, on such a common event, the whole servants
of a large establishment were freed from their contracts.
This was decided in a case where a master, conducting
business alone, assumed two partners. But an opinion was
expressed that it would have been different if the original
master had not remained in the firm " (m). It is submitted
that in English law it would be generally a question whether
there was a novation ; if there was no novation, the new
partner would not have the rights of a master.

(1835), 2 A. k E. 655, and the cases Cambridge v. Baldivin (1839), 5 M.

in wliich bonds are given by sureties & W. 581 ; Simson v. Cooke (1824),

to partners for good conduct of clerks 1 Bing. 452 ; Addison on Contracts,

and servants. Tlie security does not 7th ed. p. 857.

apply ^vhen a change by death or (?) p. 123.

otherwise occurs in the partner- (»0 JIarkins v. Smith, March 11,

ship; Chancellor of the University of 1841 ; 16 F. 938.


Dissolution of Contract by Consent.

The contract may, of course, be dissolved by consent of
both parties, express or implied (o). No particular words are
required, and consent may be implied from conduct. In a
Scotch case, decided in 1815, an apprentice was impressed as
a seaman ; he remained in the nav}^ sixteen years, and he
returned home having reached the rank of lieutenant. His
master made a claim for breach of contract, but the Courts
thought that the fact that he had not made the claim for a
number of years amounted to a tacit permission to the
apprentice to consider himself released (p).

A master who had made no effort to reclaim an apprentice
for years, would no doubt be regarded as having tacitly con-
sented to his release.


Bankruptcy docs not operate as a dissolution of a
contract of hiring and service {q).

The contract of apprenticeship is terminated by-

The Bankruptcy Act of 1869, sec. 33, provides that, where
at the time of the presentation of the petition for adjudica-
tion, any person is apprenticed or is an articled clerk to the

(ci) R<\r \.Wcddin(jton.{\n\),V>\w. contract is rescinded; clerk not

S. C. 766 ; Ilex v. Harburlun (1780)' barred by certilicate from recovering

1 T. R. 139 ; on otlier band. Hex v. all tbe wages due from the expira-

Wardcn (1828), 2 M. & 11. 24, and tion of the year last before the com-

Rex V. Sfccffington (1820), 3 B. & A. mission up to the time of rescinding,

382. nothing being duo, and jiroveable

(p) Fraser's Master and Servant, at the date of issuing tiic com-

3rcl cd. p. 315. }ni.ssion. It is almost ncedh'ss to say

(q) Thnhins v. Williams (1834), that the assignees of the banknipt

1 A. & K. 685 ; 3 N. & M. 545, could not require the fuHilment of

■clerk hired by the year continues in the contract of service by a servant

bankrupt's oiKce after bankrupt. In Aliinger, C.B., in Gibson v. Carruthers

.the mid.iif of year l)y mutual consent (1841), 8 M. & W. at !>. 343.


bankrupt, the order of adjudication shall, if either the bank-
rupt or apprentice rc(|uire notice in writing to the trustee
to the effect, be a complete discharge of the indenture of
apprenticeship or articles of agreement.

A trustee lias no riglit to tlie proceeds of the
personal and daily laboiu' of a banla-upt.

The old law — and it is still in force — was that wages
earned by a bankrupt before his discharge did not pass to his
assignees, at all events so far as the wages were necessary to
his maintenance (r). Williams v. Chambers (s) decided that
the assignee of an insolvent debtor could not recover in
respect of work and labour performed by the debtor if the
remuneration were necessary for his maintenance. But if
the claim were not for " mere personal labour " — if, as in
Elliot V. Clayton (t), the claim were for medical attendance
and medicines, or for services rendered by a furniture broker,
who employed men and vans in the course of the services
for which he sued (u) — a different rule prevailed. No doubt,
too, if a person accumulated a large sum, even by personal
labour, the assignees might claim it (x). In like manner
the trustee, and not the bankrupt, could sue in respect of a
sum which was not the remuneration for work and labour,
but damages for breach of contract ; as in Wadling v.
Oliphant (y), where the trustee was entitled to claim a sum
awarded by the Court of Chancery to the bankrupt, after

(r) ChipiJcndall v. TomUnson [x) Hesse v. Stevenson (1803), 3 B.

(1785), 4 Doug. 318. (In this case & V. 578.

the assignees did not interfere.) Silk (y) (1875), L. R 1 Q. B. D.

V. Osborn (1794), 1 Esp. 139 ; Ex 145. See also Beckham v. Drake

parte iFalters (I8i2), 2 M. D. & 1). (1847), 2 H. of ].. U. 579, right of

635 ; Ex parte Grivistead (1844), De action for breach of agreement to hire

G. 72. for seven years which accrued before

(s) (1847), 10 Q. B. 337. bankruptcy passed to assignees, and

(t) (1851), 16 Q. B. 581. on the other hand Ex parte Daohurst

(u) Crofton v. Pooh (1830), 1 B. & (1871), L. E. 7 Ch. 185.

Ad. 568.


bankruptcy ami before discharge, in lieu of proper notice of

" If salary or wages, or commission under a contract of
service," says Wilde, C. J., in Beckham v. Drake (?) — in
which the question was whether a sum in the nature of a
penalty for breach of a contract to employ passed to the
assigneesof a servant — "are due at the time of the bankruptcy,
the right to recover such wages, salary, or commission, would
pass to the assignees as part of the personal estate, without
regard to the consideration of whether the contractor's
services had had relation to the personal skill or labour of the
bankrupt," &c. ... To the argument that the action was
personal to the bankrupt, Wilde, C.J., replied, " It arose
out of a contract founded on the personal confidence in the
bankrupt, and which could only be performed by his personal
labour and skill ; and, in the same sense, contracts are per-
sonal made with factors, salesmen, agents of various kinds,
masters of ships, bankers, attorneys, architects, engineers,
and various other persons whose personal skill, knowledge,
and integrity, are the inducements to the contracts. But
surely it cannot be contended that the right of action for
breaches of contract in relation to such employments
accruing before the bankruptcy would not pass to the
assignees." In Emden v. Carte (a), the trustee of an archi-
tect was held entitled to sue for remuneration in respect
of a contract to employ the bankrupt as architect, and for
damages for wrongful dismissal from such employment.
The circumstance that the master is likely to become
bankrupt, or that his property has been all taken in execu-
tion, will not exonerate the servant from performance of
his contract " (h).

Sec. 1)0 of the Act of 1869 says that, " where the bankrupt
is in receipt of a salary or income other than as aforesaid
(officers, &c.), the Court, upon the application of the trustee,

(;) (1849), 2 H. L. C. 633. v. Oliphant, L. K. 1 i.}. ]5. M5.

(a) L. K. (1880), 17 Ch. J). 169 ; {h) Wood, 307.

L. K. 17 Ch. D. 763 ; also Wndlimj


shall from time to time make such order as it thinks just for
the payment of such salary, income, or of any part thereof,
to the trustee during the bankruptcy, and to the registrar if
necessary after the close of the bankruptcy, to be applied
by him in such manner as the Court may direct."



Contracts of hiring and service cannot be trans-
ferred or assigned without the consent of the parties
thereto (a).

Master and servant both contract with regard to the
personal quahties of each other. The relation is one of
personal confidence, and the one cannot compel the other to
accept a third person in substitution. If A., for example,
sells his business to B., he cannot turn over I)., his servant,
to the purchaser. Neither will a servant be permitted to
say to his master, " I decline to work myself, but I have
procured a competent substitute," or, " I have let out a part
of the work." In one case the plaintiff was employed as
master of a ship ; he engaged A. to act for him. In an
action which the former brought for wages, it was held tiiat
B. could not recover, as the contract contemplated personal
service (h).

In like manner tlic contract of apprenticeship is iwimd
facie not assignahle (c). As it is expressed in Coventry
V. Woodhall, "The matter of putting an apprentice is

(a) Adilison on Contracts, 7th od., femlant). See also Stevens v. Ben-

WW ; Pollock nn Contracts, p. 411. vinrf (1S54), 1 K. & J. 168; 6 D.

(h) Campbell V. rrirc (1831), 9 S. M. k G. 223 (agreement between

26i ; Srhmnlingv. Tornlinson {ISIb), aiitlior and publisher); Rolstm v.

r, TaiHit. 147. " (A. employed by de- Sharpe (1831), 2 15. k A. 302.

fend.nit to carry goods to a foreign As to .servant agreeing to serve

market ; A. dclei^ated tlie jicrlorm- master's assignee, Beniirll v. Inns

ancr to ]ilaintifr, who did the work (ISf)?), 2*3 L. J. CIi. 663.

witliont knowledge of tlie defendant ; (r) fiurt'T v. Burfield (1747), 2

jdiiintiir could not recover com- Str. 1266 ; Home v. Blake, 2 Str.

pcnsation for .services from de- 1267.



a matter of great trust, for liis diet, for his health, for his
safety ; and therefore I will, by choice, commit him to one
and not to another " (d). Such a contract, however, may be
assignable if the master's assignees, or executors are named (e),
or if there be, as is the case in the City of London, a
custom in virtue of which an apprentice may be turned over
to a new master (_/").

(d) Hob. 134 A.

(<•) Cooper V. Simmonds (1862), 7
H. &N. 707; 31 L. J. M. C. 133.
All infant bound himself apprentice
to a tradesman, his executors and
adtninistrators for seven years carry-
ing on the same business in the town
of Wolverhampton ; the apprentice
bound to serve the widow, who was
sole executrix, and who carried on
the same business in Wolverhampton.

(/) Jiex V. Peck (1699), 1 Salk. 66 ;
Bowchicr V. Coster, Kelilo, 250. But

apparently, the assiffnee could not
sue on tlie deed ; Show. 4. There
are authorities ( IVadsworth v. Gye,
Sid. 216 ; IValkcr v. Hull, 1 Lev.
177) that where a master covenants
to find the apprentice in meat,
drink, and necessaries during the
term of apprenticeship, his executor.s
are bound to perform the covenant.
But query. As to right to appoint
deputies, Phelps v. Winchcombe, 3
Bulst. 77 ; Walsh v. Southworth,
6 Ex. 150.

E 2


servant's authority as to contracts.

A servant may bind his master by contracts (1)
when lie is specially authorised to do so ; (2) wlien he
is placed in a position of trust for the due discharge
of which authority to make such contracts is necessary
or usual ; or (3j when third persons have reason to
believe from his master's conduct that he has autho-
rity to bind his master.

When a master entrusts to a servant the performance of
certain duties, it will be held that there is an implied authority
■or mandate to enter into contracts which are necessary or
usual for the performance of such duties, and persons dealing
with servants will not be affected by restrictions which are
placed upon the servants' authority unless such restrictions
are known to them (a).

The relation of master and servant invests the latter with no
authority to bind the former (6), but the servant may have from
the particular duties assigned to him the right to bind his
master in regard to contracts. When, for instance, a foreman
employed by the owner of a sawmill agreed to supply a quan-
tity of fir-staves, the latter, it was held, was bound by the
contract though he had given his foreman no special authority
to enter into it (c). It will often be left to a jury to say whether

(a) For early authorities on this Jlosn (ISGC), L. R. 1 Q. B. 534.

subject, SCO i)octnr and Student, (h) I.oiike on Contracts, 467.

II., chap, xlii., and Noy's Maxims, (r) lUc/mrdsonv. Carhrri<jht{lSU),

II. 58. One can see hy NicLson v. 1 V. & K. ;}'28. Compare Jintin v.

nrohan, 10 M(jd. 110, liow uncertain Humains (1880), U .1. 1'. -iS-l.
the law was in 1710. See Jlibbs v.

servant's authority as to contracts. 245

a servant had authority to enter into a particular contract.
Thus in Lavgan v. The Great Wedern Railvxiy Company (d),
passengers injured in a collision on defendants' line ^Yere
carried into plaintiff's inn. The sub-inspector of railway
police for the district, who was for the time being the
superior of all the station-masters and servants of the com-
pany, was on the spot ; and he ordered brandy to be given to
one of the injured persons. In reply to a question put by the
plaintiff as to who would pay for the maintenance of the
injured persons, he said, "Don't trouble yourself about that;
we'll see that is all right." The plaintifi" brought an action
against the defendants for board, lodging, and necessaries sup-
plied to the injured passengers. It was held, affirming the view
of the Queen's Bench, that there was evidence to go to the jury
in favour of the plaintiff. " The sub-inspector," said Brani-
well, B., " was the chief person there. It was the interest
of the company that the mischief resulting from the accident
should be the smallest possible, if the company w^ere liable,
and the company might be. Then is there a necessity under
circumstances such as these, for what may be called instan-
taneous action? Surely it is reasonable to say that the person
who is chief in office where the accident takes place, should
have authority to do those things which must be done at
once, and which are presumably for the benefit of the coni-
pany." On the same principle of what is sometimes called
" necessary authority," the servant of a horse-dealer, or
livery stable keeper, was entitled to bind his master by giving
a warranty, although he had express orders not to give
it (e). On the other hand, if the servant of a person who
does not carry on the business of horse dealing, is entrusted
to sell a horse on one occasion, and gives a warranty without
authority from his master, it will not be binding (/).

(d) (,187-i), 3U L. T. 173. among horse dealers not to warrant

(e) Hoimrd v. bite ward (1866), was held to be not aduiissible.

L. R. 2 G. P. 148 ; 3(J L. J. C. F. (/) JJrady v. Todd (1861), 9 C. B.

42; 12 Jur. N. S. Iul5. lii this N. 8. 592; 30 L. J. C. P. 223;

case evidence of a general practice 4 L. T. N. S. '2\'l ; 'J W. K. 433 ;


There is no implied authority to do what is unusual ; and
hence when an agent appointed by a mining company to
manage a mine, borrowed money of the plaintiffs who were
bankers, it was held he had no authority to bind the com-
pany (g). So owners of a ship are bound by contracts of a
master with respect to the usual employment of the ship (h).
But he cannot bind the owners to a contract at variance with
the usual employment of the ship, f.(/., to carry goods for
freight payable to other than the owner (i). The distinction
is often expressed by saying that when a man appoints a
general agent, he is bound by all his acts, but that when he
appoints a special agent he is bound only to the extent of
the authority which he has in fact given (k). But this dis-
tinction does not bring out the fact that, when a person
appears to be a general agent, the master is bound b}'^ his
acts and is estopped from denying his authority ; that the
important point is not what the agent's powers are, but what
they seem to be ; and that, notwithstanding an arrangement
to the contrary, it will be assumed that he has usual au-
thority. If, however, a person dealing with a servant
knows that he has a special or limited authority, he is bound
to see that the authority is observed.

A servant may have authority from the course of previous
dealings to bind his master ; if they Avould naturally lead
tradesmen and other persons to believe that a servant is
authorised to pledge his master's credit, the latter will be
liable. A private arrangement between them forbidding
buying on credit, or attaching conditions to doing so, will
be no defence. In the case of a groom, who took his master's
horses to a smith and farrier to be shod and to be doctored,
Lord Kenyon ruled that it was no defence to an action

Helycar \. Ilau-kc {lS(y6), ^Es]^.n ; (i) JUijitohls v. Gcx (1865), 34

Miller v. Luivtov, 15 C. ]J. N. S. L. J. i). B. 251.

834. (^■) Loiil JCenyon in East India

((/) Ilnwtaynev. Bourne (1841), 7 Co. v. Haislnj (1794), 1 Esp. 112;

M. & \V. 5'J5. Asliurst, J., in Fcnn v. Harrison

{],) Mtjrrs V. Willis (1855), 17 (1790), ^i T. K. 7G0 ; Story on Agency

C. U. 77 ; 18 C. V>. 886 ; Sandemann &ec. Via.
V. licurr (1866), L. E. 2 Q. U. 86.

servant's authority as to coi^tracts. 247

acrainst the master that lie had made a special arrangenieut
with his groom by which for a year the groom was to keep
his master's horses properly shod and to furnish them
with medicine (I). On the other hand, if a servant chooses
to go to a tradesman with whom there have been no pre-
vious dealings — if, for example, as was the case in Hlscox v.
Greemvood (m), a coachman sends, without his master's
knowledge, a chaise to a coachmaker who had never been
before emiDloyed — the master incurs no liability. A common
example of this principle occurs when a servant is allowed
to make repeatedly purchases on credit. Tradesmen dealing
with him are entitled to assume that he has in these circum-
stances authority to do that which he us\ially does with the
knowledge or permission of his master, in the absence of
notice that his authority is limited, or has been withdrawn.
Accordingly, if a servant who usually buys for his master on
credit, appropriates to his own use things which have been
so bought, the master is liable. On the other hand, if the
servant is always in cash beforehand to pay for goods, the
master is not liable if the servant misappropriates the money
or the goods (n). " Nothing," said Lord Kenyon, in Stubbing
V. Hentz (o), " could be clearer than that where a man gives
his servant money to pay for commodities as he buys them,
if the servant pockets the money, the master will not be
liable to pay it over again."

To rebut the presumption of authority raised by a
previous course of dealings, it must be shown that notice
was given of the intention to make a change. The cases
seem to show that notice to a servant of a tradesman will
not suffice. In Gmtland v. Freeman ( i>) it appeared
that the defendant was in the habit of dealing with the
plaintiff, a publican, on credit. He paid his bill and then
gave notice to the plaintiff's servant that he would run up

(I) Precious V. Abel (179j), 1 Esp. Esp. 76.

350. (0) (1791), 1 Peake, N. P. 6Q.

(m) (1802), 4 Esp. 174. {p) (1799), 3 Esp. 85.
(«) Jiusby V. Scarlett (1803), 5


no more bills, but only pay for beer as it came. Lord
Eldon ruled that tlic defendant must sho^Y that the plaintiff
had notice of this change in the manner of dealing, and that
notice to the servant alone would not be sufficient.

Even if there have been no previous dealings, the master's
conduct may amount to a representation that the servant
has authority to contract in his name. Thus, when a coachman
with whom his master had a private arrangement that he was
to provide horses, went to a stable keeper in his master's livery
and ordered horses, the master was liable. Littledale, J., in
directing the jury, said "If he (the servant) made the contract
in his own name, and represented to the plaintiff the agree-
ment between himself and the master, of course under such
circumstances the plaintiff cannot recover. But if he made
no such representation of any agreement between himself
and his master, I think that, by the master's sending him
forth into the world wearing his livery, to hire horses which
he (the master) afterwards uses, knowing of whom they were
hired, and yet not sending to ascertain if his credit had been
pledged for them, an implied authority is given, and the
master is bound to pay the hire " {q).

A master will render himself liable if he ratifies the acts
of his servant. Ratification may take place in many ways.
If the servant orders goods in his master's name, and the
latter uses them, knowing or having grounds for believing
that they have been so ordered, he will be held to have
ratified his servant's act. If he ratify a contract concluded
by his servant, he will ratify it altogether. Thus if he re-
ceive the price of a horse sold by his servant, he will be
bound by a warranty which the servant may have given in
selling it (7").

It is often a difficult question, especially when contracts
are made orally, to determine whether a master or a ser-
vant has been, in fact, trusted. If the servant did not act as

0/) IlimcU V. iSaiimayo (1824), 1 (r) Briatoirc v. IVhiUjwrc, -1 L. T.

C. & P. '254. N. S. 6-22.

servant's authority as to contracts. 249

•liis master's ag-cut — if ho either expressly or hy implicatiou
contracted on his own behalf — the master is not liable (.s).

Has a servant power to pledgt; his master's credit after he
quits his employment ? This is a mixed question of law and
fact, and depends upon whether his master still in any way

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