TERMINATION BY CUSTOM OF DOMESTIC HIRING BY MONTH'S 831 PERIOD FOR PAYMENT OF WAGES NOT NECESSARILY A TEST 832 832 833 833 834 tion. IN a contract of hiring and service, as in other contracts, there The consideramust be consideration on which to found the agreement between master and servant, and it must be express, or necessarily implied. Whether there is consideration or not is sometimes a matter of great doubt and nicety, and would, of course, in most instances, depend upon the terms used by the parties; but the authorities do not supply any clear rule in cases where the consideration is not expressed in so many words. The courts, however, will not inquire into the adequacy of the consideration, for otherwise they would be taking upon themselves to decide whether the parties had made a proper bargain for themselves. But where the consideration is altogether illegal or immoral the Courts would decline to enforce the contract based upon it. the contract. In the absence of any express or implied stipulation as to its Duration of duration, the contract of hiring between a master and a servant is deemed to be a general one, and to last for the period of a year; and this rule of law is applicable to the hiring of domestic Yearly hiring. servants." Where a domestic servant is hired, and there is no Domestic sermention made of the duration of the hiring, or of the time for giving 1 See Macd. M. & S. 139 et seq. 2 Hitchcock v. Coker, 6 A. & E. 438. 3 See Cope v. Rowlands, 2 M. & W. 149; Rex v. Northwingfield, 1 C. & Ad. 912. Fawcett v. Cash, 5 B. & Ad. 904; Buckingham v. The Surrey and Hants Canal 46 L. T. 885. Co.; 5 See Rex v. Worfield, 5 T. R. 506. custom be vice may by a month's notice, or terminated by notice or warning, it is now a well established and judiciallyrecognized custom that the hiring is for the space of a year, but may be determined at any moment by either party giving the other a month's notice or warning, or a month's wages in lieu of such notice. If necessary, such custom can be proved by parol month's wages Variation of the terms of the hiring. Period for payment of wages a test of the contract. evidence.2 Where the term of service is express, or the contract contains stipulations, conditions, or other matters which clearly show that the parties to it meant some period other than a year, the legal presumption is rebutted. It is where the contract is for an indefinite time that the period of a year is implied; and such presumption is excluded where the terms of the contract are inconsistent with it, as where either party shall be at liberty to determine the contract at any time; or if the hiring be for less than a year, as, for instance, when a servant is taken "on trial" for a month; or where the master has not the exclusive control over the servant. Again, where well-established custom permits the hiring to be terminated after a certain notice, the giving of such customary notice, though but a short time after the commencement of the contract, puts an end to it. 6 8 Where there is nothing in the contract to show that it is not not necessarily intended to be a yearly hiring, but rather the opposite conclusion duration of the may be inferred, the paying of wages at short intervals, such as a fortnight, will not render it less a contract to endure for a year," and even the payment of wages by the week, where the contract contained a stipulation that a month's notice should be given to determine the hiring, was held not to take it out of the category of general hiring. But in the cases where the only means of ascertaining the duration of the contract is the reservation of weekly wages, then the period of service is deemed to be but weekly: thus, a weekly hiring at so much a week for a year is a weekly and not yearly hiring.10 There is no contract of service at all when the circumstances tend to rebut such a presumption, as where a person is taken and housed out of charity," or where the agreement was for cohabitation and not merely for service.12 When hiring weekly. 1 Fawcett v. Cash 5 B. & A. 904. "In the case of domestic servants, the rule is well established that the contract may be determined by a month's notice or a month's wages." Per Littledale, J., in Turner v. Mason, 14 L. J. Ex. 311. 2 Johnson v. Blenkensopp, 5 Jur. 870. 3 Rex v. Newton, 10 B. & C. 838; see also Baxter v. Nurse, 1 C. & K. 10. 4 Rex v. Great Bowden, 7 B. & C. 249. 5 Rex v. Standon Massey, 10 East, 756. 6 Rex v. Killingholme, 10 B. & C. 802. 7 Rex v. Birdbrook, T. R. 425. 8 Rex v. Great Yarmouth, 5 M. & S. 114. 9 Rex v. St. Andrews, 8 B. & C. 679; Towne v. Campbell, 3 C. B. 921. 10 Robertson v. Jenner, 15 L. T. 514. 11 Rex v. Sow, 1 B. & Ald. 178. 12 Rex v. Northwingfield, 1 B. & Ad. 912. not entitled to current wages. The contract of service of domestic or menial servants by a Servant wrongfully custom which is well known may be determined on either side at quitting serany time by giving a month's' notice or warning, or by paying a vice or rightly discharged month's wages in lieu of notice. The servant discharged is entitled without notice to a proportionate amount of wages for the time served at the moment of leaving service.3 But where a domestic servant wrongfully quits his employment he forfeits all claim to wages for that portion of time during which he has served, and cannot, after having wilfully violated the contract according to which he was hired, claim the sum to which his wages would have amounted if he had not broken his contract merely deducting therefrom one month's wages. Thus, if a servant were paid quarterly according to the terms of his hire, and wrongfully left in the middle or towards the end of a quarter, he would forfeit all the wages of the current quarter." The effect of this is to compel the servant to give his master proper and timely notice if he wishes to save his wages. This is equally the case where the servant is rightfully discharged by his master at a moment's notice and without payment in lieu of notice. Wages due but unpaid at the last period fixed for their payment would, however, be recoverable by the servant though he subsequently left his master's service without giving proper notice, or was rightfully discharged without notice." 8 A contract for the hire of a servant may be either by deed or Contract of hiring within by parol. If the contract (whether made in England or out of Statute of England)' is one that on its face cannot be performed within Frauds. a year from the date of its inception, then the fourth section of the Statute of Frauds is applicable, and its terms must be reduced into writing, though not necessarily in the shape of a formal agreement, and a proper compliance must be made with the provisions of that section if an action is to be founded on it." An oral agreement made on May 27, that a servant should enter service for a year to commence from the 30th of June following, 10 and a like agreement (though there was a memorandum, but unsigned) made on July 20, to take effect from the 24th of July, were both held to be within the statute." Though such contract may be defeasible within the year, it is none the less within the 1 Calendar month. Simpson v. Margetson, 11 Q. B. 27. 2 Fawcett v. Cash (ubi sup.); Beeston v. Collyer, 4 Bing. 309, 313. 3 See Gordon v. Potter, 1 F. & F. 644. 4 See Walsh v. Walley, L. R. 9 Q. B. 367. 5 Walsh v. Walley (ubi sup.); Boston Deep Sea Fishing and Ice Co. v. Ansell, 39 Ch. D. 329, 359. See Taylor v. Laird, 25 I. J. Ex. 329; Button v. Thompson, 38 L. J. C. P. 225. 7 Leroux v. Brown, 22 L. J. C. P. 1. 9 Leroux v. Brown (ubi sup.) 8 29 Car. II. c. 3. 10 Bracegirdle v. Heald, 1 B. & Ald. 722. 11 Snelling v. Lord Huntingfield, 1 C. M. & R. 20. See also the two cases which clearly decide the point, Banks v. Crossland, L. R. 10 Q. B. 97; Davey v. Shannon, 4 Ex. D. 81. Stamp not required on contract of hiring. 2 3 statute. But the statute does not affect contracts which have been completely executed on one side, or apply to a hiring which is merely implied from circumstances; nor does it extend to cases where the contract need not necessarily be performed within a year, and as a matter of fact has not been performed, if it is such that it might be performed within the year, and there is no stipulation to the contrary. The equitable doctrine of part performance is not extended to a contract of service by section 25, sub-section 7 of the Judicature Act, 1873.5 The plaintiff servant suing for wages cannot bring his action under a contract which fails to comply with the statute, but must rely on a quantum meruit for the services he has rendered to his employer. An agreement for the hire of a menial servant is exempted from the necessity of being stamped by virtue of the Stamp Act, 1891.6 1 Dobson v. Collins, 25 L. J. Ex. 267. But see Cawthorn v. Cordery, 32 L. J. C. P. 152, which was decided on the ground of implication of a fresh contract for a year's hire on a subsequent day. 2 Cherry v. Heming, 19 L. J. Ex. 63. 3 Beeston v. 6 54 and 55 Vict. c. 39. Schedule, sub voce Agreement. THE contract of hiring and service may be put an end to or determined in various ways; it is usually terminated by the discharge of the servant, whether by his master or by himself. death of The death of the master puts an end to the contract; and in Termination respect of service after death, the contract is dissolved, unless of contract by there be a stipulation express or implied to the contrary; so, master. where a farm bailiff was engaged at weekly wages, and his contract of service was to be determined by six months' notice or payment of six months' wages, and the master died, his administratrix was held not bound to continue the bailiff in her employment or pay him six months' wages after his master's death. The rule that a Servant contract of service, unless otherwise stipulated for, is determined by wages earned the death of the hirer, and that, if for a time certain, and the death up to master's entitled to death. |