Recovery of any one employs a servant under an agreement to pay Mtn so much by the day, month, or year, in consideration of the service to be performed, the servant, having fulfilled his part of the contract, may maintain an action against the master, or, in CaSe of his death, against his personal representative for the amount of any wages unpaid.. When a servant is hired in a g....neral way, without mentioning the time, it is called a "general hiring," and, in point of law, is a hiring for a year. A clerk or servant who is engaged at a fixed salary, payable periodically, Is not entitled to a proportionate part of his salary should he resign his employment before the expiration of a period. But where there has been no misconduct on either side, it may be left as a question for the jury whether the facts of the case raise a presumption that at the time of the resignation there was an understanding that a pro rata payment should be made. In an old case, where the plaintiff commencing his service in a month of March served as the defendant's clerk until one December many years afterwards, the defendant, without assigning any reason, dismissed the plaintiff; who was willing to have continued in his employment : it appeared that in one year the salary had been paid quarterly, but for the last six years it had been paid monthly ; it was held that there was an implied yearly hiring, and that the defendant was bound to pay the salary up to the end of the year, and that a contract in writing was not necessary. In a more recent case the contract was to serve as a reporter to a newspaper for whole year from a certain day, and so from year to year to the end of each year commenced, so long as the parties should respectively please ; it was held that this contract could only be terminated at the end of a current year. But in practice there is no hard and fast rule that a contract of service is a yearly one. Customary usage with regard to a particular class of employment will always, apart from special agreement, determine the tenure of the service. Thus, in Vihert v. Eastern Telegraph Co., a stationery clerk employed in a telegraph office at a salary of £135 a year, which was at first paid monthly, but afterwards fort nightly, was held to be entitled to only a month's notice. The death of ,either master or servant puts an end to the contract, and neither party has a right of action in consequence thereof against the representatives of the deceased. So also does a dissolution of partnership caused by death, unless the contract expressly provides to the contrary, and no action can be main tained against the surviving partners. A master may discharge his servant without any notice for misconduct, e.g. for being improperly absent from employment when wanted, wilfully refusing to obey reasonable and lawful orders, robbing him, incompetence, permanent disability through illness, drunkenness, or gross moral misconduct ; or, in the case of a mercantile clerk, for asserting that he is a partner in his master's business. Where a servant under•a hiring at the rate of so much per annum, month, or other period, is summarily dismissed during such a period for misconduct, he cannot recover any of the salary wages of that period, not even for the time during which he has served. The principle of this rule is that the wages only become due at the end of the period in respect of continuous and proper service during the period considered as a whole. It is not necessary that a master, who has a good cause of dismissal, should either state it to the servant when sum marily dismissing him, or even be dismissing him because of that cause ; it is sufficient if the cause exist, and the servant is not entitled to object that it is not the cause for which he was dismissed. A servant Ni ho is wrongfully dismissed can maintain an action against his master for damages therefor, and the damages will be the amount of wages which he would have earned had the employment continued until the end of the period at which he could have been lawfully dismissed by notice. But the servant is not entitled to exist in idleness during this period in order to obtain full damages ; he must make an effort to obtain another employment, and if this is obtained its profits will go to the reduction of the damages recoverable in the action for wrongful dismissal. A dissolution of partnership by retirement operates as a wrongful dismissal (Bruce v. Calder), but only nominal damages could be obtained if the continuing partners were willing to adopt the contract of service. Sometimes it is doubtful what rate of wages the servant is entitled to. Thus in Bryant v. flight, where A. agreed to enter into the service of B., and wrote to him a letter as follows: " I hereby agree to enter your service as weekly manager, commencing next Monday ; and the amount of payment I am to receive I leave entirely to you." A. served B. in that capacity for six weeks. It was held that the contract implied that A. was to be paid something at all events for the services performed ; and that the jury might ascertain what B. acting bond fide ought to have paid.
Master's liability for servant's contracts.—A contract made by a servant acting under the express authority of the master, is binding upon the master (Arcliard v. Ilornor). And so it is where the servant acts under an implied authority. In Hazard v. Treadwell the defendant, who was a dealer in iron, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards. He sent the same waterman a second time, with ready money, who received the goods but did not pay for them. It was here held by Chief-Justice Pratt that the sending the waterman on trust the first time, and the defendant paying for the goods, was giving the waterman a credit so as to make the defendant liable upon the second contract. In an action for the price of beer sold, it appeared that the defendant had dealt m ith the plaintiff on credit, and paid him several sums for beer ; at length the defendant gave notice to the plaintifrs servant who delivered the beer that he would pay for the beer as it came in. The defence to the action was that the defendant had paid the servant. But the Court decided that the defendant was liable; for, as the change in the usual mode of deal ing had been suggested by the defendant himself, and as he had personal dealings with the master, in a particular mode, notice to the servant alone of a change in that mode would not be sufficient ; unless the defendant could show that the master himself had notice of it, he could have no defence to the action. In an action on a farrier's bill, it appeared that the defendant, by an agreement with his groom, allowed him five guineas a year for which he was to keep the horses properly shod. This agreement was set up as a defence to the farrier's action. The defence failed, however, for the defendant was unable to prove that the farrier knew of this agreement, and had con sequently expressly trusted the groom and not his employer the defendant. If a servant buys things which are applied to his master's use, the master must take care to see them paid for ; for a tradesman has nothing to do with any private agreement between the master and servant. But where an express authority is not given by the master, and from the nature of the case an authority cannot be implied, the master is not liable. This rule is illus trated by the case of 'Amt. v. Greenwood, where the carriage of the master had been broken by the negligence of his servant, who had it repaired by a coachmaker who had never been employed by his master. The master refusing to pay the amount of the bill sent in by the coachmaker, the latter kept possession of the carriage as a lien, Here the Court held that the coachmaker was not entitled to so retain the carriage, for whatever claim of that sort he might have, he must derive it from legitimate authority ; and that unless the master had been in the habit of employing the tradesman in the way of his trade, it should not be in the power of the servant to bind him to contracts of which the master had not any knowledge, and to which he had not given any assent. It was the duty of the tradesman, when he was employed, to have inquired of the master whether the order was given by his authority ; but having neglected to do so, the master was not liable to the demand, and the detainer of the carriage was unlawful. When the master is in the habit of paying ready money for articles furnished in certain quantities to his family, if the tradesman, as in the case of Pearce v. Rogers, delivers other goods of the same sort to the servant, upon credit, without informing the master of it, and the latter goods do not come to the master's use, the master is not liable.
Master's liability for servant's master is liable for an injury done through the fraud, negligence, or unskilfulness of the servant whilst acting in the course of the employment. In one of the old reports is found the case where the servants of a carman ran over a boy. in the street, and maimed him by negligence, and where the plaintiff recovered damages against the carman. So, where the servant of A. with his cart ran against the cart of II., which contained a pipe of wine, whereby the wine was spilled ; an action was brought against A., the master, and he was held liable for the damage so done. It should be carefully noticed, however, that the injuries done by a servant for which his master is liable are only those done in the scope or course of the servant's employment. And, moreover, it is necessary that those injuries should not have been the personally wilful or malicious acts of the servant : they must have been either negligent, accidental, or reasoned acts. To these propositions it will be profitable to give special attention. In Joel v. Morrison—which is cited with approval in many other cases decided by the courts—Baron Parke says : " The master is only liable where the servant is acting in the course of his employment"; but he immediately adds: "If he was going out of his way, against his master's implied com mands, when driving on his master's business he will make his master liable." According to Mr. Justice Maule, in Mitchell v. Crassweller, " where the servant, instead of doing that which he is employed to do, does some thing which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it." This ruling is very important as indicating the circum stance under which a master will not be liable for his servant's wrongful acts. The case in which it was laid down was one in which the servant drove his master's cart, purely for his own personal purposes and business, out of the route of his legitimate journey, and during the deviation caused an accident : the master was held not to be liable. Similar cases are those of Storey v. Ashton and Rayner v. Mitchell. The cases of Abrahams v. Deakin and Stevens v. Hinshelwood are further illustrations of circumstances under which a.master is not liable for his servant's wrongful act. For, where a servant gives a man into custody, he must do so to protect his master's property in otder to bring the act within the scope of his employment—not after the alleged offence, and when protection is unnecessary. Having noticed these instances of non-liability of the master, a return can now be made to the general proposition as laid down by Baron Parke and which is again illus trated in the judgment in Croft v. Alison. In that case it is stated that "If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes out injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment." The scope of a servant's employment would seem, therefore, to cover acts done by the servant, almost maliciously, but which are prompted by zeal for his master's interests; and acts which are even partial deviations from the course of his employment. Thus, in the well-known case of Limpue v. The London General Omnibus Co., the driver of the defendants' omnibus drove it across the road in front of a rival omnibus belonging to the plaintiff, which was thereby overturned. In an action against the defendants, the driver of their omnibus said that he so drove it in order to prevent the plaintiff's omnibus passing him. And it also appeared from the evidence that the defendants had given instructions to their driver not to obstruct any omnibus. The judge directed the jury that a master was responsible for the reckless and improper conduct of his servant in the course of his service : that if the jury believed that the defendants' driver, being dissatisfied and irritated with the plaintiff's driver, acted recklessly, wantonly, and improperly, but in the course of the service and employment, and doing that which he believed for the interest of the defendants, then they were responsible : that if the act of the defendants' driver, although a reckless driving on his part, was never theless an act done by him in the course of his service, and to do that which be thought best to suit the interest of his employers, and so to interfere with the trade and business of the other omnibus, the defendants were respon sible : that the instructions given to the defendants' driver were immaterial if he did not pursue them ; but if the act of the defendants' servant was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible. In upholding, in the Exchequer Chamber, this direc tion to the jury, Mr. Justice Willes said that "The proper question is whether the servant was acting at the time in the course of his master's service, and for his master's benefit ; if so, his act was the act of his master, although no express command or privity of his master was proved. It seems to me that in so laying down the law he was strictly accurate; and I feel bound to say that it is for the interest of every person (for all are liable to be injured by servants) that he should not be without remedy by the law being loosely administered." And Mr. Justice Blackburn said : " It is not universally true that every act done for the interest of the master is done in the course of the employment. A footman might think it for the interest of his master to drive the coach, but no one could say that it was within the scope of the footman's employment, and that the master would be liable for damage resulting from the wilful act of the footman in taking charge of the horses. But in this case I think the direction given to the jury was a sufficient guide to enable them to say whether the particular act was done in the course of the employment." This case may be said to finally hunt and establish the doctrine that the master is liable for wrongs committed by a servant in the course of his employment. And the extract given from the judgment of Mr. Justice Blackburn indicates the lines of the limitation. Enticing away and injuries done to action for damages can be maintained by a master against any one who entices away his appren tice or servant from his service. And also against any one who continues to employ such a servant after notice, even though the defendant did not pro cure the servant to leave his master, or know, when he employed hinl, that he was the servant of another. In a contract of service for a specified term it is not always sufficient for the servant to simply covenant to give his whole time to the master during that term. The servant should expressly covenant as to whom he will not serve and what service he will not enter during the spare time accruing to him in his service. Should he then serve a rival master during his spare time, the master will be able to obtain an injunction (Davie v. Foreman ; Grimston v. Cunningham). A niaster has also the right to maintain an action for certain injuries done to his servant. Such injuries are those which deprive the master of the services of the servant, as for example false imprisonment or an assault, or, in the case of a female servant, seduction resulting in the birth of a child.
After termination of the service the servant is bound to respect those matters relating to his late master's business, a knowledge of which he acquired confidentially in the course of his employment, for if he should make use of that knowledge against the interests of the master the latter can obtain an injunction and also damages (Louis v. Smellie). Nor can he use the trade secrets of his late master which are known to him because of his former confidential position (Merryweather v. Moore); nor lists of his late master's customers which he has improperly obtained (Robb v. Green). See also the articles on APPRENTICE ; EMPLOYER AND WORK MEN; EMPLOYERS' LIABILITY; WORKMEN'S COMPENSATION; COMMON EMPLOYMENT; TRADE DISPUTES; TRADE BOAItDS; TRUCK ACTS; MENIAL SERVANTS; COMMERCIAL TRAVEL LERS ; FACTORIES ; HOURS OF WORK ; EMBEZZLEMENT ; CHARACTER ; EXCISE.