CHAPTER II. OF THE CONTRACT OF HIRING, AND ITS When there is such a Contract, and when not.-How Servants may be Hired. The effect of the Statute of Frauds.-Term of Hiring: weekly, monthly, or yearly.-Notice. The operation of custom upon Contracts of Hiring or Service. -Construction of Contracts in writing. Servant or Partner.-Servant or Tenant.-Servant or Apprentice,-Agreement by a Servant not to carry on his Master's business. BEFORE we discuss the mode of entering into a contract of hiring and service, its construction or effect, it is desirable to dispose of the case in which, although there has been service, there has in the eye of the law been no hiring, and therefore no contract—no right to remuneration. As a general rule, when one person enters the service of another, or does work for him at his request, or with his assent, then, in the absence of any positive stipulation to the contrary, or of any circumstances tending to show that it was meant the work should be done gratuitously, it will be presumed that the workman or servant is to be paid a reasonable sum for his work or service. But a contract to pay wages or other remuneration will not be presumed where good offices are rendered to each other by near relations, or where work is done by poor persons who have been taken to live with their richer relations, or by paupers who have been received into a house or relieved by way of charity. In such cases, any work they may do, or services they may render, will be considered as a mere return for the kindness bestowed upon them. If services are rendered in expectation of a legacy, and not upon an understanding that they are to be paid for, there is no obligation to pay. The services of barristers and physicians are, by the custom of their professions, honorary, and their fees are gratuitous; they, therefore, cannot maintain actions for them. A servant may, usually, be hired either by word of mouth, or by writing not under seal, or by a deed. But by the Statute of Frauds* certain contracts of hiring or service, or rather contracts for a certain time, must be in writing. At any rate, they cannot be enforced unless they are. The 4th section of that act provides that "no action shall be brought upon any agreement that is not to be performed † within one year from the making thereof, unless the agreement upon which such action be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person by him therewith lawfully authorized." * 29 Car. 2, c. 3. The word "performed" means a complete and not a mere partial performance. The effect of this provision is, that no contract to employ on the one hand, or to serve on the other, for a longer period than a twelvemonth from the date on which the contract is made will be valid unless it is reduced into writing. For instance, if A and B were on the 31st December to agree verbally that A would employ B, and that B would serve A for a year from the following day, this agreement would be invalid. No action would lie against A for refusing to employ B, nor against B for refusing to enter the service of A. If, indeed, A did enter the service of B, he would be entitled to wages in respect to services actually performed, but these wages would not in a strictly legal sense be determined by the void agreement. In law, the workman or servant would only be entitled to recover what his services were worth, irrespective of such void agreement; but no doubt the court would, in nearly all cases, assess their value at the sum therein stated. The agreement would, however, be both legally and practically invalid as to any terms which it might contain as to notice, or to the conditions of the service, and these points would be regulated by any custom which might exist in reference to that particular kind of employment. The clause of the Statute of Frauds which we have cited above not only applies to agreements in which an engagement of a year or more, to commence at a future day, is distinctly stipulated for, but also to agreements for any hiring which is in law regarded as a yearly one. What engagements come within this *• category will be the subject of consideration hereafter; but, for the present, it may suffice to say, that in the absence of circumstances leading to a contrary conclusion, the engagement of a domestic servant, a clerk, the editor of a newspaper, a tutor or governess, &c., is considered a yearly one, while the engagement of a labourer or workman is not. And it must be borne in mind that the fact that an engagement may be put an end to within the year by notice on either side (as in the case of a domestic servant) will not take it out of the operation of the statute. It is sufficient to bring an engagement within the terms of its provisions if, in the absence of notice, it will last for a year from the date of its commencement. On the other hand, the fact that it may last longer than a year by mutual consent, as in the case of a servant hiring for one year from the time of making the contract, and so on from year to year, so long as the parties shall respectively please, has been held not to bring an engagement within the statute. So also a contract to serve for an indefinite period, subject to be put an end to at any time upon a reasonable notice, is not within the statute, though it may extend beyond the year. The practical result of the law on this point is that, if either a master or a servant wishes (1) to make sure that the other party will fulfil a contract for a yearly engagement, to commence on a future day, or (2) in case of non-fulfilment to obtain a right to bring an action for damages for breach of contract, he must * See post, p. 24. insist on having a written memorandum of the agreement. It is not necessary that this should be drawn up in any technical form, or in what may be called legal language. It is sufficient if it clearly expresses the intention of the parties; and the requirements of the law will even be complied with by a letter from one party offering terms, and by a reply from the other accepting them. Two things, however, are necessary. (a) In the first place, the consideration must appear either expressly or by necessary implication. (b) In the second, the obligation to serve and to employ must be recognized by, and equally binding on both parties. In order, that is to say, to constitute a valid contract of hiring and service, there must be either an express or an implied mutual engagement binding one party to employ and remunerate, and the other to serve, for some determinate period, or until either should give the other a certain notice. If the employer merely agrees to pay so long as the servant continues to serve, leaving it optional_ either with the servant to serve, or with the employer to employ, there is no contract of hiring and service; but if the servant binds himself to serve for some determinate term, and the employer expressly or impliedly covenants or promises to retain. the servant in his service for the term, there is a contract of hiring and service. It is not, however, necessary that there should be an express statement that the one party engages to employ, and the other to serve, for a certain period; but it will be sufficient if such an agreement can be collected from the terms of the |