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Parol evidence not admissible to vary written contract.

a written

within the exemption. In many cases he is more of a contractor than a servant.

2. INTERPRETATION OF THE CONTRACT.

ADMISSIBILITY OF PAROL EVIDENCE.

Where the agreement is such that it is required by the Statute of Frauds to be in writing, parol evidence is not admissible to show verbal alterations of it, for that would be a direct violation of the statute (ƒ). And the law is the same where the agreement is reduced to writing, whether it be such an Every part of agreement as calls for a memorandum or not (g). Moreover, "it seems to be unnecessary to inquire what are the essential parts of the contract and what not, and that every part of the contract, in regard to which the parties are stipulating, must be taken to be material" (h). Thus, where (i) a written agreement of hiring and service contained stipulations for yearly payments, evidence that a verbal agreement for quarterly payments had been made, was rejected, and the fact of quarterly payments having been made, was held not to vary the rights of the parties.

contract essential.

Giraud v.
Richmond.

Parol evidence admissible to' annex incidents.

But although, where parties agree that a particular instrument shall contain the terms of the contract, parol evidence cannot be given to add to or diminish those terms, yet it may be given to annex incidents, as it is termed (k).

Therefore, in all contracts of hiring and service, which do not, either expressly or by necessary implication from the terms used, exclude the custom of the particular trade, business or occupation, with reference to which the contract is made, parol evidence is admissible to show that by the custom of the trade, As to custom &c., the contract is liable to be put an end to by notice. The with regard custom with reference to notice of course varies in different to notice. trades and occupations. But where a person hires a domestic servant, and nothing is said about notice, that, according to the custom of England, is a hiring for a year, with liberty to either party to put an end to the contract, by giving a month's notice. Johnson v. The above rule is illustrated by the following cases:-"Thus, Blenkensopp. where (1) the plaintiff entered into the defendant's service,

(f) Goss v. Lord Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bing. N. C. 928; Stead v. Dawber, 10 A. & E. 57.

(g) Countess of Rutland's case, 5 Rep. 25; and see Lockett v. Nicklin, 2 Exc. 93, 97. But this would not apply to a memorandum made by a third party of the terms of the hiring, so as to exclude parol evidence of those terms, R. v. Wrangle, 2 A. & E.

514.

(h) Per Parke, B., in Marshall v. Lynn, 6 M. & W. 117.

(i) Giraud v. Richmond, 2 C. B.

835.

(k) Hutton v. Warren, 1 M. & W. 475; see the cases collected in 1 Smith's L. C. 305, et seq.; and Spartali v. Benecke, 10 C. B. 212; Lockett v. Nicklin, 2 Exc. 93; Syers v. Jonas, 2 Exc. 111; Metzner v. Bolton, 9 Exc. 518; Brown v. Byrne, 3 E. & B. 703; Hall v. Janson, 4 E. & B. 500; Cuthbert v. Cumming, 10 Exc. 809; 11 Exc. 405; Humfrey v. Dale, 7 E. & B. 266; Lucas v. Bristow, 27 L. J., Q. B. 364.

(1) Johnson v. Blenkensopp, Tr. T. 1841, 5 Jur. 870.

under a written agreement, that he was to have 68. a week, three bolls of wheat, to set potatoes for his family's use, to have a cow kept, house and firing and to keep himself a pig, no poultry to be kept, his wife to keep the museum clean, he was to keep the gardens and pleasure-grounds in clean and good order, to assist in the stables, and, when required, at hay and corn harvest, and to make himself generally useful; to enter 12th May, 1838;" evidence was admitted to show that the plaintiff was, by custom, only entitled to a month's warning.

And in a settlement case (m), where a pauper signed the fol- R. v. Stokelowing agreement :-" Plate and dish workers. This day upon-Trent. agreed with B. to serve Messrs. B. from the 11th day of November next until 11th November, 1817, at prices good out of oven as per opposite side. We agree to lose no time on our own account, to do our work well, and behave ourselves in every respect as good servants. Witness our hands, 10th day of January, 1815," evidence was held admissible to show that an universal custom prevailed amongst china manufacturers to allow holidays at certain fixed times of the year to the platers and dishers, and that at those times the latter could, notwithstanding the above agreement, absent themselves from their work without their master's permission.

Barber.

Again, in (n) an action for wrongfully dismissing the editor Holcroft v. of a newspaper, who had been engaged by letter, evidence was admitted to prove a custom that editors, sub-editors and reporters of newspapers were always engaged for a year, unless it were otherwise expressed at the time of making an engagement.

Ibbetson.

And where the parties signed a "memorandum of agreement Parker v. between H. Ibbetson and Co., of Leeds, of the first part, and R. A. Parker, of London, of the second part. The aforesaid R. A. Parker engages to serve the said H. Ibbetson and Co., as agent or representative, at the salary of 150l. per annum in consideration thereof. Also, provided, at the end of the year, the said H. Ibbetson and Co. find the said R. A. Parker has done sufficient business to justify them in recompensing, by making up his salary to 1807., to do so, being a donation of 30%. to his present stipulated amount of 150l.:" it was held that the

(m) R. v. Stoke-upon-Trent, 5 Q. B. 303. Observe, however, that in that case the dispute was between two parishes who were no parties to the agreement, and the question was whether the pauper had gained a settlement by hiring and service. In such cases parol evidence is always admissible to ascertain independent facts collateral to the written agreement. See R. v. Laindon, 8 T. R. 379; R. v. Northwingfield, 1 B. & Ad. 912; R. v. Billinghay, 5 A. & E. 676; and

cas. cit. ibid.; see also 2 Phill.
Ev. 355.

(n) Holcroft v. Barber, 1 C. &
K. 4; and see Baxter v. Nurse,
1 C. & K. 13, where Tindal,
C. J., in summing up to the jury,
said, "There is no doubt that
where there is a general under-
standing and a course of dealing,
and agreements are made with-
out any specific stipulations to
vary them from such general
course of dealing, they are in-
cluded in it."

Parol evidence ad

missible to

terms of the agreement did not exclude a general custom in the trade (defendants were woollen merchants), that either party might determine the service upon giving to the other a month's notice. And, also, that the question, whether or not the custom was excluded, was one for the court and not for the jury, though it was for the jury to find the existence or nonexistence of the custom alleged. It was also held, that the 301. to be given at the end of the year was a mere gratuity, for which no action would lie, and did not operate in any way to exclude the custom (o).

Upon similar principles, parol evidence is also held to be admissible to explain the meaning of terms used, where an explain am- ambiguity is raised by evidence as to the meaning of those terms (p).

biguous

terms.

Grant v.
Maddox.

How far ar

for remune

rating servant by

Thus, where (9), by a written contract, the plaintiff agreed to perform at the defendant's theatre, and the defendant engaged her for three years, and engaged to pay her a salary of 5l., 61. and 77. per week in those years, parol evidence was admitted to show that, according to the understanding and custom of the theatrical profession, under an engagement to perform for one or more years, actors were only paid during the theatrical season.

THE RELATIONSHIP CREATED BY THE CON-
TRACT.-PARTNER OR SERVANT.

Arrangements are frequently made between masters in trade rangements and brokers, clerks, travellers and other agents and servants employed by them, under which such persons, in lieu of receiving a fixed salary, are remunerated by a portion of the sums received by them on account of their master, or by a per centage on their earnings, or by a sum calculated with reference to the gross or net profits (r) of their master or principal, or some part of such profits, or in some similar method (s). These

portion of, or per centage

on, profits,

&c., make

him a part

ner.

(0) Parker v. Ibbetson, 27 L. J., C. P. 236; S. C. 4 Jur., N. S. 536.

(p) Sotilichos v. Kemp, 3 Exc.
105; Smith v. Thompson, 8 C. B.
44, 59.

(g) Grant v. Maddox, 15 M. &
W.737; and see Smith v. Thomp-
son, 8 C. B. 44, where it was held
to have been properly left to a
jury to say whether the plaintiff,
a clerk, had been guilty of a
misappropriation of money in-
trusted to him by the defendant,
his master, 66
'for business pur-
poses," in having applied part of
it to the payment of his own
salary.

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(s) When a plaintiff, by his particulars of demand, claimed the sum of 4501. for his services as clerk or manager to the defendant, from August, 1837, to October, 1839, inclusive, after the rate of 2001. per annum, but proved an agreement by the defendant that the plaintiff, who was manager of a bank, should have a certain per centage, by way of commission, on all business he should introduce: it was held, that the particulars were not sufficient to let in such a demand, and the defendant was strictly entitled to a nonsuit, but plaintiff had leave to amend on payment of costs. See Harris v. Montgomery, 11 C. B. 393; S. C. 2 L. M. & P. 425.

various modes of payment, which are generally adopted with a view to secure or increase exertion, often give rise to a question of considerable importance, viz., how far the persons whose services are to be so remunerated are to be regarded as partners, and not mere servants or agents in the business.

The first cases in which the question arose were cases in which objection was made to the admissibility of factors and brokers, whose remuneration was to be calculated in that way, as witnesses, on the ground of interest (t). Such persons, however, were held not to be disqualified on that ground, as they would have been had they been considered partners.

The exact point decided in these cases is not, indeed, likely to arise again, all objection to the admissibility of a witness, on the score of interest, having been removed by the legislature (u). But the question, whether an agreement of the description before referred to renders the person, whose services are to be remunerated in the manner above pointed out, a partner or a servant, still often arise. Those cases are, therefore, important, and are frequently referred to at the present day as authorities upon that subject.

themselves.

Where, indeed, the question arises between the parties them- As between selves, the mere fact, that the servant was to be remunerated the parties by a portion of the profits, will not alone constitute him a Servant not partner (r), if it appear from the whole scope of the agreement partner. entered into, that the intention of the parties was to create the relationship of master and servant, and not that of partners.

Thus (y), where A., having neither money nor credit, offered Hesketh v. the plaintiff that, if he would order with him certain goods to be Blanchard. shipped as an adventure, if any profit should arise from them the plaintiff should have one-half for his trouble: the plaintiff ordered the goods on their joint account, and paid for them, and A. having died without coming to a settlement, the plaintiff was held entitled to recover the amount from A.'s executors, and Lord Ellenborough said, "The distinction taken in Waugh v. Carver (z) applies to this case. Quoad third persons it was a

(t) Dixon v. Cooper, 3 Wils. 40; Benjamin v. Porteous, 2 H. Bl. 590.

(u) See stat. 3 & 4 Will. 4, e. 42, s. 26; 6 & 7 Vict. c. 85.

(x) In Peacock v. Peacock, 2 Campb. 45, Lord Ellenborough observed, "A man who renders himself liable to third persons as a partner may, in truth, be the mere agent or servant of his supposed co-partner, and entitled only to fixed wages.

(y) Hesketh v. Blanchard, 4 East, 144.

(z) 2 H. Bl. 335; S. C. 1 Smith's L. C. 491. In that case A. and B., ship-agents at dif ferent ports, entered into an

agreement to share in certain proportions the profits of their respective commissions, and the discount on tradesmen's bills employed by them in repairing the ships consigned to them, &c. And it was held that they were liable, as partners, to all persons with whom either contracted as such agents, though the agreement provided that neither should be answerable for the acts or losses of the other, but each for his own, Eyre, C. J., observing, that it was plain, upon the construction of the agreement between the parties themselves, that they were not, nor ever meant to be, partners; yet that

Frasier.

partnership; for the plaintiff was to share half the profits. But as between themselves it was only an agreement for so much, as a compensation for the plaintiff's trouble, and for lending A. his credit."

Wilkinson v. And an agreement to divide the produce of a whaling voyage between the captain, officers and seamen, in certain proportions, has been held not to constitute them partners, so as to preclude one of the seamen from recovering his wages in an action against the captain (a).

Geddes v.
Wallace.

Partners.

Knowles v.
Haughton.

Green v.
Beesley.

Greenham v.
Gray.

And so (b) the manager of a glass-work company enjoying an annual stipend, and also, by way of further remuneration, a share of the profits, calculated according to a proportion of capital and stock not advanced by him, but assigned by way of nominal interest, was held not to be a partner as between himself and the members of the company.

But where (c) A., a merchant and insurance broker, agreed to pay B. a certain salary for superintending his mercantile concerns, and also agreed "to allow Mr. B. one half of the profit arising from my account of insurances, from the commencement of the said account until the present period, or those that may hereafter be done," the parties, having acted on this agreement, were held to be partners in the insurance business.

And where (d) the plaintiff agreed with the defendant to convey by horse and cart the mail between Northampton and Brackley at 97. a mile per annum, and to pay his proportion of the expense of the cart, &c.; money received for the carriage of parcels to be divided between them, and the damage occasioned by loss of parcels, &c., to be borne in equal proportions, it was held that this agreement constituted a partnership, and not a mere measure of wages, and consequently that the plaintiff could not sue the defendant for the 97. a mile.

And in the following case also the parties were held to be partners (e) :

"Memorandum of an agreement entered into between Messrs. R. Gray and L. Greenham, for carrying on the trade of cotton spinning and manufacturing at Mr. Gray's mills at Greenhill, Drogheda : Mr. Greenham to have the full control and management of the mill, and working of it to the extent he may think it advisable as it now stands, for the term of five years from 13th March, 1854, and to give his whole time and attention thereto, and not to enter into any other trade without the consent of Mr. Gray. Mr. Greenham is to direct and superintend all departments, from the purchases to the sales of all matters used and produced, or that it may be advisable to dispose of in or out of the mill or mill concern; and also the employment

they had made themselves such
with regard to their transactions
with the rest of the world.

(a) Wilkinson v. Frasier, 4 Esp.
182; and see Mair v. Glennie,
4 M. & S. 240; Stocker v. Brock-
elbank, 20 L. J., Ch. 401.

(b) Geddes v. Wallace, 2 Bligh,

(c) Knowles v. Haughton, Lib. Reg. 1804, A. 1008; cited in Collyer on Partn. 17.

(d) Green v. Beesley, 2 Bing. N. C. 108; and see Bond v. Pittard, 3 M. & W. 357.

(e) Greenham v. Gray, 4 Ir. C. L. Rep. 501.

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