CHAPTER X.

DURATION OF THE CONTRACT AND NOTICE.

IT is the duty of a master to retain his servant in his service for the time agreed upon.

In the absence of circumstances showing an intention or custom to the contrary, hiring will be presumed to be for a year (a), or, as the proposition is often expressed, general hiring or hiring, when no term is fixed, is presumed to be a yearly hiring, and cannot be terminated before the end of the year. This presumption, it has been said, was established in order to give master and servant the benefit of all the seasons (6). A more probable explanation of it is that it arose in consequence of the statutory enactment (5 Eliz. c. 4, sections 3 and 7, and other earlier statutes), long in force, that hirings should be by the year. The presumption is limited, according to some judges, to servants in husbandry (c); but the weight of authority shows that it is applicable to all kinds of servants (d). It exists whether a contract be in writing or not (e), and even if it be conditional (f).

This presumption is not irrebuttable (g), and it may be displaced by stipulations in the contract as to times of payment, or by other circumstances. Modern usage in most trades is opposed

of

(a) Coke, Litt. 42 b: "If a man retain a servant generally without expressing any time, the law shall construe it to be for one year, for that retainer is according to law." Fawcett v. Cash (1834), 5 B. & Ad. 904 (hiring a warehouseman, wages payable monthly); Beeston v. Collyer (1827), 4 Bing. 309 (hiring of a clerk at monthly wages); Turner v. Robinson (1833), 5 B. & Ad. 7893; Huttman v. Boulnois (1826), 2 C. & P. 510; Creen v. Wright (1876), 1 C. P. D. 591. In America a general hiring is regarded as primâ facie a hiring at will: Wood, 272.

(b) Story on Contracts, s. 1290.

(c) Huttman v. Boulnois, see note (a). In many districts the hiring in agri

culture is in fact still for the year. See on this subject Report of Royal Commission on Labour, 1893-94, vol. xxxv. pp. 77, 78, 105, 109, 135, 136.

(d) Lilley v. Elwin (1848), 11 Q. B. 742; Turner v. Robinson, see note (a); Holcroft v. Barber (1843), 1 C. & Κ. 4; Baxter v. Nurse (1844), 1 C. & Κ. 10.

(e) Elderton v. Emmens (1847-1853), 4 С. В. 479; 6 C. B. 160; 13 С. В. 495; 4 H. of L. 624.

(f) R. v. Sandhurst (1827), 7 B. & C. 557; R. v. Byker (1823), 2 B. & C. 114.

(g) See Tindal, C. J., in Baxter v. Nurse, see note (d), (hiring of editor of a new periodical), and Pollock, C. B., in Fairman v. Oakford (1860), 5 H. & Ν.

to it. Workmen contract for an indefinite time, for piece work, or subject to a week's, day's, or hour's (h) notice. The tendency of the decisions is against this presumption. Further, many of the contracts of work and labour are not contracts of Master and Servant; they are for the completion of a specific piece of work. They end with the work. The presumption does not, of course, exist when there really is no hiring or agreement to retain. Thus, in Bayley v. Rimmell (i), the plaintiff served the defendant as assistant surgeon for nearly half a year without a specific contract of hiring; and had been paid various sums at no fixed periods. He fell ill and did not return to his employment. In an action by the plaintiff for remuneration, on behalf of the defendant it was contended that he could not recover anything, as the hiring was for a year. But the Court decided that the plaintiff might recover on a quantum meruit for the services which he had actually performed.

In practice the presumption is of little use. No precise rules on the subject can be laid down; each case must be considered by itself. The following considerations, however, may be useful as guides: (1.) The circumstance that payment of wages takes place weekly or monthly is strongly in favour of the view that a hiring is for a week or a month; if this circumstance stand by itself, it will be conclusive as to the duration of the contract (k).

(2.) This fact may be modified by others, as was pointed out in Davis v. Marshall (1). Yearly servants often stipulate for the payment of their wages at short intervals; and an arrangement to pay weekly or monthly may be merely for the convenience of a yearly servant (m).

(3.) The nature of the employment must also be taken into account. It makes a material difference in this point of view, whether the servant be a labourer or a secretary, an editor or a sub-editor or an accountant. It is improbable that persons of education holding highly paid offices would consent to very short terms of engagement.

(4.) Custom often governs the matter. Thus, in an action for wrongful dismissal of the editor of a periodical, evidence was

(h) As at the London Docks. See evidence before Select Committee on Master and Servant, 1866, as to substitution of "minute or day contracts" for a contract of twelve months, 1866, 449, p. 25.

(1) (1836), 1 M. & W. 506.

(k) R. v. St. Andrew's (1828), 8 Β. & C. 679; R. v. Newton (1788), 2 T. R. 453, per Buller, J. So in R. v. Dodderhill (1814), 3 M. & S. 243.

(l) (1861), 4 L. T. (N. S.) 216.

(m) Levy v. Electrical Working Co. (1893), 9 Times L. R. 495.

given that it was the usage that editors, sub-editors, and reporters, and all who are regularly employed upon a newspaper, in supplying a particular department, are engaged for a year, unless there is an express agreement to the contrary (n).

(5.) Service for more than a year without an express contract of hiring, or under a contract, but for no definite period, will be evidence of a yearly hiring, even if the contract be conditional (0).

In an Irish case where the agreement was, "I agree to serve Major B. as steward from May 31st, 1858, for 807. per annum, &c., three months' notice required on each side," it was held that the hiring was a yearly one, subject to be determined by either party by giving three months' notice before the end of the year (p). In Down v. Pinto (q), the defendants, who had established smelting works in Spain, offered to employ the plaintiff as foreman, on the following terms: "I should require you to enter into an engagement to remain with me for at least three years, at my option. Salary, 2501. per annum." The Court thought that there was a yearly hiring, and that "at my option" did not enable the plaintiff to terminate the agreement at any time. "These words mean that the defendants are to have the option of saying whether the service shall continue for one, two, or three years."

In Brown v. Symons (r), there was an agreement to employ the defendant as a commercial traveller at a yearly salary, which was payable quarterly; the agreement to "be binding between the parties for twelve months certain from the date hereof, and continue from time to time until three months' notice in writing be given by either party to determine the same." Transposing the words the Court read the agreement as if it ran thus: “This agreement to continue from time to time until three months' notice, &c., but to be binding between the said parties for twelve months certain." It was an agreement for twelve months certain and no more. In Parker v. Ibbetson (s), there was an agreement in writing to serve as agent or representative of a manufacturer of woollen and mohair cloths, at a salary of 1501. a year, and a proviso that if at the end of the year the plaintiff had done

(n) Baxter v. Nurse, see note (d); Holcroft v. Barber (1843), 1 C. & Κ. 4.

(0) R. v. Lyth (1773), 5 T. R. 327; R. v. Pendleton (1812), 15 East, 449; R. v. Worfield (1794), 5 T. R. 506; R. v. Byker (1823), 2 B. & C. 114. See Appendix at end of chapter.

(p) Forgan v. Burke (1861), 12 Ir. C.

L. 495.

(q) (1854), 9 Ex. 327.

(r) (1860), 8 C. B. N. S. 208.

(8) (1858), 4 C. B. N. S. 346. On the other hand, see Peter v. Staveley (1866), 15 L. T. (N. S.) 275.

sufficient business the defendant would make up his salary to 1801. It was held that the contract was one of yearly hiring.

B., who was engaged as engineer to a canal company at a salary of 500l., was discharged three months before the end of the year. No evidence having been offered of any custom as to determining the contract before the end of the year, B. was held entitled to recover salary to the end of the year (t).

"Notice" signifies that period of time which must elapse between the announced intention to terminate and the actual termination of the contract. The disregard of such "notice" by the master makes him liable to an action in which the servant can recover as maximum damages, the wages for such period calculated at the contract rate. Sometimes the contract itself, or the regulations of the factory (u), mine, or workshop in which the workman is employed, provides for the length of notice necessary. In such cases no difficulty arises. If the contract is silent on the point, evidence of custom in the trade or profession will be admitted, and, if the custom be proved, the Courts will hold the contract to have been made with reference to it (x).

By a long and well established custom, it is settled that in the absence of any agreement to the contrary, the hiring of domestic and menial servants is for a year and subject to determination on a month's-i.e. a calendar month's-notice by either master or servant or on payment of a month's wages (y) by the employer. "In the case of domestic servants," said Littledale, J., in Fawcett v. Cash (z), "the rule is well established that the contract may be determined by a month's notice or a month's wages." The month's wages are to be regarded as the maximum damages.

In Moult v. Halliday (a) the Court refused to take judicial notice of an alleged custom, by which the master or servant might determine a contract of domestic service at the end of the first calendar month by notice given at or before the expiration of the first fortnight of the engagement; though the Court thought that such a custom, if proved, was not unreasonable.

Who are "domestic" or "menial" servants has been the subject of a considerable number of actions which are referred to below (b).

(t) Buckingham v. Surrey and Hants Canal Co. (1882), 46 L. T. (N. S.) 885. (u) Warburton v. Heyworth (1880), 6 Q. B. D. 1.

(x) Parker v. Ibbetson (1858), 4 С. В. (N. S.) 346.

(y) Excluding "board wages." Per

Hill, J., in Gordon v. Potter (1859), 1 F. & F. 644.

(z) See note (a), p. 135; so Parke, B., in Turner v. Mason (1845), 14 M. & W.

112.

(a) [1898] 1 Q. B. 125.

(6) MENIAL-Nowlan v. Ablett (1835),

The question is one of extreme difficulty, especially when the situation of the servant is of a novel kind. The cases cited below show that living in the master's house is not a decisive test. If the nature of the service bring a person into close and frequent contact with his master, where, to quote Erle, C. J., in Nicoll v. Greaves (c), "the service is of such a domestic nature as to require the servant to be frequently about his master's person, or as in the case of the gardener about his grounds," the servant is generally considered a domestic or menial servant. Having regard, however, to the common use of the word "menial," and also to the judgment of the Court in Todd v. Kerrich (d), only servants holding an inferior situation in a household would be regarded as menial servants.

No clear rule as to length of notice to be given to servants other than menial or domestic servants exists. The custom above stated does not apply to trade servants (e) or servants in husbandry (f), clerks (g), newspaper reporters (h), or governesses (i).

When both custom and the contract itself are silent as to length

2 C. M. & R. 54. (A head gardener with several under gardeners subject to his directions, and not living in the master's dwelling-house but on his grounds.) Johnson v. Blenkensop (1841), 5 Jur. 870. (A servant hired to keep the gardens and pleasure-grounds in order, to assist in the stables, and to make himself generally useful.) Nicoll v. Greaves (1864), 17 C. B. N. S. 27. (A huntsman a menial servant, though hired for a year.) NOT MENIAL - De Serisay v. O'Brien (1736), Barnes, 375. (Ambassador's courier paid for each journey.) Todd v. Kerrich (1853), 8 Ex. 151. (A governess engaged at yearly salary.) As to etymology of "menial," see Nowlan v. Ablett, and Littré's Dictionary, under head of Ménie. In the rules of Robert Groseteste, "mesnee," "meignee," "meyne," means household, household servants : Glossarial Index, p. 163. The question is discussed in Pearce v. Lansdowne (1893), 69 L. T. (N.S.) 317, where Collins, J., adopts the definition of "menial servants" given in Roberts and Wallace's Employers Liability, at p. 214, viz., "those persons whose main duty is to do actual bodily work as servants for the personal comfort, convenience or luxury of the master, his family and his guests, and who for this purpose become part of the master's residential or quasi-residential establishment"; adding:-" with regard to the

derivation of the word menial, whether or not it be Greek or Latin, &c., I prefer the view adopted by Johnson, and which has the authority of Lawson, J., in Lawler v. Linden (Ir. Rep. 10 C. L. 188), viz., that it is from the Saxon word meiny or mesnie, which signifies a household or family." See Toms v. Hammond (1734), Barnes, 370, where it is said: "A menial servant mav be employed out of the house on household affairs, a domestic in or about the house only." And see some of the cases on legacies to servants at p. 8, supra.

(c) See note (b).

(d) See note (b).

(e) The head-note in Grundon v. Master (1885), 1 Times L. R. 205, is wrong. No custom of three months' notice to travellers engaged by the year is there proved; and the jury stopped

the case.