settlement cases, and the doctrine was first suggested by Lord Ellenborough in the case of Gandell v. Pontigny (o), an action for wages for the whole quarter by a servant wrongfully discharged before the end of the quarter. Lord Ellenborough suggested that the plaintiff might be entitled to recover on the ground that as he was "willing to serve for residue in contemplation of law, he may be considered to have served the whole." But there is little doubt that since the decisions in Smith v. Hayward (p) and Goodman v. Pocock (q), Gandell v. Pontigny (o) cannot be upheld (r). No doubt a servant who has been improperly dismissed is not bound to sue at once; he may sue at the end of the term; but the sum which he will recover will be calculated not on the basis of fictitious service, but the actual damages which he has sustained. Now that it is sufficient for a plaintiff to state in his statement of claim the facts upon which he relies, these decisions are unimportant (s). A servant who has been improperly dismissed need not wait until the expiration of the term for which he engaged to serve before bringing his action. So also if his master has refused without proper reason to receive him into his service, he may at once institute an action. This was decided in Hochster v. De La Tour (t), the facts of which were as follows: A courier was engaged in April of 1852 to go on a tour of three months, which were to commence on the 1st of June, 1852. On the 11th of May of that year the defendant wrote to say that he had changed his mind, and that he did not require the courier's services. He refused to make compensation. The courier began an action on the 22nd of May, 1852. The declaration averred that from the time of making the agreement until the time when the defendant refused to perform his promise and exonerated the plaintiff from performance, the plaintiff was ready and willing to perform the agreement. Breach that the defendant before the said 1st of June wrongfully refused to engage the plaintiff or perform his promise, and then wrongfully exonerated the plaintiff from the performance of the agreement, to the damage of the plaintiff. The plaintiff between the commencement of the action and the 1st of June obtained another engagement on equally good terms, but not beginning (0) (1816), 4 Camp. 375. (r) See notes on Cutter v. Powell, l. c., at p. 48. (s) See Barnsley v. Taylor (1867), 32 J. P. 229, as to effect of obtaining damages for improper dismissal. (t) (1853), 2 E. & B. 678. See Danube Rail. Co. v. Xenos (1861), 11 C. B. N. S. 152 (carriage of goods); Frost v. Knight (1872), L. R. 7 Ex. 111 (promise to marry); Johnstone v. Milling (1886), 16 Q. B. D. 460 (covenant by lessor to rebuild). until the 4th of July. On a motion in arrest of judgment, Lord Campbell said :-— The man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrong-doer. An argument against the action before the 1st of June is urged from the difficulty of calculating the damages; but this argument is equally strong against an action before the 1st of September, when the three months would expire. In either case, the jury in assessing the damages would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial (u). A master may recover damages for breach of contract of service by a servant, or for negligence in the performance of his duties (x), though, for obvious reasons, such actions are rare. It is usual to take proceedings under the Employers and Workmen Act, 1875, ss. 3 and 4 (y). (u) In spite of a common opinion to the contrary, it does not appear to be the case that, in the absence of any stipulation on the subject, a servant is entitled to expenses incurred in going to his master's house before being engaged, or returning from it after being dismissed: Burn's Justice (5th ed.), 225; Read v. Dunsmore (1840), 9 C. & P. 588. But it is submitted that a domiciled Englishman's valet, for instance, who has been dismissed for miscon duct, while abroad, is entitled to the expenses of his journey home; his contract was made in contemplation of service in England. See p. 190, infra. (x) See Stumore, Weston & Co. v. Breen (1886), 12 A. C. 698. (y) Clemson v. Hubbard (1876), 1 Ex. D. 179; Bowes v. Press, [1894] 1 Q. B. 202. And see as to penalties for certain breaches of contracts of service, Conspiracy and Protection of Property Act, 1875, ss. 4, 5: printed in Pt. ii., infra. M. M CHAPTER XVI. SPECIFIC PERFORMANCE. A CONTRACT of hiring and service, work and labour, or apprenticeship, will not be specifically enforced. The remedy of a master or servant claiming redress for the breach of such a contract is an action for damages. In contracts of hiring and service the parties bargain for the personal qualities of each other. One servant is not as suitable as another, any more than one piece of land is as good as another; and at first blush it might seem that the reasons which have induced Courts of Equity to decree specific performance of contracts relating to land would equally apply to contracts relating to services. In point of fact, Courts of Equity did at one time act upon this view, and the books contain more than one instance in which masters were ordered to retain in their service persons whom they had improperly dismissed (a). This is, however, no longer done. Courts refuse to interfere in order to prevent a master discharging a servant; if improperly dismissed, the latter must seek his remedy in an action for breach of contract. It is thought inadvisable to force upon a master a servant whom he does not like, and with whom he must be brought into close proximity. "We are asked to compel one person to employ against his will another as his confidential servant for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and most competent persons that ever lived, still if the two do not agree, and good persons do not always agree, enormous mischief may be done" (b). (a) Ball v. Coggs (1710), 1 Bro. Par. C. 140; East India Co. v. Vincent (1740), 2 Atk. 82. See Campbell's edition of Fraser's Master and Servant, 102. (b) Per Knight-Bruce, L. J., in John son v. Shrewsbury and Birmingham Rail. Co., see note (c): and Selborne, C., in Wolverhampton & W. Rail. Co. v. London & N. W. Rail. Co (1873), L. R, 16 Eq. 433, 439, Another reason against interfering, mentioned in the above case, is that there could be no "mutuality." mutuality." A Court could compel a master to retain in his employment a certain servant: it could not compel the latter to perform faithfully his part of the contract, and to work diligently and skilfully (c). The difficulty of securing real performance of such a contract is too great. Hence, if the substance of an agreement be an agreement for personal service, even though it be connected with other matters, the Court will not decree specific performance (d). What Courts have refused to do directly, they may by injunction effect indirectly. If a contract of service contains a positive agreement to do something and a negative agreement not to do another, they will restrain the breach of the negative agreement even though they are unable to enforce the affirmative. This is a comparatively new branch of Jurisprudence. For a time the Courts occasionally refused to interfere by injunction in aid of the negative part of an agreement when they could not enforce the positive part (e). Since the decision of Lord St. Leonards in Lumley v. Wagner (ƒ), in 1852, they have acted differently. (c) Pickering v. Bishop of Ely (1843), 2 Y. & C. C. C. 249. (A bill praying that the plaintiff might be quieted in the office of receiver-general to the defendant, and that the defendant might be restrained from preventing the plaintiff exercising the duties of the office; dismissed.) Stocker v. Brockelbank (1851), 3 Mac. & G. 250. (Plaintiff, manager of the business of the defendants, dismissed by them for negligence; reversing an order by Lord Cranworth, V.-C., Lord Chancellor Truro refused to restrain the defendants from excluding plaintiff from the exercise of his duties as manager.) Johnson v. Shrewsbury & Birmingham Rail. Co. (1853), 3 De G. M. & G. 914. (Agreement that plaintiffs should run and work all the trains of the company, and provide foreman, mechanics, &c.; Lord Justices Knight Bruce and Turner refused to restrain the defendants from discharging plaintiffs.) Webb v. England (1860), 29 Beav. 44. (Apprentice dismissed by master; Master of the Rolls refused to cancel articles of apprenticeship, or to order a return of a portion of the premium.) Chaplin v. London & NorthWestern Rail. Co. (1862), 5 L. T. (N. S.) 601. (Agreement by which the plaintiffs should collect, and deliver goods at certain stations of the defendants; Wood, V.-C., refused to restrain the defendants from terminating the arrangement.) Ogden v. Fossick (1863), 32 L. J. Ch. 73. (The Court refused to enforce an agreement whereby the defendant agreed to grant the plaintiff a lease of a certain wharf, and plaintiff agreed to employ defendant as manager of the wharf.) Peto v. Brighton, Uckfield, &c. Rail. Co. (1863), 32 L. J. Ch. 677. Gillis v. McGhee (1863), 13 Ir. Ch. 48. (Plaintiff engaged to take management of baths; no specific performance.) Mair v. Himalaya Tea Co. (1865), L. R. 1 Eq. 411. (d) Ogden v. Fossick, see note (c); White v. Boby (1877), 37 L. T. (N. S.) 652. See remarks of Jessel, M. R., in Rigby v. Connol (1880), 14 Ch. D. 482, 487. See Bainbridge v. Smith (1889), 41 Ch. D. 462, per Cotton, L. J., at p. 474. (e) Kemble v. Kean (1829), 6 Sim. 333; Kimberley v. Jennings (1836), 6 Sim. 340. (f) 1 D. G. M. & G. 604; Willis v. Childe (1851), 13 Beav. 117 (injunction restraining trustees of a grammar school from removing master); and Daugars v. Rivaz (1860), 29 L. J. Ch. 685 (injunc There the defendant, a singer, agreed to sing during a certain period at the plaintiff's theatre. She also engaged not to sing at any other theatre or any concert without the plaintiff's written authority. Lord St. Leonards held that, though unable to compel the defendant to perform her agreement, he could and ought to restrain her from singing elsewhere than at the plaintiff's theatre. But the Courts are averse to extending the decision in Lumley v. Wagner (g). The presence or absence of a negative covenant is only an illustration of the principle guiding the Courts in these cases, viz., that it is only in respect of a well-defined “specific thing upon which you can put your finger" (h) that an injunction will be granted. In Whitwood Chemical Co. v. Hardman (h) the defendant had agreed to give "the whole of his time" to the plaintiffs as manager. The Court of Appeal refused an injunction, Lindley, L. J., referring to the somewhat "anomalous" character of Lumley v. Wagner (at p. 428), and basing his judgment on the fact that, in the absence of a negative covenant, there was nothing to make that particular case an exception to the rule that contracts of service are not specifically enforced; while Kay, L. J. (at pp. 431, 432), deprecated any addition to the small number of cases where injunctions had been granted in the absence of negative covenants. One of them, indeed, Montague v. Flockton (i), is there disapproved. On the other hand, in National Provincial Bank v. Marshall (k), a clerk in the service of the plaintiffs had entered into a bond, subject to a condition to pay 1,0007. liquidated damages if at any time within two years he accepted employment in another bank he resigned his post and within the two years tion restraining the elders and deacons of a French Protestant church from hindering the plaintiff, the pastor of the church, in the exercise of his duties), are cases in which the power of dismissal was in question. Some of the cases relate to actors who played at one theatre when under an engagement to play at another; e.g., Montague v. Flockton (1873), L. R. 16 Eq. 189; Webster v. Dillon (1857), 3 Jur. (N. S.) 432; Fechter v. Montgomery (1863), 33 Beav. 22; Grimston v. Cuningham, [1894] 1 Q. B. 125. See also De Mattos v. Gibson (1859), 4 D. G. & J. 276, and Brett v. East India & London Shipping Co. (1864), 2 H. & M. 404. (Agreement by which plaintiff was to be sole broker of defendants, and by which his name was to appear in all advertisements of company; the defendants had ceased to employ the plaintiff as broker; Court refused to compel the defendants to issue advertisements with the plaintiff's name as broker when they could not be compelled to employ him as such.) (g) See the remarks of Lindley and Kay, L. JJ., in Whitwood Chemical Co. v. Hardman, [1891] 2 Ch. 416; and of Romer, J., in Ehrman v. Bartholomew, [1898] 1 Ch. 671. (h) Per Lindley, L. J., in Whitwood Chemical Co. v. Hardman, [1891] 2 Ch. 416 at p. 427, referring to Lord Selborne's judgment in Wolverhampton & Walsall Rail. Co. v. London & N. W. Rail. Co. (1873), L. R. 16 Eq. 433, at pp. 440, 441. (i) (1873), L. R. 16 Eq. 189 (an actor's case). (k) (1889), 60 L. T. (N. S.) 341. |