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CHAPTER XX.

DISSOLUTION OF THE CONTRACT OF HIRING AND SERVICE.

(By Death.)

CONTRACTS of hiring and service and apprenticeship are terminated by the death of the master or the servant or apprentice.

The general rule is that executors or administrators are liable upon the contracts of the deceased, though they are not named (a). It is, however, an implied condition in contracts of service, requiring personal skill or taste, that they are terminated by death, though, of course, the servant's executors are entitled to the wages due at the time of the servant's death.

Where personal considerations are the foundation of the contract, as in cases of principal and agent, and master and servant, the death of either of the parties puts an end to the relation; and, in respect of service after death, the contract is dissolved, unless there be a stipulation, express or implied, to the contrary (b).

"All contracts for personal service," said Pollock, C. B., in Hall v. Wright (c)—and the dictum is quoted with approval by Kelly, C. B., in Robinson v. Davison (d)—" which can be performed only during the lifetime of the party contracting, are subject to the implied condition that he shall be alive to perform them." Hence a contract of apprenticeship (e) has been held to be determined by the death of one of the parties.

(a) Parke, B., in Saboni v. Kirkman (1836), 1 M. & W. 423; Willes, J., in Farrow v. Wilson. See next note.

(b) Farrow v. Wilson (1869), L. R. 4 C. P. 744, 746. (Farm bailiff engaged at weekly wages; service to be determinable by six months' notice, or payment of six months' wages. Administratrix not bound to continue the bailiff in her employment, or to pay him six months' wages after the master's death.) Barker v. Parker (1786), 1 T. R. 287. But see Stubbs v. Holywell Rail.

Co. (1867), L. R. 2 Ex. 311. Marriage does not operate as a dissolution of contract. Chitty's General Practice, vol. i. 770; Burn's Justice, 222.

See

(e) (1859), E. B. & E. 746, 793. (d) (1871), L. R. 6 Ex. 269, 274. Blackburn, J., in Taylor v. Caldwell (1863), 3 B. & S. 826, 833.

(e) Pett v. Wingfield (1692), Carth. 231; R. v. Peell (1698), 1 Salk. 66; Baxter v. Burfield (1747), 2 Stra. 1266; R. v. Chirk (1774), Bur. S. S. 782.

No doubt such a contract may be drawn so as to prevent this taking place. In Cooper v. Simmonds (f), a lad was bound to a tradesman and "his executors" carrying on the same business in the same town. Notwithstanding the death of the master the apprentice was bound to serve his widow, the executrix, while she continued the same business. But the executors of the master remain liable to the extent of their assets upon the covenant to maintain (g).

The chief difficulty is with respect to the servants of partners. The death of a partner dissolves a partnership in the absence of an agreement to the contrary (h); and if the rule be, as is sometimes alleged, that the dissolution of partnership terminates all contracts of hiring and service (i), the death of one partner would bring this about. This view is supported by Tasker v. Shepherd (k). The plaintiff was employed as agent by a firm composed of two partners. The Court held that the death of one of them terminated the relation of agency. But this view was questioned by Martin, B., in Tusker v. Shepherd and in Hobson v. Cowley (1). There may seem some reasons against it where a change in the partnership involves no change in the duties of the servant; and it may be urged that the decision in Tasker v. Shepherd turned on the construction of the particular contract before the Court, which was made with reference to partnership business, and contained a proviso that the servant should be paid according to the profits

(ƒ) (1862), 7 H. & N. 707. (g) Wadsworth v. Gye, Sid. 216. And see the first two cases in note (e). This proposition is recited in the preamble to 32 Geo. III. c. 57. See Austin on Apprentices, pp. 40-42.

(h) Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 33.

(i) Wood, 308.

(k) (1861), 6 H. & N. 575. See also Rawlinson v. Moss (1861), 30 L. J. Ch. 797. (Dissolution of partnership of solicitors amounts to a discharge of client.)

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(7) (1858), 27 L. J. Ex. 205, 208. (Plaintiff agreed with defendants, C. and M., to serve for seven years; L. came into the firm in place of M.; plaintiff signed a memorandum, which stated that, in consideration that a new agreement is entered into with the new firm, he was willing to cancel the old agreement": held, evidence of exoneration, even if dissolution of partnership was a breach of contract.) Dobbin v, Foster (1844), 1 C, & K. 323,

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(A., B. and C., partners. D. engaged to serve them as foreman for twelve years; C. quitted the business, and D. continued to serve A. and B. D. sued A., B. and C. on the original agreement: Coltman, J., ruled 'C.'s going out of the concern did not per se put an end to the agreement. D. entitled to sue A., B. and C.") See also Hoey v. McEwan (1867), Macph. 814. between a firm and their clerk; the (Agreement clerk engaged for five years, at a salary of 3007. a year, and percentage of profits; the firm dissolved by death of one of the partners: held, inter alia, that the contract of service, being personal, was determined.) See R. v. St. Martins (1835), 2 A. & E. 655, and the cases in which bonds are given by sureties to partners for good conduct of clerks and servants. The surety is discharged when a change by death or otherwise occurs in the partnership: Chancellor of the University of Cambridge v. Baldwin (1839), 5 M. & W. 581; Simson v. Cooke (1824), 1 Bing. 452; Addison on Contracts (10th ed.), p. 1009,

of the firm. But, on principle, it seems clear that a contract in which A. contracted to serve B. and C. would not be binding between A. and C. only. This view was taken by the majority of the Court of Appeal in Brace v. Calder (m), where it was held that a dissolution of partnership by the retirement of two of the partners operated as a wrongful dismissal of the plaintiff. But in Phillips v. Alhambra Palace Co. (n), a contract of employment for music-hall performances was enforced by the performers against two out of the three original contracting partners, one having died; on the ground that the contract had not been made with special reference to the personnel of the partners, or to the character of the partnership business as then carried on. Shepherd is there explained on this latter ground.

Tasker v.

There are few authorities with regard to the question whether, if a master "assumes partners" they will have the rights and liabilities of masters in relation to servants. The law upon the subject is thus stated in Fraser's Law of Master and Servant (o):

He (a partner) cannot assume partners who will have the right of masters over domestic servants, governesses, or perhaps over clerks. It is part of such agreements that the servant shall do the work of the master who hires him, and of him alone. With regard, however, to artisans, it has been found that they cannot consider themselves free, although their master assume a partner along with himself, who will have the rights of a master. This is a contingency to be looked for and expected; and it would often be productive of ruinous consequences, if, on such a common event, the whole servants of a large establishment were freed from their contracts. This was decided in a case where a master, conducting business alone, assumed two partners. But an opinion was expressed that it would have been different if the original master had not remained in the firm (p).

It is submitted that in English law the question is whether there has been novation; if there was no novation, the new partner would not have the rights and liabilities of a master. This view is corroborated by sect. 17 of the Partnership Act, 1890, which provides [sub-s. (1)] that :

A person who is admitted as a partner into an existing firm does not

(m) [1895] 2 Q. B. 253. Lopes, L. J., seems to accept Tasker v. Shepherd as authority for the proposition "that by the death of one of a firm of masters the servant is discharged, unless the contrary is stipulated by the terms of the contract"; and goes on to say that the facts in Brace v. Calder seem stronger than the death of a partner. Rigby, L.J., puts his decision on the ground that "a contract to serve four employers cannot,

without express language, be construed
as being a contract to serve two of
them." Lord Esher, M. R., dissented
on the ground that the real contract
was that the defendants would employ
the plaintiff for the time mentioned, if
they carried on their business so long.
(n) [1901] 1 Q. B. 59.

(0) Page 123.

(p) Harkins v. Smith (1841), 16 F, 938.

thereby become liable to the creditors of the firm for anything done before he became a partner.

There seems to be no reason for excluding contracts of service from this section; its principle has been applied to contracts of work and labour (q). But on proof of the fact that a new partner has allowed debts of the old partnership to form with debts subsequently contracted one open running account, any sums paid on that account by the new partnership will be appropriated to the old debts and the new partner still remain liable for the balance (r). The performance of service for and the acceptance of service by the new partner would, of course, be itself evidence of novation.

Dissolution of Contract by Consent.

The contract may, of course, be dissolved by consent of both parties, express or implied (s). No particular words are required, and consent may be implied from conduct. At common law a contract under seal, such as indentures of apprenticeship, might be dissolved by consent, unless when an interest in real property has passed. To discharge indentures something must be done equivalent to cancelling (t). There are many cases as to what constitutes cancellation (u). If the indentures are cancelled by consent of the apprentice, it must be proved that the dissolution of the contract was for his benefit (r). In a Scotch case, decided in 1815, an apprentice was impressed as a seaman; he remained in the navy sixteen years, and he returned home having reached the rank of lieutenant. His master made a claim for breach of contract, but the Courts thought that the fact that he had not made the claim for a number of years amounted to a tacit permission to the apprentice to consider himself released (y).

A master who had made no effort to reclaim an apprentice for years, would no doubt be regarded as having tacitly consented to his release.

(4) Beale v. Mouls (1847), 10 Q. B. 976.

(r) Beale v. Caddick (1857), 2 H. & N. 326. See Lindley on Partnership (6th ed.), pp. 214-217.

(s) Rex v. Weddington (1774), Bur. S. C. 766; Rex v. Harberton (1786), 1 T. R. 139; on other hand, Rex v. Warden (1828), 2 M. & R. 24; and Rex v. Skeffington (1820), 3 B. & A. 382.

(t) Rex v. Langham (1782), 1 Bott.

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Contracts of service are not avoided by enlistment in the militia, save in certain special circumstances (≈).

Bankruptcy.

Bankruptcy does not operate as a dissolution of a contract of hiring and service (a).

As to the contract of apprenticeship, the Bankruptcy Act of 1883, s. 41, provides as follows:

(1) Where at the time of the presentation of the bankruptcy petition any person is apprenticed or is an articled clerk to the bankrupt, the adjudication of bankruptcy shall, if either the bankrupt or apprentice or clerk gives notice in writing to the trustee to that effect, be a complete discharge of the indenture of apprenticeship or articles of agreement; and if any money has been paid by or on behalf of the apprentice or clerk to the bankrupt as a fee, the trustee may, on the application of the apprentice or clerk, or of some person on his behalf, pay such sum as the trustee, subject to an appeal to the Court, thinks reasonable, out of the bankrupt's property, to or for the use of the apprentice or clerk, regard being had to the amount paid by him or on his behalf, and to the time during which he served with the bankrupt under the indenture or articles before the commencement of the bankruptcy, and to the other circumstances of the case.

(2) When it appears expedient to a trustee, he may, on the application of any apprentice or articled clerk to the bankrupt, or any person acting on behalf of such apprentice or articled clerk, instead of acting under the preceding provisions of this section, transfer the indentures of apprenticeship or articles of agreement to some other person.

As to the effect of compulsory and voluntary winding-up upon contracts of service, see p. 128, supra.

(=) Militia Act, 1875 (38 & 39 Vict. c. 69), s. 78.

(a) Thomas v. Williams (1834), 1 A. & E. 685. (Clerk hired by the year continues in bankrupt's office after bankruptcy. In the middle of year by mutual consent contract is rescinded; clerk not barred by certificate from recovering all the wages due from the expiration of

the year last before the commission up to the time of rescinding, nothing being due and proveable at the date of issuing the commission.) It is almost needless to say that the assignees of the bankrupt cannot require the fulfilment of the contract of service by a servant: per Abinger, C. B., in Gibson v. Carruthers (1841), 8 M. & W. 321, 343.

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