deration cannot consist of bygone transactions, unless anything was done at the request of the person making the promise (e). A promise made in respect of a past matter may be induced by gratitude for what has been done; the transaction is not the less, in a legal point of view, purely voluntary.

If the contract be within the Statute of Frauds, the consideration must be stated in writing (ee).

In many contracts of service the consideration is not expressed. The parties have in their minds certain usages. They do not state that which they assume need not be stated, and they are content to take for granted many of the terms of their agreement. Questions of difficulty frequently arise as to whether there exists a contract the consideration of which is implied or may be fairly inferred, or whether there is a mere promise which is not binding owing to the absence of consideration. In other words, is there mutuality? A., for instance, agrees to serve B. for seven years. Does B. thereby by implication agree to retain A. in his service for the same period? The current of the authorities is, as will be seen from Appendix A., far from uniform (f). The Courts will not allow an action where A. is not bound to serve, and B. to retain him in service. No doubt, if A. enter upon his duties, and perform certain work, the law will imply a promise by B. to pay, and A. will be entitled to recover (g). But when B. seeks to compel A. to fulfil an agreement to work, it must be shown that there is an obligation on the part of B. to retain him in service. Thus, in Dunn v. Sayles (h), the Court refused to imply a covenant to retain the plaintiff in the service of

(e) Leake on Contracts, 19, and authorities there cited.

(ee) Wain v. Warlters (1804), 5 Fast 10.

(ƒ) There is much ambiguity as to the meaning of mutuality: Crompton, J., in Whittle v. Frankland (1862), 2 B. & S. 55. Here it is taken in the sense of mutual promises; one party makes one promise,

and another makes a promise to support it. See as to want of mutuality, Mayor of Kidderminster v. Hardwick (1873), L. R. 9 Ex. 13; Arnold v. Mayor of Poole (1842), 4 M. & G. 896. See Appendix A, for chief decisions on this question.

(g) See Elsce v. Gatward (1793), 5 T. R. 143.

(h) (1844), 5 Q. B. 685.

the defendant for five years, when it was agreed by deed that the plaintiff's son should continue with the defendant as an assistant surgeon dentist for five years, and that the defendant should pay weekly wages. This decision has been much criticised; and the tendency in recent cases has been to imply a promise on the part of the master to retain “whenever there is something not expressed which it is clear to all men of ordinary intelligence and knowledge of business must either have been latent in, or palpably present to, the minds of both parties when the contract was made" (i). Thus, when A. agreed to serve B. for seven years on certain terms, and B. to pay his wages so long as he was so employed, it was held that B. was bound to employ A. for seven years (k).

While the Courts will often presume a promise to hire or retain in service, though it be not actually expressed, they will sometimes imply a right to terminate a contract of hiring or service, though no such right be expressed. Suppose that it is agreed between A. and B. that for seven years, or so long as A. shall continue to carry on business in Liverpool, A. shall be the sole agent there for the sale of B.'s coals, and that B. shall not employ any other agent there. Suppose further, that it is a term of the agreement that if A. does not sell a certain amount a year, or if B. cannot supply a certain amount a year, either party may determine the agreement; and that B. sells the colliery at the end of four years. Has B. been guilty of a breach of contract? Such were the chief facts in Rhodes v. Forwood (1). The House of Lords, reversing the decision of the Exchequer Chamber and affirming that of the Court of Exchequer, held that no action would lie against B. for breach of contract. The House of Lords thought that there was no implied obligation on the part of B. to carry on his business and not to sell it for seven years. It would be different if the agreement were in

(i) Brett, J., in Thorn v. Mayor of London (1875), L. R. 10 Ex. 123; 44 L. J. Ex. 70.

(k) Hartley v. Cummings. See Appendix.

(1) (1876), L. R. 1 Ap. 256.

effect, that the business should be carried on in order that the profits might be remuneration for advantages already received. In such circumstances, it would be obviously unfair that one party should be able to cast off all obligations to the detriment of the other. Such was the case in McIntyre v. Belcher (m). The plaintiff, a surgeon, sold his business to the defendant. It was agreed that he should introduce the defendant to his patients, and should receive for the first four years one fourth part of the gross earnings. In such a state of facts it was held that there was an implied covenant on the part of the defendant to continue the practice (m).

(m) The following are the chief decisions: Burton v. Great Northern Ry. Co. (1854), 9 Ex. 507. (By agreement on 1st October, 1851, plaintiff undertook to provide all waggons, horses, &c., necessary for the cartage of all grain, &c., between Hatfield and Ware, that might be presented to him, at 5s. a tou. "It is mutually agreed that this agreement shall continue in force for the period of twelve months from the date hereof." The company gave notice that the arrangement would cease after 1st April, 1852. Held that the only contract by defendants was to pay the stipulated price of such goods as might be presented.) London, Leith, and Glasgow Shipping Co. v. Ferguson (13th Nov., 1850), 13 D. 51; 23 Jur. 4. (An agent paid by the company by a commission on profits not presumed to be engaged from year to year; the company entitled to discontinue their trade without giving any previous notice or any compensation for the loss of his situation.) McIntyre v. Belcher (1863), 14 C. B. N. S. 654; 32 L. J. C. P. 254. (Agreement for the sale of goodwill of practice of a surgeon; the purchaser to have delivered up to him the house, and to have sold to him horse, drugs, &c., for £17 58.; the vendors to pay rent and taxes up to a certain date; the purchaser to pay on condition of the premises, in respect of each of the four following years, if he should be living,

at end of each respective year, onefourth part of the receipts and earnings. Held an implied covenant by purchaser to do nothing to prevent the receipt of earnings. "If I grant a man all the apples growing upon a certain tree, and I cut down the tree, I am guilty of a breach." Willes, J.) Stirling v. Maitland (1864), 5 B. & S. 840. (An insurance company covenanted for valuable consideration with C. D., to appoint him their agent in Glasgow, together with A. B., and if A. B. should be displaced from the agency, to pay C. D. a certain sum. The company, having transferred their business to another company, were wound up and dissolved. The sole remuneration was by commission. Held that the plaintiff was "displaced" within the meaning of the contract. "I look

on the law to be that, if a party enters into an arrangement which can only take effect by the continuance of certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative." Cockburn, C. J.) Ex parte Maclure (1870), L. R. 5 Ch. Ap. 737; 39 L. J. Ch. 685. (A. entered into an agreement with an insurance company to act as their agent for five years, and to transact no other insurance business without the con

K

A similar question arises as to whether there is an obligation on the part of the master to find work for his servant. Where the contract of hiring merely contains an undertaking to pay stipulated wages in proportion to the work done, there is no implied obligation on the master's part to find work; though the disposition is to construe contracts of doubtful significance as to this into an agreement on the master's part to enable the servant to earn regular wages (p). On this subject the words of Cockburn, C.J., in Churchward v. Queen (q), are of value. "Where the act to be done by the party binding himself can only be done upon something of a corresponding character being done by the opposite party, you would there imply a corresponding obligation to do the things necessary for the completion of the contract." So if a man engages to work, and goes to great expense, and he is only to be paid by the measure of the work he has performed, the contract pre-supposes and implies an obligation to supply the work.

A review of the authorities as to this point discloses no definite rule. Each case must be decided on its merits. It is the duty of the Court to decide by reference to the words of the documents, and of a jury by looking at all the facts, or the practices of mankind, to say whether it was intended that work should be found, or a servant or labourer should be retained. When a servant is engaged in order to perform duties in regard to a certain definite business rather than to

sent of the company, in consideration of which he was to receive a fixed salary and 10 per cent. commission on the nett profits. Before the end of the five years the company was wonnd up. Agent entitled to claim for salary, but not entitled to claim against the company for loss of commission, inasmuch as the contract left the company free to determine the extent of their business.) In re Patent Floor Cloth Co. (1872), 41 L. J. Ch. 476; 26 L. T. N. S. 467. (Company engaged D. and G. as commercial travellers for three years; they were paid by a

give his services in general, the duration of the contract is naturally regulated by the duration of the thing itself. Servants are for the business, and not the business for the servants. It would be improbable in most cases that it was understood that a business was kept up merely or mainly to give employment to them. When a contract is one of agency rather than of hiring and service, the natural inference would seem to be that the employer is free to terminate the relation at any time, provided the employment be not coupled with an interest.

Contracts of hiring and service will not be enforced if they are for illegal or immoral purposes.

Most contracts of hiring and service and work and labour which have been pronounced void, on the ground that they are offensive to morality, have related to sexual morality. But the principle is not confined to cases of this sort; the maxim ex turpi causâ non oritur actio holds good generally. The application of it to contracts of hiring and service and work and labour is simple, when the contract is on the face of it, or necessarily, immoral. Thus, in Poplett v. Stockdale (r), the plaintiff sued for the expense of printing an immoral book called "The Memoirs of Harriette Wilson," containing the history of a celebrated prostitute; and the Court refused to assist the plaintiff. "Every servant, to the lowest, engaged in such a transaction, is prevented from receiving compensation." Equally clear are the cases in which statute law is broken. Thus, it has been held that a printer cannot recover the cost of printing a pamphlet upon the first and last leaves of which he had not, in compliance with the 39 Geo. III., c. 79, sec. 27,

(r) (1825), R. & Moo. 337; 2 C. & P. 198; Forbes v. Johnes (1802), 4 Esp. 97. Assumpsit will not lie to recover the price of obscene prints.

R. v. Northwingfield (1831), 1 B. & Ad. 912; Bradshaw v. Hayward (1842), Car. & M. 591.