be no express agreement; the inference being generally irresistible in regard to skilled work, that it was understood such services were to be paid for (l). Here, too, however, there is no absolute presumption in law.

Remuneration left to Employer's Discretion.

A servant may leave it to the discretion of his employer to say whether he is to be paid. If it be clear from the terms. of the agreement or the whole circumstances that the employer is the sole judge whether any and, if so, what remuneration is to be paid, no action will lie: the servant cannot even claim to recover reasonable remuneration for what he has done. Nulla promissio potest consistere, quæ ex voluntate promittentis statum capit. Thus, a person who had rendered services to a committee under a resolution that "any service to be rendered by him should be taken into consideration, and such remuneration be made as should be deemed right," was incapable of recovering for his services (m).

(1) Brown v. Nairne (1839), 9 C. & P. 264. (Action by broker for procuring charter; no special agreement as to remuneration; left to the jury to say what was the customary remuneration, or, if no custom, what was reasonable remuneration.) Hingeston v. Kelly (1849), 18 L. J. Ex. 360. (Action for work and labour by an attorney who had rendered professional services to plaintiff at a contested election; evidence by defendant that the services were rendered gratuitously; direction by the Judge that the plaintiff was entitled to a verdict unless the defendant made out that the services

were to be given gratuitously; held a misdirection, and the true question for the jury was, whether, taking all the evidence together, the plaintiff was to be paid for his services. Baron Parke's dictum, "If the defendant makes it doubtful only whether the services were to be

gratuitous, it is enough," seems open to question. The rule seems to be that the burthen of proof is always on the plaintiff.

(m) Taylor v. Brewer (1813), 1 M. & S. 290; see also Peacock v. Peacock (1809), 2 Camp. 65. (A lawstationer said to his son, on his coming of age: "You shall have fifteen shillings a week until October; the books must then be made up, and you shall have a share; we need not talk of the share until October comes; we shall settle it then;" held by Lord Ellenborough that the son was entitled to some share, and that it was for the jury to say what was a just and reasonable proportion.) Bryant v. Flight (1839), 5 M. & W. 114. (Plaintiff wrote to defendant as follows: "I hereby agree to enter your service as a weekly manager, commencing next Monday, and the amount of payment I am to receive I leave entirely to

It is a question for the Judge, if the contract be in writing, and for the jury, if otherwise, to say what was the intention of the parties, and whether it was intended that remuneration should be claimed as a right. If wages or remuneration are made dependent on the certificate of a third person, it must be procured before an action can be brought. In other words, the obtaining of the certificate is a condition precedent. Thus, in Owen v. Bowen (n), where the agreement was that the amount of remuneration should be left to a third person, an action for the recovery of wages failed because it did not appear that he had been requested to fix the wages. So, in Morgan v. Birnie (o), an action having been brought against the defendant, who had agreed to pay for buildings erected by the plaintiff, on production of the architect's certificate that the work was done to his satisfaction, it was not sufficient that the architect had checked the plaintiff's charges

66

you;" held (Parke, B., dissenting),
that the defendant was bound to pay
the plaintiff something for his trouble,
and that the jury, in an action on a
quantum meruit, might decide what
the defendant, acting bona fide, would
or ought to have awarded.) Roberts v.
Smith (1859), 28 L. J. Ex. 164.
(Plaintiff agreed to accept post of
secretary to a company at a salary of
two hundred pounds, commencing
at the present date, if the company
be completely registered, and put
into operation; if not, I shall be
satisfied with any remuneration for
my time and trouble you may think
me deserving of and your means can
afford." Defendant replied: "It is
distinctly agreed and understood that
if the company is not formed and
carried out, that part of your letter
which alludes to your salary be null
and void, and that at the expiration of
three months it is entirely left to me
to give unto you such sum of money
as I may deem right as compensation
for labour done, in the event of the
company not being carried out, or of
making any further advance for the
continuing of the same.
The com-
pany was not registered or
"' carried

out." No action lay for salary or compensation.) Ex parte Metcalfe (1856), 6 E. & B. 287. (Refusal to grant mandamus to Local Board of Health to pay reasonable remuneration to a person who presided at the first election of the board; the board having, under the 11 & 12 Vict. e. 63, s. 30, discretion as to what they thought reasonable.) Bird v. McGahey (1849), 2 C. & K. 707; Rawlings v. Chandler (1854), 9 Ex. 687.

(n) (1829), 4 C. & P. 93; see also London Tramway Co. v. Bailey (1877), L. R. 3 Q. B. D. 217; 47 L. J. M. C. 3; 37 L. T. 499; 26 W. R. 494; and as to the power to rescind under the Master and Servant Act of 1867, and Employers and Workmen Act of 1875, arbitration clauses; Wilson v. Glasgow Tramway Co. (1878), 5 R. 981.

(0) (1833), 9 Bing. 672; Moffatt v. Dickson (1853), 13 Č. B. 375; Forbes v. Milne (1827), 6 S. 75: (lady engaged a servant on condition that he obtained a certificate of character from his last employer; no cause of action unless such certificate obtained).

and had sent them to the defendant; there was no certificate, and the action therefore could not lie.

Gratuities, and Work done in Expectation of Legacies.

No action will lie to recover gifts or gratuities. It is not always easy, however, to ascertain what are gifts or gratuities; that a particular sum is spoken of as a gratuity does not necessarily decide that it is not of the nature of wages (p). Presents or gratuities to a servant under age cannot be deducted by a master from wages. Thus, in one case in which a master gave to a maid of all work a silk dress, and paid for coach fares to her mother's house, it was held that he could not deduct these sums from her wages (q).

We need not examine here all the decisions as to services rendered in expectation of a legacy. Few general principles can be extracted from the authorities. The question in every case appears to be whether the person who rendered the services trusted to the generosity of him for whom he worked, or whether there was an implied understanding (or, to be more accurate, a contract), that remuneration was to be given him (7). If the work were done on the strength

(p) (1862), Lake v. Campbell, 5 L. T. N. S. 583; Parker v. Ibbetson (1858), 27 L. J. C. P. 236; 4 Jur. N. S. 536.

(q) Hedgley v. Holt (1829), 4 C. & P. 104.

(r) Le Sage v. Coussmaker (1794), 1 Esp. 187. (Assumpsit for work and labour by a stockbroker; defence that the services were gratuitous, and done solely with a view to a legacy: held by Lord Kenyon, that it was a question for the jury.) Osborn v. Governors of Guy's Hospital (1726), 2 Stra. 728. (Action for work and labour in transacting Mr. Guy's stock affairs. Raymond, C. J., directed the jury to decide what was the understanding between the parties; "a man who expects to be made amends by a

legacy, cannot afterwards resort to his action.") Baxter v. Gray (1842), 4 Scott, N. R. 374; 3 M. & G. 771. (Action for work and labour by a surgeon against executors of a lady whom he had attended; no bill was sent in during the lady's lifetime, plaintiff being in hopes that she would leave him a legacy; jury gave plaintiff £250 damages. Court refused to disturb the verdict. Tindal, C.J., observed: "The plaintiff probably hoped and expected to receive a legacy; but, this hope failing, I see no reason why he should not be held to be remitted to his legal right." "The ordinary presumption is that services are rendered in expectation of a remuneration, unless the contrary is proved :"

of the expectation of a legacy, and executors were to pay such claims, they might be disallowed in their accounts (8).

Remuneration for Work done under a Contract
Terminated by Mutual Consent, &c.

If a contract of hiring and service be dissolved by mutual consent, a servant may recover wages pro ratâ. Such also is the case when he is dismissed without proper cause before the end of the term (though he may also recover damages calculated with reference to the loss he has sustained); or, when a servant, without having actually done all which he agreed to do, has performed services which are of value, and by which his master has benefited (t).

Remuneration for Extra Work.

What is a fair day's work is to be ascertained by reference to the agreement, or to custom. Failing that, it is a question of what is reasonable in the circumstances. Of course, a servant must be allowed a reasonable time to eat and sleep (x).

Whether he must work on Sunday depends also on the nature of his employment and usage. A servant may recover remuneration for work done out of hours, or outside the scope of his regular employment (y). But in order to entitle him to

Coltman, J.). Shallcross v. Wright (1850), 12 Beav. 558; and Dallinger v. St. Albyn (1879), 41 L. T. N. S. 406.

(s) As to bequests in satisfaction of wages, see Roper on Legacies, 4th Ed. 1026 and 1053: also Chancy's Case (1717), 1 P. W. 408. (A master being indebted to his man-servant for wages, £100, gave him a bond for the £100, as due for wages, and afterwards, by will, gave £500 for long and faithful services. Lord Chancellor King held that this was not in satis

faction of the bond. The testator had by his will directed that all debts and legacies should be paid.

(t) See as to this, Farnsworth v. Garrard (1807), 1 Camp. 38; Munro v. Butt (1858), 8 E. & B. 738; and the notes in Smith's L. C. to Cutter v. Powell.

(x) Wilson v. Simson (1844), 6 D. 1256; Parsons, 2, 41; and see as to this, 5 Eliz. c. 4, ss. 12 & 13. Fraser's Master and Servant, p. 408.

(y) Wood, 172.

recover, the services must clearly not be such as he is bound to perform under his contract of hiring and service; the services must be wholly different from these either in kind or amount. Otherwise an agreement for extra remuneration will be nudum pactum; there will be no consideration for it, (a promise to do what one is bound to do forming no consideration), and it will not be enforced (2). Harris v. Carter (a) illustrates this principle. The plaintiff, a sailor had signed articles for a voyage out and home at £3 a month. Several of the crew deserted at the outward port, and the captain, to induce the plaintiff and others to stay, agreed to articles for the homeward voyage at £6 a month. It was held by the Queen's Bench, that it was the duty of the plaintiff to perform the contract into which he had originally entered for the outward and homeward voyages, and that the subsequent promise was void for want of consideration. "Had the plaintiff," said Lord Campbell, " been relieved from the obligation which he had contracted towards the shipowners,

(2) Chap. x.

(a) (1854), 3 E. & B. 559; 23 L. J. Q. B. 295; Bell v. Drummond (1791), 1 Peake, 63. (Plaintiff acted as deputy to clerk of commissioners of land tax, at salary of £100. New duties afterwards imposed upon the plaintiff : held that this raised no implication that servant was entitled to additional salary.) Harris v. Watson (1791), 1 Peake, 102. (No action will lie on a promise by a captain to a sailor of extra wages if he would perform extra work). Elsworth v. Woolmore (1803), 5 Esp. 84. (Seamen cannot recover extra wages in virtue of any usage or custom.) Stilk v. Meyrick (1809), 6 Esp. 129 and 2 Camp. 317. (Promise by defendant, a captain, to divide among crew the wages of two men who had deserted; no action lay. "They had undertaken to do all they could under all the emergencies of the voyage.' Ellenborough, C. J.) Frazer v. Hatton (1857), 2 C. B. N. S. 512; 26 L. J. C. P. 226. Agreement by plaintiff to serve as steward for three years on

board defendant's ship Custos at £3 a month; stipulation that he should, if required, be transferred to any other ship in the same employment; during the three years, plaintiff was transferred to the ship Dauntless; by a second agreement the captain promised to pay plaintiff £4 a month: held that there was no consideration for the second agreement.) Carter v. Hall (1818), 2 Sta. 361. (Plaintiff, purser's steward on board one of the king's ships, in receipt of a salary from the Crown: held that he could not recover extra remuneration from the defendant, the purser, though there was evidence that it was usual for the purser to pay one pound for every gun by way of annual salary). The Araminta (1854), 18 Jur. 793. (Master of a ship distributed the amount of wages forfeited by deserters among those sailors who would manage the ship home: held that the owners were entitled to deduct the amount from the wages due.) Money v. Hannan (1867), 5 S. L. R. 32.