CHAPTER XIV. DURATION OF THE CONTRACT. It is the duty of a master to receive his servant into his employment, and to retain him 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 it is often expressed, general hiring or hiring when no term is fixed is presumed to be a yearly hiring. This presumption, it has been said, was established in order to give master and servant the benefit of all the seasons (b). 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 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 appears to show that it is applicable to (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), 3 N. & M. 177; 5 B. & Ad. 904. (Hiring of a warehouseman, wages payable monthly.) Beeston v. Collyer (1827), 4 Bing. 309; 12 Moore, 552; 2 C. & P. 607; (hiring of a clerk at all kinds of servants (d). It exists whether a contract be in writing or not (e), and even if it be conditional (ƒ). This presumption is not irrebuttable (g); it may be displaced by stipulations in the contract as to times of payment, or by other circumstances. It does not exist when there really is no hiring or agreement to retain. Thus, in Bayley v. Rimmell (h), 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 no sure guide. 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 (i). (2.) This fact may be modified by others, as was pointed out in Davis v. Marshall (k). 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. (3.) The nature of (d) Lilley v. Elwin (1848), 11 Q. B. 742; Turner v. Robinson, see note (a); Holcroft v. Barber (1843), 1 C. & K. 4; Baxter v. Nurse (1844), 1 C. & K. 10; 6 M. & G. 938; 13 L. J. C. P. 82. (e) Elderton v. Emmens (18471853), 4 C. B. 479; 6 C. B. 160; 13 C. B. 495; 4 H. of L., 624. (ƒ) 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. & N. 635; 29 L. J. Ex. 459. (h) (1836), 1 M. & W. 506. (i) R. v. St. Andrew's (1828), 8 B. & C. 679; R. v. Newton (1788), 2 T. R. 453, per Buller, J. So in R. v. Dodderhill (1814), 3 M. & S. 243. (k) (1861), L. T. N. S. 216; 9 W. R. 520. 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 given that it was the usage that editors, subeditors, 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 (m). See Holcroft v. Barber (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). There is an important peculiarity of the hiring of domestic or menial servants. By a long and well established custom, it is settled that in the absence of any agreement to the contrary, their hiring is for a year and subject to determination on a month's notice by either or payment of a month's wages by the employer. "In the case of domestic servants," said Littledale, J., in Fawcett v. Cash (p), "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. Who are domestic or menial servants has been the subject of a considerable number of actions which are referred to below (r). to his directions, and not living in 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 (8), "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 (t), 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 or servants in husbandry (u), clerks (x), newspaper reporters (y), or governesses (a). The question of duration of agreements is often one of construction of the agreement of hiring. In an Irish case decided in 1861, where the agreement was, "I agree to serve Major B. as steward from May 31st, 1858, for £80 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 (b). In Down v. Pinto (c), the defendants, who had established smelting works in Spain, offered to employ the plaintiff as foreman, on the following terms: "I should require 119; 22 L. J. Ex. 1. (A governess engaged at yearly salary.) The month's wages are for a calendar month, and do not include board wages. Hill, J., in Gordon v. Potter (1859), 1 F. & F. 644. As to etymology of "menial," see Nowlan v. Ablett, and Littré's Dictionary, under head of Ménie. (s) See note (r). (t) See note (r). (u) Lilley v. Elwin (1848), 11 Q. B. 742. (x) Beeston v. Collyer (1827), 4 Bing. 309; Huttman v. Boulnois (1826), 2 C. & P. 510. (y) Williams v. Byrne (1837), 7.A. & E. 177; 1 Jur. 578. (a) Todd v. Kerrich (1853), 8 Ex. 151. (b) Forgan v. Burke, 12 Ir. C. L. 495. (c) (1854), 9 Ex. 327. you to enter into an engagement to remain with me for at least three years, at my option. Salary, £250 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 (d), 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 (e), there was an agreement in writing to serve as agent or representative of a manufacturer of woollen and mohair cloths, at a salary of £150 a year, and a proviso that if at the end of the year the plaintiff had done sufficient business the defendant would make up his salary to £180. It was held that there was nothing in the contract to exclude an usage to terminate it by either party giving a month's notice. This matter is often provided for by regulations of the factory, mine, or workshop in which workmen are employed. When the contract is silent as to this point, the period of notice or warning is to be governed by the usage or the custom of the trade, profession, or business. Where both custom and contract are silent as to this, it will be for a jury to say what is reasonable in all the circumstances. (d) (1860), 8 C. B. N. S. 208; 29 L. J. C. P. 251. (e) (1858), 4 C. B. N. S. 346; 27 L. J. C. P. 236. On the other hand, see Peter v. Staveley (1866), 15 L. T. N. S. 275. |