CUCKSON r. STONES. [ *250 ] [251] to earn his said *weekly wages, and refused to pay the said plaintiff the said sum of 21. 10s. a week for divers, to wit thirteen, weeks." There was also a count for money due on accounts stated. Plea 4, "to so much of the first count as relates to the claim therein for wages: that the plaintiff was not, during any part of the time for and in respect of which such wages are by that count claimed, ready and willing or able to render, and did not in fact during any part of such time render, the agreed or any service." Issue thereon: and demurrer and joinder. On the trial, before Cockburn, Ch. J., at the last Summer Assizes for Derbyshire, it appeared that the plaintiff, under the agreement in question, served J. Watts and the defendant, who were in partnership, till the death of Watts in 1854, and afterwards continued to serve the defendant, who from that time carried on the business by himself. In Christmas, 1857, the plaintiff was taken ill, and confined to his room till July, 1858. During his illness he was unable to attend personally to business, but gave instructions to the defendant, who visited him frequently at his house, in the art of brewing. After March, 1858, the defendant refused to pay the plaintiff any wages til July, 1858, when he again attended personally to the business and was paid wages according to the agreement. It was admitted, on behalf of the defendant, that the illness of the plaintiff did not put an end to the agreement: but it was contended that the plaintiff was not entitled to claim. wages for the period during which he had been prevented from attending personally to business. The learned Judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendant, or for a nonsuit. Hayes, Serjt., in this Term, obtained a rule to show cause why the verdict should not be set aside and a verdict entered for the defendant: "on the ground that, upon the evidence, the plaintiff is not entitled to a verdict upon the fourth plea ; and that the plaintiff is not entitled to recover the weekly wages for the time during which he has not performed the service." The demurrer to come on for argument with the rule. Mellor and Mundell now showed cause: * First, the plea is bad. The performance of the service by the plaintiff is not a condition precedent to the payment of the wages. There is no case in which it has been held that a master who has agreed to employ a servant for a term can turn him off on account of a temporary illness, not occasioned by any misconduct on his part. (LORD CAMPBELL, Ch. J.: The defendant has not turned the plaintiff away: the defendant admits that the contract continues, but says that it does not apply in respect of the wages claimed.) The payment, which is in consideration of services for a term of years, is to be for a term of years, though it is to be paid weekly the defendant cannot, therefore, divide the agreement and claim to pay in respect of a portion only of that term; especially as he has during that time, to a great extent, had the benefit of the plaintiff's services: [Chandler v. Grieves (1), Beale v. Thompson (2), Melville v. De Wolf (3), Rex v. Madington (4), Rex v. Wintersett (5).] Secondly, the plea is not proved. *Even if the performance of the service be a condition precedent to the payment of the wages, the condition has been fulfilled. "Service" means only such service as the party serving is able to render. (ERLE, J.: The agreement is "in consideration of the due, full and complete service.") That is, as full and complete as it is possible for him to render. The covenant to serve and the covenant to pay for such service are, as has been stated, independent covenants: and the defendant cannot release himself from his engagement even if he show, which he does not, a partial non-performance by the plaintiff of his: Stavers v. Curling (6). Hayes, Serjt., contrà: First, the plea is good. The agreement is a peculiar one; and there is no precise authority on the point. But the question is, What did the parties intend? There is nothing unreasonable in the supposition that it was intended that if the plaintiff were ill, even for a single week, he should not be entitled to wages for that week. Suppose that after the first *week of service the plaintiff had been struck with paralysis, continuing for the rest of the term: surely he could not claim his wages for the rest of the term. (LORD CAMPBELL, Ch. J.: That would be such a permanent disability as would probably amount to a dissolution of the contract on account of its performance becoming impossible.) The weekly wages are clearly severable here. (LORD CAMPBELL, Ch. J.: Why are they more severable than the house room and the coals?) (1) 3 R. R. 525 (2 H. Bl. 606, n.). Burr. S. C. 675. (5) Cald. 298. (6) 43 R. R. 682 (3 Bing. N. C. 355). CUCKSON v. STONES. [ *255 ] [ *256 ] * Those were given him before he began the service at all. Secondly, the averment that the plaintiff was not ready and willing was proved. "Readiness and willingness," in the legal sense, imports the actual capacity to perform the particular act: De Medina v. Norman (1). Incapacity is a non-readiness, *as much as a wilful refusal: Harmer v. Cornelius (2). And here the actual performance of the service was clearly a condition precedent to the payment of the wages, in whole or in part; though a part non-performance of that condition might not amount to a dissolution of the contract. Cur. adv. vult. LORD CAMPBELL, Ch. J., on a later day in this Term delivered the judgment of the COURT: As to the demurrer to the fourth plea. 66 We are of opinion that this plea is good. It is pleaded only to the claim for wages; and it avers that the plaintiff was not, during any part of the time for and in respect of which such wages are by that count claimed, ready and willing or able to render, and did not in fact during any part of such time render, the agreed or any service." We think the gist of the plea is that the plaintiff, during the time in question, was not ready and willing to render, and did not render, any service, in the sense that he voluntarily and wilfully refused or omitted to serve. If so, we think he could not claim the wages to be paid to him in consideration of his service. It was objected that his breach of the contract would only be the subject of a cross-action. But the alleged breach of the contract on his part seems to go to the whole consideration for the wages: we must treat the demurrer as if the action were brought for the wages only: and, to avoid circuity of action, it may well be considered that this action should be barred, so as to prevent an unjust advantage in this action, and to put an end to further litigation, rather than that the plaintiff should be allowed to recover wages when he had refused to serve, and that another action should afterwards be brought against him to recover back the amount. On the rule as to entering the verdict on the fourth plea. Whether, when issue is joined on such a plea, the want of ability to do the act proves, in point of law, a want of readiness and willingness, depends upon whether the want of ability is necessarily a breach of the contract to perform a condition precedent, or the consideration for the promise sued upon. In an action for not accepting goods purchased, issue being (2) 5 C. B. N. S. 236. (1) 60 R. R. 912 (9 M. & W. 820). joined on a plea that the plaintiff was not ready and willing to deliver them, the defendant would be entitled to a verdict, on proof that the plaintiff never was in possession of the goods he undertook to deliver. But, looking to the nature of the contract sued upon in this action, we think that want of ability to serve for a week would not, of necessity, be an answer to a claim for a week's wages, if in truth the plaintiff was ready and willing to serve had he been able to do so, and was only prevented from serving during the week by the visitation of God, the contract to serve never having been determined. This leads to the consideration of the general question, which it appears, by the Judge's report, was reserved at the trial, Whether, under the circumstances, the plaintiff was entitled to recover? The agreement is of a very peculiar nature: that the plaintiff should serve defendant for ten years in the capacity of a brewer, and teach him to brew: the defendant was to pay the plaintiff 201. on the execution of the agreement; to find him a house and to supply him with coals for the ten years; and to pay him the weekly sum of 21. 10s. during the said term. We concur in the observation of WILLES, J. in Harmer v. Cornelius (1): and, if the plaintiff, from unskilfulness, had been wholly incompetent to brew, or, by the visitation of God, he had become, from paralysis or any other bodily illness, permanently incompetent to act in the capacity of brewer for the defendant, we think that the defendant might have determined the contract. He could not be considered incompetent by illness of a temporary nature; but, if he had been struck with disease so that he could never be expected to return to his work, we think the defendant ought to have dismissed him and employed another brewer in his stead. Instead of being dismissed he returned to the service of the defendant when his health was restored; and the defendant employed him and paid him as before. At the trial, the defendant's counsel admitted that the contract was not rescinded. The contract being in force, we think that here there was no suspension of the weekly payments by reason of the plaintiff's illness and inability to work. It is allowed that, under this contract, there could be no deduction from the weekly sum in respect of his having been disabled by illness from working for one day of the week: and, while the contract remained in force, we see no difference between his being so disabled for a day, or a week, or a month. Upon the whole, therefore, we think the verdict obtained by (1) 5 C. B. N. S. 236. CUCKSON ". STONES. 1858. Nov. 23. [258] [ *259 ] the plaintiff ought not to be disturbed; and that the rule granted for that purpose ought to be discharged. Judgment for defendant on the demurrer. Rule discharged. GARTON v. GREAT WESTERN RAILWAY COMPANY. (1 El. & El. 258-261; S. C. 28 L. J. Q. B. 103; 5 Jur. N. S. 595.) Where a defendant has removed from a county court, by certiorari, under stat. 19 & 20 Vict. c. 108, s. 38 (1), a plaint for a sum not exceeding 51., the plaintiff is not bound to follow out his suit; and if he declines, the defendant cannot, after serving notice to declare, under sect. 53 of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), sign judgment for want of a declaration, nor recover from the plaintiff his costs of removal. RAYMOND, in this Term, obtained a rule calling upon the plaintiff to show cause why an order of ERLE, J. should not be rescinded or varied, and why the plaintiff should not pay to the defendants their costs of removing the plaint from the County Court of Bristol into this Court. From the affidavit on which the rule was obtained it appeared that, in January, 1858, the plaintiff entered a plaint in the County Court of Gloucestershire, held at Bristol, to recover a sum less than 5l., being alleged overcharges in the carriage of goods by the defendants. On 1st February, 1858, the defendants obtained a Judge's order for a certiorari to remove the plaint into the Court of Queen's Bench. The certiorari issued on 2nd February, 1858, and, having been duly returned, was filed by the defendants on the 6th February. The defendants entered an appearance to the writ, and gave notice to the plaintiff's attorney. On 16th June, 1858, the defendants served a notice upon the London agent of the plaintiff's attorney, requiring the plaintiff to deliver a declaration within four days. The plaintiff took out a summons to set aside the demand; but no order was made; and, on 7th July, 1858, the plaintiff not having delivered a declaration, the defendants signed judgment. The plaintiff, on 12th July, 1858, took out a summons to show cause "why the judgment " *" and all subsequent proceedings ' "should not be set aside for irregularity, on the ground that the notice to declare was irregular and void, and that the plaintiff cannot be compelled to proceed herein;" and "why the defendants should not pay the costs" of the application; proceedings to be stayed meanwhile. On 20th July, 1858, ERLE, J. made the order, setting aside the judgment, with liberty to the defendants to apply to the Court, and reserving the question of costs for the Court. (1) See now County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 126. |