(a) Robinson v. Hindman, 3 Esp. 235. And this is on the ground that a general hiring, that is to say, a hiring without any engagement as to the duration of the service, is presumed to be a hiring for a year, and it will be construed in a court of law to be a hiring on the terms that either party might determine the engagement upon giving a month's notice, and the law implies a promise by the master to pay a month's wages, if he dismiss his servant without cause, without giving such notice. See Fawcett v. Cash, 5 B. & Ad. 904; Lilley v. Elwin, 11 Q. B. 754; Nowlan v. Ablett, 2 C. M. & R. 54; Beeston v. Collyer, 4 Bing. 309; s. c. 2 C. & P. 607; Spain v. Arnott, 2 Stark. 257; Huttman v. Boulnois, 2 C. & P. 511; Holcroft v. Barber, 1 Car. & K. 4; Baxter v. Nurse, 1 Car. & K. 10. But this presumption of a yearly hiring may be rebutted by evidence showing that such was not the intention of the parties. Bayley v. Rimmell, 1 M. & W. 506. This was an action by an assistant surgeon against his employer, to recover the amount of salary due him in that capacity. The plaintiff claimed for salary for a hundred and sixty-one days, at the rate of £200 per annum, and he so described his claim in the particulars of his demand annexed to the record. No specific contract of hiring was proved, but evidence was given of the service. It appeared that after the plaintiff had been some time in the defendant's employment, he was taken ill, and went to a hospital, where he remained three months. He did not return to his employment, nor did the defendant request him to do so. It appeared that the plaintiff had been paid different sums of money, but not at any fixed or definite periods. It was sub

mitted, that upon this evidence it must be taken to be a general hiring, and that in legal estimation that was a hiring for a year, and therefore that no wages were recoverable, as the year's service had not been performed. Sed non allocatur; and Parke, B., in giving the opinion of the court, observed: " Admitting that there was some evidence of a hiring, and agreeing in the proposition that a general hiring, if unexplained, is to be taken to be a hiring for a year, I think there is abundant evidence in this case to show that there was no hiring for a year. It appears that payments were made, but they were not made according to the yearly amount, nor at any definite periods of the year. The parties separated in the middle of the year, and neither did the plaintiff return, nor did the defendant require him to return and complete the service. If, indeed, the jury ought to have found whether this was a yearly hiring, the learned judge should have been required to leave that question to them; but there is really nothing to show that the compensation was to be paid at the end of the year.' The presumption of a yearly hiring is not a presumption of law, but of fact merely. Creswell, J., in Baxter v. Nurse, 6 Man. & G. 935, 941, and the presumption of a yearly hiring does not arise where the services of the servant are expressed to be at the will of either party; as where a boy was hired by a farmer, for his meat and clothes, "so long as he had a mind to stop." Rex v. Christ's Parish in York, 3 B. & C. 459. See also Rex v. Great Borden, 7 B. & C. 249. As to what words are sufficient to constitute a yearly hiring, see Emmens v. Elderton, 26 E. L. & E. 1. There was formerly a doubt

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whether a contract to serve during life was valid, but it seems that such contract is not itself illegal. Lord Abinger, in Wallis v. Day, 2 M. & W. 281. See further, 1 Bl. Com. 425, n. (1), (Christian's ed.).

(b) In England this doctrine rests on the ground that the parties may make the contract with reference to general usage, which thereby becomes a part of the contract. See Turner v. Robinson, 5 B. & Ad. 789; Ridgway v. Hungerford Market Co. 3 A. & E. 171. In this country it has been held, that a contract to work "for eight months for $104, or $13 a month," was so far an entire contract, that if the plaintiff left without cause before the eight months, he could not recover for any part of the time; and although he had worked more than a month, he was not allowed to recover for a month, since there was no provision that he should be paid monthly. Reab v. Moor, 19 Johns. 337. So, where the plaintiff agreed to work for the defendant "seven months at $12 per month," it was held that this was an entire contract; that $84 were to be paid at the end of the seven months, and not $12 at the end of each month; and that if the plaintiff left without good cause, before the seven months were expired, he could not recover anything for his services, although the defendant had paid a part during the continuance of the service. Davis v. Maxwell, 12 Met. 286. In this case, Hubbard, J., said: “In regard to the contract itself, which was an agree

ment to work for the defendant for seven months, at twelve dollars per month, we are of opinion that it was an entire one, and that the plaintiff, having left the defendant's service before the time expired, cannot recover for the partial service performed; and that it differs not in principle from the adjudged cases of Stark v. Parker, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528; and Thayer v. Wadsworth, Id. 349; which we are unwilling to disturb, upon mere verbal differences between the contracts in those cases and in this, which do not affect its spirit. The plaintiff has argued that it was a contract for seven months, at twelve dollars per month, to be paid at the end of each month. But however reasonable such a contract might be, it is not, we think, the contract which is proved. There is no time fixed for the payment, and the law therefore fixes the time; and that is, in a case like this, the period when the service is performed. It is one bargain, performance on one part and payment on the other; and not performance and full payment for the part performed. The rate per month is stated, as is common in such contracts, as fixing the rate of payment, in case the contract should be given up by consent, or death or other casualty should determine it before its expiration, without affecting the right of the party. Such contracts for hire, for definite periods of time, are reasonable and convenient, are founded in practical wisdom, and have

long received the sanction of the law. It is our duty to sustain them when clearly proved." See also Eldridge v. Rowe, 2 Gilman, 91. So in Nichols v. Coolahan, 10 Met. 449, where a contract was made by N. and C. that N. should have eleven dollars per month and board, so long as he should work for C.; C. informing N. that he (C.) might not have two days' work for him. N. worked for C. several months, and brought an action for his wages, and annexed to his writ a bill of particulars, in which he charged the price agreed on per month, and gave C. credit for a certain sum on account of three weeks' sickness of N., during which time he was unable to work. C. filed in set-off an account against N. for board during his sickness. Held, that the contract was a hiring by the month; that C. was not entitled to payment for N's board during his sickness; but that N. could not recover wages during any part of the time of his detention from work by sickness. And wherever the contract shows that the hiring was intended for a longer term, as for a year, the mere reservation of wages for a shorter term, as so much per week, or per month, will not control the hiring. Thus, where a farm servant was hired for a year, at three shillings a week, with liberty to go at a fortnight's notice, the contract was held to be a hiring for a year, the fortnight's notice plainly showing that it was not a weekly hiring. Rex v. Birdbrooke, 4 T. R. 245. In England, in the hiring of domestic servants for a year, there is generally an implied condition, arising from general custom, that the contract may be determined by a month's notice to quit, and if the servant leave without such notice, and without the fault

of his master, he can recover nothing for his services. See Hartley v. Cummings, 5 C. B. 247; Pilkington v. Scott, 15 M. & W. 657; Archard v. Hornor, 3 C. & P. 349; Johnson v. Blenkensop, 5 Jur. 870; Nowlan v. Ablett, 2 C. M. & R. 54; Debriar v. Minturn, 1 Cal. 450; Patterson v. Suffolk Mfg. Co. 106 Mass. 56. But it has been held [otherwise in this country, Larkin v. Hecksher, 51 N. J. L. 133. It has also been held] that where one enters into the service of employers, under no express agreement to continue in their service for any definite time, but with a knowledge of a regulation adopted by them requiring that all persons employed by them shall give them four weeks' notice of an intention to quit their service, he does not forfeit his wages by quitting their service without giving such notice; but he is liable to them for all damages caused by his not giving the uotice; and in a suit against them for his wages, the amount of such damages may be deducted therefrom. Hunt v. The Otis Company,

4 Met. 464.

(c) Down v. Pinto, 9 Exch. 327. See also Taylor v. Laird, 1 H. & N. 266.

(d) It seems that where a servant is hired for a year, or other fixed period, at an entire sum, and is discharged by his employer, without cause, during the term, he may at the end of the time recover for the whole time, according to the contract. Gandell v. Pontigny, 4 Camp. 375; Costigan . Mohawk & Hudson Railroad Co. 2 Denio, 609; Cox v. Adams, 1 Nott & McC. 284; Clancey v. Robertson, 2 Rep. Com. Ct. 404; Byrd v. Boyd, 4 McCord, 246; Sherman v. Champlain Trans. Co. 31 Vt. 162. It seems, however, that the action in such case should be special, and

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162.

not for work and labor done. Fewings v. Tisdal, 1 Exch. 295; Archard v. Hornor, 3 C. & P. 349; Smith e. Hayward, 7 A. & E. 544; Broxham v. Wagstaffe, 5 Jur. 845; Hartley v. Harman, I1 A. & E. 798. But if the servant obtains work elsewhere, during the continuance of the term for which he was originally employed by the defendant, this ought, and probably would, reduce the damages to which the servant would otherwise be entitled by such wrongful dismissal. Stewart v. Walker, 14 Penn. St. 293. And see Costigan v. Mohawk & Hudson R. R. Co. 2 Denio, 617, Beardsley, J.; Hoyt v. Wildfire, 3 Johns. 518; Emerson v. Howland, 1 Mason, 51; Sherman v. Champlain Trans. Co. 31 Vt. In Goodman v. Pocock, 15 Q. B. 676, a clerk dismissed in the middle of a quarter brought an action for a wrongful dismissal, the declaration containing a special count for such dismissal. The jury were directed not to take into account the services actually rendered during the broken quarter, as they were not.recoverable except under an indebitatus count, and they gave damages accordingly. The plaintiff then brought a second action to recover under an indebitatus count for his services during the broken quarter. It was held, that the action was not maintainable, because the plaintiff by his former action on the special contract had treated it as an open contract, and he could not afterwards recover under the indebitatus count as for services under a rescinded contract. It was also held, that in the former action the jury ought to have been directed to take the services rendered during the broken quarter into account, in awarding damages under the special count for the wrongful dismissal. And semble, per Patteson, J., and Erle, J., that under an indebitatus count, the servant wrongfully dismissed before the termination of the period for which he was hired, cannot recover his whole wages up to such termination, as for a constructive service, but can recover only in respect to his service up to the time of his dismissal. See Lilley v. Elwin, 11 Q. B. 755; Green v. Hulett, 22 Vt. 188.

(e) Hochster v. De Latour, 2 E. L. & B. L. 678.

(f) The King v. St. John, Devizes, 9 B. & C. 896. The wilful disobedience, on the part of the servant, of any lawful order of the master, is a good cause of discharge. Spain v. Arnott, 2 Stark. 256; Callo v. Brouncker, 4 C. & P. 518; Amor v. Fearon, 9 A. & E. 548; Leatherberry v. Odell, 7 Fed. Rep. 642. See also Fillieul v. Armstrong, 7 A. & E. 557. [But not arbitrarily for disobedience in matters of slight moment. Shaver v. Ingham, 58 Mich. 649.] In the case of Turner v. Mason, 14 M. & W. 112, an action of assumpsit was brought for the wrongful dismissal of a domestic servant, without a month's notice, or payment of a month's wages. Plea, that the plaintiff requested the defendant to give her leave to absent herself from his service during the night, that he refused such leave, and forbade her from so absenting herself, and that against his will she nevertheless absented herself for the night, and until the following day, whereupon he discharged her. Replication, that when the plaintiff requested the defendant to give her leave to absent herself from his service, her mother had been seized with sudden and violent sickness and was in imminent danger of death, and believing herself likely to die, requested the plaintiff to visit her before her death, whereupon the plaintiff requested the defendant to give her leave to absent herself for that purpose, she not being likely thereby to cause any injury or hindrance to his domestic affairs, and not intending to be thereby guilty of any improper omission or unreasonable delay of her duties; and because the defendant wrongfully and unjustly forbade her from so absenting herself for the purpose of visiting her mother, &c., she left his house and service, and absented herself for that purpose for the time mentioned in the plea, the same being a reasonable time in that behalf, and she not causing thereby any hindrance to his domestic affairs, nor being thereby guilty of any improper omission or unreasonable delay of her

duties, as she lawfully might, &c. Held, on demurrer, that the plea was good, as showing a dismissal for disobedience to a lawful order of the master, and that the replica tion was bad as showing no sufficient excuse for such disobedience. So where the servant assaulted his employer's servant maid, with intent to commit a rape upon her. Atkin v. Acton, 4 C. & P. 208. Or commits any crime, though the same be not immediately injurious to his employer. Libhart v. Wood, 1 W. & S. 265. So where an unmarried female servant becomes pregnant. Rex v. Brampton, Caldecot, 11, 14. So using abusive language to his employer. Byrd v. Boyd, 4 McCord, 246. Or quarrels with a fellow clerk, in the store in the presence of ladies, and draws a revolver. Kearney v. Holmes, 6 La. An. 373. Or is guilty of any misconduct, inconsistent with the relation of master and servant. Singer v. McCormick, 4 W. & S. 265. As if the servant set up a claim to be a partner with his employer. Amor v. Fearon, 9 A. & E. 548. Or conduct so as materially to injure his employer's business. Lacy v. Osbaldiston, 8 Car. & K. 80. Or is guilty of repeated intoxication; McCormick v. Demary, 10 Neb. 515; Beggs v. Fowler, 82 Mo. 599; semble, Wise v. Wilson, 1 Car. & K. 662. And see further Lomax v. Arding, 28 E. L. & E. 543; s. c. 10 Exch. 734. [So held though not habitual. Bass Furnace Co. v. Glasscock, 82 Ala. 452.]

(g) If this question is to be governed solely by the number of authorities, it would seem to be at rest, for it is supported by the following adjudged cases: Cutter Powell, 6 T. R. 320; Lilley v. Elwin, 11 Q. B. 755; Stark v. Parker, 2 Pick. 267; McMillan v. Vanderlip, 12 Johns 165; Jennings v. Camp, 13 id 94; Reab v. Moor, 19 id. 337; Waddington v. Oliver, 5 B. & P. 61; Ellis v. Hamlen, 3 Taunt. 52; Marsh v. Rulesson, 1 Wend. 514; Miller v. Goddard, 34 Me. 102; Faxon v. Mansfield, 2 Mass. 147; Lantry r. Parks, 8 Cowen, 63; Ketchum v. Evert son, 13 Johns. 365; Sickles ». Pattison, 14 Wend. 257; Weeks v. Leighton, 5 N. H. 343; Olmstead v. Beale, 19 Pick. 528; Thayer . Wadsworth, id. 349; St. Albans Steamboat Co. v. Wilkins, 8 Vt. 54; Davis v. Maxwell, 12 Met. 286; Hunt v. Otis Man. Co. 4 id. 465; Winn v. Southgate, 17 Vt. 355; Sutton v. Tyrell, 12 id. 79; Ripley v. Chipman, 13 id. 268; Coe v.

Smith, 1 Cart. (Ind.) 267; Swift v. Williams, 2 Cart. (Ind.) 365; Hawkins v. Gilbert, 19 Ala. 54. Nor does it make any difference in this respect whether the wages are estimated at a gross sum, or are to be calculated according to a certain rate per week or month, or are payable at certain stipulated times, provided the servant agree for a definite and whole term; such an arrangement being perfectly consistent with the entirety of the contract. Davis . Maxwell, 12 Met. 286. The law on this point was fully affirmed in the case of Winn v. Southgate, 17 Vt. 355. It was there held, that if one contract to labor for another for a specified term, and leave the service of his employer before the expiration of the term, without any cause, attributable either to the employer or to the act of Providence, he cannot recover any compensation for the portion of the term during which he in fact labors. And it makes no difference that the employer, before the expiration of the term, permitted the plaintiff to be absent from his employment for a few weeks upon a journey, the plaintiff having, after his return, again resumed labor for his employer, under the contract. Nor does it make any difference, that the plaintiff ceased laboring for his employer, under the belief that, according to the legal method of computing time under similar contracts, he had continued laboring as long as could be required of him. Nor that the employer, during the term, has from time to time made payments to the plaintiff for his labor. But if, in such case, the defendant has made payments to the plaintiff upon the contract, during the term, and the plaintiff, having commenced an action of book account to recover for his services, is defeated, upon the ground that he left the service of the defendant without legal cause, before the expiration of the term, the defendant can have no recovery against the plaintiff for the amount of payments thus made. See also Rice v. The Dwight Man. Co. 2 Cush. 80, where it is again held, that if A enter into the service of B upon an agreement to labor for him a year, and leave at the end of six months, A can maintain no action for the services so rendered; but if B then promise A to pay him for the six months' labor, upon the performance of any additional service, however slight, or the doing of some act by A, to his personal inconveni