But those principles were held not to apply where the limitation of hours was merely for the purpose of regulating the amount of wages (y): or, where the agreement was to obey the rules of the factory with regard to hours, &c., as that was merely equivalent to an agreement to obey the master's orders, which is implied in Exceptions every contract (z). And exceptions merely implied by implied by custom or usage of trade, were held not to prevent a settlement (a). custom. Reservation of weekly wages, Where the only circumstance from which the intended duration of a contract of hiring and service can be inweekly hir- ferred, is the reservation of wages weekly, it must be ing. taken to be a weekly hiring. As, where a man hired himself to a plumber and glazier, who was to find him board, lodging and washing, at 6s. per week, summer and winter (b): or, where the hiring was merely at so much a week (c): or, where the servant was to live with bis master, who was to find him board and lodging, and pay him 2s. 6d. a week (d): or, where a servant in husbandry was to serve for the weekly wages of 4s., board, washing and lodging, except in the harvest month, when his wages were to be increased to 10s. 6d. per week, and then again reduced to 4s. (e): or, where the hiring was at 88. a week, and two guineas for the harvest; to do anything the gardener should set him about (f): or, where a gardener having asked 201. a year, his master refused that, but agreed to give him so much a week (g). But, if there is anything in the contract of hiring to shew that it was intended to be for a year, the reserva Aliter, where (y) Rex v. Ossett cum Gawthorpe, 4 B. & Ad. 216. (z) Rex v. St. John, Devises, 9 B. & C. 896. But see Reg. v. Preston, 4 Q. B. 597, where the hours were limited by a printed notice, with reference to which the agreement was made. (a) Per Lord Mansfield in Rex v. Buckland Denham, Burr. S. C. 694; per Bayley, J., in Rex v. Edgmond, 3 B. & Ald. 110; and see Reg. v. Stoke upon Trent, 5 Q. B. 303. (b) Rex v. Dedham, Burr. S. C. 653; 2 Bott. 292. (c) Rex v. Newton Toney, 2 T. R. 453; Rex v. Odiham, 2 T. R. 622; Rex v. Hunbury, 2 East, 423; Rex v. Mitcham, 12 East, 351. See also Baxter v. Nurse, 6 M. & G. 638, ante, p. 43. (d) Rex v. Pucklechurch, 5 East, 382. (e) Rex v. Dodderhill, 3 M. & S. 243. (f) Rex v. Lambeth, 4 M. & S. 315. (g) Rex v. Warminster, 6 B. & C. 77. tion of weekly wages will not control it. As, where the hiring was at 3s. per week the year round, with liberty to go on a fortnight's notice; this was held to be yearly fortnight hiring (h). So, where the hiring was at weekly wages, with a stipulation for a month's notice to determine the or month's contract; on the ground that it was a hiring, of which notice re. quired. no certain portion of time could be predicated for its duration, it was consequently a general hiring, which the law says, is a hiring for a year (i). be termi the year. Where the hiring is a yearly hiring, it cannot in general Yearly hirbe put an end to by either party before the end of the ing cannot year. If, therefore, on the one hand, a master wrong-nated before fully dismiss his servant during the year, the servant may maintain an action against him for such wrongful dismissal, and a jury would, in some cases, be justified in assessing his damages at the amount of wages which he would have earned, had he been allowed to serve to the end of the year (k). Whilst, on the other hand, a servant wrongfully quitting his master's service, or rightfully dismissed for misconduct during the year, cannot recover any wages for the portion of the year during which he has served (1). The above observation, how In the abever, would not of course apply where the agreement sence of any stipulation was subject to some stipulation, either express or implied or custom by custom, enabling either party to determine the con- as to notice. tract by notice-to the case of domestic and menial servants, for instance; with regard to whom, there is a well known rule founded solely on custom, that their contract e. g. Domesof service may be determined at any time, by giving a month's warning, or paying a month's wages (m). (h) Rex v. Birdbrooke, 4 T. R. 245. (i) Rex v. Hampreston, 5 T. R. 205; Rex v. Great Yarmouth, M. & S. 114; Rex v. Pershore, 8 B. & C. 679. (k) See Beeston v. Collyer, 4 Bing. 309. The action for wrongful dismissal is treated of, post. (1) Spain v. Arnott, 2 Stark. 256; Turner v. Robinson, 6 C. & P. 15; S. C. 5 B. & Ad. 789; Ridgway v. Hungerford Market Company, 3 A. & E. 171; Lilley v. El- (m) Fawcett v. Cash, 5 B. tic servants. Contract to find work cannot be implied from contract to pay wages. Williamson v. Taylor. HOW FAR THE MASTER IS BOUND TO FIND WORK Where the contract of hiring merely contains an undertaking on the part of the master, to pay certain stipulated wages in proportion to the work done by the servant, there is no implied obligation on the part of the master to find work. Thus where the defendant (n), who was the owner of a colliery, entered into an agreement with the colliers and workmen, and amongst others the plaintiff, whereby the said owner retained and hired the said other parties thereto "to hew, work, fill, drive, and put coals, and do such other work as may be necessary for carrying on the said colliery as they shall be required or directed to do by the said owners, their executors," &c., "or their viewers or agents, at the respective rates and prices and on the terms," &c. following; "First, the said owners agree to pay the said hereby hired parties once a fortnight, upon the usual and accustomed day, the wages by them to be earned at the following rates, viz." (specifying the rates, with regulations as to the manner of working). "Fifth: the said parties hereby hired shall, during all the times the pit shall be laid off work, continue the servants of the said owners, subject to their orders and directions, and liable to be employed by them at such work as they shall see fit. Sixth: the said hewers hereby hired shall, when required, except when prevented by sickness or other sufficient unavoidable cause, do and perform a full day's work on each and every working day, or such quantity of work as shall be fairly deemed equal to a day's work not exceeding eight hours, and shall not leave their work until such day's work or quantity of work is fully performed or finished to the extent of each man's ability; and in default thereof each of the said parties hereby hired and so making default shall, for every such default, forfeit and pay to the said owners, their executors,' Ass. 1849 (see the Times, verdict for a year's wages. (n) Williamson v. Taylor, 5 Q. B. 175; and see Lees v. Whitcomb, 5 Bing. 34; Sykes v. Dixon, 9 A. & E. 693, ante, p. 21. &c., 2s. 6d. vertheless, be paid. But where the contract of hiring provides for the But wages payment of certain wages (not in proportion to the must, nework done), although it is optional on the part of the master to find work, and he may, if he pleases, discontinue his business; yet he must nevertheless pay the wages agreed on, whether he find work for the servant or not, or he will render himself liable to an action for such damages as a jury may think proper to give (0). Thus where the plaintiff agreed to manufacture for Aspdin v. the defendant, with the materials and machinery to be Austin. provided by him, cement of a certain quality; and ɔn condition of his doing so, the defendant agreed to pay the plaintiff weekly four pounds for two years, and five pounds weekly for the following year, and then to receive him as a partner, the plaintiff also further agreed to teach the defendant how to manufacture certain kinds of cement: each party bound himself in a penal sum to fulfil the agreement, and the defendant afterwards covenanted by deed for the performance of the agreement on his part: It was held, that the stipulations in the agreement did not raise an implied covenant that the defendant should employ the plaintiff in the business during three or two years, although the defendant was bound by express words to pay the plaintiff the stipulated wages during those periods respectively, if the plaintiff performed or was ready to perform the conditions precedent on his part (p). And where (9) a declaration in covenant stated that Dunn v. by deed, between the defendant, D., and the plaintiff, the Sayies. plaintiff covenanted that D. should for five years from (0) We shall see hereafter, that a servant in such case cannot, if discharged by his master, recover the wages agreed on by offering to serve and remaining idle, but only D damages for the wrongful dis- (p) Aspdin v. Austin, 5 Q. (q) Dunn v. Sayles, 5 Q. B. 685. Contract to find work cannot be HOW FAR THE MASTER IS BOUND TO FIND WORK Where the contract of hiring merely contains an undertaking on the part of the master, to pay certain stipulated wages in proportion to the work done by the servant, there is no implied obligation on the part of the master pay wages. to find work. implied from contract to Williamson Thus where the defendant (n), who was the owner of a v. Taylor. colliery, entered into an agreement with the colliers and workmen, and amongst others the plaintiff, whereby the said owner retained and hired the said other parties thereto "to hew, work, fill, drive, and put coals, and do such other work as may be necessary for carrying on the said colliery as they shall be required or directed to do by the said owners, their executors," &c., " or their viewers or agents, at the respective rates and prices and on the terms," &c. following: "First, the said owners agree to pay the said hereby hired parties once a fortnight, upon the usual and accustomed day, the wages by them to be earned at the following rates, viz." (specifying the rates, with regulations as to the manner of working). "Fifth: the said parties hereby hired shall, during all the times the pit shall be laid off work, continue the servants of the said owners, subject to their orders and directions, and liable to be employed by them at such work as they shall see fit. Sixth: the said hewers hereby hired shall, when required, except when prevented by sickness or other sufficient unavoidable cause, do and perform a full day's work on each and every working day, or such quantity of work shall be fairly deemed equal to a day's work not exce ing eight hours, and shall not leave their work such day's work or quantity of work is fully perf or finished to the extent of each man's ability: default thereof each of the said parties here and so making default shall, for every suc forfeit and pay to the said owners, their |