the notice requisite.24 The contract itself may contain provisions stating that notice of a certain length is necessary or sufficient to determine a contract, and if so these provisions are controlling.25 A general rule of the employer in regard to notice, of which the employee has knowledge when he enters upon his employment, forms part of the contract.26

§ 1028. Compensation.

If the contract between employer and employee specifies the compensation to be paid, the employee is entitled thereto after performing the service, or at any other time or times which may be agreed upon.27 If no compensation was fixed it becomes a question of fact whether the employment was requested as a favor or as a matter of business. In the latter case a reasonable compensation is the measure of the employee's right.28

So far as concerns the liability of the employer for a breach of the duty to pay the agreed compensation where the employee is not in default, it is enough to say here that it involves merely an application of the general principles of the law of damages for breach of contract.29 Where the employee is in default, several cases must be distinguished. (1) If the default is so slight as not to justify discharge, or if though sufficiently serious to justify discharge, the employer with knowledge of the facts nevertheless continues the employment, the employee is entitled to the agreed compensation, and the employer must seek redress by cross action, counterclaim or recoupment as local procedure may dictate.30

24 See Grundon v. Master, 1 T. L. Rep. 205 (commercial traveller); Fox-Bourne v. Vernon, 10 T. L. R. 647 (editor); Lamberton v. Vancouver, etc., Co., 11 Brit. Col. 67 (restaurant manager).

25 See Reid v. Explosives Co., 19 Q. B. D. 264; McKean v. Cowley, 7 L. T. (N. S.) 828; White Sewing Machine Co. v. Shaddock, 79 Ark. 220, 95 S. W. 143; Derry v. Board of Education, 102 Mich. 631, 61 N. W. 61; DeVere v. Gilmore, 25 N. Y. Misc. 306,

54 N. Y. S. 587; Leslie v. Robie, 84 N. Y. S. 289; Johnson v. Pacific Bank, etc., Co., 59 Wash. 58.

26 Willis v. Muscogee Mfg. Co., 120 Ga. 597, 48 S. E. 177; Pottsville Iron & Steel Co. v. Good, 116 Pa. 385, 9 Atl. 497, 2 Am. St. Rep. 614. 27 See supra, §§ 830, 862. 28 See supra, § 146.

29 See infra, §§ 1358 et seq.

30 Veasey v. Carson, 177 Mass. 117, 58 N. E. 177, 53 L. R. A. 241; Matthews v. Industrial Lumber Co.,

(2) If the breach of duty is sufficiently serious to justify discharge, and the employee is discharged there can be no recovery of compensation under the contract if it is indivisible; 31 and even though it is divisible, there can be no recovery on the contract for any portion of a division which owing to the fault of the employee has not been completed. 32 Whether the employee can recover on a quantum meruit for the value of services, when his own fault precludes recovery on the contract, should depend on the general question whether any party who has made a material breach of his contract may recover on a quasi-contract for benefit which he has given the other party.33

(3) If the contract is divisible, however, the right of the employee to recover the amount for any division of the contract completed at the time of his discharge is unaffected by the question whether there was cause for the discharge, 34 though it may be important in deciding the employer's right of recoupment or counterclaim.35 Non-payment of an instalment of compensation when it is due, like non-payment of an instalment of money under any divisible contract, will soon become a material breach.37 It is a mistake, however,

91 S. Car. 568, 75 S. E. 170, 45 L. R. A. (N. S.) 644, Ann. Cas. 1914 A. 45; Macnamara v. Martin, 7 Comm. L. R. (Austr.) 699.

31 Boston, etc., Ice Co. v. Ansell, 39 Ch. D. 339, 364; Latham v. Barwick, 87 Ark. 328, 330, 113 S. W. 646; Hill v. Balkcom, 79 Ga. 444, 5 S. E. 200; Stark v. Parker, 2 Pick. 267, 13 Am. Dec. 425; Von Heyne v. Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524; Walsh v. New York, etc., Co., 88 N. Y. App. D. 477, 85 N. Y. S. 83; Pullen v. Green, 75 N. C. 215; Mudgett v. Texas, etc., Mfg. Co. (Tex. Civ. App.), 61 S. W. 149.

32 Ridgeway v. Hungerford Market Co., 3 A. & E. 171; Hartman v. Rogers, 69 Cal. 643, 11 Pac. 581; Beach v. Mullin, 34 N. J. L. 343; and see cases in the preceding note.

33 See infra, § 1477.

34 Button v. Thompson, L. R. 4 C. P. 330; Sherley v. Sherley, 118 Md. 1, 84 Atl. 160; Peterson v. Mayer, 46 Minn. 468, 49 N. W. 245, 13 L. R. A. 72; Robinson v. Sanders, 24 Miss. 391; Maratta v. Heer Dry Goods Co., 190 Mo. App. 420, 177 S. W. 718; Walker v. John Hancock Mut. L. Ins. Co., 80 N. J. L. 342, 345, 79 Atl. 354, 356, 35 L. R. A. (N. S.) 153, Ann. Cas. 1912 A. 526; Tipton v. Feitner, 20 N. Y. 423; Walsh v. New York, etc., Co., 88 N. Y. App. Div. 477, 85 N. Y. S. 83; Cristall v. Gerst, (Supr. C. App. Term) 169 N. Y. S. 64; Peniston v. John Y. Huber Co., 196 Pa. 580, 46 Atl. 934. 35 See infra, § 1350. 36 See supra, § 869.

37 Canal Co. v. Gordon, 6 Wall. 561, 18 L. Ed. 894; Bowdish v. Briggs, 5 N. Y. App. Div. 592, 594, 39 N. Y. S. 371; Tichenor v. Bruckheimer, 40 N. Y.

to suppose that any breach of duty whatever by the employer, whether to give compensation or to fulfil the other duties of his position, necessarily gives ground for immediate abandonment of his services by the employee. Here, as always in bilateral contracts not expressly conditional, the test of materiality must be applied.39 An added severity of the law if the employment is of a fiduciary nature is referred to in other sections.40

§ 1029. Attorney and client.

It has been decided by the New York Court of Appeals,41 that a different rule prevails between attorney and client from that ordinarily applicable to employer and employeethat the client may break a contract to employ an attorney for a fixed service without other liability than to pay for services previously rendered. Such a rule has been justly criticised. 42 An attorney is bound by the contract both as to his services and the compensation for them.43 It is a fundamental principle of contracts that both parties must be bound by the agreement. To this rule there is the notable exception of voidable promises.44 The decision in question would make the contracts of attorney and client voidable at the option of the client. It is doubtful whether policy demands the extension of such an anomaly. The attorney has no peculiar advantage in the formation of the agreement, for the client, unlike the infant, is presumably competent to contract; the fiduciary relation arises afterward. On the other hand, such a right would enable the client unjustifiably to deprive the attorney entirely of the benefits of the contract, though the services were substantially complete. A client may dissolve his relationship with the attorney at any

Misc. 194, 81 N. Y. S. 653; LaCoursier

v. Russell, 82 Wis. 265, 52 N. W. 176. See also Dunn v. Crichfield, 214 Ill. 292, 73 N. E. 386.

35 Reg. v. Wilton, 13 Vict. L. R. 710, 711. See also Dockham v. Smith, 113 Mass. 320, 18 Am. Rep. 495; Ulrich v. Hower, 156 Pa. 414, 27 Atl. 243.

39 See supra, §§ 841 et seq., 866.

fin.

40 Supra, § 1022, infra, § 1477, ad

41 Martin v. Camp, 219 N. Y. 170, 114 N. E. 46, L. R. A. 1917 F. 402. 42 30 Harv. L. Rev. 185.

43 Houghton v. Clarke, 80 Cal. 417, 22 Pac. 288. See Tenney v. Berger, 93 N. Y. 524, 529, 45 Am. Rep. 263.

44 See supra, § 105.

time and without cause.4 45 This would seem to give him ample protection, without also freeing him from liability for unjustifiably doing so in violation of his contract. It follows that the attorney should be allowed to recover for breach of the contract. The weight of authority is to this effect, and opposed to the decision of the New York court. The scope of that decision is expressly limited to an attorney employed for a single litigation, but it seems difficult to distinguish such a case from any other contract between attorney and client.

Before the relationship of attorney and client is entered into the contract for compensation stands upon the same footing as similar contracts between other persons, but after the relation has once arisen, the attorney is subject to the duties of a fiduciary, and the fairness of a contract then made will be carefully scrutinized. 46a

§ 1030. Compensation by the piece or by commission.

Where an employee's contract entitles him to payment not according to the time which he has worked, but according to his accomplishment, the same question may arise as where he is to be paid by time, namely, is the contract divisible, entitling an employee even though he has left his employment without cause or been discharged from it for good reason, to recover for what he has done? It may be the true construction of such a contract that the contract is entire and no compensation is earned until the full term of employment has been completed, the piece work then furnishing the rate. The usages of business furnish the best guide for interpreting such contracts.47

In the common case of a real estate agent or broker, the

45 In re Dunn, 205 N. Y. 398, 98 N. E. 914; Lynch v. Lynch, 99 Ill. App. 454; Delaney v. Husband, 64 N. J. L. 275, 45 Atl. 265.

46 Maynard v. Reynolds, 251 Fed. 784, 164 C. C. A. 18, cert. denied, 248 U. S. 578, 39 S. Ct. 19; Bartlett v. Odd-Fellows' Sav. Bk., 79 Cal. 218, 21 Pac. 743; Scheinesohn v. Lemonek, 84 Oh. St. 424, 95 N. E. 913, Ann. Cas.

ordinary business understanding, and therefore the ordinary rule of law, is that the agent becomes entitled to his commission when he has procured for his client one who is able and ready and willing to contract with the client on the terms which the latter has stated to his agent.48 But whatever the custom may be in the absence of express agreement, it may be modified by the parties as they see fit, either by making the commission conditional on an actual sale,49 or by en