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Ferns v. Carr, 28 Ch. D. 409. Incapacity in a servant from illness, arising after a contract for personal service, absolute in its terms, had been entered into, is an answer to an action for its breach. Boast v. Firth, L. R., 4 C. P. 1. So in the case of a contract involving personal skill; as a pianoforte player. Robinson y. Davison, L. R., 6 Ex. 269. But where from the circumstances it can be given, the employer is entitled to reasonable notice of such disability. S. C., per Brett, J., at N. P. 1d. p. 271. Incapacity of the servant from sickness is not a determination of the contract, nor will it justify dismissal without regular notice. Semble R. v. Wintersett, Cald. 298. So where a person entered into service as a brewer for a term certain at weekly wages, and became disabled by illness for several months, but afterwards was employed by the defendant as before,held, that this involuntary inability did not suspend the right to wages; nor negative the allegation of readiness and willingness to serve. Cuckson v. Stones, 1 E. & E. 248 ; 28 L. J., Q. B. 25. But permanent disability, such as paralysis, &c., would have justified putting an end to the contract. Per cur. S. C. Total inability to perform his duty will not prevent a seryant from recovering wages for the time he actually served, where the agreement is not for any specific term. Bayley v. Rimmell, 1 M. & W. 506. A seaman disabled in the course of his duty is entitled to wages for the whole voyage. Chandler v. Grieves, 2 H. Bl. 606, n. Inability to perform his duty by reason of incompetency or ignorance will justify the dismissal of an artificer, notwithstanding a contract for a term, where he was hired on the express representation that he had the requisite skill; Harmer v. Cornelius, 5 C. B., N. S. 236; 28 L. J., C. P. 85; and where a person is employed to do something, requiring skill, there is an implied warranty that he possesses the requisite skill; per curiam, S. C. Where the contract of yearly service is determined by consent in the middle of a quarter, there is no necessarily implied contract to pay pro ratâ ; but a jury may infer such an agreement from circumstances. Lamburn v. Cruden, 2 M. & Gr. 253; Thomas v. Williams, 1 Ad. & E. 685.
Where a contract of apprenticeship provides that the apprentice's father shall provide him with board and lodging, but is silent as to the place where the apprentice is to be taught, the master is bound to teach him at or near the place where the business was carried on at the time the contract was executed. Eaton v. Western, 9 Q. B. D. 636, C. A. But it seems it is otherwise where the apprentice resides in his master's house. Id. 641, per Hannen, P.; Coventry v. Windal, Brownl. 67.
As to agreements for service within the Stat. of Frauds, 8. 4, see post, pp. 502-504. See also the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), as to the contracts to which that Act applies.
Damages.] A dismissed servant may (and, if he can, ought to) enter into another service. Per cur., in Hochster v. De la Tour, 2 E. & B. 690; 22 L. J., Q. B. 458. He is not entitled to his full salary for the unexpired period of the contract for service, but that is to be reduced by the probabilities of his having other employment during such service. Hartland v. General Exchange Bank, 14 L. T., N. S. 863, Willes, J. See Yelland's case, L. R., 4 Eq. 350 ; Ex pte. Clarke, L. R., 7 Eq. 550 ; and Ex pte. Logan, L. R., 9 Eq. 149. In Gandell v. Pontigny, 4 Camp. 375; 1 Stark. 198, where wages were payable quarterly, the clerk, who was tortiously discharged in the middle of the quarter, was allowed, on a tender of his services, to recover the whole quarter. But this decision, which is inconsistent with those above cited, is not now followed. See Smith y. Hayward, 7 Ad. & E. 544; Goodman v. Pocock, 15 Q. B. 576; and 2 Smith's L. O., 9th ed., pp. 48 et seq. Where an apprentice, who could
have been lawfully dismissed at a week's notice, was dismissed without notice, he was held entitled to recover for all the damage flowing naturally from the breach, and was not limited to the value of a week's notice. Maw v. Jones, 25 Q. B. D. 107.
Defence. The defence of dismissal for misconduct must be specially pleaded. Rules, 1883, 0. xix. r. 15, ante, p. 301.
It is a good defence that the servant has already recovered damages for wrongful dismissal from the service ; for he cannot by subsequently tendering his services recover for a continued refusal to employ him throughout the original time of service. Barnsley v. Taylor, 37 L. J., Q. B. 39. See, however, Unwin v. Clarke, L. R., Q. B. 417, 423, per Blackburn, J.
By the Merchant Shipping Act, 1854, ss. 2, 189, no person (except the master or pilot) engaged in any capacity on board ship, can in general sue in a superior court for his wages, where they do not amount to 50l.; but this defence must be specially pleaded. The term “claim for wages in 31 & 32 Vict. c. 71, s. 3 (2), has been held to include a claim for wrongful dismissal. The Blessing, 3 P. D. 35. Sed quære.
ACTION FOR NOT ACCEPTING GOODS. On a contract of sale of goods and chattels, the obligations of the seller are-1. To deliver, or preserve for delivery, to the buyer; 2. To perform warranties express or implied; 3. Neither wilfully to misrepresent nor fraudulently to conceal anything relating to the thing sold. The obligations of the buyer aro-i. To accept the article sold; and 2. To pay the price. The precise time of the change and vesting of the property, and the risk of loss ( periculum rei venditæ), are also questions incidental to this contract.
Though the price to be paid may in part consist of an article to be given in exchange, the entire contract is in substance one of sale, and (except as to the form of claiming upon it) may be so treated. Bach y. Owen, 5 T. R. 409; Pothier, Contrat de Vente, par. 30. But a mere exchange cannot be treated as a sale. Harrison v. Luke, 14 M. & W. 139. The subject of warranties has been already under consideration, ante, pp. 467 et seq. That of misrepresentation and fraud will be found, sub tit. Defences to simple contracts-Fraud, post, pp. 633 et seq., and post, Action for Deceit. The remaining obligations, and the evidence relating to them, are the subject of this and the next following heads.
At common law, and independently of the Stat. of Frauds, a sale of personal property is good, though the bargain be oral. Blackstone thus lays down the common law (2 Comm. 447-8)-If the vendor names the price and the vendee agrees to give it, the bargain is struck, and neither is at liberty to be off, provided immediate possession be tendered; but if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases. But if any part of the price is paid down, if it be but a penny, or any portion of the goods be delivered by way of earnest, the property of the goods is absolutely bound by it, and the vendee may recover the goods and the vendor the price.
An examination of the authorities supports the statement of Blackstone. See Shep. Touchst. 224-5; the cases cited per cur. in Thorpe v. Thorpe, 1 Lutw. 252; the old authorities in 1 Reeves, Eng. L. 166; 3 Id. 372-4 ; Noy's Maxims, 87; Bach v. Owen, 5 T. R. 409, 410.
Several cases in Brook's Ab. (cited in 5 Vin. tit. Contract and Agreement) throw light on the la sales without writing. Thus a mere oral agreement for sale, without paying or giving day of payment, is not a binding bargain; 1 Dyer, 30, pl. 203; 5 Vin. 506, pl. 4; Id. 509, pl. 3; but the contract binds if a future day for payment be fixed; Id. 510, pl. 4; so if the buyer produce and begin to count the money; Id. 1b., pl. 5; so if he go to fetch the money with consent of the seller; Id. Ib., pl. 6.
It is observable, however, that the earlier dicta chiefly relate to simple oral sales for ready money, which supposed immediate performance on both sides, and in such cases neglect to perform on one side, released the other; but at the present time a contract for sale is good, although neither the money be paid or a day expressly named for payment. Kent (2 Comm. 492) says, that when the terms are agreed upon and bargain struck, and everything to be done by the seller is complete, “the contract becomes absolute without payment or delivery, and the property and risk of accident vest in the buyer.” And it is now settled that, by a contract for the sale of specific ascertained goods the property immediately vests in the buyer and a right to the price in the seller, unless it can be shown that such was not the intention of the parties. Gilmour v. Supple, 11 Moo. P. C. 551, 566 ; Accord. Calcutta, &c. S. Navig. Co. v. De Mattos, 32 L. J., Q. B. 322, 329, per Blackburn, J. See also Simmons v. Swift, 5 B. & C. 862, per Bayley, J.; Tarling v. Baxter, 6 B. & C. 360.
The doctrine, however, that the property is changed on the making of an effectual bargain, applies only to cases where the article sold is ascertained and in esse at the time; for if the bargain require anything further to be done by the seller, as to make the article, or to set apart or ascertain the price of the goods sold, by weight, number, measurement, selection, or otherwise, the property does not pass until they are in a state fit for delivery. Blackburn on Contract of Sale, 152; Gilmour v. Supple, supra; Jenner v. Smith, L. R., 4 C. P. 270; 2 Kent, Comm. 495, 496, 504. But if it appear from the agreement that the intention of the parties is that the property shall pass presently, the property does pass, though there remain acts to be done by the vendor before the goods are deliverable. Blackburn on Contract of Sale, 160; and see Young v. Matthews, L. R., 2 C. P. 127; Turley v. Bates, 2 H. & C. 200; S. C. sub nom. Furley v. Bates, 33 L. J., Ex. 43. The cases on the vesting of property by sale are collected post, p. 521, and sub tit. Action for conversion of goods, where also will be found the cases on Lien and Stoppage in transitu. The subject of delivery is treated of under the heads of Action for not delivering goods, and for goods sold and delivered, post, pp. 524, 530 et seq.
Points often arise respecting the effect of a contract or negotiation relating to a sale, contained in a written correspondence. On this some cases have been already cited under a former head, ante, pp. 305 et sq. The rule is that as soon as an offer by A. is accepted by B., in a letter duly posted and addressed by B. to A., the contract is complete, although the letter may not reach A. Duncan v. Topham, 8 C. B. 223; Dunlop v. Higgins, 1 H. L. Č. 381 ; S. C., 9 Sc. C. of Sess. Cases, 1847, p. 1407; Ilarris's case, L. R., 7 Ch. 587; Household, dc. Insur. Co. v. Grant, 4 Ex. D. 216, C. A., overruling British and American Telegraph Co. v. Colson, L. 6 Ex. 108; see also 2. Ap. Ca. 692, per Ld. Blackburn. The acceptance must be unconditional in order to bind the party offering. Chaplin v. Clarke, 4 Exch. 403. If, therefore, the acceptance introduce any variation, there is no contract, unless there be evidence of assent by the other party to the alteration, either express or implied. Illustrations of this rule will be found in Wontner v. Shairp, 4 C. B. 404 ; Duke v. Andrews, 2 Exch. 290; Cheveley v. Fuller, 13 C. B. 122; Hutton v. Upfill, 2 H. L. C. 674; Barker v. Allan, 5 H. & N. 61; 29 L. J., Ex. 100; Appleby v. Johnson, L. R., 9 C. P. 158. See further on the making, accepting, and retractation of offers, cases cited ante, pp. 305 et seq. A tender to supply goods at specified prices, followed by an order for a specified quantity of such goods, constitutes a valid contract. Gt. N. Ry. Co. v. Witham, L. R., 9 C. P. 16. A mere mental assent to the terms of a proposed contract is not binding, but acting on those terms may amount to evidence of the adoption of the contract. Metropolitan Ry. Co. v. Brogden, 2 Ap. Ca. 666, D. P. Where the contract is entered into by telegram, the sender is not liable for a mistake of the telegraph clerk in sending the message. Henkel v. Pape, L. R., 6 Ex. 7.
In an action for not accepting goods sold, the plaintiff may be put to proof of the contract, the performance of all conditions precedent on his part, the refusal to receive, and the amount of damage.
It is most commonly in an action for not accepting that the question as to the validity of contract of sale without writing arises, although it occurs in other actions, &c. The principal decisions on the Stat. of Frauds, so far as relates to contracts not to be performed within a year, and for the sale of goods and merchandise, therefore may be collected here.
The Contract-Stat. of Frauds, 8. 4.] By the Stat. of Frauds, 29 Car. 2, c. 3, s. 4, no action shall be brought whereby to charge any person “upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
Contracts within the Stat. of Frauds, 8. 4.] Sect. 4 applies to contracts the complete performance of which is of necessity extended beyond the space of a year.”
“Where the agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but that where the contract is such that the whole may be performed within a year, and there is no express stipulation to the contrary, the statute does not apply.” Per Tindal, C. J., Souch v. Strawbridge, 2 C. B. 815; Boydell v. Drummond, 11 East, 142; Knowlman v. Bluett, L. R., 9 Ex. 1, 307, Ex. Ch.; McGregor v. McGregor, 21 Q. B. D. 424, C. A.; 1 Smith's Lead. Cas., 9th ed., pp. 360, 361, notes to Peter v. Compton.
The following cases have been decided on this section. An agreement to serve for 701, the first year, 901, the second, and so on, is within the section, and requires a writing; and such writing cannot be explained by showing a contemporary or subsequent agreement to pay the salary quarterly. Giraud v. Richmond, 2 C. B. 835. A contract for a year's service, to commence on a subsequent day, is within the section ; Bracegirdle v. Heald, 1 B. & A. 722; Snelling v. Huntingfield, Ld., 1 C. M. & R. 20; Britain v. Rossiter, 11 Q. B. D. 123, C. A. ; unless, perhaps, if the service is to begin on the next day. Id. 125 ; Cawthorn v. Cordrey, post, p. 503. The contract is within the statute, although the service is subject to be determined by a notice within the year. Dobson v. Collis, 1 H. & N. 81; 25 L. J., Ex. 267. An agreement by a company that E. " shall be the solicitor to the company,
," "and shall not be removed from his office except for misconduct," was held to be within the section. Eley v. Positive Assur. Co., 1 Ex. D. 20; affirm. on another ground, Id. 88, C. A. So, an agreement that S. should not carry on a certain trade during the joint lives of himself and another person. Davey v. Shannon, 4 Ex. D. 81. So, a contract to maintain a child about five years old, “until she is able to do for herself.” Farrington v. O'Donohoe, I. R., 1 C. L. 675. The reason for the above decisions was that the parties contemplated that the agreement would not be performed within a year, notwithstanding it might, owing to the death of the servant or child, &c., before the expiration of the year, be then completely performed.
In Murphy v. Sullivan, 11 Ir. Jur., N. S. 111, the Irish Court of Exch. Ch. held, however, that a contract to maintain a child for life was not within the section, as it was possible it might die within the year, and this case was followed with approval by the C. A. in McGregor v. McGregor, 21 Q. B. D. 424, where an agreement by the husband in a separation deed to pay his wife 11. a week was held not to be within the statute. The decision in Davey v. Shannon, supra, was the only one of the above cases of which the C. A. distinctly disapproved; but the principle of Murphy v. Sullivan, supra, if logically carried out, would prevent any contract for a life annuity, or for personal service, from coming within the section; and it must be observed that although McGregor v. McGregor, supra, was decided in the Q. B. D. on the principle of Knowlman v. Bluett, L. R., 9 Ex. 307, Ex. Ch., as an action for money paid at the defendant's request, the C. A. expressly declined to decide the case on that ground.
A contract not enforceable, because of the statute, is an existing contract, and a fresh contract cannot be implied from acts done in pursuance of it; Britain v. Rossiter, ante, p. 502; but where A. orally agreed to serve B. for a year, the service to commence on a subsequent day, and A. entered
upon the service upon the day named, and B. paid him wages on account, it was held that the jury might infer a new implied contract from that day. Cawthorn v. Cordrey, 13 C. B., N. S. 406; 32 L. J., C. P. 152.
The section applies only to contracts which are not to be performed on either side within the year. Bracegirdle v. Heald, supra; Donellan v. Read, 3 B. & Ad. 899. If all that is to be done by one party as the consideration for the promise of the other, can be done within the year, it is not within the section. S. C.; Smith v. Neale, 2 C. B., N. S. 67 ; 26 L. J., C. P. 143.
The doctrine of part performance, vide ante, pp. 309 et seq., applies only to contracts relating to land; Britain v. Rossiter, ante, p. 502 : including easements over land. McManus v. Cooke, 35 Ch. D. 681. See also Caton v. Caton, L. R., 2 H. L. 136, 137.
Where in a contract, between the plaintiff and the defendant, one of several terms to be performed by the defendant falls within the section, the contract cannot be enforced, but if the entire work be done under the contract by the plaintiff, and accepted by the defendant, the plaintiff can recover on a quantum meruit, without before action electing to abandon the contract. Savage v. Canning, I. R., 1 C. L. 134, C. P.; following Gray v. Hill, Ry. & M. 420; and see per cur., Teal v. Auty, 2 B. & B. 99; Harman v. Reeve, 18 C. B. 587 ; 25 L. J., C. P. 257. Where there was a contract for 24 numbers of a periodical work, to be delivered monthly at 218. a number, it was held that the plaintiff might sue for the price of the numbers actually delivered, the defendant having refused to