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[See Manley Smith on Master and Servant, 4th ed., 1885 ; Macdonell on Master

and Servant, 1883 ; Cordery on Solicitors, 2nd ed., 1888.]

PAGE 1. Generally

505 (a) The implied Contracts 505 (b) Implied Contract not to dis

close Employer's Secrets 507 (c) When Right of Action 507 (d) Who to Sue or be Sued 507 (e) Lien

508 2. Counsel

509 3. Medical Practitioners

513 4. Arbitrators..

516 5. Agents..

517 6. Builders


PAGE 7. Printers

622 8. Servants and Workmen... 522 9. Solicitors

532 (a) Personal Attention 532 (b) Want of Qualification... 633 (c) Remuneration

(d) Negligence.......

(e) Discontinuance of
Client's Business

10. Bankers.....

538 11. Surveyors



Sect. 1.-Generally.

(a) Implied Contracts for Skill and Payment. WHEREVER there is a contract to perform any work, or to transact Implied con. any business, the law ordinarily implies an engagement on the part skill and of the person undertaking to do the work, that it shall be performed paymeut. with due care, diligence, and skill, according to the orders given and assented to (a); and—where there is no agreement as to the price—a promise by the party who employed the workman, to pay him, in money, a reasonable remuneration (b). Nor will the fact of the workman demanding more than a reasonable price, or refusing to deliver a chattel on which he has bestowed his labour, except on payment of such larger price, preclude him from afterwards suing for and recovering a reasonable price (c). But where a specific price has been agreed upon, a subsequent promise, without any new consideration, to pay an additional sum for the same services, is nudum pactum (d). Where, however, it is expressly agreed between the parties that Right of

action in the work shall be done gratuitously, the contract is nudum pactum, respect of.

(a) Streeter v. Horlock (1822), 1 Bing. 34. Per Bayley, J., Duncan v. Blundell (1820), 3 Stark. 6.

(6) See Brown v. Nairne (1839), 9 C. & P. 204. For exceptions, ses ss. 2, 3, and 4.

(c) Hughes v. Lenny (1839), 5 M. &

W. 183.

(d) Harris v. Watson (1791), Peake, 72 ; 3 R. R. 654 ; Browne v. Crump (1815), 1 Marsh. 567 ; Newman v. Walters (1804), 3 B. & P. 612; 7 R. R. 886.

Ch. XIX. 3. 1. and the party undertaking to execute the work is not bound to enter
Contracts of
Employment upon or perform it (e).
(Generully). And a contract to render services is not binding, if there be no

corresponding obligation to receive them (f). Service for No action can be maintained for services performed upon an legary.

undertaking that the plaintiff was to make no charge, but that he should receive a legacy at the death of the person to whom they were rendered. But the mere fact of their having been performed in the expectation of receiving a legacy, will not take away the

plaintiff's right of action (g). Remuneration So, where a person performed work for a committee, under a at discretion. resolution entered into by them, “ that any service to be rendered

by him should be taken into consideration, and such remuneration be made as should be deemed right ; it was held, that an action could not be maintained to recover a reward for such work; the resolution importing, that the committee were to judge whether any remuneration had been earned (h).

So, it has been said, that if a person take a journey to become bail for another, he cannot maintain an action against him for his trouble or loss of time in such journey ; because he did not undertake the journey as work and labour, or as a person employed by the defendant; but he did it as his friend, and to do him a kindness ().

But under a contract, “I hereby agree to enter your service as weekly manager, commencing on Monday, and the amount of payment I am to receive I leave entirely to you ; it was held to be implied that the plaintiff was, at all events, to be paid something for the services to be performed (k).

And where A. entered into the employ of B., under an agreement that, if he was approved of, B. would take him as an apprentice; and after serving B. for two years, the contract for an apprenticeship was rescinded ; A. was held to be entitled to a remuneration for his labour during that period (1).

(c) See ante, Ch. I. s. 2.

(f) See Pilkington v. Scott (1846), 15 M. & W. 657 ; Hartley v. Cummings (1846), 2 C. & K. 433 ; Sykes y. Dixon (1839), 9 A. & E. 693.

(g) Baxter v. Gray (1842), 3 M. & G. 771 ; and see Osborn v. Governors of Guy's Hospital (1727), Str. 728 ; see Maddison v. Alderson (1883), 8 App. Cas. 467.

(h) Taylor v. Brewer (1813), 1 M. & S. 290 ; and see Roberts v. Smith (1859), 4 H. & N. 315.

As to the contract to do work, on the

credit of a particular fund, see Landman v. Entwisle (1852), 7 Exch. 632.

(i) Per Park, J., Reason y. Wirdnam (1824), 1 C. & P. 434.

(k) Bryant v. Flight (1839), 5 M. & W. 114 ; Parke, B., diss. On an agreement by A. to serve B. at such salary as C. should think right, no action lies, if there has been no application to C. to fix the salary; Owen v. Bowen (1829), 4 C. & P. 93.

(1) Phillips v. Jones (1834), 1 A. & E. 333.

CH. XIX. s. 1. (b) Implied Contract not to disclose Secrets.

Contracts of The clerk of a professional or business man is under an implied (Generally).

Employment contract not to make public professional or trade secrets which he

Contract by learns in the course of his employment, and he will be restrained by servant as to

confidential injunction from publishing such secrets (m).

relations. A solicitor is (see p. 556) bound by law not to disclose his client's Solicitor. secrets (n), and it is presumed that a barrister is similarly bound.

It is conceived that a doctor is prima facie bound by law (see Doctor. p. 515, post) to keep his patients' secrets (o).

"It is improper for a banker to disclose the state of his cus- Banker. tomer's account except on a reasonable occasion ” (p); but the extent of the legal obligation of the banker in this respect is doubtful (9), and it is even doubtful whether the banker is liable though special damage be proved (r).

(c) When Right of Action accrues. To maintain an action for work and labour, the plaintiff must When the prove a performance of the work according to the terms of the con- right of action

in respect of, tract; or if he has deviated from those terms, he must show that accrues. the defendant acquiesced in such deviation (s).

Where a party undertakes to work up the materials of another, his right of action arises so soon as he has done the work satisfactorily, and has given the other party an opportunity of ascertaining whether it has been properly done (t).

(d) Who to sue or be sued. In general, the person who was originally retained to do the Who is the work, is the proper party to sue on a contract of this nature. But

proper party where the defendant had in the first instance employed A. to build sued. a machine ; and A., having partially built the machine, assigned it and the contract to B., who completed the work upon the defendant's orders to go on, and his promise that he would see him paid; it was held that B. might sue for the price (u).

to sue or be

(m) Merryweather v. Moore, (1892] 2 Ch. 518, per Kekewich, J.

(n) Taylor v. Blacklow, 3 Scott, 614.

(0) See "Medical Etiquette," by A. Carpenter, M.D., in Glenn's Laws affecting Medical Men, at p. 367.

(P) Walker on Banking, p. 33.

(9) See Hardy v. Veasey (1868), L. R. 3 Ex. 107.

() See ib., per Martin, B., distinguishing Foster v. Bank of London (1862), 1 F. & F. 214, in which Erle, C. J., left

the question to the jury, who found for
the plaintiff with more than 4001.
damages as a case of conspiracy between
the bank and one customer who was a
creditor of the plaintiff, to give him an
advantage over another customer.

(s) Cooper v. Langdon (1841), 9 M. &
W. 60, 67.

(t) Per Maule, B., Hughes v. Lenny (1839), 5 M. & W. 183.

(u) Oldfield v. Lowe (1829), 9 B. & C. 73.

CH. XIX. s. 1.

So the proper person to be sued in this action, is he on whose Contracts of credit the work was done. Thus, the registered owner of a ship Employment (Generally). is not liable for repairs done thereto, unless they were done upon

his credit; and, although the fact of ownership may afford primâ facie evidence of his liability for necessary repairs ; still this presumption may be rebutted, by proof of other circumstances showing that, in fact, no credit was given to, or contract made with

him (s). Costs of And where the Act by which a company was incorporated, prospecial Act.

vided, as such Acts usually do, that the "costs, &c. of and incident to the preparing for, obtaining and passing of this Act, or otherwise in relation thereto, should be paid by the company ;” it was held, that a clerk of one of the promoters of the company, who had done certain work in relation to the obtaining of the Act, could not maintain an action against the company in respect of such work (t).

(e) Lien of Person employed. Definition of In Cowell v. Simpson, Lord Eldon, L. C., described lien lie

as primâ facie a right accompanying the implied contract. “In various trades," he observed, "the demand being for work and labour, applied in some instances upon the particular goods, and others upon other goods also, though the possession has been given up, it is universally laid down that if it takes place with a special agreement, there is no such lien, and if it commenced under an im plied contract, and afterwards a special contract is made for pay. ment, in the nature of the thing the one contract destroys the other” (u). The right of lien depends on the application of labour

and skill by the employé to adapt the article for a particular purpose Lien of work. coupled with a right of possession (x), so a workman who has

bestowed labour and skill in the improvement of a chattel bailed to him, has a lien thereon for the remuneration due to him, whether the amount was fixed by the express agreement of the parties or not (y). So, where a chattel is delivered to a workman, under a contract to perform certain work thereon at an entire price; and, before the work is completed, the order is countermanded, he has a


(s) See Mitcheson v. Oliver (1853), 5
E. & B. 419, Ex. Ch. ; Mackenzie v.
Pooley (1856), 11 Exch. 638 ; Myers v.
Willis (1855), 17 C. B. 77 ; Reeve v.
Davis (1834), 1 A. & E. 312.

(t) Re Kent Tramways Co. (1879), 12
Ch. D. 312, C. A.

(u) Cowell v. Simpson (1809), 16 Ves. 275 ; 10 R. R. 181.

(2) Forth v. Simpson (1849), 13 Q. B. 680.

(y) Steadman v. Hockley (1846), 15

M. & W. 553 ; per Parke, B., Jackson v. Cummins (1839), 5 M. & W. 342; Scarfe v. Morgan (1838), 4 M. & W. 270, 283.

A trainer has a lien on a horse delivered to him to train ; Forth v. Simpson (1849), 13 Q. B. 680 ; Jacobs v. Latour (1828), 5 Bing. 130; and the owner of a stallion, which is used to cover a mare, has a lien on the mare for his charge for the use of the stallion ; Scarfe v. Morgan (1838), 4 M. & W. 270.

A banker has a general lien on all

lien on the chattel for the price of the work actually done (z). And Ch. XIX. s. 1. the workman's lien attaches on chattels delivered to him in different Contracts of

Employment parcels, and at different times, provided the work done thereon was (Generally). done under one entire agreement (a).

Lien-cont. But no lien exists if, by the bargain, a future day of payment was agreed upon; for, in such case, the detention of the chattel would be inconsistent with the terms of the contract (6).

Nor has the workman any lien, for the cost of taking care of a chattel while work is being done thereon (c).

Nor does the right of lien confer the right to sell the chattel on No right of which the lien exists (d).

And if, after the work has been completed, the workman relinquishes possession of the chattel, he cannot afterwards detain it as a lien for the sum due to him on account of his work (e).

If the person entitled to a lien take security, the mere taking of Effect of taksecurity does not destroy the lien, but for this rule to apply, there ing security. must be something in the facts of the case or the notice of the security taken which is inconsistent with the existence of the lien and which is destructive of it (f).


Sect. 2.-Counsel.

The employment of counsel is presumed to be honorary, and a Promise to promise to pay counsel, however express, is not binding (9). It was pay fees, not

binding laid down in the single, considered, and unanimous judgment of the Kennedy v. Court of Common Pleas in Kennedy v. Broun (g), that a promise by a client to pay money to a counsel for his advocacy, whether made before or during or after the litigation, has no binding effect,


securities deposited with him by a customer ; London Chartered Bank of Australia v. White (1879), 4 App. Cas. 413, J. C. It is clear law that a factor has a lien ; see Stevens v. Biller (1883), 25 Ch. D. 31, C. A.; and so has a

“packer”; Ex parte Shubrook (1876), 2 Ch. D. 489, C. A. So, too, an auctioneer has a lien; see Webb v. Smith (1885), 30 Ch. D. 192, C. A. Likewise a solicitor has a lien on papers and the fruits of an action. For the origin of this lien, see per Lord Eldon, in Cowell v. Simpson (1809), 16 Ves. 275 ; and for recent cases, see L. R. Digest, tit. Solicitor, Bill of Costs.

(z) Lilley v. Barnsley (1844), 1 C. & K. 344.

(a) See Marks v. Lahee (1837), 4 Scott, 137.

(6) Chase v. Westmore (1816), 5 M. &

S. 180 ; 17 R. R. 301 ; Jacobs v. Latour
(1828), 5 Bing. 130.

(c) British Empire Shipping Co. v.
Somes (1860), 30 L. J., Q. B. 229
(H. L.).

(d) Thames Iron Ship Building Co. v. Patent Derrick Co. (1860), 29 L. J., Ch. 714.

(e) Hartley V. Hitchcock (1816), 1 Stark. 408 ; 18 R. R. 790 ; but see Ex parte Willoughby (1881), 16 Ch. D. 604.

(f) Angus v. McLachlan (1883), 23 Ch. D. 330; and see Ex parte Willoughby,

(g) Kennedy v. Broun (1863), 13 C. B., N. S. 677. The defendant, a lady, had promised to pay the plaintiff, her counsel, 20,0001., he having enabled her to retain possession of an estate of the value of 60,0001. A deed of gift in recompense

ubi supra.

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