Smith against Hayward
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1837 |
| Date | 18 November 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 575
IN THE COURT OF KING'S BENCH
S. C. 2 N. & P. 432; W. W. & D. 635; 7 L. J. Q. B. 3; 2 Jur. 232.
[544] smith against hayward. Saturday, November 18th, 1837. Where a servant, under a quarterly hiring, is discharged by his master without sufficient cause in the middle of the quarter, semble, that he cannot recover wages for the whole quarter under a count in indebitatus assumpsit for work and labour; although after the dismissal he tendered himself to serve through the remaining part of the quarter. But, at all events, a servant improperly dismissed in the middle of a quarter, and who tendered himself, but was not allowed, to serve through the remaining part of the quarter, cannot recover wages for such part in an action of indebitatus assumpsit for work and labour, commenced before the quarter ended. [S. C. 2 N. & P. 432; W. W. & D. 635; 7 L. J. Q. B. 3; 2 Jur. 232.] Assumpsit. The declaration contained a special count, which was not proved, and counts for work and labour, and on an account stated. The only pleas material here were, non assumpsit, and payment into Court of 41. on the count for work and labour, with an averment that no greater damage had been sustained, which the plaintiff traversed. On the trial before Gaselee J. at the Aylesbury Spring Assizes, 1836, it appeared that the defendant was a surgeon, and that the plaintiff entered into his service, on June 1st, 1835, as a dispenser of drugs, at a salary of fifty guineas a year. The defendant employed the plaintiff for a quarter of a year from June 1st, and paid him 131. 2s. 6d. for that quarter : but, on September 19th, iu consequence of a dispute, he discharged the plaintiff. This action was commenced September 22d, the plaintiff having first offered to complete the second quarter's service. The 41. was paid into Court as due for the time of actual service after the first quarter had expired ; the plaintiff claimed payment for a whole quarter from that period. The learned Judge left it to the jnry to say, 1. Whether there was a hiring for a year, or a hiring determinable at three months' notice? 2. Whether the defendant dismissed the 576 SMITH V. HAYWAED 7 AP. & E. M5. plaintiff? The jury found that the agreement was subject to a three months' notice, and that the defendant dismissed the plaintiff. A verdict was entered for the defendant, with leave to move to enter it for the plaintiff for a quarter's salary, or a quarter minus [545] the 41., if this Court should think him...
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