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1853.

The QUEEN

V.

WELCH.

or implied, that the master should find work for the servant; so that the agreement is not a contract within stat. 4 G. 4. c. 34. s. 3. That there is no express contract to that effect is clear: and, from Young v. Timmins (a), it appears that no such contract can be implied, and that this renders the whole an agreement without consideration. The test suggested in the case cited was, whether the party employed could have sued the other party for not providing work: and it was held that he could not. The decision has, indeed, been questioned, but upon a different point. In Pilkington v. Scott (b) it was held that the agreement contained a contract to employ but there a stipulation was inserted to pay 81. per annum absolutely, besides a provision that a moiety only of the wages should be paid during a depression of the trade, and that when the workman was sick or lame the employers might employ another: and from thence an undertaking to employ was inferred. It is true that some of the Bench there laid a stress on the provision for a month's notice, and there is a provision for notice here: but the value of that circumstance scems to have been estimated by its connection with the other facts of the particular case. In Aspdin v. Austin (c), Dunn v. Sayles (d) and Rust v. Nottidge (e) the question was not identical with the present; for there the contract, which it was sought to infer, was one to permit the party to remain in the service for a certain time, not to find employment. The same remark applies to Elderton v. Emmens (g).

(a) 1 Cr. & J. 331.
(c) 5 Q. B. 671.

(e) 1 E. & B. 99.

(b) 15 M. & W. 657.
(d) 5 Q. B. 685.

reversing the judgment of C. P. in Judgment of Exch. Ch. affirmed

(g) 6 Com. B. 160, in Exch. Ch., Elderton v. Emmens, 4 Com. B. 479. in Dom. Proc. after the decision of the case in the text (12 Aug. 1853); Emmens v. Elderton, 4 H. L. Ca.

1853.

V.

WELCH.

But Lord Denman's remark in Aspdin v. Austin (a) is important. "Where parties have entered into written The QUEEN engagements with expressed stipulations, it is manifestly not desirable to extend them by any implications: the presumption is that, having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument." In Williamson v. Taylor (b) the party retained endeavoured to recover for non-employment, on an agreement like this, and failed. What would be a sufficient employment? [Lord Campbell C. J. What a jury, under the circumstances, thought reasonable.] Lees v. Whitcomb (c) and Sykes v. Dixon (d) shew that such an agreement is void for want of mutuality. It would seem to have been understood, in Hartley v. Cummings (e), that, in the case of want of mutuality, the agreement falls also within the objection of being in restraint of trade. And, that being so, the nominal consideration of an allowance of 31. will not support the agreement; per Alderson B. in Hitchcock v. Coker (g).

Mellor, contrà, was not called upon.

Lord CAMPBELL C. J. The objection to the agreement has been very perspicuously put; and the Court is much obliged to the learned counsel for the argument which he has addressed to us. But I am clearly of opinion that the agreement is valid. It is said to be invalid, because it throws no obligation on the employer

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1853.

The QUEEN

V.

WELCH.

to provide work. But it seems to me that it would be unreasonable to adopt this construction. The servant agrees to work for the master, and for no one else, for twelve months, and until three months' notice shall be given. In consideration of that, the master agrees to pay, on the Saturday in every week, all such wages as the articles made shall amount to at their usual price. Then comes a proviso, that, if after the expiration of twelve months either shall give to the other notice of his or their desire to determine the service, the service shall cease after the expiration of the time mentioned in the notice, and the agreement be void. Is there not here a necessary implication that the employer shall find reasonable work, and pay for the articles manufactured? Are we to suppose a most unreasonable intention, such as never could have entered into the mind of either party? The necessity of giving notice clearly shews that there is some obligation on the employer. What was that? To find reasonable employment according to the state of the trade. That is not an unilateral agreement, but a mutual agreement with something to be done on each side. This view does not conflict with the authorities. On the contrary, it agrees with Pilkington v. Scott (a), a case directly in point. This therefore, being a good agreement, and within the statute referred to, ought to be enforced; and the magistrates have jurisdiction.

COLERIDGE J. I am of the same opinion. Every case of this sort depends on circumstances of its own: as long as we do not decide upon contradictory principles

(a) 15 M. & W. 657.

1853.

V.

WELCH.

there is nothing in the fact of our arriving at opposite results in different cases. We must treat this agreement The QUEEN as containing the words of both parties, and give to those words a reasonable construction. The agreement contemplates that the relation of employer and employed shall continue for twelve months and until the expiration of three months' notice; that is, for fifteen months at least. It would be strange if the relation were to continue and the workman not to be paid. If there were a stipulation for paying a salary, one could understand it but here the stipulation is only for payment for the articles manufactured, at certain prices. Besides this, there is an advance of 31., a loan in fact, to be repaid out of the wages to become due, at 2s. per week. How can there be a deduction if nothing becomes due? The necessary implication is that the master is to find work. But it is enough for us to say that the contract is not void the particular construction is for the magistrate.

CROMPTON J. (a). I am of the same opinion. We should be deciding almost in the teeth of Pilkington v. Scott (b) if we held this agreement void for want of mutuality. It was there considered that sufficient appeared in the agreement to shew the master's liability to find employment. All that is said there appears to me to be good law: I should be sorry to throw any doubt upon it. I think that nobody but a lawyer, on reading this agreement, could doubt that the meaning was that the master was to find employment. What my Lord and my brother Coleridge have said is unanswerable.

(a) Erle J. was absent on account of a domestic calamity.
(b) 15 M. & W. 657.

1853.

The QUEEN

V.

WELCH.

There is to be payment every week. The implication is, I think, stronger in this case than in Pilkington v. Scott (a).

Rule absolute (b).

(a) 15 M. & W. 657.

(b) See Regina v. Lord, 12 Q. B. 757.

Thursday, Muy 26th.

Goods, of

above the

value of 107, were verbally ordered to be shipped consigned to The A. Co. at Liverpool.

The A. Co. were carriers

MEREDITH against MEIGH and others.

ACTION for goods sold and delivered.

Plea:

General traverse of the declaration. Issue thereon. At the trial, before Crompton J., at the last Bodmin assizes, it appeared that the defendants were manufacturers of earthenware at the Potteries in Staffordshire. The plaintiff was resident in Cornwall. On 12th April by inland navi- 1850, the defendants, at Handley in Staffordshire, verbally ordered from a person of the name of Close, who was the agent of the plaintiff there, a cargo of china stone clay to be sent by sea by the plaintiff, consigned to The Anderton Carrying Company, Liverpool, for the defendants, and to be insured by plaintiff on their account. The ordinary

gation to the

residence of the vendee. The goods were shipped

on board the M., a vessel selected by the vendor;

a bill of lading was signed, making the goods deliverable to The A. Co. at Liverpool, and was forwarded to them; of all which the vendee had notice, and did and said nothing. Then the goods perished at sea on their voyage to Liverpool; and the vendee refused to have any thing to do with them. The above facts being proved in an action for goods sold and delivered, leave was reserved to enter a verdict for plaintiff, if these facts were evidence on which the jury would have been justified in finding an acceptance and receipt within sect. 17 of the Statute of Frauds.

Held. 1. That the shipment on board a vessel selected by the vendor and the signature of a bill of lading making the goods deliverable to the vendee's agent, though a sufficient delivery to support an action for goods sold and delivered, was not sufficient to bind the contract. 2. That the receipt of the bill of lading by The A. Co. (they being carriers only), and the non-feasance of the vendee on hearing that the goods had been shipped, were not, under the circumstances, sufficient evidence to justify the jury in finding a verdict for the plaintiff. Semble: That the acceptance and retention of a bill of lading, by the consignce, may be equivalent to an actual receipt of the goods.

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