If A has agreed with B to perform a certain definite and specific contract for B, without giving his entire time to B's employment, A may recover for services rendered by him in ad dition to those specified in the contract if B either requests A to render such extra services or voluntarily accepts the benefit of them, when B knows, or should know, that A expects compensation therefor.1 Extra work done while performing a building contract is a common illustration of this principle.2 One who performs such extra work at the request of the owner may recover, even though such request is oral and the contract provides that extra work must be done only on a written order; or though such extra work is done on written and oral orders of an authorized agent, while the contract provides that it can be done only on written orders signed by the owner of the building.3 So A, who has an express contract to act as a salesman for B within a specified territory, may recover his necessary expenses and a reasonable compensation for sales made outside of the territory specified, if made at B's request.4 So if A has a contract to furnish B with board, A may recover a reasonable compensation for services rendered to B as a nurse during illness.5 So where A has contracted to furnish B with power to operate a certain derrick, A may recover for extra power furnished after B has put in a new derrick requiring greater power.6 If on the other hand, B has entered into a contract of employment with A, whereby B is to give to A his time, for a compensation fixed by the week, month and the like; the question whether B is entitled to any compensation for extra work depends, in the absence of an agreement for compensation therefor, on whether the extra work done is of the same general character as that for which B was employed, or not. If it is of the same general character B cannot recover.7 So where A employs B to collect rents at two hundred and fifty dollars a month, B cannot recover for extra services in preventing squatters from settling on A's land, in expelling them therefrom and in retaining exclusive possession for A.8 So if A hires B as a domestic servant at a certain compensation per week, B cannot recover for extra work because A became sick after B had entered on her employment, and A's work was thereby greatly increased.9 Thus if B is to work for A for a certain sum per month, B cannot recover for work done on Sunday,10 especially if he knew in advance that Sunday work was expected, and if he had received the stipulated wages without objection.11 So if a statute limits the number of hours of a day's work,12 or provides that in the absence of agreement to the contrary a certain number of hours shall constitute a day's work,13 an employee who is hired at a certain sum by the week, month and the like cannot recover for extra work in the absence of express contract or of facts from which an agreement to pay for extra work may be inferred. This is true especially if the employee knows in advance that the work for which he is employed will necessitate some work overtime,14 or if the employee is notified that if he wishes to keep his position he must do the extra work,15 especially as before the action here decided he had applied for and received an allowance for extra work. So where A is hired by B to work for him at a certain rate per month, which amount A receives regularly without objection, giving a receipt in full therefor, A cannot thereafter claim compensation for extra time.16 So, even if the statute provides that extra compensation shall be made for extra work unless there is a provision in the contract to the contrary, it has been held that an expert photographer who accepts employment for a year at twenty dollars a week must know that the nature of his work must require some extra work, and therefore it is an implied term of such contract that no compensation is to be made for extra work.17 Conversely, under a statute providing that ten hours shall constitute a day's work unless there is a provision in the contract to the contrary, an employer cannot insist that his employee who is hired at two dollars and a half a day, must estimate his time where he has worked less than ten hours on some days by counting the number of hours worked and dividing by ten.18 Some courts have used language intimating that only an express contract to pay for extra work could create liability in such cases,19 though the same authority concedes that such a proposition, while not containing prejudicial error under the facts of the particular case, is too broad for the statement of the rule in a legal treatise.20 The true rule is that a contract to pay for extra work may be either express, or implied from the surrounding facts,21 but that the mere rendition of such extra services with the knowledge of the person for whom they are rendered, or voluntary acceptance by him does not constitute such a contract. Some authorities, however, hold that a request for work, in addition to the number of hours fixed by statute as a day's work, creates an implied liability to pay therefor. Thus, where A had agreed to work for B at eight shillings a day, payable weekly, and the statute provided that ten hours should constitute a day's labor unless there was some provision in the contract to the contrary, it was held that if B requested A to work at night, B could recover for the number of hours in excess of ten per day which he had worked. The fact that he received his weekly pay for day labor, was held to be no bar for a subsequent recovery for his work at night, nor was the fact that he waited five years after his employment terminated before making his claim, held to bar him.22

Broderick v. Broderick, 28 W. Va. 385.

17 Price v. Price, 101 Ky. 28; 39 S. W. 429.

18 Jackson v. Jackson, 96 Va. 165; 31 S. E. 78.

19 Bash v. Bash, 9 Pa. St. 260.

20 Murphy v. Murphy, 1 S. D. 316; 9 L. R. A. 820; 47 N. W. 142.

21 Spencer v. Spencer, 181 Mass. 471; 63 N. E. 947.