This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A contract for work and labor is broken by the act of the employe in quitting his employment without legal excuse;1 or by his incompetency;2 or by his wilful disobedience to the lawful orders of his employer.3 It is not necessary that actual injury resulting from such wilful disobedience should be shown.4
Misconduct on the part of the employe, at least misconduct affecting the performance of the contract of employment, amounts to a breach thereof.5 Wilful absence on the part of the employe, especially if at a time at which such absence will interfere seriously with the employer's affairs,6 or the attempt of the employe to organize a rival business and enter into competition with his employer during the term of the employment,7 amounts to breach of a contract of employment. It has been held, however, that the act of the employe in organizing a corporation to carry on a com* peting business after the term of his contract of employment, is not of itself a breach.8
14 Read v. Hutchinson, 3 Campb. 352; United Machinery Co. v. Etsel, 89 Conn. 336, 94 Atl. 356; Lombard Water Wheel Governor Co. v. Great Northern Paper Co., 101 Me. 114, 6 L. R. A. (N.S.) 180, 63 AtL 555; McGrath v. Gegner, 77 Md. 331, 36 Am. St. Rep. 415, 26 Atl. 502.
15 Kelly Construction Co. v. Hacken-eack Brick Co., 01 N. J. L. 585, 2 A. L. R. 685, 103 Atl. 417.
16 Moore v. United States, 196 U S. 157, 49 L. ed. 428.
17 Wm. B. Hughes Produce Co. v. Pulley; 47 Utah 544, L. R. A. 1916D, 728, 155 Pac. 337.
INash v. H. R. Gladding Co., 118 Mich. 520, 77 N. W. 7.
2 United States. Lyon v. Pollard, 87 U. S (20 Wall.) 403, 22 L. ed. 361.
Georgia. Hattaway v. Sanderlin, 145 Ga. 210, 88 S. E. 041.
Kansas. Manross v. Uncle Sam Oil Co., 88 Kan. 237, 128 Pac. 385.
Maryland. Keedy v. Long, 71 Md. 385, 5 L. R. A. 750, 18 Atl. 707.
Massachusetts. Casayant v. Sherman, 213 Mass. 23,99 N. E. 475.
3 England. Turner v. Mason, 147 fees, ft W. 112.
United States. Development Co. v. King, 161 Fed. 01, 24 L. R. A. (N.S.) 812; In re Milwaukee Motor Co., 246 Fed. 671, L. R. A. 19I8C, 1027.
Kentucky. Thomas ▼. Houston, Stan-wood ft Gamble Co., 146 Ky. 156, 37 L. R. A. (N.S.) 950, 142 S. W. 214.
Minnesota. Von Heyne v. Tompkins, 80 Minn. 77, 5 L. R. A. (N.S.) 524, 03 N. W. 001.
North Dakota. McGregor v. Harm, 10 N. D. 500, 30 L. R. A. (N.S.) 649, 125 N. W. 885
Ohio. Beckman v. Garrett, 66 O. S. 136, 64 N E 62.
Pennsylvania. Matthews v. Park, 146 Pa. St. 384, 23 Atl. 208.
Wisconsin. Green v. Somers, 163 Wis. 00, 157 N. W. 520.
4 Beckman v. Garrett, 66 O. S. 136, 64 N. E. 62.
An architect is guilty of breach of his contract with his employer if he fails to use ordinary care and skill in preparing plans and specifications; 9 or if he prepares plans for a building, the cost of which will exceed substantially the limit imposed by the employer;10 or if he directs the contractor to construct the building in a manner different from that specified in the plans upon which the owner and the contractor had agreed.11
A contract for work, labor and personal services is broken by the failure of the employer to pay the agreed compensation in sub-stantial compliance with the terms of the contract.12 A contract for the employment of a sales agent is broken by the act of the principal in furnishing defective goods.13 A contract for the employment of an attorney is broken by the act of the client in declaring that the attorney has deceived his client and has lied to him.14 A contract to furnish medical services at a given date and place is broken by failure to do so, although at the time the physician who had agreed to furnish such services could not leave the patient whom he was then attending.15 A contract to furnish medical services is not broken, however, by the refusal of the physician to accompany the patient to another state, if the contract does not show that the parties contemplated a change of domicile.16 A contract for the employment of one for a given position is broken by the act of the employer in demanding that the employe work at a subordinate position, though at the same salary.17
5 England. Baillie v. Kell, 4 Bing. N. Cas. 638.
Colorado. Bilz v. Powell, 60 Colo. 482, 38 L. R. A. (N.S ) 847, 117 Pac.
Illinois. Gould v. Magnolia Metal Co., 207 111. 172, 69 N. E. 896.
Iowa. Miller v. Jones, 178 la. 168, 159 N. W. 671.
Ohio. Beckman v. Garrett, 66 O. S. 136, 64 N. £. 62.
Oklahoma. Board of Education v. Godsett, 66 Okla. 95, 155 Pac. 856.
Oregon. Foreman v. School District No. 25, 81 Or. 587, 159 Pac. 1155.
See also, Mackenzie v. Minis, 132 Ga. 323, 23 L. R. A. (N.S.) 1003, 63 S. E. 900.
6 In re Milwaukee Motor Co, 246 Fed. 671, L. R. A. 1918C, 1027; Beckman v. Garrett, 66 O. S. 136, 64 N. E. 62.
7 Bilz v. Powell, 60 Colo. 482, 38 L. R. A. (N.S.) 847, 117 Pad. 344.
8 Myers v. Roger J. Sullivan Co., 166 Mich. 193, 34 L R. A. (N.S.) 1217, 131 N. W. 521.
9 Bayshore Development Co. v. Bon-foey, - Fla. - , L. R. A. 1918D, 889, 78 So. 607.
10 Hight v. Klingensmlth, 75 Ark. 218, 87 S. W. 138; Williar v. Nagle, 109 Md. 75, 71 Atl. 427.
11 Foeller v. Heintz, 137 Wis. 169, 24 L. R. A. (N.S.) 327, 118 N. W 543.
12 Canal Co. v. Gordon, 73 U. S. (6 Wall.) 561, 18 L. ed. 894; Dobbins v. Higgins, 78 III. 440.
13 Kennedy v. Meilicke Calculator Co., 90 Wash. 238, 155 Pac. 1043.
An ordinary contract of employment is not broken by the act of the employer in refusing to allow the employe to work, if the employer pays or offers to pay the compensation provided for by the terms of the contract.18 Accordingly, the act of an employer in discharging an employe without giving the notice required by the contract, but paying full pay for the time for which such notice was to have been given, is not such a discharge of the entire contract as justifies the employe in attempting to secure the customers of the employer in violation of a covenant in the contract to the effect that the employe would not solicit customers of such employer.19 The cases in which this result was reached were cases involving the employment of an agent to transact business, in which employment the court thought that the opportunity to continue the work was not an essential feature of the work.20 A different result might be reached in case of a contract of employment in which the opportunity to do the work and to become known in such connection was a vital term of the contract, as in the employment of an actor, an opera singer, a baseball player, and the like.
A contract to the effect that an employer will not employ any but members of a given union as long as such union can furnish the number of employes which he needs, is not broken by the act of a former member of such union in remaining in the employment of such employer after he has ceased being a member of such union, so as to give a right to such union to interfere with the continuance of such employment.21
14 Genrow v. Flynn, 160 Mich. 564, 35 L. R. A. (NS.) 960, 131 N. W 1115.
15 Hood v. MofTett, 109 Miss. 757, L. R. A. 1916B, 022, 09 So. 064.
16 Zeiglcr v. Illinois Trust & Savings Bank, 245 111. 180, 28 L. R. A. (N.S.) 1112,91 N. E. 1041.
17 Cooper v Stronge & Warner Co., Ill Minn 177, 27 L. R. A. (NS.) 1011, 120 N.W. 541.
18 Turner v. Sawdon [19011, 2 K. B. 653; Konski v. Pest , 1 Ch. 530.
See to the opposite effect where the employer had sold his business, and, apparently, had assigned his interest in the contract of employment. White v. Lumiere North American Co., 79 Vt. 206, 6 L. R. A (N.S) 807. 64 Atl. 1121.
19 Konski v. Peet , 1 Ch. 530.
20 Turner v. Sawdon , 2 K. B. 653; Konski v. Peet [ 19151, 1 Oh. 530.