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.
In the absence of a provision in a contract of employment which, in express terms, or by fair implication, requires the employer to pay before the employe has performed the contract on his part, performance on the part of the party who is to perform work and labor or to render services is precedent to his right to enforce the covenant of the adversary party to pay therefor.1 Under a contract by which A is to sell certain realty for B, and B is to pay to A a commission therefor, A's performance is precedent to his right to recover commissions.2 Accordingly, if A has secured performance on terms other than those which B has authorized, and B has not waived such departure from the terms of A's authority, A can not recover compensation.3 If A brings an action against B for B's failure to do certain work, or to render certain services in accordance with the terms of a contract which contains no provision for payment in advance, it is not necessary that A should allege or prove such payment.4 Under a contract for paying for work in instalments, and retaining part of the amount due each month as a security for the faithful performance, complete performance is precedent to the recovery of any part of such reserve.5 Under a contract to dig a well, to reach a suitable supply of water, reaching such suitable supply is precedent to the recovery.6 Under a contract by which A agrees to pay to B a certain compensation for his services, and also agrees to reimburse him for his necessary expenses, B's expenditure of money for such necessary expenses is precedent to his right to recover on A's covenant to reimburse him; and B can not recover from A because of A's refusal to advance the money for such expenses before B has expended it.7 If, on the other hand, A has agreed to advance money for the payment of the expenses of an employe, A's failure or refusal to advance such payments is a breach of a precedent covenant on his part;8 and B may treat such breach as a discharge of his covenant to continue to render such services.9 In contracts of employment in which the opportunity to work, so as to acquire either skill or reputation, is not an essential feature of the contract, an employer is not guilty of breach by refusing to allow his employe to continue to work, if he offers payment in accordance with the terms of the contract10
7 Fletcher v. Verser, 79 Ark. 271, 116 Am. St. Rep. 75, 96 S. W. 384.
8 Fletcher v. Verser, 79 Ark. 271, 116 Am. St. Hep. 75, 96 S. W. 384.
1 Arkansas. Friedman v. Schleuter, 105 Ark. 580, 151 S. W. 696.
Connecticut. Cunningham Lumber Co. v. New York, New Haven & Hartford Ry. Co., 77 Conn. 628, 60 Atl. 107.
New York. Stewart v. Newbury, 220 N. Y. 379, 2 A. L. R. 519, 115 N. E. 984; Cream of Wheat Co. v. Arthur H. Crist Co., 222 N. Y. 487, 1A.LR. 150, 119 N. E. 74 (a question of construc-tion).
Ohio. Laws v. Schmidt, 80 O. S. 108, 88 N. E. 319.
Oklahoma. Meek v. Daugherty, 21 Okla. 859, 97 Pac. 557.
Oregon. Hoskins v. Scott, 52 Or. 271, 96 Pac. 1112.
2 Oliver v. Sattler, 233 Ill. 536, 84 N. E. 652; Laws v. Schmidt, 80 O. S. 108, 88 N. E. 319; Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959.
3 Oliver v. Sattler, 233 Ill. 536, 84 N. E. 652.
4 Hoskins v. Scott, 52 Or. 271, 96 Pac. 1112.
5 Wagar Lumber Co. v. Sullivan Logging Co., 120 Ala. 558, 24 So. 949.
6 Jackson v. Creswell, 94 Ia. 713, 61 N. W. 383; Sherzer v. Buckholz, 108 Ia. 749, 78 N. W. 818.
Since performance on the part of the employe is precedent to the duty of the employer to make compensation, the act of the employe in quitting his employment without sufficient excuse is a breach of his contract of employment.11
The precedent duty of the employe is not merely to put in the amount of time at the place provided for by the contract, but also to act with the requisite amount of skill, care and fidelity. His inability or omission to perform his duties in this way is a breach of a covenant which may be regarded as precedent to his right to recover under the contract, but which may also be regarded as subsequent to the validity of the contract of employment. In either case, his inability or omission to make use of the requisite amount of skill, care and fidelity justifies his employer in treating the contract of employment as ended and in discharging the employe.12
7 Sherk v. Holmes, 125 Mich. 118, 83 N. W. 1016.
8 Parrot v. Mexican Central Ry. Co., 207 Mass. 184, 34 L. R. A. (N.S.) 261, 93 N. E. 590.
9 Parrot v. Mexican Central Ry., 207 Mass. 184, 34 L. R. A. (N.S.) 261, 93 N. E. 590.
10 Turner v. Sawdon , 2 K. B. 653; Konski v. Peet , 1 Ch. 530.
11 Nash v. H. R. Gladding Co., 118 Mich. 529, 77 N. W. 7.
12 United States. Lyon v. Pollard, 87 U. S. (20 Wall.) 403, 22 L. ed. 361,
Georgia. Mackenzie v. Minis, 132 Ga
323, 23 L. R. A. (N.S.) 1003, 63 S. E. 900; Hattaway v. Sanderlin, 145 Ga. 219, 88 S. E. 941.
Kansas. Manross v. Uncle Sam Oil Co., 88 Kan. 237, 128 Pac. 385.
Kentucky. Thomas v. Houston, Stan-wood & Gamble Co., 146 Ky. 156, 37 L. R. A. (N.S.) 950, 142 S. W. 214.
Maryland. Keedy v. Long, 71 Md. 385, 5 L. R. A. 759, 18 Atl 704.
Massachusetts. Casavant v. Sherman, 213 Mass. 23, 99 N. E. 475.
Minnesota. Von Heyne v. Tompkins, 89 Minn. 77, 5 L. R. A. (N.S.) 524, 93 N. W. 901
The employer may terminate the contract for any wilful disobedience on the part of the employe,13 as by refusal to obey reasonable orders,14 or at least for misconduct on his part which affects the performance of his contract of employment.15 The misconduct of an employe in making use of property belonging to an employer, for his own personal use;16 or in remaining absent from his employment without a sufficient excuse,17 such as illness;18 or in engaging, during his term of employment, in a business which competes with that of his employer,19 is in each case a breach of his duty, for which the employer may terminate the contract. The fact that the employe has made arrangements for engaging in business in competition with his employer after his term of employment is ended, is not regarded as a breach of his duty which justifies the employer in terminating the contract of employment,20 at least if the employe has not agreed to abstain from competing with his employer after the expiration of the term of employment.21 An architect who is employed to draw plans for a building of a certain maximum cost, can not recover for plans which exceed such maximum cost.22 An architect is also liable for failure to use due care and skill in preparing plans,23 or for directing the contractor to depart from the plans which the owner had adopted.24 Violation by the employer of the terms of his contract in some substantial respect, operates as a discharge of the contract of employment,25 whether such covenant on his part is regarded as precedent to the duty of the employe to continue performance, or whether it is regarded as subsequent to the contract of employment as an entire contract. Under a contract for the sale of goods on commission, the conduct of the employer in furnishing defective goods to be sold is a breach which the agent may treat as a discharge of the contract.26 A contract for the employment of one at a certain rank is broken by the act of the employer in demanding that he perform the duties of an employe of substantially lower rank, although the employer offers to pay the salary provided for in the original con-tract.27 A contract for professional employment,28 such as a contract for the employment of an attorney,29 is broken by the conduct of the employer in charging bad faith, improper conduct, and the like.
13 England. Turner v. Mason, 14 Mees. & W. 112.
United States. Development Co. v. King, 161 Fed. 91, 24 L. R. A. (N.S.) 812.
Kentucky. Thomas v. Houston, Stan-wood & Gamble Co., 146 Ky. 156, 37 L. R. A. (N.S.) 050, 142 S. W. 214.
Minnesota. Von Heyne v. Tompkins, 80 Minn. 77, 5 L. R. A. (N.S.) 524, 93 N. W. 901.
North Dakota. McGregor v. Harm, 10 N. D. 500, 30 L. R. A. (N.S.) 640, 125 N. W. 885.
Pennsylvania. Matthews v. Park, 146 Pa. St. 384, 23 Atl. 208.
Wisconsin. Green v. Somers, 163 Wis. 96, 157 N. W. 529.
14 Development Co. v. King, 161 Fed. 01, 24 L. R. A. (N.S.) 812; McGregor v. Harm, 10 N. D. 599, 30 L. R. A. (N. S.) 640, 125 N. W. 885.
15 England. Baillie v. Kell, 4 Bing. N. Cas. 638.
Illinois. Gould v. Magnolia Metal Co., 207 Ill. 172, 69 N. E. 896.
Iowa. Miller v. Jones, 178 Ia. 168, 150 N. W. 671.
Ohio. Beckman v. Garrett, 66 O. S. 136, 64 N. E. 62.
Oklahoma. Board of Education v. Gossett, 56 Okla. 95, 155 Pac. 856.
Oregon. Foreman v. School District No. 25, 81 Or. 587, 159 Pac. 1155.
16 Mackenzie v. Minis, 132 Ga. 323, 23 L. R. A. (N.S.) 1003, 63 S. E. 000.
17 Farmer v. First Trust Co., In re Milwaukee Motor Co., 246 Fed. 671, L. R. A. 1918C, 1027; Beckman v. Garrett, 66 O. S. 136, 64 N. E. 62.
18 See Sec. 2683.
19 Bilz v. Powell, 50 Colo. 482, 38 L. R. A. (N.S.) 847,117 Pac. 344.
20 Myers v. Roger J. Sullivan Co., 166 Mich. 103, 34 L. R. A. (N.S.) 1217, 131 N. W. 521.
21 See Sec. 780.
22 Hight v. Klingensmith, 75 Ark. 218, 87 S. W. 138; Williar v. Nagle, 109 Md. 79, 71 Atl. 427.