§ 1295. In the next place, as to the rights, duties, and liabilities of the master. When the contract is for a specific time, as if the master agrees to pay wages to the servant for a year, the master is bound to continue that relation during the whole of the year, and if he dismiss him, he is liable for a breach of the contract. In such case the measure of damages would be the entire salary for the year, unless perhaps the master could prove (and upon him is the burden of proof) that the servant had afterwards engaged in other business, and earned money therein,1 or unless he prove that employment of the same general nature and description had been offered to him and refused, which exceptions might furnish a ground to reduce the recovery below the stipulated amount.2 The servant, however, especially if he were a clerk or superintendent of a particular business, or engaged for a peculiar business, could not be required to leave his home or place of residence, and engage in a different occupation; and the general rule is, in such a case, that the servant is entitled to his full wages.3
1 See Stewart v. Walker, 14 Penn. St. 293.
2 Costigan v. The Mohawk & Hudson Railroad Co., 2 Denio, 612; Hoyt v. Wildfire, 3 Johns. 518; Ward v. Ames, 9 Johns. 138; Emerson v. Howland, 1 Mason, 51.
3 Ibid.; Beeston v;. Collyer, 4 Bing. 309; Fawcett v. Cash, 5 B. & Ad. 904; Williams v. Byrne, 7 Ad. & El. 177; French v. Brookes, 6 Bing. 354; Gandell v. Pontigny, 4 Camp. 375; 1 Stark. 198; Robinson v. Hindman, 3 Esp. 235; Smith v. Kingsford, 3 Scott, 279; Smith v. Hay-ward, 7 Ad. & El. 544; Duke of Newcastle v. Clark, 8 Taunt. 602. See post, Damages, § 1022 c; Pilkington v. Scott, 15 M. & W. 657, affirmed in Regina v. Welch, 2 El. & B. 357; 20 Eng. Law & Eq. 85; Emmens v. Elderton, 4 H. L. C. 624; 26 Eng. Law & Eq. 1; Hartley v. Cummings, 5 C. B. 247; 2 C. & K. 433. But see Aspdin v. Austin, 5 Q. B. 671; mutual consent of both parties or by either party having a right to rescind, the servant is entitled to wages pro raid, or to a reasonable remuneration for his services.1 Thus, where a minor ships for a whole voyage as a mariner, the contract is voidable by him on account of his minority, and if he so avoid it, as by desertion, he may recover on a quantum meruit for his services.2 But after the voyage is finished, he cannot rescind the contract and declare on a quantum meruit.3
§ 1296. Again, in the absence of any specific stipulation as to wages, the master is bound to pay to the servant the value of his services,1 unless the circumstances indicate that the service was considered as gratuitous.2 Thus, the presumption may arise in cases where near relations, living together, perform acts of service for each other, that such acts are performed out of kindness or duty, when no reward is stipulated.3 But this presumption may be controlled by the circumstances of the particular case, and if any promise of compensation appear, indicating that the service is not gratuitous, a quantum meruit may be recovered. Thus, where a son lived with his father, and performed service for him with the understanding and under the representation by the father that he should be provided for by his will, it was held that if he was not provided for by the will of the father, he could recover a reasonable compensation for his services against the executor or administrator.4 So, also, where an entire contract of service has been entered into and subsequently rescinded either by
Dunn v. Sayles, 5 Q. B. 685; Williamson v. Taylor, 5 Q. B. 175; Byrd v. Boyd, 4 McCord, 246; Fewings v. Tisdal, 1 Exch. 295.
1 Bayley v. Rimmell, 1 M. & W. 506; Mattocks v. Lyman, 16 Vt. 113.
2 See Newel v. Keith, 11 Vt. 214; Peter v. Steel, 3 Yeates, 250; Hig-gins v. Breen, 9 Mo. 497. .
3 Rex v. Sow, 1 B. & Ald 178; Davies v. Davies, 9 C. &P. 87; Alfred v. Fitzjames, 3 Esp. 3; Patterson v. Patterson, 13 Johns. 379; Defrance v. Austin, 9 Barr, 309; Andrus v. Foster, 17 Vt. 556. See Fitch v. Peck-ham, 16 Vt. 150; Weir v. Weir, 3 B. Mon. 647; Guild v. Guild, 15 Pick. 130; Dye v. Kerr, 15 Barh. 444; Hussey v. Roundtree, Busb. 110; Part-low p. Cooke, 2 R. I. 451; Resorr. Johnson, 1 Ind. 100; Zerbe v. Miller, 16 Penn. St. 488; Ridgway v. English, 2 Zabr. 409; Lantz v. Frey, 14 Penn. St. 201; Candor's Appeal, 5 W. & S. 513; Munger v. Munger, 33 N. H. 581; Bundy v. Hyde, 50 N. H. 116 (1870). As to services performed by a concubine, see Succession of Pereuilhet, 23 La. An. 294 (1871). The relationship of father-in-law and son-in-law is not near enough to raise this presumption. Schoch v. Garrett, 69 Penn. St. 144 (1871); Wright p. Donnell, 34 Tex. 291 (1871).
4 Patterson v. Patterson, 13 Johns. 379; Jacobson v. Le Grange, 3 Johns. 199; Snyder v. Castor, 4 Yeates, 353; Coleman v. Simpson, 2 Dana, 166; Engleman v. Engleman, 1 Dana, 438. It is otherwise if a legacy is left such servant, for that is presumed to be in satisfaction. See Eaton v. Benton, 2 Hill, 576. See Lee v.Lee, 6 Gill & J. 316.
§ 1297. The master cannot, without a specific agreement to such effect, deduct from the wages of the servant the value of articles injured or lost by him in the course of the service, but must bring his cross action against the servant for compensation.4 Nor can he deduct therefrom any sum which he may have paid a physician, called in by himself, without the request or consent of the servant, such an act being considered as merely one of generosity.5 Again, if the servant be an infant, the master can deduct from his wages such sums as he may have paid on his account or at his request for necessaries, but none other.6 Therefore, where a master paid for silk dresses, lace, coach fares, etc, the sum of £5 20s., it was held that he could not deduct such sum from the wages of the servant, because they are not necessaries.7 So, also, in the case to provide for the safety of the servant, in the course of the employment, to the best of his judgment, information, and belief.1 He is not, therefore, responsible for an accident happening to the servant in the course of his service,2 unless he know the service to be dangerous, and the servant do not.8
1 Thomas v. Williams, 1 Ad. & El. 685; Lamb urn v. Cruden, 2 Man. & G. 253; Phillips v. Jones, 1 Ad. & El. 333; Hurcum v. Stericker, 10 M. & W. 553; Bayley v. Rimmell, 1M.&W. 508; Seaver v. Morse, 20 Vt. 620.
2 Vent v. Osgood, 19 Pick. 572. But see Breed v. Judd, 1 Gray, 460. 3 Breed v. Judd, 1 Gray, 460.
4 Le Loir v. Bristow, 4 Camp. 134; Cleworth v. Pickford, 7 M. & W. 314. But see Snell v. The Independence, Gilpin, 140; The New Phoenix, 2 Haggard, Adm. 420.
5 Sellen v. Norman, 4 C. & P. 80; Gibbons on the Law of Contracts for Works & Services, § 69; Emmons v. Lord, 18 Me. 351.
6 See Adams v. Woonsocket Co., 11 Met. 327.
7 Hedgley v. Holt, 4 C. & P. 104. In this case Bayley, J., said: "Payments made on account of wages due to an infant for necessaries, and which could not be avoided, are valid payments; but an infant cannot bind herself for things which are not necessary. The consequences might be very injurious if the law were otherwise. What would it lead to in this very case? Here is a female, who is described as rather a showy woman, suffered to dress in a manner quite unfitted to her station, of seamen, sickness or other disability happening during a voyage is no ground for reducing the wages agreed upon.1 But in other kinds of service it seems that permanent inability to perform, arising after the contract is made, will justify a pro tanto reduction;2 though the late cases hold the rule to be otherwise if the inability be temporary, and the contract be not rescinded.3 And in all cases where there is no agreement to the contrary, the master is bound to support the servant during his sickness or disability while in his employ.4
§ 1298. The master is not bound to provide his servant with medical attendance or medicines in case of illness. A contrary rule was indeed at one time declared by Lord Ken-yon,6 but his opinion has been overruled.6 In this respect, the rule as to a servant would seem to be different from that which applies to an apprentice, for in the latter case the master is bound to provide proper medicines.7 The master is, however, bound in case of illness to furnish the servant with proper food.8
§ 1299. The master is bound to take a reasonable care of his servant, and not to expose him to a service which is dangerous. The degree of care required of him was stated by Lord Abinger to be the same that he might reasonably be expected to take of himself; and he was said to be bound and at the end of her twelve months' service she would not have a farthing in her pocket." Gibbon on Contracts for Works & Services, § 69.
1 Chandler v. Grieves, 2 H. Black. 606, n.
2 Cuckson v. Stones, 1 El. & E. 248, 257 (1858); Fenton v. Clark, 11 Vt. 557; Seaver v. Morse, 20 Vt. 620; Dickey v. Linscott, 20 Me. 453; Fuller v. Brown, 11 Met. 440.
3 Cuckson v. Stones, supra; Caden v. Farwell, 98 Mass. 137 (1867). See Rex v. Madington, Burr. Sett. Cas. 675. But see Fenton v. Clark, 11 Vt. 557; Seaver v. Morse, 20 Vt. 620; Dickey v. Linscott, 20 Me. 453.
4 Rex v. Wintersett, Cald. 300; Rex v. Sudbrooke, 1 Smith, 59; Nichols v. Coolahan, 10 Met. 449; Emmons v. Lord, 18 Me. 351.
5 Scarman v. Castell, 1 Esp. 270.
6 Wennall v. Adney, 3 Bos. & Pul. 247; Sellen v. Norman, 4 C. & P. 80; Cooper v. Phillips, 4 C. & P. 581; Regina v. Smith, 8 C. & P. 153; Dunbar v. Williams, 10 Johns. 249.
7 Regina v. Smith, 8 C. & P. 153; Emmons v. Lord, 18 Me. 351.
§ 1300. The master is not bound to give his servant a character. But if in doing so he speak disparagingly or state what is prejudicial to the servant, he will not be liable, unless his statement can be proved not only to be false, but malicious.4 The presumption is that he states what he believes to be true, and the burden is on the servant to prove that he has spoken falsely and maliciously.5
§ 1301. The covenants in an indenture of apprenticeship that on the one hand the master shall instruct and board the apprentice, and on the other hand that he shall faithfully serve, etc, are generally considered independent covenants, and therefore the neglect or misbehavior of the apprentice has been held not to excuse the master from his obligation, because he has a right to enforce obedience, etc.6 But a master is not liable on his covenant to teach an apprentice, if the latter will not be taught, and wilfully prevents it.7
1 Priestley v. Fowler, 3 M.& W.1.
2 But see Walker v. Boiling, 22 Ala. 294.
3 Ibid.; Williams v. Clough, 3 H. & N. 258 (1858); Griffiths v. Gid-low, 3 H. & N. 648. See, also, Brown v. Maxwell, 6 Hill, 594; Wigmore v. Jay, 5 Exch. 354; Farwell v. Boston, etc. Railroad Co., 4 Met. 49; Coon v. Syracuse & Utica Railroad, 1 Seld. 493; Albro v. Agawam Canal Co., 6 Cush. 75; King v. Boston & Worcester Railroad, 9 Cush. 114; Gillshannon v. Stony Brook Railroad, 10 Cush. 228; Hayes v. Western Railroad Corporation, 3 Cush. 270; Seymour v. Maddox, 16 Q. B. 326; Sherman v. Rochester & Syracuse Railroad, 15 Barb. 574. But such is not the Scotch law. Dixon v. Rankin, 14 Ct. of Sess. Cas. 2d ser. 420; 20 Law Times Rep. 44; 1 Am. Railway Cas. 569.
4 Rogers v. Clifton, 3 Bos. & Pul. 591; Edmonson v. Stephenson, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110.
6 Phillips v. Clift, 4 H. & N. 168 (1859); Winstone v. Linn, 1 B. & C. 460. But see Wise v. Wilson, 1 C. & K. 662.
7 Raymond v. Minton, Law R. 1 Exch. 244 (1866).