§ 1302. In the first place, a servant is bound to perform the service according to his agreement. If, therefore, he agree to serve his master for a definite period, he must serve during the whole term, or he will be entitled to no part of his wages, the contract being considered as an entire one.1 Nor does it make any difference in this respect whether the wages are a whole sum, or are to be calculated according to a certain rate per week or month, or are payable at certain stipulated times, provided the servant agree for a definite and whole term, such an arrangement of payment being perfectly consistent with the entirety of the contract.2 But if the contract be for a year, payable monthly, if the servant desires, he may at any time during the year demand payment for the entire months then elapsed, and his right to monthly payments is not waived by neglecting to demand them monthly. And if the entire wages due are not paid upon such demand, the servant may leave and sue for the same.3 So, also, where there is an agreement by a workman to do a job for a fixed compensation,1 the whole work must be done. But the promise to pay by the master after the failure to perform is a waiver.2
1 Olmstead v. Beale, 19 Pick. 528; Thayer v . Wadsworth, Ib. 349; Stark v. Parker, 2 lb. 267; Marsh v. Rulesson, 1 Wend. 514; Jennings v. Camp, 13 Johns. 94; McMillan v. Vanderlip, 12 Ib. 165; Reab v. Moor, 19 Ib. 337; Lantry v. Parks, 8 Cow. 63; St. Albans Steamboat Co. v. Wilkins, 8 Vt. 54; Davis v. Maxwell, 12 Met. 286; Robinson v. Hall, 3 Ib. 301; Winn v. Southgate, 17 Vt. 355; Hunt v. The Otis Co., 4 Met. 465; Spain v. Arnott, 2 Stark. 256; Lilley v. Elwin, 11 Q. B. 755; Swift v. Williams, 2 Ind. 365; Hawkins v. Gilbert, 19 Ala. 54.
2 Ibid.; Davis v. Maxwell, 12 Met. 286; Ridgway v. The Hungerford Market Co., 3 Ad. & El. 171.
3 White v. Atkins, 8 Cush. 367.
§ 1303. Such a contract is, however, generally subject to the implied condition of health and strength; and sickness will excuse the servant from liability, and justify him in rescinding the engagement;3 and ordinarily death will excuse performance.4 But if the servant be temporarily disabled by sickness or accident from performing the whole service, he may, if he continue in service, recover full compensation,5 unless the circumstances of the case show that the entire performance constituted the express consideration of the contract.6 So, also, if he be dismissed without just cause, or be so ill treated as to be justified in quitting the service, or if he depart with the consent of the master, the entire contract will be considered as rescinded, and he may recover a proportional compensation.7 But if he be dismissed with just cause, he cannot recover any thing.8 So, also, an infant may avoid his contract and recover on a quantum meruit;9 if, upon taking all the circumstances of the case into consideration, his services appear to be worth any thing.1
1 Faxon v. Mansfield, 2 Mass. 147; Ketchum v. Evertson, 13 Johns. 365; Sickels v. Pattison, 14 Wend. 257; Weeks v. Leighton, 5 N. H. 343.
2 See Seaver v. Morse, 20 Vt. 620; Rice v. Dwight Manuf. Co., 2 Cush. 80; Hayden v. Madison, 7 Greenl. 76. But see Monkman v. Shep-herdson, 3 Perry & D. 182.
3 Dickey v. Linscott, 20 Me. 453; Robinson v. Davison, Law R. 6 Ex. 269 (1871).
4 Farrow v. Wilson, Law R. 4 C. P. 744 (1869). See Stubbs v. Holywell Railway Co., Law R. 2 Ex. 311 (1867).
5 Cuckson v. Stones, 1 El. & E. 248; Caden v. Farwell, 98 Mass. 137 (1867). Though it would doubtless be otherwise in case of permanent disability.
6 Cutter v. Powell, 6 T. R. 320.
7 Lilley v. Elwin, 12 Jnr. 623; 11 Q. B. 755. See, also, 2 Smith's Leading Cases, 11; post, § 1308.
8 Post, § 1308; Spain v. Arnott, 2 Stark. 256; Turner v. Robinson, 5 B. & Ad. 789; Ridgway v. The Hungerford Market Co., 3 Ad. & El. 171; Lilley v. Elwin, 12 Jur. 623.
9 Moses v. Stevens, 2 Pick. 332; Vent v. Osgood, 19 Pick. 572; Whit-marsh v. Hall, 3 Denio, 375; Medbury v. Watrous, 7 Hill, 110; Judkins v. Walker, 17 Me. 38; Bishop v. Shepherd, 23 Pick. 492.
§ 1304. A servant is bound to obey all the just and reasonable commands of his master, to be careful and faithful as to all property committed to his charge, to do with diligence and care his proper and appointed work, and to behave with decency and in a manner consistent with his station as servant. If a just and reasonable command be disobeyed, the master may at once dismiss the servant. But the command must be just and reasonable, and within the fair scope of his employment. He is not bound to risk his safety in the service of his master, and may, if he think fit, decline any service in which he reasonably apprehends injury to himself.2 But mere inconvenience to the servant does not justify him in refusing a command, and he cannot be permitted to control his master in domestic regulations. Where, therefore, a master ordered his servant to go with the horses to a marsh, which was a mile distant, immediately, and it being the servant's dinner hour, and his dinner being ready, he refused to go until after he had eaten his dinner, it was held that the master was justified in dismissing him.3 So, also, where a person was hired as a wagoner, and the practice was to work during harvest time until eight o'clock in the evening, and the wagoner refused to work until that hour, because strong beer of a good quality was not allowed him, according to a pretended custom, and it appeared that there was no such custom, the master was held to be justified in dismissing him.4 Again, if the master refuse to the servant leave of absence, the servant is not justified in absenting himself, except under extraordinary circumstances, as where he apprehends danger to his life or violence to his person from the master, or when there is an infection raging in the house.5 But where a plaintiff asked leave of absence on account of the sudden and dangerous sickness of her mother, and was refused, it was held that she was not justified in leaving. It appeared, indeed, in this case, that the plaintiff did not, in the replication, allege that she gave notice to the defendant of her mother's illness; but Baron Parke said: "PrimÔ facie, the master is to regulate the time when his servant is to go out from and return to his home. Even if the replication had stated that he had had notice of the cause of her request to absent herself, I do not think it would have been sufficient to justify her in disobedience to his order." 1 And Chief Baron Pollock said: " It is very questionable whether any service to be rendered to any other person than the master would suffice as an excuse; she might go, but it would be at the peril of being told that she could not return." But where the disobedience is not wilful and is trivial, the servant will be excused.2 Thus, a temporary absence without leave, when it was not expressly forbidden, and produced no serious inconvenience to the master,3 or neglecting to answer the bell on one or two occasions, and occasional sulkiness and insolence of manner, have been held not to amount to such a disobedience as to justify dismissal.4