§ 1308. In the next place, as to the dissolution of the contract, and the rights of the master and servant consequent thereupon. If the hiring be for a definite period, and be an entire contract, and the master dismiss the servant for sufficient cause, the servant can recover no portion of his wages.1 If, in such a case, the servant be discharged without sufficient cause, the master is liable in an action for damages which will ordinarily be calculated at the entire sum of the wages; although, in some cases, it may be reduced by proof that the servant found other beneficial occupation of the same kind, or that he refused work of the same kind and in the same place subsequently offered to him.2 But it would seem that the servant could not maintain an action for wages unless the whole service have been performed, and he should, therefore, bring an action for damages resulting from the breach of contract.8 In order to entitle him to maintain an action for damages, it is not necessary that he should wait until the term of the contract has expired, but he may bring it immediately.1

1 Turner v. Robinson, 5 B. & Ad. 789; Ridgway v. The Hungerford Market Co., 3 Ad. & El. 171; Lilley v. Elwin, 12 Jur. 623; s. c. 11 Q. B. 755; Byrd v. Boyd, 4 McCord, 246; Winn v. Southgate, 17 Vt. 355; Libhart v. Wood, 1 Watts & Serg. 265; ante, § 1302, and cases cited.

2 Ante, § 1303, and cases cited; Costigan v. Mohawk & Hudson Railroad Co., 2 Denio, 612; Elderton v. Emmens, 4 C B. 498; 4 H. L. C. 624; 26 Eng. Law & Eq. 1; Stewart v. Walker, 14 Penn. St. 293.

3 Hulle v. Heightman, 2 East, 145; Archard v. Hornor, 3 C. & P. 349; Smith v. Hayward, 7 Ad. & El. 544; Hartley v. Harman, 11 Ad. & El. 798; Goodman v. Pocock, 15 Q. B. 576; Green v. Hulett, 22 Vt. 188; Fewings v. Tisdal, 1 Ex. 295, overruling Gandell v. Pontigny, 4 Camp. 375; Moody v. Leverich, 4 Daly, 401 (1873). See Polk v. Daly, lb. 411. But see Lilley v. Elwin, 12 Jur. 623; 2 Smith's Leading Cases. A temporary illness will not prevent a full recovery. Cuckson v. Stones, 1 El. & E. 248 (1858); Caden v. Farwell, 98 Mass. 137 (1867).

§ 1309. Where the contract is entire for a definite period, and is rescinded by the mutual consent of the parties to separate and dissolve the relation of master and servant, the servant is entitled to a pro ratâ compensation for his services.2 Whether the contract have been rescinded is a question for the jury.8 Where the master has the power of dismissal at discretion, no reasons need be given for the discharge of the servant, or, if given, it matters not that they be capricious.4

§ 1310. If the wages be payable pro ratâ, and the servant be guilty of misconduct injurious to the master, so that he might have been dismissed, and he still be retained in service, the misconduct may operate to reduce his services, so that he could not recover for full wages in like manner as if he had served faithfully and properly.6 But if, after knowledge of the servant's misconduct, the master continue him in his service, it may, under certain circumstances, amount to a condonation of the misconduct of the servant, especially if it were not injurious to the master.6

§ 1311. When a master dismisses his servant, if he have a good ground of dismissal, it is not necessary that he should state it to the servant,7 and even if he assign an insufficient cause for the dismissal, he may nevertheless justify the act by showing that there was a good ground of dismissal known to him at the time.8 But whether, if he state an insufficient reason for the dismissal, he can afterwards, on the trial, justify himself by showing that the servant had been guilty of misconduct unknown to him at the time, but which, if known, would have entitled him to dismiss the servant, seems to be doubtful.1 If by the contract the servant has the right to leave upon becoming dissatisfied, he may do so, it is said, without assigning any cause, and without the existence of any valid cause of dissatisfaction.2

1 Pagani v. Gandolfi, 2 C&P. 371; Dunn v. Murray, 9 B. & C. 780. 2 Thomas v. Williams, 1 Ad. & El. 685; Phillips v. Jones, 1 Ad. & El. 833; Hill v. Green, 4 Pick. 114.

3 Lamburn v. Cruden, 2 Man. & G. 253; Hurcum v. Stericker, 10 M. & W. 553.

4 Lynch v. Stone, 4 Denio, 356; Smith v. Douglass, 4 Daly, 191 (1871).

5 Baillie v. Kell, 4 Bing. N. C. 638; Atkyns v. Burrows, 1 Pet. Adm. 247; Mitchell v. The Ship Orozimbo, Ib. 250; ante, § 186.

6 Per Lord Denman in Ridgway v. The Hungerford Market Co., 3 Ad. & El. 174. See, also, Buck v. Lane, 12 Serg. & Rawle, 266.

7 See Mercer v. Whall, 5 Q. B. 457; Lynch v. Stone, supra.

8 Ridgway v. The Hungerford Market Co., 3 Ad. & El. 171; Baillie v. Kell, 4 Bing. N. C. 638.

§ 1312. The next question which arises is in respect to the dissolution of the contract by notice to leave or warning. Where it is provided in a contract of hiring for a definite period that the contract may be dissolved by a certain notice to leave, it implies an obligation on the master to employ and on the servant to serve until such notice be given, or until the whole term be past.3 Where a domestic or menial servant is hired for a year, there is a condition implied from custom that it may be determined by either party by the payment of a month's additional wages or by a month's warning.4 And this custom applies, although the contract be in writing, unless it be expressly or impliedly negatived by something contained therein.5 A head gardener, a huntsman,6 has been held a menial servant under this custom.7 But this condition is only implied in cases of menial and domestic servants, and does not apply to trade servants, servants in husbandry,8 clerks,9 reporters,10 overseers,11 a governess,12 and servants in similar stations. In snch cases the contract cannot be determined until the end of the year.1

1 Ibid. But see Cussons v. Skinner, 11 M. & W. 161; Spotswood v. Barrow, 5 Exch. 110; Willets v. Green, 3 C. & K. 59.