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Colonial Cases

Whitfield Dowson and Co. v. Slater, 1876

[breach of contract]

Whitfield Dowson and Co. v. Slater

Supreme Court for China and Japan
Hornby C.J., 14 February 1876
Source: The North China Herald, 17 February 1876


Shanghai, Feb. 14th
Before Sir EDMUND HORNBY, Chief Judge.
WHITFIELD DOWSON & Co., Appellants, v. S. SLATER, Respondent.
In Appeal from Yokohama.
  Appellants (former defendants) were represented by Mr. HANNEN.
  Respondent (former plaintiff) was unrepresented by counsel.
  The amount disputed was only $35, the question being one of agreement.  Messrs. Whitfield and Dowson are engineers, &c., and Mr. Slater was engaged by them in England to enter their service.  The point in dispute was, whether, under the agreement made between the parties, Mr. Slater was entitled to be paid for certain days he was unable to work, through illness not brought about by his own act.  Upon the wording of the agreement, the judge, C. W. Goodwin, Esq., held that he was entitled to be paid, and the defendants now appealed against that decision.
  Mr. HANNEN, in stating the case for the appellants, said the judgment in the case was merely a formal one, given without any reasons, and he was consequently somewhat in the dark upon what grounds the judgment wads given.  But he noticed that, in the report of the case, the plaintiff referred to a case, "Cuckson v. Stones" (28 L.J. Q.B. 25), upon which the Court seemed to have leaned in its decision.  But he (Mr. Hannen) thought that case was very distinguishable from the present one.  He would, however, refer to the agreement itself, which stated that from the day the steam vessel left Southampton, the said Messrs. Whitfield, Dowson & Cop., should pay Mr. Slater at the rate of £1 per working day of nine hours.  But the wording changed when it came to the amount to be paid after his arrival at Yokohama.
  The agreement first made Messrs. Whitfield, Dowson & Co. promises to take him into their service, and while in their service, to find him constant employment.  There could be no object in this stipulation, if he were to be paid whether he worked or not.  Then the agreement went on to say that they would pay him for his work at the rate of £1 per working day of nine hours.  The agreement, id this read, seemed plain - he was to have £1 per day when he worked, nothing when he did not work, and he was to be fined £1 per day when he stayed away without cause.
  He (Mr. Hannen) had been unable to find any case which in any way shook that view, except the case of "Cuckson v. Stone," and that case, as he had said, was distinguishable, and upon two grounds, - first, the servant there, although ill, continued to give his advice in the management of the business; and secondly, the wording of the agreement was different.  There was no stipulation to keep him constantly employed; moreover, the agreement was "to provide the said J. Cuckson with a dwelling house for his own occupation, and also coals during the whole of the term of his engagement; and that they should and would pay him (Cuckson) the weekly sum of £2. 10s. during the said term.!
  The wording in that case showed that it was a continuous employment sat a salary computed by the week, while the wording of the agreement between Messrs. Whitfield, Dowson & Co, and Mr. Slater, showed that the agreement was simply to employ him for three years, and to pay him £1 for every day's work.  He, therefore, contended that the case of "Cuckson v. Stone" did not apply, and it was only one quoted in "Smith's Leading Cases" on the point of wages.  Before concluding, he would call his Lordship's attention to the question of costs.
  His Lordship said, in the despatch which accompanied the case, it was  said that the terms upon which the appeal was granted were that Messrs. Whitfield, Dowson & Co. should pay costs of appeal  in any event.  Had Mr. Hannen any reason to doubt those were the terms?
  Mr. HANNEN replied in the negative; but said it should have been stated on the record that leave to appeal was granted upon such and such terms.  Under the circumstances, he was about to suggest that his Lordship should leave the Court below to decide the question of costs.
  His LORDSHIP, in giving judgment, said it seemed to him that the case of "Cuckson v. Stone" was clearly distinguishable from the present one.  In that case it was a hiring for a term of years at wages payable weekly.  But in the present case the contract was that the workman was to come out, and that he was to be paid so much for every working day the passage occupied.  After his arrival, the language of the agreement changed, for upon his arrival, it was stated that his employers were to pay him for his work at the rate of £1 per working day.  That being so, it was quite clear he was not to be paid as when on the voyage out, but if he worked six days per week, he was to be paid for the six days, and if he worked a less number of days, then for the number of days he did work.  So that if on any one day he worked six instead of nine hours, he would not be en titled to be paid £1 - because, as he had only worked two thirds of a day, he would only be entitled to two thirds of $1.
   Then came the stipulation that the appellants were bound to find the respondent work.  This showed the meaning attached to the words to be paid "for his work," by the parties to the agreement, viz., that as he was to be paid for his work, so the respondents were bound to provide him with work to do by which he could earn his wages of £1 per day. I look upon it that the doing of the work as provided was a condition precedent to the right to receive payment for it, and that to avoid the hardship of the respondent not being able to perform the condition precedent, by reason  of the appellant not providing work to be done, they bound themselves to provide such work.
  Then came the stipulation as to his being g sick.  It was perfectly clear it was a species of penalty upon the workman for being absent from his work, and not assigning some reasonable excuse for being absent.  In such a case, he was to forfeit at the rate of £2 per working day, but he was not to forfeit anything if he produced the required certificate. It appeared perfectly clear to his Lordship that while respondent was sick, and produced a proper medical certificate, he avoided the penalty, but inasmuch as he had not worked, he would not be entitled to his wages.
  Judgment would, therefore, be for the appellants; the costs of the case below to be borne by the respondent, the costs of appeal to be subject to any arrangement that might have been made in the Court below.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School