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Decisions of the Superior Courts of New South Wales, 1788-1899

Coser v. Gordon [1841] NSWSupC 79

contract, breach of - work and labour - master and servant

Supreme Court of New South Wales

Burton J., August 1841

Source: Sydney Herald, 12 August 1841

THOMAS COSER V. R. C. GORDON.

            This was an action for breach of an agreement in writing by the defendant, to pay the plaintiff £250 a year for three years from January, 1840.

            There was a count for work and labour, and also upon an account stated.

            The defendant pleaded, 1st, the general issue; 2nd, that the plaintiff abandoned the defendant's employ; 3rd, that the plaintiff was dismissed for being uncivil, riotous, and disorderly; 4th, that the plaintiff was paid in full. Issue was taken by the plaintiff on these pleas.

            Mr. HUSTLER opened the pleadings.

Mr. FOSTER stated the case for the plaintiff.

            The plaintiff proved the defendant's written agreement to pay him a salary of £250 a year for three years, from January, 1840, in consideration of his exclusive services for that time as a shopman to the defendant. The plaintiff also proved that he continued in the defendant's service for a year and a month after the commencement of the three years.

            The defendant gave evidence that the plaintiff the day before he was dismissed, assaulted and horsewhipped a person in the employ of the defendant, and in a superior station in the establishment to himself; that immediately after this assault he told the defendant, "that he was a d-d rascal, to be driving his carriage and not keeping his word," and that he has been seen in employment in another establishment since he left the defendant's.

            The defendant attempted giving other evidence of the plaintiff's having been disorderly upon other occasions; but Mr. Justice Burton held, that as the plea of disorderly conduct only referred to one occasion, the defendant could not give any evidence of any disorderly transaction but one, either in bar to the action, or in mitigation of damages.

            The defendant also proved having paid the plaintiff one year's salary.

            Mr. FOSTER addressed the Jury in reply for the plaintiff, and Mr. Justice Burton in charging them said, that it was highly important, especially in this Colony, that masters and servants should properly understand their mutual obligations; in order that masters might know that they cannot dismiss their servants without sufficient cause, and that servants may learn that they must conduct themselves with propriety towards their masters. From the evidence, the jury might perhaps presume that the plaintiff had been quarrelsome with some of the other shopmen in the defendant's employment; but that, in itself, would not have been sufficient to warrant his dismissal, unless he also had been disorderly towards the defendant himself; and therefore, if they believed that the plaintiff had merely quarrelled with another of the defendant's shopmen, and had been dismissed for that cause, they should find a verdict for him for the full amount of his two years' salary; but if they believed that he had used the language to the defendant of which the defendant had given evidence, then, that language and conduct would, upon the plea in the case, have justified his dismissal, and they ought, therefore, if they believed the evidence, to find a verdict for the defendant upon the plea, although, even in that case, upon the count for work and labour, the plaintiff would still be entitled to a verdict for one month's salary.

            The Jury retired for about twenty minutes, and upon their return to Court, delivered a verdict for the plaintiff for £100.

            Council for the plaintiff, Mr. Foster and Mr. Hustler; for the defendant, Mr. Windeyer and Mr. Broadhurst.  Attorneys, for the plaintiff, Goddard; for the defendant, Allen.

Published by the Division of Law, Macquarie University