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Colonial Cases

Jameson v. Olyphant and Co., 1879

[[wrongful dismissal]

Jameson v. Olyphant and Co.

United States Consular Court, Shanghai
Bailey J., 1879
Source: The North China Herald, 31 January 1879

 

UNITED STATES CONSULATE GENERAL.

Before F. H. BAILEY, Esq., Judge; and D. C. JANSEN, Esq., and S. S. GILBERT Esq., Assessors.

JAMESON v. OLYPHANT & CO.

   The judgment of the court in this case is as follows:-

   This is an action on a breach of contract for hire of the plaintiff as clerk by the defendants for yearly service, commencing on the 30th day of June, 1878, at a salary of £600 per annum with board and lodging.

   It is averred in plain tiff's petition that on the 19th day of December last the defendants having suspended payment, dismissed the plaintiff from their service, without fault on his part; and it is alleged that by the custom of the port and country he is entitled to three months' notice on dismissal, and compensation therefor, together with the usual travelling and incidental expenses hence to the United States or Europe;

"that by reason of the premises, petitioner is damaged in the sum of Tls. 291.35, on account of salary unpaid as aforesaid, and is further and specially damaged in the sum of Tls. 1,013.33 on account of loss of time and employment through being discharged without notice and loss of allowance for travelling expenses for the voyage home to the United States.

   Wherefore, petitioner prays judgment against the defendants for the sum of Tls. 1,304.68, together with the costs of action and for such other and further relief as in law or equity this petitioner may be entitled to.

   The defendants admit the formal counts in the petition and the contract for yearly service and board and lodging as alleged, also the dismissal of the plaintiff without fault on his part, and that there is a balance due to the plaintiff of Tls.  237.65 For the fractional month of December ending on the 19th, when plaintiff was discharged, but they deny each and every other allegation in the meditation.

   Several witnesses were introduced by the plaintext to prove that it is the custom of merchants in Shanghai to allow from three to six months' extra salary on the dismissal of an employee without fault in his part.  There was also some testimony concerning an allowance for transportation home under such circumstances.

   There was no written agreement between the parties, and no understanding as to an allowance or transportation home in case of a summary dismissal.

   The plaintiff's testimony shows that he did not come to China on an agreement with or to enter the service of Olyphant and Company.

   To enable the plaintiff to recover an allowance, and transportation, on a custom of the port or country, he must show that custom to be certain, established, uniform; otherwise it has not that character of law which makes it a part of his contract.  Greenleaf, vol.  2, sec. 248, 251, 252,  says:-

Custom is unwritten law, established by common consent and uniform practice, from time immemorial, having respect to the inhabitants of a particular place or district. ...

   But in regard to the usage of trade, it is not necessary that it should have existed immemorially; it is sufficient if it be established, known, certain, uniform, reasonable, and not contrary to law.  These usages, many judges are of opinion, should be sparingly adopted by the Courts as rules of law, as they are often founded in mere mistake or in the want of enlarged and comprehensive views of the full bearing or principles.  Both customs and usages must be proved by evidence of facts, not of mere speculative opinions, and by witnesses who had had frequent and actual experience of the custom or usage, and do not speak from report alone.

   Parsons on Contracts, vol. 2, p. 541, is equally clear, as follows:-

And it comes within this reason only when it is so far established and so far known to the parties that it must be supposed that their contract was made in reference to it.  For this purpose the custom must be established and not casual; uniform and not varying, general and not personal, and known to the parties.

   And again, in Balfour Browne on Customs and usages, p. 21, it is stated with great clearness,

A custom to be valid must be certain.  This is an element which must necessarily and by force of reason attach to a custom.  Any miscellaneous observances which have no coherence of principle are necessarily inefficacious as forming a rule of conduct. It is only when observances have shaped themselves into a constant uniformity, only when their characteristics of the past can be a clear light for their incidents in the future, that they rise to the level of a custom which is the stuff of which law is made.

   Upon a careful consideration of the evidence (whether there be such a custom in Shanghai or not), we do not think it proven in this case with sufficient clearness to bring it within the rule of law.

   An opinion in chambers by Sir Edmund Hornby concerning the custom in Shanghai was referred to by one of the witnesses.  It is to be regretted that the opinion of so competent an authority could not be produced.

   There is another principle, however, under which the plaintiff is entitled to compensation for the breach of his contract; and it is, that whatever damages he may suffer by reason of the dismissal before his contract of service had expired, and without fault on his part, are properly recoverable as against the defendants.

   In Sedgwick on the Measure of Damages, p. 416, Maule, J., is  quoted as saying:-

That there is a rule in cases of this kind seems not to me to be doubtful; and it is that the plaintiff has a right to recover the stipulated wages for the full time, subject to the defendants' right to recoup whatever the plaintiff might  during the period have reasonable earned.

  In actions for wages brought against the employer by the servant or employee discharged without cause before the end of the contract of service, a compensation is intended to be allowed, says Mr. Justice Stoery, which shall be a complete indemnity for the illegal discharges, and this is ordinarily measured by the loss of time and the expenses incurred by the party.  Emerson v. Howland, Mason C.C.R. 45-53.  See Hunt v. Colburn, Sprague's decisions (Adm,), 215.  The recovery should be for the difference between the sum he should have received under the contract and that which he has, or it is shewn, he might have received elsewhere, the object being to compensate him for his loss of wages as far as it might not have been prevented wholly or in part by his own want of due diligence.

   In the Nisi Prius case of Hartland v. The General Exchange Bank, 14 L.T.R. (N.S., 803) where the plaintiff, who had been engaged as manager of a banking company for a term of three years, was wrongfully dismissed at the end of four months, and thereupon immediately brought his action for the rest of his salary, Mr. Justice Willes instructed the jury to take the salary into account, but to reduce the amount by the probabilities of the plaintiff having another employment during the time.

   Parsons on Contract, vol.  3, p. 189:-

For example, a corporation hires an overseer at so many wages and such a share of the profits for three years.  At the end of one, he is dismissed without good cause.  We should call this a final breach; and should say that the jury should determine what he loses by the  wages and profits for the residue of the three years, deducting what his time and labor may be worth for that time; the facility or difficulty of finding employment, and all other circumstances bearing upon the estimate being considered.

   The plaintiff is required to exercise due diligence in seeking employment, but the burden of prod is on the defendants to show his failure in this respect.  There is no incidence of   want of diligence on plaintiff's part; nothing to show the probability of his soon obtaining employment.

      The whole question of damages is left to the Court, as they would be left to a jury under instructions as to the law.

   The rulings in American and English Courts in the cases above referred to, afford a rule by which the damages may be assessed.  Under his contract the plaintiff could have claimed wages and board and lodging for the unexpired term of the contract, and the claim would be subject of course to the principles laid down in the decisions   quoted.  He has, however, elected to measure his damages at the rate of his salary for three months with cost of board and lodging for that period. Taking into consideration the exceptional dullness of trade, the total lack of evidence to show want of diligence or probability of the plaintiff soon obtaining employment, the amount claimed does not seem unreasonable, and the claim to that extent will be allowed.

   The claim for transportation stands on a different footing.  There was no express contract for travelling expenses home, nothing was said about it between the parties when the agreement was made.  Certainly no custom has been established allowing transportation in such cases.  The contract of service was made in China, and transportation home,  under such circumstances, cannot be presumed to have been a part of the contract.  That part of the claim must be disallowed.

   Judgment will be entered for the amount of salary  due to the 19th December, as admitted by the defendants, and for  damages at the rate of three months salary, with mess allowance as claimed in the petition, making a total of Taels 900.98,  together with costs.

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