§ The fact of a representation being untrue will not entitle the party influenced by it to avoid the contract. Illustration. Hopkins bought a horse named "California," of Tanqueray at auction at Tattersall's. The day before the sale, while Hopkins was examining the horse, Tanqueray said to him, "You have nothing to look to, I assure you he is perfectly sound in every respect." On which Hopkins replied, "If you say so, I am perfectly satisfied;" and examined the horse no further. The horse turned out to be unsound: but Tanqueray was not aware of this when he made the above representation. Hopkins sued Tanqueray to recover a loss on the resale of the horse. It was held that what was said by the defendant was a representation, and no warranty; and as he made it in ignorance of the fact, there was no fraud, and the plaintiff was not entitled to recover. (a)

If the representation be false TO THE KNOWLEDGE OF THE
PARTY MAKING IT, this is fraud; and the party induced to
enter into a contract on the faith of such false represen-
tation, is entitled at once to repudiate the contract, to
return any goods delivered, and sue for any price paid
under it; if he can restore the goods to the defendant in
the state in which they were delivered to him.
Illustration. Atherton's traveller sold to Udell a log of
mahogany, and warranted it sound, knowing that it
was defective. On cutting the log in two, the defect
became apparent, and Udell brought his action against
Atherton for deceit. The court held that the defendant
was liable for the fraud of his agent, and that the plain-
tiff would have been entitled to rescind the contract,
had he not deprived himself, by cutting it in two, of
the power to restore the log to the defendant in its
original state. (b)'

(a) Hopkins v. Tanqueray, 23 L. J. C. P. 162.
(b) Udell v. Atherton, 30 L. J. Ex. 337

§ A sale" with all faults," will none the less be made on a fraudulent representation, if any contrivance has been resorted to, to conceal a defect.

Illustration. Heath was owner of an unseaworthy vessel, whose hull was wormeaten, and keel broken. He removed her from the ways, where she lay dry, and kept her afloat in deep water, and then issued an advertisement for her sale, which described her hull as being nearly as good as when launched, but said she was to be taken "with all faults." In an action by Schneider, the purchaser of the vessel, it was held that the defects in the vessel having been purposely concealed, the vendors were not protected by the stipulation that she was to be sold "with all faults," as that expression does not mean "with all frauds.” (c)

(c) Schneider v. Heath, 3 Camp. 508.

CHAPTER IV.

CONTRACTS FOR WORK AND LABOUR.

I. MASTER AND SERVANT. The contract between master and servant is a mutual engagement, express or implied.

1. On the part of the one, to employ and remunerate.

2. On the part of the other, to serve.

§ Where the service has been performed, in the absence of any express contract, the law presumes

1. A hiring.

2. For reasonable or customary wages.

Unless the service is done for some near relative, as by

a son for his father, in which case the presumption is

the other way.

§ Where annual wages are reserved, or the contract is for an indefinite time, the hiring is a yearly one.

§ Notice on either side must be (i) reasonable, or (ii) custo

mary; terminating with the current year of service, in analogy with notice under a yearly tenancy. (See post, Book II. Chap. X.)

Illustration, Beeston was clerk to Collyer, an army agent, and served him from March 1st, 1793, at a salary, paid quarterly, till December 23rd, 1826, when Collyer dismissed him. In an action by Beeston, it was held that the contract was a hiring for a whole year, and afterwards as long as the two should please, until the expiration of any current year from March the 1st. (a)

The hiring of a domestic servant is an annual one, defeasible,

(a) Beeston v. Collyer, 4 Bing. 309. See also Forgan v. Bourke, 12 Ir. C. L. R.

495.

by custom, by either party giving the other a month's wages or a month's warning.

As to the termination of contracts of service.

In the absence of any express agreement, either party may terminate the contract by giving—

1. The customary notice, or

2. In the absence of any custom, reasonable notice. A MASTER MAY DISMISS HIS SERVANT WITHOUT NOTICE—— 1. For wilful disobedience to a lawful order.

Illustration. Renno agreed with Bennet to serve as carpenter's mate, on a voyage to the Southern Ocean. During the voyage he mutinously refused to work the ship, except to an English port. Bennet put him ashore at Java, and discharged him. In an action by Renno for wrongful dismissal, it was held, that Bennet was justified in discharging him without notice. (b)

2. For gross moral misconduct.

Illustration. Atkin, a clerk and traveller to Acton, hired by the year, assaulted Acton's maidservant, with intent to ravish her. In an action by Atkin for dismissal without notice, the Court held, that Acton was justified in what he had done. (c)

3. Habitual negligence. (d)

4. Conduct calculated seriously to injure his master's business.

Illustration. Read, a journeyman carpenter, was employed by Dunsmore, a master builder, on a job in a house of a gentleman named Trenchard. Dunsmore dismissed Read for poaching on Mr. Trenchard's premises. In an action by Read, it was held, that the master was justified in so doing. (e)

(b) Renno v. Bennet, 3 Q. B. 768.

(c) Atkin v. Acton, 4 C. & P. 208.

(d) Robinson v. Hindman, 3 Esp. 235; Callò v. Brounker, 4 C. & P. 518. (e) Read v. Dunsmore, 9 C. & P. 588.

5. Incompetence. (a)

6. Permanent illness. (b)

A CONTRACT OF APPRENTICESHIP, (apprendre, to learn) is where the master, being skilled in some handicraft, engages to

teach the servant, as well as to employ and remunerate him.

As the apprentice is usually an infant, and, therefore, incapable of contracting, his parent, or some other interested person, usually enters into covenants with the master, that the apprentice will complete his service. ]

It may be dissolved—

1. By cancellation of the indentures with the consent of

all parties.

2. By the death of either party.

3. By the bankruptcy of the master; in which case a portion of the premium may be returned. (c)

4. By an apprentice, through the act of God being incapacitated from continuing the service.

Illustration. Firth became apprenticed to Boast, a chemist and druggist, and afterwards afflicted with a permanent illness. In an action by Boast for loss of · services, it was held, that the non-performance of the contract by Firth was excused, as the parties must all along have had in contemplation the possibility of the defendant being permanently disabled by sickness. (d) 5. By order of a court of summary jurisdiction, which has power to order the whole, or part of the premium paid to be refunded. (e)

It is not dissolved

1. By the apprentice falling sick.

(a) Harmer v. Cornelius, 28 L. J. C. P. 85.

(b) Cuckson v. Stones, 28 L. J. Q. B. 25.

(c) 32 & 33 Vict. c. 71, s. 33.

(d) Boast v. Firth, L. R. 4 C. P. 1,
(e) 38 & 39 Vict. c. 90, ss. 5, 6, 7, 12, 13.