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Scottish Court of Session Decisions >>
Margaret Baird v Lady Don. [1779] Mor 9182 (14 July 1779)
URL: http://www.bailii.org/scot/cases/ScotCS/1779/Mor2209182-038.html Cite as:
[1779] Mor 9182
Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum præstandum.
Margaret Baird v. Lady Don
Date: 14 July 1779 Case No. No 38.
When a servant is hired from one term to another, warning is required previous to the term, otherwise tacit relocation will take place; and in this case, where warning was omitted on the part of the master, the Lords found the servant entitled to wages and board-wages for the ensuing half year.
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Margaret Baird was hired as house keeper by Lady Don for half a year, from Whitsunday to Martinmas 1777. At that term, she received her wages, and, without any previous warning, was dismissed; on which she brought an action against Lady Don, for payment of wages and board-wages for half a year from the term of her dismission. In support of this claim,
Pleaded for the pursuer, When a servant is hired to a term, and no precise warning given, tacit relocation takes place, agreeably to the principles of common law, and the general practice of the country. The pursuer having received no warning, understood that she was to continue in the defender's service for the next half year after the term to which she was hired, and, on that account, did not look out for any other service. By this means she suffered the loss of which she now claims to be relieved by the defender, who was the cause of it.
Answered, When the parties to a contract have themselves fixed the period of its continuance, no intimation from the one to the other is necessary to prevent its being dissolved at the time stipulated. The parties are sufficiently ascertained of the endurance of their obligations to each other, by the express terms of their agreement.
If the servant is hired to a certain day, when the day comes, the prestations arising from the contract or agreement are no longer exigible. The servant is, eo ipso, free from performing the service, and the master from paying the hire. To renew these obligations, for the like, or any other space of time, a new agreement is necessary, specifying the term of endurance. Though the servant should remain in the service of his master after the time stipulated, he comes under no obligation thereby, without express paction, to continue in it for any definite time. The master, in like manner, is not obliged to keep the servant longer than he chuses.
It was likewise averred to be a common practice for servants to leave their masters at the term without giving warning, and for masters to dismiss their servants in the same manner.
The Court ‘found the defender Lady Don, and Sir Alexander Don, conjunctly and severally, liable in payment to the pursuer of the sum of L. 5 Sterling of wages, and of L. 6: 6s. Sterling in name of board-wages, and decerned.’
Lord Ordinary, Monboddo.Alt. Corbet.Alt. P. Murray.Clerk, Orme.
Fol. Dic. v. 4. p 18. Fac. Col. No 75. p. 165.
