Sec 718

In England an engagement for domestic service is inferred, unless local or special custom be to the contrary, to be for a year, with a right of determination on a month's warning, or by payment of a month's wages.4 This rule has been applied to a head gardener,5 and to a huntsman,6 but does not apply to clerks,7 or governesses.8 In this country no such implication exists,9 and even in England the rule is subordinate to local or special usage.10 And the fact that wages are payable at fixed intervals short of a year rebuts the inference of yearly hiring.11 When the hiring is for a particular season, it expires by its own limitation at the closing of the season.1 But where the hiring is merely at will, without limit assigned, or without fixed periods of payment of wages, a person so employed may be discharged without notice.2 - Hiring by weekly wages, there being no other limitation of time in the contract, is regarded as hiring by the week; hiring by monthly wages as hiring by the month.3 - Special regulations adopted by employers will be held binding, if reasonable, on employees, if they have notice of them.4 - An employee may be dismissed without warning if he wilfully disobey any lawful order of the employer;5 or if he be incapable of doing the work he undertook to do;6 or if he be guilty of any offence against decency or morality.7

Term of domestic service dependent on circumstances.

1 See cases cited supra, to this section; Cutter V. Powel, 6 T. R. 320; and notes in Smith's L. C. 7th Am. ed.; Huttmann V. Boulnois, 2 C. & P. 510; Miller V. Goddard, 34 Me. 102; Phil-brook V. Belknap, 6 Vt. 383; Mack V.

Bragg, 30 Vt. 571; Stark V. Parker, 2 Pick. 267; Olmstead V. Beale, 19 Pick. 528; Rice V. Dwight Man. Co., 2 Cush. 80.

2 Britton V. Turner, 6 N. H. 481; Laton V. King, 19 N. H. 280; Davis V. Barrington, 30 N. H. 529; and see Fenton V. Clark, 11 Vt. 560, and cases supra, sec 714.

3 Taylor V. Laird, 1 H. & N. 266; Button V. Thompson, L. R. 4 C. P. 330; White V. Atkins, 8 Cush. 367.

4 2 Ch. on Cont. 11th Am. ed. 839; Turner V. Mason, 14 M. & W. 112; Lilley V. Elwin, 11 Q. B. 742.

5 Nowlan V. Ablett, 2 Cr. M. & R. 54.

6 Nicoll V. Greaves, 17 C. B. N. S. 27.

7 Fairman V. Oakford, 5 H. & N. 635. See Buckingham V. Canal Co., 46 L. T. N. S. 885.

8 Todd V. Kerrich, 8 Exch. 151.

9 2 Ch. on Cont. 11th Am. ed. 839.

10 Metzner V. Bolton, 9 Exch. 518; Parker V. Ibbetson, 4 C. B. N. S. 346; Blaisdell V. Lewis, 32 Me. 515. See Reab V. Moore, 19 Johns. 337; Kirk V. Hartman, 63 Penn. St. 97; Wilmington Coal Co. V. Lamb, 90 Ill. 465.

11 Baxter V. Nurse, 6 M. & G. 935.

Sec 719

"Where services are rendered as a matter of family or friendly attention, a promise to pay will not be inferred. There is in such cases no proposal to serve for money, and hence there can be no acceptance;8

Special promise to pay not to be implied nor when they are at the time regarded on both sides as a courtesy.1 When services are rendered prima facie as a matter of family duty or courtesy, it is necessary, if compensation is sought for them, to prove a distinct arrangement between the parties by which payment is to be made;2 the question, however, being dependent upon the relations and circumstances of the parties.3 And this is held to be the case with regard not merely to blood relations, but to relations by marriage,4 though this does not apply where a son-in-law, in poor circumstances, takes his mother-in-law as an inmate of his family with an understanding that he should be paid for her board;5 nor to a son-in-law who materially assists a father-in-law;6 nor to a niece by marriage who does work for her uncle by marriage.7 The rule, also, does not apply to services which in cases of friendly or family service, nor where there is no recognition of business relationship.

1 Leake, 2d ed. 273; Beeston V. Coll-yer, 4 Bing. 309; Brown V. Symonds, 8 C. B. N. S. 208; Langton V. Carleton, L. R. 9 Ex. 57.

2 Kirk V. Hartman, 63 Penn. St. 97. Where the agreement was that P. should work for D. for " seven months at $12 per month," it was held that this was an entire contract, and that $84 were to he paid at the end of the seven months, and not $12 at the end of each month, and that if P. left without cause before the seven months expired, he was entitled to recover nothing for his services. Davis V. Maxwell, 12 Met. 286, citing Stark V. Parker, 2 Pick. 267; Olmstead V. Beale, 19 Pick. 528; Thayer V. Wadsworth, 19 Pick. 349; Nichols V. Coolahan, 10 Met. 449. But see contra, sec 714.

3 R. V. Hampreston, 5 T. R. 205; Bayley V. Rimmell, 1 M. & W. 507.

4 Harman V. Salmon Falls Co., 35 Me. 447; Hunt V. Otis Co., 4 Met. 464; see supra, sec 24. It was ruled in Bast V. Byrne, 51 Wis. 531, that a master who keeps a servant in his employ through a fixed term of service, cannot deduct from the servant's wages for lost time, nor compel him to make up the lost time. The master may discharge the servant for an unauthorized absence, but by receiving the servant back after absence he waives the right. That death of either party works a dissolution, see supra, sec 312, 325; Farrow V. Wilson, L. R. 4 C. P. 744.

5 2 Ch. on Cont. 11th Am. ed. 843; Turner V. Mason, 14 M. & W. 112; Amor V. Fearon, 9 A. & E. 548; Lilley V. Elwin, 11 Q. B. 742; Lomax V. Ard-ing, 10 Exch. 734. As to dismissal see supra, sec 717.

6 Harmer V. Cornelius, 5 C. B. N. S. 236.

7 Atkin V. Acton, 4 C. & P. 408; Singer V. McCormick, 4 W. & S. 265; Byrd V. Boyd, 4 McC. 246; Jones V. Jones, 2 Swan, 605; McCormick V. De-mary, 10 Neb. 515.

8 2 Ch. on Cont. 11th Am. ed. 838; Munger V. Munger, 33 N. H. 581; Bundy V. Hyde, 50 N. H. 122; Davis V. Goodnow, 27 Vt. 715; Robinson V.

Cushman, 2 Denio, 152; Wilcox V. Wilcox, 48 Barb. 329; Ridgway V. English, 2 Zab. 409; Zerbe V. Miller, 16 Penn. St. 488; Hertzog v, Hertzog, 29 Penn. St. 465; Duffey V. Duffey, 44 Penn. St. 399; Amey's App., 49 Penn. St. 126; Butler V. Slamm, 50 Penn. St. 456; Medsker V. Richardson, 72 Ind. 323; Brown V. Yaryan, 74 Ind. 305; Guenther V. Birkicht, 22 Mo. 439; Spiegelberg V. Mink, 1 New Mex. 308; in Andrus V. Foster, 17 Vt. 556; Ridg-way V. English, 2 Zab. 409; and Smith V. Smith, 30 N. J. Eq. 564, it was held that a daughter who continued to serve in her father's family after coming of age could not, without proof of a special contract, recover from the father's estate; and so of a son, Bundy V. Hyde, 50 N. H. 122; Mosteller's App., 30 Penn. St. 473; and of a son-in-law, Lovet V. Price, Wright, Ohio, 89.

1 Ball V. Newton, 7 Cush. 599; Robinson V. Raynor, 28 N. Y. 494; Candor's App., 5 W. & S. 515.

2 Munger V. Munger, 33 N. H. 581; Fitch V. Peckham, 16 Vt. 150; Davis V. Goodnow, 27 Vt. 715; Guild V. Guild, 15 Pick. 130; Robinson V. Cushman, 2.

Denio, 152; Ridgeway V. English, 2 Zab. 409; Candor's App., 5 W. & S. 513; Steel V. Steel, 12 Penn. St. 64; Leidig V. Coover, 47 Penn. St. 534; Miller V. Miller, 16 Ill. 296; Taylor V. Lincumfelter, 1 Lea (Tenn.), 83; Osier V. Hobbs, 33 Ark. 216. "The law holds that as between near relatives a contract for service must be clearly established, and will not be implied." Opinion of Neale, P. J., adopted by supreme court in Overseers of Plum Creek V. Overseers, 1 Penn. Sup. Ct. 408.

3 Harshberger V. Alger, 31 Grat. 52; O'Connor V. Beckwith, 41 Mich. 657.

4 2 Ch. on Cont. 11th Am. ed. 838; Sharp V. Cropsey, 11 Barb. 224; De-trance V. Austin, 9 Barr, 309; Lantz V. Frey, 14 Penn. St. 201; Butler V. Slam, 50 Penn. St. 456.

5 Wence V. Wykoff, 52 Iowa, 644. 6 Amey's App., 49 Penn. St. 126; Shoch V. Garrett, 69 Penn. St. 144.

7 Gardner V. Heffley, 49 Penn. St. 163. That there may be inferred from circumstances a special contract by a father to pay for the services of a minor son, see Titman V. Titman, 64 Penn.

are rendered with the understanding that they are to be rewarded, at discretion, by a legacy;1 nor when they consist in improvements to the defendant's real estate, he not having asked to have the work done, or actively acquiesced in it;2 nor when the circumstances are, for other reasons, inconsistent with the hypothesis of a business engagement.3