the rule operates as a punishment to persons wantonly guilty of the breach, and tends to preserve the contract inviolable. In the other case, its exception is calculated to protect the right of the unfortunate and honest man who is providentially and without fault on his part prevented from a full performance." In general, the contract is subject to the implied condition of health and strength, and sickness will excuse a servant from liability, and justify her in rescinding the agreement.
Such are some of the rules regarding the rights to wages of servants who are hired for a specific time. With those who are not hired for any particular time, as is the case with the majority of domestic servants, the case is different. The servant is considered as hired with reference to the general understanding that she shall be entitled to her wages for the time she serves, and either party, in the absence of any agreement to the contrary, may determine the service at any time. The question most likely to arise on such termination is whether any notice must be given by the party terminating the service. In England, a month's notice is customary, and, if it is the hirer who ends the hiring, he can give a month's wages instead of the notice. If the dismissal is for misconduct, however, the servant is not entitled to the month's wages. The English rule has not been incorporated in the law of this country. As was stated by Chancellor Kent, there is no distinction between menial and other servants. Whether notice is to be given depends upon the contract between the parties, or, if that is silent on the subject, it depends upon the custom of the particular place. Where there is an express contract upon the subject, it is binding, and must be observed, except in case of the disobedience of the servant, or under some other such circumstances. If the parties have not seen fit to take the subject of notice into consideration, no notice is required unless a well-established custom to give notice exists.
Before closing the discussion of the right to wages, mention should be made of an exception to the rule that the servant who performs faithfully her contract without breach is entitled to wages. The exception is that of persons whom the law deems unable to contract. Take the case of a married woman, for example. Where the common law still controls the relation of husband and wife, all wages the wife earns belong absolutely to him, and any promise made to pay her is considered as a promise made to him. And the common-law rule prevails except where it has been modified or changed by statute. In New York State, before 1860, a married woman who contracted for her personal services with the knowledge and consent of her husband, and was promised by the party hiring what her services were reasonably worth, acquired no title to her earnings in her own right. It
- 20 N. Y., 197.
- 2 Story on Contr., § 1,303.
- Shars. Black., 426, n.
- Cooky's Black., p. 129, n.
- Shars. Black., 420, n.
- 42 Barb., 66.