ON PROMISES TO EMPLOY. capacity of a [footman] at and for certain wages, to wit, the wages of £ per annum, he the defendant then promised the plaintiff to retain and employ the plaintiff in the defendant's service, and in the capacity aforesaid, and at a month's notice. (e) and for the wages aforesaid, and to continue him in such service and employ until the expiration of a certain time, to wit, a month from and after notice or warning given by the plaintiff or the defendant to the other of them, of his intention to determine and put an end to such service and employ, or else to pay him a proportionate part of the said wages for a month. (ƒ) And although the plaintiff, confiding in the said promise of the defendant, did afterwards, to wit, on the day and year aforesaid, become and was th servant of the defendant, to wit, in the capacity and on the terms aforesaid, and did continue in such service and employ of the defendant for a long space of time, to wit, until &c. [day of discharge, or about it.] And although the plaintiff hath always been ready and willing, and then offered to continue in the said service and employ of the defendant in the capacity aforesaid, and on the terms aforesaid, until the expiration of a month from and after notice or warning given by the defendant to the plaintiff of his intention to determine and put an end to such service and employ as aforesaid; yet the defendant, not regarding his said promise, did not nor would continue the plaintiff in his said service and employ until the expiration of a month from and after notice or warning given by the defendant of his intention to determine and put an end to such service and employ, but, on the contrary thereof, wholly neglected and omitted to give the plaintiff notice or warning of his intention to determine and put an end to such service and employ, and then refused to suffer or permit the plaintiff to continue in his said service and employ, and then discharged him the plaintiff therefrom without any notice or warning whatever, and hath from that time hitherto wholly neglected and refused to retain or employ the plaintiff in his said service or employ, or pay him a proportionate part of the plaintiff's wages for a month; and by means thereof he the plaintiff hath lost and been deprived of all the wages, profits and advantages, meat, drink, lodgings and necessaries, which he otherwise might and would have derived and acquired from being continued in the said service of the defendant; and the plaintiff hath been and is by means of the premises still wholly unemployed. For that whereas heretofore, to wit, on &c., by a certain agreement then For preventing made between the plaintiff and the defendant, the plaintiff agreed to [here plaintiff from completing a (e) As to the necessity of declaring specially, see 2 East, 145, and the cases cited in the notes, ante, 52 and 239. Under this count the plaintiff can only recover a month's wages; Hartley v. Harman, 11 A. & E. 798. As to the right to turn away a servant at a month's notice, or without it, and as to what is not a sufficient excuse for turning away a servant, see Burn, J. tit. "Servants;' Chitty's Gen. Prac. 75 to 78, 81, 82; 7 A. & E. 557; and as to what is a sufficient excuse, see 3 Ad. & Ell. 171. See a form of declaration for turning away before expiration of a year, contrary to agreement, Snelling v. Hunting field, 1 Crom. M. & Ros. 26; and VOL. 11. 1 a form of declaration and plea, Nowlan v. (f) If the servant be dismissed for mis- R had undertaken on a written agreement. The terms of contract set forth. ON PROMISES set out the agreement in the past tense (g)] perform and complete the mason TO EMPLOY. work at the Regent's Circus, north end of Portland Place, in the New Road, work which he at the following prices, finding all materials and labour, and to do the same to the satisfaction of the architect appointed to survey the same; that is to say, strait Portland kirb twelve inches by ten inches, with rail-holes, plugs and lead, including the stone for the brace bar, at seven shillings and five pence per foot run, circular ditto at eight shillings per foot run, bases for the lamp irons two feet four inches and three quarters by two feet four inches and three quarters, and twelve inches high, at two pounds each, including rail-holes, and to do the whole complete in all respects according to the drawings, and within the time specified in the specification delivered; and it was also then agreed between the plaintiff and the defendant, that he the defendant should advance £12 in cash for every hundred feet set complete, and the balance by bill at two months after the accounts were adjusted; the whole of the Portland stone, kirb and gate bases on the south side of the whole line of the New Road, from east to west, to be fixed and made complete in all respects on or before the 25th day of November in the year aforesaid, and the half-circular area to be made complete on or before the 25th day of December in the same year; and part of the work having then already been done by G. H. it was thereby further understood, that the same should be ascertained by L. M., of &c., surveyor, on the part of the defendant, and E. F. of &c., on the part of the plaintiff; and in case any dispute should arise, the same to be decided by their umpire, and the balance paid to the said G. H., as well as the money then already advanced to him by the defendant, was to be accounted for by the plaintiff, and deducted from the balance due to him when completed, but at present to draw only for the setting the same. [And the said agreement being so made, afterwards, to wit, on the day and year first aforesaid, in consideration thereof, and that the plaintiff, at the request of the defendant, had then promised the defendant to perform and fulfil the said agreement on his the plaintiff's part to be performed and fulfilled, he the defendant promised the plaintiff to perform and fulfil the said agreement in all things on his the defendant's part to be performed and fulfilled.] And although the plaintiff hath always, from the time of making the said agreement, performed and fulfilled the same on his part, and did afterwards, to wit, on the day and year first aforesaid, enter upon and commence the said work, and for that purpose did procure and find all materials and labour necessary for performing the same, and did the same in part, to wit, one thousand two hundred feet thereof, to the satisfaction of the architect appointed to survey the said work, and hath always been ready and willing to perform and complete the whole of the said work, in pursuance of the said agreement; of all which said premises the defendant hath had notice; yet the plaintiff in fact saith, that the defendant breaches of the did not nor would perform the said agreement nor his said promise, but thereby deceived the plaintiff in this, to wit, that the defendant did not nor would advance the said sum of £12 in cash for each of the said one hundred feet set complete, but on the contrary thereof hath hitherto wholly neglected and refused so to do; and the defendant, further disregarding the said agree Mutual pro raises. Averment of plaintiff's proceedings on his part. Notice to defendant. Defendant's contract. (g) It is sufficient to show so much of the contract only as is necessary to show clearly the defendant's failure; 4 Taunt. 285; 6 East, 564. This cause was tried, and plaintiff obtained a verdict. TO EMPLOY. ment and his said promise, afterwards, to wit, on &c., did not nor would ON PROMISES permit or suffer the plaintiff to proceed to complete the said work, and then wholly hindered and prevented him from so doing, and then wrongfully discharged the plaintiff from any further performance or completion of his said agreement and promise, whereby the plaintiff hath lost and been deprived of the profits and advantages which he otherwise might and would have derived and acquired from the completion of the said works. [Add a count upon an account stated, if there be any promise to pay a particular sum, and conclude as ante, 36. XXVIII. ON PERFORM On a building agreement, for not performing part of the work, and for performing the residue inartificially. (h) mises. XXVIII. ON PROMISES TO PERFORM WORKS. For that whereas heretofore, to wit, on &c., [date of agreement,] by a certain agreement then made by and between the plaintiff and the defendant it was agreed, that the defendant should take down a certain messuage or dwelling-house, situate at &c., and should build two other messuages or dwelling-houses for the plaintiff, agreeably to certain plans thereof then in the possession of the defendant, and according to the particulars and in manner following; that is to say, that the said old house should be taken Mutual prodown, and the bricks cleaned and worked up &c. [Set out the agreement in the past tense.] And the said agreement being so made, afterwards. [Mutual promises, as ante, 242. (i)] And although the plaintiff hath always &c. [state plaintiff's general performance of the agreement, and special performance of any condition precedent,] yet the plaintiff in fact saith, that the de- Defendant's sefendant did not nor would perform the said agreement nor his said promise, veral breaches. but thereby deceived the plaintiff in this, to wit, that the defendant wholly neglected and omitted to do and perform certain works which were requisite and necessary to be done and performed under and by virtue of the said agreement, and according to the tenor and effect, true intent and meaning thereof, that is to say, to pull down &c. [Here specify the breach according to the fact.] And the defendant also thereby deceived the plaintiff in this, to wit, that the defendant afterwards, to wit, on &c., and on divers other &c., did and performed certain other works which were requisite and necessary to be done and performed under and by virtue of the said agreement, in a bad, inartificial and unworkmanlike manner, contrary to the form and effect of the said agreement and of his said promise. For that whereas heretofore, to wit, on &c., in consideration that the plaintiff, at the request of the defendant, had then retained and employed the defendant to take down a certain messuage and dwelling-house, with the appurtenances, and to erect and build divers, to wit, two other messuages or dwelling-houses, with the appurtenances, in lieu thereof, for the plaintiff, agreeably to certain plans and particulars then made and (h) See next form, also Morgan, 188. The terms of the agreement are to be stated precisely according to the facts. The precedents which may be classed under this head are very numerous, see the index to 2 Wentw. When the action is founded on a written agreement, it is usual to set the same out, as to which see 6 East, 569. The declaration must be either special, as upon a formal (i) But this statement is not absolutely The like in another form, for building contrary to plans and directions, and with improper materials, and in an improper manner. TO PERFORM WORKS. ON PROMISES agreed upon by and between the plaintiff and defendant, for certain reasonable reward to the defendant in that behalf, he the defendant then promised the plaintiff to erect and build the said messuage or dwelling-house, with the appurtenances, agreeably to the said plans and particulars, with good and proper materials, and in a sound, substantial and workmanlike manner. And although the defendant did afterwards, and before the commencement of this suit, erect and build the said messuages or dwelling-houses, with the appurtenances, for the plaintiff; yet the defendant, not regarding his said promise, did not nor would erect or build the said messuages or dwellinghouses, with the appurtenances, for the plaintiff, agreeably to the said plans and particulars, with good and proper materials, and in a sound, substantial and workmanlike manner, but wholly neglected and refused so to do, and on the contrary thereof, he the defendant erected and built the said messuages or dwelling-houses, with the appurtenances, different from and contrary to the said plans and particulars, and with bad and improper materials, and in a slight, weak, inartificial and unworkmanlike manner, contrary to the form and effect of the said promise. On an agreement to fix a steam engine in a complete working condition. For that whereas the plaintiff, before and at the time of the making of the agreement and of the promise of the defendant hereinafter next mentioned, was, and from thence hitherto hath been and still is, a miller and mealman, and the trade and business of a miller and mealman hath for and during all that time used and exercised, and carried on, and still doth use, exercise and carry on. And thereupon heretofore, to wit, on &c. [date of agreement] by a certain agreement then made between the plaintiff and the defendant, he the defendant, for and in consideration of the sum of £— agreed by the plaintiff to be paid at the days and times thereinafter mentioned, did agree to and with the plaintiff in manner following:-[Here set out the agreement, and afterwards mutual promises, as ante, 242.] And although the plaintiff hath always from the time of making the said agreement hitherto well and truly performed and fulfilled the same in all things on his part according to the tenor and effect, true intent and meaning thereof, and hath furnished the necessary brick-work for the framing and setting up the said boiler, together with the fire-bars, plumber's, painter's and stonemason's work, of and for the said engine, and fixing and setting up the same, and hath always been ready and willing to pay for the said engine as Breach by de aforesaid, whereof the defendant hath always had notice; yet the defendant, not regarding the said agreement nor his said promise, has not, (although often requested so to do,) at his own costs and charges, made, fixed and set up, or caused to be made, fixed and set up, in complete working condition, of good materials and workmanship, on the premises of the plaintiff, in the said agreement above alluded to, one steam engine of seven-horse power, &c., together with all necessary utensils and implements for working the same, excepting as in the said agreement is excepted, but on the contrary thereof, after the making of the said agreement and his said promise, to wit, on &c. aforesaid, fixed and set up in the said premises above alluded to a steam engine not in complete working condition, and of much less power than a seven-horse power engine, to wit, a two-horse power engine, and with a boiler and pump of insufficient size, and not set together with requisite and necessary utensils and implements, according to the said agree fendant. TO PERFORM ment, to be furnished by the defendant. By reason whereof the said engine ON PROMISES hath been and is of very little use to the plaintiff, and the plaintiff hath not, since the said engine was so fixed and set up as aforesaid, been able to grind such large quantities of corn and grain as he might and would have Special damage that plaintiff ground, had the said defendant made, fixed and set up an engine according was prevented from grinding to the terms, true intent, and meaning of the said agreement and his said so much corn promise, and the plaintiff hath thereby also lost and been deprived of divers as he otherwise great gains and profit, which would have accrued to him from grinding would, and that a quantity such quantities of corn and grain, in the whole amounting to a large sum of which he had money, to wit, the sum of £, and also by means whereof a certain purchased for the purpose large quantity, to wit, 1000 bushels of corn, which he, the plaintiff, confiding became of no in the said agreement, had purchased, in order that the same might be use to him, &c. ground by means of the said engine, remains wholly unground, and has been and is greatly damaged and spoiled and reduced in value; by means whereof, and also on account of the said engine, with the appurtenances, having been and being so incomplete as aforesaid, and of divers attempts and endeavours having been made since the said engine was so fixed and set up as aforesaid, and before the exhibiting of the said bill of the plaintiff in this suit by the plaintiff, for and on behalf of the defendant, to amend and render the said engine, and the said insufficient implements for working the same, complete, according to the said agreement, he the plaintiff, on the several days and times since the engine was so fixed and set up as aforesaid, was wholly deprived of the use of the same, and thereby has also been forced and obliged to lay out and expend, and hath laid out and expended divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of £—, in and about the providing lead-work, brick-work and other necessary materials and labour, in and about the putting, setting up and fixing a certain other boiler and pump in lieu and stead of the said insufficient boiler and pump. surance broker For that whereas the plaintiff, before and at the time of the making of Against an inthe promise of the defendant hereinafter next mentioned, had been and was for not properly about to consign from parts beyond the seas, to wit, from S. to L., in and effecting an inon board of a certain ship or vessel, called &c. a large quantity, to wit, &c., surance. and the plaintiff then had on board the said ship or vessel a part of the said wine &c., of great value, to wit, of the value of £. And thereupon heretofore, to wit, on &c., in consideration that the plaintiff, at the request of the defendant, had retained and employed him to use due endeavours to effect a sufficient and proper insurance on the said goods during the said voyage against the queen's enemies, and other adventures and perils usually in such cases insured against, for the plaintiff, according to the usage and custom of merchants, for reasonable reward to the defendant in that behalf, he the defendant then promised the plaintiff to use due and proper care in and about endeavouring to effect such insurance for the plaintiff as aforesaid. And the plaintiff saith that heretofore, to wit, on &c. aforesaid, the said ship or vessel, with the said wine on board thereof, departed and set sail from S. aforesaid on her voyage to L. aforesaid, and that afterwards, and whilst the said ship or vessel was proceeding on her said voyage with the said wine and barilla so on board thereof as aforesaid, and before her arrival at L. aforesaid, to wit, on &c. the said ship or vessel, with the said wine, |