1862. SMITH บ. ALLEN. Lush, Griffiths and Gates for the plaintiff. On the 26th August, 1859, the deed was entered into containing certain stipulations for an option of partnership after two years' service; the term of service to continue seven years from the date. The plaintiff had some skill in the application of chemical science to manufactures, and had made certain discoveries, especially in respect to the preparation of certain colours ; and the defendant desired to derive the benefit of his skill in that department, and the plaintiff offered himself accordingly thereto. The business was chiefly in the dealing with mineral acids, &c., and the processes were accompanied with some degree of danger, and required therefore skill and experience in their conduct. They were also, through the fumes exhaled, unhealthy; and it appeared that the plaintiff had been in weak health, had desired to avoid the manufactory as much as possible, and had remained rather in the counting-house, exercising a general conduct and control; but not being always personally present in the factory. It appeared, also, that he had not been very regular in his attendance; his hour for coming in the morning varying from half-past nine to half-past ten. It did not appear, however, that any decided remonstrance had been made on these matters by the defendant. On one occasion the plaintiff had been absent for some time on account of his health, but it did not appear that this had been at the time objected to. The profits for the first year, ending 24th August, 1860, were 1,500l., of which the plaintiff received his share, 5007., in addition to his salary (a). ut supra. But the allegation also tiff, which implies that he knew of it; and really did dismiss on that ground. Cussons v. Skinner, 11 M. & W. 161. (a) This condoned any previous In August, 1861, near the end of the second year, the plaintiff found in the counting-house a book containing entries of the exact hours of his daily attendance. Annoyed at this, when the defendant asked for the book and accused him of taking it from his custody, he answered in a tone of rage, and mutual reproaches ensued. On the 24th August, two days before the expiration of the second year, the defendant wrote him a letter of dismissal. The accounts were afterwards made up, and showed a balance of profit to the amount of 3,2361., of which the plaintiff's share was 1,0381., which had been paid to him. This was relied on by the plaintiff as practical proof that the business had not suffered from any neglect on his part, but had grown greatly under his superintendence; and it was suggested, on his part, that the defendant, having had the benefit of his skill, had desired to get rid of him, in order to avoid the obligation to pay him yearly a third of the profits, as well as to escape the option of a future partnership. The plaintiff was examined as to the charges against him, and excused his language on the occasion chiefly in question, on the score of irritation at the defendant's accusing him of taking the book dishonestly. The defendant also was examined as to the truth of these charges. In the course of his evidence he stated that the plaintiff had, on the occasion in question, spoken to him with great rudeness; on which COCKBURN, C. J., observed, that rudeness was an uncertain term, and that persons might differ as to what was rudeness. It was proper to state the expressions which were used. The defendant did not remember particular expressions. misconduct or neglect as a ground of 11 M. & W. 161; et vide ante, 1862. SMITH บ. ALLEN. He complained generally of the plaintiff's neglect of the business or his absence, &c., his being in the countinghouse instead of the factory, &c. At the close of the case, COCKBURN, C. J. (to the jury).—The plaintiff sues for damages for the loss of five years' salary and profits; and, unless the defendant had lawful ground for dismissing him, will be entitled to recover damages in respect of both. It might have been made, perhaps, a ground of complaint that he has been deprived of a future partnership, but it is not; and you cannot therefore give damages in respect of that. With respect to the time or hours of attendance, or the degree of personal attention in the factory, it is for you to say whether the hours of the plaintiff's attendance were the ordinary and proper hours in a business of this nature, or whether the degree of personal attention which the nature of the business required. Perhaps, unexplained, you might think that it was not sufficient; but there is evidence that the defendant at the time did not profess himself dissatisfied, but, on the contrary, appeared to be satisfied. And if he were not so, and thought that he had reason to complain, or that the business was really being injured for want of sufficient attention, he ought, at the time, to have said so, and openly complained of it, and so have given the plaintiff fair warning, instead of contenting himself with keeping a secret record of the hours of the plaintiff's attendance:a course which has the appearance of lying by (so to speak), and seeking to treasure up grounds for a future dismissal of the plaintiff. If you think that the defendant was desirous, after taking advantage of the plaintiff's skill, to get rid of him, in order to avoid the necessity of paying him his share of the profits, and so abstained from remonstrating with him, in order to obtain some grounds for dismissing him, and that he malâ fide and fraudulently lay by with a view to getting rid of him, then he would not be entitled to take advantage of those grounds of dismissal, even supposing that they otherwise might have been deemed to exist. But if, on the other hand, you think that those grounds really existed, and that he honestly felt himself aggrieved at the course pursued by the plaintiff, and discharged him really on those grounds, then you should find for the defendant. So, as to the alleged absence, it is for you to say whether, under the circumstances, the defendant was fairly entitled to take advantage of it as a breach of the plaintiff's covenant to devote his attention to the business. So, as to the alleged want of care or skill as to the selection of the materials, or the control of the processes, it is for you to say whether the plaintiff therein failed in his duty to such a degree as to be a ground for his dismissal; and whether, if so, that was really a ground of dismissal. Then, as to the charge that the plaintiff did not conduct himself with the respect and propriety which the relation of master and servant requires, that divides itself into two charges: first, his remaining in the counting-house when desired not to do so: and then as to the book. As to the first, it is for you to say whether that was so far in defiance of his employer's orders as to be a ground of dismissal, and whether it really was so. Then, as to the time-book, the first point is, whether the plaintiff stole it, if he did, that of course would be, per se, a ground of dismissal; but probably you would not think it reasonable to find him guilty of such a charge, and, if not, then his natural annoyance at such a charge might account for and excuse the language he is said to have used. That, again, is for you. Under all the circumstances it is for you, on the whole case, to determine whether, in respect of any of the matters alleged, the plaintiff was guilty either of such a breach of his covenant or of such misconduct as would be a just ground of dismissal, and whether, if so, the defendant really dismissed him on such ground. 1862. SMITH V. ALLEN. 1862. SMITH v. ALLEN. First, did he break his covenant? If so, in respect of any such breach, you must find for the defendant. Next, did he so misconduct himself in any essential particularsuch, for instance, as that a master could not fairly or reasonably be expected to submit to, or to continue a person in his employ after such misconduct? If so, find for the defendant. But if you think that the plaintiff fairly fulfilled his duties, or that the defendant did not really dismiss him on any such grounds, then you should find for the plaintiff with damages-in respect both of loss of salary and profits-as you think reasonable. Verdict for the plaintiff, damages 2,000l. London Sittings. After Trinity Term. Where, after a fire at a wharf ingers, the sal GRANT v. HUMPHERY AND ANOTHher. THIS was an action by the representative of the Liverpool and London Fire and Life Insurance Company, to recover from the defendants, wharfingers, the sum of 4501., which he alleged he had been improperly compelled to which was lost, pay the defendants in respect of charges for the warewas retained in housing, &c., of 244 casks of oil at Hey's Wharf, Tooley vage of certain oil belonging to various owners, the identity of the warehouses under an ar rangement with the agent to pay charges upon the whole; and street. The declaration contained a special count, alleging that of the owners, the defendants, as wharfingers, were possessed of a quantity of oil belonging to the company, and wrongfully refused to deliver it up to them, unless and until they paid a sum of money much more than the defendants were entitled to receive of the plaintiff, and so compelled the plaintiff to pay it, &c. there was a distinct quantity of oil belonging to another owner, the identity of : which was not lost, and which was not treated as salvage:Held, that the wharfingers had no lien on this oil for the charges on the whole of the salvage. Common count, for money had and received. 2. That the oil did not belong to the company. The particulars claimed a sum of 4901., parcel of a sum of 8407. paid to the defendants by the company's agent, |