6C.B.160. ELDERTON V.

EMMENS 1 2 1 3

[160] ELDERTON v. EMMBNS. May 15, 1848.

[Affirmed in House of Lords, 13 C. B. 495; 4 H. L. C. 624; 10 E. R. 606 (with note

to which add, Turner v. Sawdmi, [1901] 2 K. B. 658).]

A count in assumpsit against the secretary of a joint-stock company, stated, that, on the 30th of November,
1844, it was agreed by and between the plaintiff and the company, that, from the 1st of January then next, the
plaintiff, as the attorney and solicitor of the company, should receive and accept a salary of 1001. per annum, in
lieu of rendering an annual bill of costs for general business transacted by him for the company, and should and
would for such salary advise and act for the company on all occasions in all matters connected with the
company, with certain exceptions. The count then proceeded to state, that, the said agreement being so made, in
consideration that the plaintiff had, at th'e request of the company, promised the company to perform and fulfil
the same in all things on his part, the company promised to perform and fulfil the same in all things on their
part, and to retain and employ him as such attorney and solicitor of the company on the terms aforesaid; and
alleged for breach, that the company, disregarding their promise and agreement, did not nor would continue to
retain or employ the plaintiff as such attorney or solicitor on the terms aforesaid, but wrongfully and without
any reasonable cause dismissed and discharged him from such employment and retainer, and thence hitherto
refused to retain or employ him as such attorney or solicitor:Held, reversing the judgment of the court of
Common Pleas,that the count was good after verdict; for, that it sufficiently alleged an agreement by the
company creating the relation of attorney and client, and a promise to continue that relation at least

for a year; and that the subsequent allegation of a promise to " retain and employ " the plaintiff as such attorney
and solicitor, was mere redundancy of expression.

Assumpsit against the defendant as secretary for the time being of the Church of England Life and Fire
Assurance, Trust and Annuity Company.

The first count of the declaration stated, that, theretofore, to wit, on the 2nd of February, 1841, in consideration
that the plaintiff, at the request of the said company, had agreed to become the permanent attorney and solicitor
of the said company, and to act as such, for reasonable reward to be therefore paid by the said company to the
plaintiff for his services in that behalf, they the said company promised the plaintiff to retain and employ him as
such permanent attorney and solicitor; that, after the making of the said agreement, and in pursuance thereof, to
wit, on the day and year

[161] aforesaid, the said company did in fact retain and employ him as such permanent attorney and solicitor as
aforesaid, and he the plaintiff then became and was, and acted as, the permanent attorney and solicitor of the
said company, and had always from thence been ready and willing to continue to act as the permanent attorney
and solicitor of the said company,of which the said company had at all times notice ; yet that the said
company, disregarding their said promise, did not nor would permit or suffer the plaintiff to continue to be the
attorney and solicitor of the said company, or to act as such, but afterwards, and before the commencement of
this suit, to wit, on the

25th of May, 1845, without the consent of the plaintiff, and against his will, appointed certain other persons, to
wit, J. C. and D. J. L., to be the attorneys and solicitors of the said company, and wrongfully, and without any
just or reasonable cause for so doing, discharged the plaintiff from being or acting as attorney and solicitor of
the said company, and deprived him of all gains and profits which could have arisen or accrued to him in that
behalf, to wit, gains and profits to the amount of 50001.

The second count stated, that, afterwards, to wit, on the 30th of November, 1844, it was agreed by and between
the plaintiff and the said company, that, from the 1st of January then next, the plaintiff, as the attorney and
solicitor of the said company, should receive and accept a salary of 1001. per annum, in lieu of rendering an
annual bill of costs for general business transacted by the plaintiff for the said company as

such attorney and solicitor, and should and would, for such salary of 1001. per annum, advise and act for the
said company on all occasions, in all matters connected with the said company (the prosecuting or defending of
suits, the preparation of bonds or other securities for advances by the said company, and moneys disbursed by
the [162] plaintiff, being excepted, and the plaintiff being allowed, in respect of such matters,

1214 ELDERTON V. EMMENS 6 C. B.163.

to make the usual and regular charges of an attorney and solicitor), and that the plaintiff' should attend the
secretary of the said company, as well as the board of directors thereof, and the meetings of the proprietors
thereof, when required ; that, the said agreement being so made, afterwards, to wit, on the said 30th of
November in the year aforesaid, in consideration that the plaintiff had, at the request of the said company,
promised the said company to perform and fulfil the same in all things on his part, the said company promised
the plaintiff to perform and fulfil the same in all things on their part, and to retain and employ him as such
attorney and solicitor of the said company on the terms aforesaid; and that, although the said company did, for a
certain small space of time thereafter, to wit, for the space of four months, in pursuance and fulfilment of the
said agreement, and of their promise in that behalf, retain and employ the plaintiff as such attorney and solicitor,
on the terms aforesaid, and did pay him a small part of the said salary, to wit, 501., and although the plaintiff
was at all times from the making of the said agreement hitherto ready and willing to advise and act for the said
company, and accept the said salary, on the terms afore- said, and in all other respects to fulfil the said
agreement on his part,of which the said company always had notice,-yet the said company, disregarding
their said agree- ment, and their promise, did not nor would continue to retain or employ the plaintiff as such
attorney or solicitor of the said company, on the terms aforesaid, but, on the contrary thereof, afterwards, and
before the commencement of this suit, to wit, on the 25th of May, 1845, wrongfully, and without any reasonable
cause, dismissed and discharged the plaintiff from such employment and retainer, and then and from thence
[163] hitherto had wholly refused to retain or employ him as such attorney and solicitor of the said company, or
to pay him the salary aforesaid; by reason of which last-mentioned premises, the plaintiff had wholly lost and
been deprived entirely of the said salary of 1001., and also of divers great gains and profits which he might and
otherwise would have derived from such employment in and about the prosecuting and defending of divers suits
respectively brought by and against the said company, and in and about the preparing of divers bonds, contracts,
and securities for the said company, and otherwise, to wit, to the amount of 50001., and had been and was in
other respects greatly injured and damnified.

There was also a count for work and labour, and a count for money found due upon an account stated.

After verdict for the plaintiff, the judgment on the second count was arrested in the court of Common Pleas, on
the ground that the agreement therein stated did not necessarily imply a promise by the company to employ the
plaintiff, and that, the consideration being exhausted by the mutual promises, there was nothing to sustain the
latter branch of the company's promise (vide ante, vol. iv. p. 479).

Upon this judgment, the plaintiff brought a writ of error. The case was argued in the last Michaelmas vacation,
before Parke, B., Alderson, B., Eolfe, B., Wightman, J., Erie, J., and Platt, B.

Nov. 30, 1847.Hoggins, for the plaintiff in error. The judgment of the court below proceeded upon the ground
that the consideration was executed, and that the law would not imply such a promise as is here alleged. This is
not, however, the case of an implied promise resulting from [164] the agreement stated, but of an express
promise. The agreement in the earlier part of the count is, that the plaintiff should receive 1001. per annum in
lieu of rendering an annual bill of costs, and would for such salary advise and act for the company as their
attorney and solicitor; and the jury have found that the company promised to retain and employ the plaintiff as
such attorney and solicitor. Every intendment is to be made in favour of the plaintiff, after verdict. Labour,
though unsuccessful, is a good consideration for an assumpsit: Lampleigh v. Brathwait (Hobart, 105. 1 Smith's
Leading Cases, 67). In Tlwrnton v. Jenyns (1 M. & G. 166, 1 Scott, N. 11. 52), the defendants ordered, on
behalf of the corporation of the Bedford Level, that a contract should be entered into with the plaintiff for the
erection of certain cofferdams, at the sum of 50001.; that 30001. should be paid to the plaintiff upon the
execution of the contract, and upon an assignment of the materials required for striking the dams, to the
corporation, as a security for the sum so advanced, and the residue when the work was completed. The
declaration, after setting out the order, alleged, that " thereupon, the said order being so made, in consideration
of the premises, and also in consideration that the plaintiff had then promised the defendants to observe and
perform all things in the said order contained

0C.B.165. ELDERTON V. EMMENS 1215

on his behalf to be observed and performed, the defendants then promised the plaintiff that all things should be
observed and performed, which in the said order were con- tained on the part and behalf of the said corporation,
and of them the defendants, to be observed and performed." And it was held that the declaration disclosed a
sufficient consideration for the promise of the defendants, that the corporation should [165] enter into the
contract. Tindal, C. J., there said (1 M. & G. 188): "It is conceded that a by-gone consideration, unless supported
by a request, will not sustain a subsequent promise. One of the oldest authorities on this subject is Hunt v. Bate
(Dyer, 272), where it was held that an assumpsit will not lie on a consideration that is executed. So, again, in 1
Rolle's Abridgment (fo. 11, West v. West, 11 Jac. 1), it is said that a consideration wholly executed (tout
oustrement passe) is not good : thus, if a man disburse money about the affairs of another without request, and
then the latter promise, that, in consideration of the former having laid out his money for him, he will pay him
201., that is not a good consideration,being completely executed. But the language of this declaration is quite
compatible with the supposition, that, the parties being together, the promises were then concurrently and
mutually made. I think that the fair and reasonable construction of this allegation is, that the word

' then' relates to the same period of time in the case of both promises ; and that we are not bound to refer the one
promise to a period antecedent to the other, although the plaintiff's promise may possibly have preceded the
defendants', but that we may take them to have been simultaneously made." So, here, the court will assume the
promises to have been simultaneous. The recited agreement imposed no obligation upon the one party to
employ, or upon the other to perform service : but upon that the subsequent agreement is come to which binds
both. The judgment of the court
of Common Pleas, in Kaye v. Button (7 M. & G. 807, 8 Scott, N. R. 495), is important.
It was there argued, on the part of the defendant, amongst other things, that the promise was laid in respect of an
executed consideration, but was not [166] such a promise as would have been implied by law from that
consideration; and that, in point of law, an executed consideration will support no promise, although express,
other than that which the law itself would have implied. Upon that the lord chief justice observes :" The cases
cited by the defendant, viz. Brown v. Crump (1 Marsh. 567, 6 Taunt. 300), Granger v. Collins (6 M. & W. 458),
Hopkins v. Logan (5 M. & W. 241, 7 Dowl. P . C. 360), Jackson v. Cobbin (8 M. & W. 790, 1 Dowl. N. S. 96),
and lioscoiia v. Thomas (3 Q. B. 234, 2 Gale & D. 508), certainly support that proposition, to this extent,that,
where the consideration is one from which a promise is by law implied, there is no express promise made in
respect of that consideration, after it has been executed, differing from that which by law would be implied, can
be enforced. But those cases may have proceeded on the principle, that the consideration was exhausted by the
promise implied by law from the very execution of it; and, conse- quently, any new promise made afterwards
must be nudum pactum, there remaining

no consideration to support it. But the case may, perhaps, be different where there is a consideration from which
no promise would be implied by law; that is, where the party suing has sustained a detriment to himself, or
conferred a benefit on the defen- dant, at his request, under circumstances which would not raise any implied
promise. In such cases, it appears to have been held, in some instances, that the act done at the request of the
party charged, is a sufficient consideration to render binding a promise afterwards made by him in respect of the
act so done. Hunt v. Bate, and several cases mentioned in the margin of the report of that case, seem to go to
that extent: as also do some others collected in [167] Rolle's Abridgment" (tit. Action sur Case (Q.)). Here, the
promise to retain and employ is not, as was suggested on the other side, a promise resulting from the previously
stated facts: it is an independent and express promise, founded upon a sufficient consideration. Where the
promise is express, the consideration need not be co-extensive with it: Raikes v. Todd (8 Ad. & E. 846, 1 P. &
D. 138). The cases cited in Hunt v. Bate shew that a promise to pay the plaintiff

so much, in consideration that he had married the defendant's daughter at the defen- dant's special request, is
nudum pactum: but that, where A., in consideration that B. had married his daughter, at his request, promised to
pay him 201., that is a good consideration. Upon the same principle, in lioscorla v. Tlwmas (3 Q. B. 234, 2 Gale
& D. 508), a declaration stating, that, in consideration that the plaintiff, at the request of the defendant, had
bought a horse of the defendant at a certain price, the defen- dant promised that the horse was free from vice,
but it was vicious,was held bad,

1216 ELDERTON V. EMMENS 6C.B.168.

on motion in arrest of judgment; for that the executed consideration, though laid with a request, neither raised by
implication of law the promise charged in the declaration, nor would support such promise, assuming it (as must
be assumed on motion in arrest of judgment) to be express. Here, the promise is that the company will retain and
employ the plaintiff for a year. [Platt, B. It is not so laid : it is a promise to employ for ever.] It is, "to retain and
employ him as such attorney and solicitor of the said company on the terms aforesaid," that is, at a salary of
1001. per annum. [Platt, B. For each and every year.] Like any other yearly hiring. It is an independent and
express promise, which was well submitted to the jury, and properly found by them. If the agreement is to be
taken to be that stated [168] in the earlier part of the count, the fair and legitimate inference from it is, that the
company were to retain and employ the plaintiff as their attorney and solicitor, and to pay him the stipulated
sum. Taking it altogether, the second count sufficiently, at least after verdict, discloses a substantial cause of
action.

Hugh Hill, contra. The contract alleged in the second count imposes no obliga- tion upon the company to do
more than pay the plaintiff 1001. per annum: it does not bind them to retain or employ him as their attorney and
solicitor. This point was very much considered in Aspdin v. Austin (5 Q. B. 671), and Dwim v. Sayles (ibid.
685), and is also referred to in Williamsonv. Taylor(ibid. 175). In Aspdin v. Austin, by agreement between the
plaintiff and defendant, the plaintiff engaged to manufacture for the defendant cement of a certain quality; and
the defendant, on condition of the plaintiff's performing such engagement, promised to pay him 41. weekly
during the two years following the date of the agreement, and 51. weekly during the year next following, and
also to receive him into partnership, as a manu- facturer of cement, at the expiration of three years: and the
plaintiff engaged to instruct the defendant in the art of manufacturing cement. Each party bound himself in a
penal sum to fulfil the agreement. The defendant afterwards covenanted by deed for the performance of the
agreement on his part: and it was held, that the stipulations in the agreement did not raise an implied covenant
that the defendant should employ the plaintiff in the business during three or two years, although the defendant
was bound by the express words to pay the plaintiff the stipulated wages during those periods, respectively, if
the plaintiff performed, or was ready to perform, the [169] condition precedent on his part. And in Dunn v.
Sayles, the declaration, in covenant, stated, that, by deed between the defendant, and D., and the plaintiff, the
plaintiff covenanted that D. should for five years from the date serve the defendant

in the art of a surgeon-dentist, and attend nine hours each day; and the defendant, in consideration of the
services to be done by D., covenanted with the plaintiff, that he, the defendant, would, during the five years (in
case D. should faithfully perform his part of the agreement, particularly as to the nine hours, but not otherwise),
pay D. 35s. per week for the first year, 21. per week for the second and third, and 21. 2s. per week for the fourth
and fifth : that D. was in the service for some time after the making of the deed, until dismissed, and during all
that time faithfully performed service, &c., and was willing and tendered to perform, &c, to the end of the five
years; but that the defendant, during the term, refused to permit D. to remain in his service, and dismissed him.
Upon motion in arrest of judgment, it was held, that the declaration did not shew any covenant corresponding to
the breach. So, in Williamson v. Taylor, by agreement between the defendant and the plaintiff, the defendant,
being the owner of a colliery, retained and hired the plaintiff to hew, work, &c., at the colliery, for wages at
certain rates in proportion to the work done, payable once a fortnight; and the plaintiff agreed to continue the
defendant's servant during all times the pit should be laid off work, and, when required (except when prevented
by unavoidable cause), to do a full day's work on every working day: and it was held that the defendant was not
obliged by this contract to employ the plaintiff at reason- able times for a reasonable number of working days
during the term. Aspdin v. Austin and Dunn v. Sayles were recognised by the [170] court of Exchequer in
Pilkington v. Scott (a), but distinguished on the ground that, in that case, it sufficiently appeared, on the face of
the contract, that there was an undertaking on the part of the plaintiffs to employ the workman. Is the
consideration here such a one as the

(a) 15 M. & W. 657; and by this court in Hartley v. Cummings, ante, vol. v. p. 247.

6CB.ni. ELDERTON V. EMMENS 1217

law will imply a promise from 1 If so, it will support no other promise than the law will imply from it. This rule
stands upon the concurrent judgments of all the courts, that of the Queen's Bench in Roscoiia v. Thomas,of
the Common Pleas in Kaye v. Button,and of the Exchequer in Hopkins v. Logan, Granger v. Collins, and
Jackson v. Cobbin(b). In delivering the judgment of the court in Roscoiiav. Thomas, Lord Denman says : " It
may be taken as a general rule, subject to exceptions not applies able to this case, that the promise must be co-
extensive with the consideration. In

the present case, the only promise that would result from the consideration as stated, and be co-extensive with it,
would be, to deliver the horse upon request. The precedent sale without a warranty, though at the request of the
defendant, imposes no other duty or obligation upon him. It is clear, therefore, that the consideration stated
would not raise an implied promise by the defendant that the horse was sound or free from vice. But the promise
in the present case must be taken to be, as in fact it was, express: and the question is, whether that fact will
warrant the extension of the promise beyond that which would be implied by law ; and whether the
consideration, though insufficient to raise an implied promise, will nevertheless support an express one. And we
think that it will not. The cases in which it has been [171] held, that, under certain circumstances, a
consideration insufficient to raise an implied promise will nevertheless support an express one, will be found
collected and reviewed in the note to Wennell v. Adney (3 B. & P . 249), and in the case of Eastwood v. Kenyon
(11 Ad. & E. 438, 3 P . & D. 276). They are cases of voidable contracts subsequently ratified, of debts barred by
operation of law, subsequently revived, and of equitable and moral obligations, which, but for some rule of law,
would of themselves have been sufficient to raise an implied promise. All these cases are distinguishable from,
and indeed inapplicable to, the present, which appears to us to fall within the general rule, that a consideration
past and executed will support no other promise than such as

would be implied by law." [Wightman, J. Suppose the count had ended with the mutual promises, leaving out
the part you object to,what would that entitle the plaintiff to 1] Nothing on this count: there would be no apt
breach. The whole is put as one entire promise. [Wightman, J. The promise may be separated, though the
consideration may not.] In pleading, that is so; but not where the plaintiff goes to trial upon a promise larger
than the good part of the count warrants. In Viner's Abridgment (title Master and Servant (N.), pi. 5), treating of
the statute of labourers, 34 E. 3, c. 10, it is said, "If a labourer be retained to serve for a term of life, he shall not
have action of debt against the executors of his master, without deed; for, the statute does not compel him to
serve in such form: contra, if he had been retained for one year " (d). The like is laid down in Co. Litt. 42 b. But
that rule does not apply in the case of an attorney. It is not alleged here that a year's service had been performed.
[Parke, B. The [172] dates shew that: and, if they are material, their being laid under a videlicet makes no
difference: Parkinson v. Whitehead (2 M. & G.

329, 2 Scott, N. R. 620). If the suggestion thrown out by my brother Wightman is correct, your argument would
result in a venire de novo. But that can only be granted where it appears that the record entitles the plaintiff to
damages.] Here, the assumpsit cannot be found for the plaintiff, without involving an error in law. . [Platt, B.
We may reject the mutual promises, as a conclusion of law.] A promise to do an act which a man is already
bound by law to do, is no consideration for an express promise. For that the authorities are numerous. In Corner
v. Shew (4 M. & W. 163), it was held, that, where there is a misjoinder of counts, and the jury find general
damages, a venire de novo cannot be awarded, but the judgment must be arrested. Parke, B., in giving judgment,
there says: " A venire de novo can only be granted on what appears to the court on record; and, unless the record
warrant it, it will be error to grant it: and it proceeds (where the jury have been regularly summoned and impan-

elled) on a suggestion of their misbehaviour: Lewis d. Earl of Derby v. Witham (6 B. & C. 268). Where there is
an imperfect or defective verdict, on which, if perfect, the court could give judgment, the jury have
misconducted themselves ; and the case of a general assessment of damages on a declaration with a bad count or
breach, may fall within this rule; for, it may be presumed that the jury were instructed as to the

(b) See 2 Wms. Saund. 264, n. (a).

(d) Eeferring to Bro. Abr. tit. Laborers, pi. 44, where the Year Book, 2 H. 4, fo. 15, is cited.

C. P. xiv.39

1218 ELDERTON V. EMMENS 6C.B.173.

law, iind told to disregard the part of the declaration which was not actionable, or to assess the damages
severally; and, in such a case, an award of venire de novo may he made, 'as on an ill verdict,' to use the language
of the old rule. In that case, the verdict, if good, and confined to the good count or [173] breach, or capable of
being applied to it, would at once authorise and require a verdict for the plaintiff; and the court, ex officio,
would be bound to award it, overlooking the bad count or breach. But, where the counts are both good,, but
misjoined, the jury ought to assess the damages on all the counts. Each is actionable; and, but for the misjoinder,
judgment might be given on each : and, if the damages had been assessed on each severally, that would have
been of no avail, for, the court could not have given any judgment at all ex officio; and further acts of the
plaintiff, in releasing the damages on one or the other counts, would be necessary."
Hoggins, in reply. Tindal, C. J., in Kaye v. Button, expressly limits the applica- tion of the previous authorities,
to the case where the consideration was exhausted by the promise implied by law from the very execution of it.
Here, the promise is, to do something that was contemplated by the previous agreement, viz. to retain and
employ the plaintiff. It is an independent and express promise. The company throughout recognise the fact of
the plaintiff being at that moment their attorney : his character and situation are no otherwise altered than by the
contract to receive, on the one hand, and, on the other, to pay, a gross sum yearly, instead of having a yearly bill
of fees, &c. In Eoscmia v. Thomas, and the other cases of that class, there were two inconsistent promises
alleged. Here, there is no inconsistency. The company may employ as their attorney whom they please, provided
they pay the plaintiff the stipulated salary.

Cur. adv. vult.

May 15.PARKE, B., now delivered the judgment of the court. In this case, the plaintiff recovered a verdict on
all [174] the pleas to the second count, and had a verdict against him as to the first and third counts. The court of
Common Pleas, on motion in arrest of judgment, held the second count to be bad, and arrested the judgment:
and the question on this writ of error is, whether that decision is right.

We have felt considerable doubt on this question : but, after much consideration, we think the judgment of the
court of Common Pleas is wrong, and ought to be reversed.

The second count was as follows :[His lordship read it.]

According to the current of recent authorities, beginning with Hopkins v. Logan (5 M. & W. 241), and ending
with Roscmia v. Thomas (3 Q. B. 234, 2 Gale & D. 508), where the consideration is past and executed, it will
support only such a promise as the law will imply from that executed consideration. The count in question is
founded upon mutual promises to perform the agreement therein stated; and the promise of the plaintiff, which
is the consideration for that of the defendant, is alleged to be past when the defendant's promise was made, and
is therefore classed with executed con- siderations : but, whether the promise had been stated as past,
contemporary, or future, we apprehend that the question in respect of the defendant's promise would be the
same, viz. what is the promise which is expressed in, or to be implied from, the agree- ment. The construction of
the agreement determines the nature of the promise. What, then, is the promise of the defendant, to be inferred
from the agreement, according to the true construction of it 1 It is, undoubtedly, to perform every thing therein
contained on his part to be performed, and " to retain and employ" [175] the plaintiff as attorney and solicitor of
the company, on the terms therein mentioned.

If to retain and employ be things to be performed by the defendant, according to the true construction of the
agreement, it is no objection, at least on general demurrer, that the promise to retain and employ is added to the
promise to perform every thing. It is only a redundant expression; no more.

Now, in construing this agreement, it is to be borne in mind that the word

" agreed " is the word of both; as was held in the case of Pordagev. Cole (1 Saund. 319), where it was decided
that the agreement of both parties in an instrument under the seals of both, that one should give the other a sum
of money for certain of his lands, amounted to a covenant by the vendor to convey, as well as by the vendee to
pay. In the present case, when it is said that it was agreed between the plaintiff and

defendant, that, from the 1st of January, the plaintiff, as attorney and solicitor of the company should receive
and accept a salary of 1001. per annum in lieu of an annual

6C. B.176. ELDERTON V. EMMENS 1219

bill of costs,as there is on the part of the plaintiff a promise to receive, so there is undoubtedly a
corresponding promise by the plaintiff to pay, an annual salary, or salary for a year; not at the rate of an annual
salary; but a sum of 1001. for one year. The agreement goes on to state, that, for this annual salary, the plaintiff
would advise and act for the company in all matters connected with it (with certain exceptions to be otherwise
paid for), and would attend the secretary and directors when required. This provision binds the plaintiff to give
his services when required: it does not bind the directors to require them on any particular occasion, or to the
exclusion of every other person. What, then, is the effect of an agree-[176]-ment to give a certain salary for one
year at least, to a person who engages for it to give his services, if required ? We think that this creates the
relation of attorney and client, and amounts to a promise to continue that relation at least for a year. To " retain,"
is, " to keep in pay," " to hire " (a). It cannot be doubted that this is an agreement to "keep in pay," and to "hire."
We think, then, that it implies a promise to

" retain." Does it also imply a promise to " employ " 1 This is a matter which appears to us much more doubtful
than the other.

It depends on the meaning of this term " employ." If it means that the company shall be bound to supply him
with business as an attorney and solicitor, at all events, or to require his advice, or use his services as attorney or
solicitor, whenever they have occasion for the advice or services of an attorney or solicitor,we think it clear
that there is no such promise on their part: to hold that there was a promise to the former effect, would be to
hold that the company must be bound to incur litigation, as well as create occasions for legal advice,a similar
objection to that-pointed out by Lord Denman, with so much reason, in the case of Aspdin v. Austin, hereafter
referred to, as an objection to the inference in that case of a covenant to employ in a particular trade.

But, if the word " employ " means only " to engage in his service,"one of the meanings of that term (a),then
there appears to us to be a promise to that effect. Many cases of employment may be suggested, in different
capacities, where the use of the actual service is optional or conditional, and yet the employment may be
properly said to take place or continue. A medical adviser may be employed, at a salary, to be [177] ready in
case of illness; members of theatrical establishments, in case their labours should be needed; household
servants, for the performance of duties when their master wills. In these and other similar cases, the requirement
of actual service is distinct from the employment by the party employing.

These arc instances of the use of the term " employ " in the sense of engaging in a service. We are to determine,
then, in what sense the term "employ " is used in this case. Does it mean, to furnish the plaintiff with actual
business to transact, or, to transact, if they had any, or, merely, to continue the relation of attorney and client?

If the breach assigned had been, that the company did not give the plaintiff business to transact, although they
had business, it would have been necessary to understand the word " employ " in the former sense, in order to
make the declaration consistent. The breach actually assigned does not require it, but is quite consistent with,
and, indeed, more appropriate to, the latter interpretation of the word " employ." It alleges that the company
dismissed the plaintiff from "such employment and retainer," and thence hitherto refused to " retain or
employ,"the words " employ- ment" and " employ " not being there used in the sense of the actual
performance of services.

But, what weighs chiefly with us in the construction of the agreement is, that, in one mode of understanding the
word " employ," the promise is properly inferred from the agreement, and the declaration is sufficient: in the
other, it is not. And, as this is not a question arising on demurrer, we think we ought to read an ambiguous word
in the sense which will render the declaration good.

We are, therefore, of opinion that the legal effect of [178] the defendant's agree- ment is properly set out. And
the consequence of this decision is not unimportant in a practical view.

If it be held that such a contract as this is for service and pay respectively; and that, although the employer has
determined the relation by an illegal dismissal, the employed may entitle himself to the wages for the whole
time, by being ready to serve ;

(a) Vide Johnson's Dictionary ; Webster's Dictionary.

1 2 2 0 6C.B.179.

a doctrine would be sanctioned that would be of pernicious consequence,as, in the case of a business being
discontinued, or a dismissal for misconduct, without legal proof. According to the plaintiffs construction, the
agreement creates the relation of employer and employed ; and the illegal determination of the relation entitles
him to an indemnity,the measure of damages being, the actual loss, which may be much less than the wages,
where another employment may be easily obtained. According to the defendant's construction of it, it is a
contract for service and pay ; and the whole salary for all the time comprised in the contract would be due, if the
plaintiff
served, or was willing to serve.
Our decision in this case does not conflict with that of the court of Queen's Bench

in the two cases of Aspdin v. Austin (5 Q. B. 671), and Dunn v. Sayles (5 Q. B. 685). Both these cases turned
upon the construction of the covenants of the parties. In the former, the defendant covenanted with the plaintiff
to perform all the stipulations in a former agreement between the defendant, a third person, and the plaintiff: and
the question was, whether the former agreement,which was, on the part of the plaintiff, to make cement for
the defendant and one Hales, and to teach them how to do so, and, on the defendant's and Sealey's part, to pay a
weekly salary for three years, [179] and then to take the plaintiff into partnership,implied a promise by them
to continue to employ him to manufacture cement for the intermediate period. The court could not draw any
such inference: and Lord Denman, in giving judgment, assigns a very strong reason, that the breach assigned by
the plaintiff assumed that the defendant, at however great loss to himself, was bound to continue his business for
three years : but the defendant had not covenanted to do so ; he covenanted only

to pay weekly sums for three years, on condition of his performing the conditions precedent; and that he would
be entitled to recover those sums, whether he performed them or not, so long as he was ready and willing and
offered to perform them, and was prevented only by the defendant from so doing. The other case also depends
on the construction of the defendant's contract: the indenture there did not contain the term "it was agreed,"
which would have made them the words of both parties. It was a simple covenant by the defendant. The plaintiff
covenanted that his son should serve as an apprentice to a surgeon-dentist; the defendant, in consideration of his
services, covenanted to pay weekly sums for five years: and the court held that there was no covenant to be
implied from the covenant to pay, that the defendant should continue him in the employment of assistant. Lord
Denman says, the reasons assigned in the former case equally applied to that: and, indeed, it would be a strong
thing to say that the plaintiff covenanted to carry on the business of surgeon-dentist, at whatever loss or
inconvenience, for five years.

In the present case, we have to construe the mutual agreement of two parties, one, a company which was sure
to continue for the term of a year, and which would, without doubt, have many occasions for the [180] advice
and services of an attorney and solicitor. And, applying ourselves to the construction of this particular contract,
we think there is an implied undertaking to retain and employ the plaintiff, in the sense in which we understand
that word.

We therefore, think the judgment should be reversed. Judgment reversed.

End of Easter Term.