good repair, and surrender them in like repair, this covenant was joint as respects the lessors, and one of them (or two representing one interest) cannot maintain an action for the breach of it by the lessee: Calvert v. Bradley, 16 How. U. S. 580. No. 270. XV. Lessee against Lessor, for not Completing Building according 187., at ..... I. That on the. . . . . . . . day of...... the plaintiffs, under the firm name of A. B. & Co., and the defendants, under the firm name of C. D. & Co., entered into an agreement in writing, of which agreement the following is a copy [copy agreement to complete unfinished store, similar to adjoining store]. II. That after the making of said agreement, and on the .. day of ... 187., the defendants delivered, and the plaintiffs took possession of said building, under and in pursuance of said agreement, and upon the faith and assurance of the defendants, and the full belief thereof, that the said premises were finished in the same manner as the adjoining store, and in accordance with the terms of said agreement. III. That the said premises were not finished in the same manner as the store adjoining at the time of making such agreement, but, on the contrary [allege specifically the difference]. IV. [Allege special damages], to the damage of the plaintiff ... dollars. [Demand of Judgment.] No. 271. xvi. For Breach of Covenant of Quiet Enjoyment—Against Landlord. [TITLE.] The plaintiff complains, and alleges: I. That on the. .....day of. . . . . .., 187., at.... the defendant, by deed [or lease under seal], let to the plaintiff, and the plaintiff rented from the defendant, the house numbered... .street, .... . . . for the term of three years, covenanting that the plaintiff should quietly enjoy possession thereof for the said term. II. That on, etc., one A. B., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withholds the possession thereof from him. III. That the plaintiff was thereby prevented from continuing the business of [merchandising] at the said place, and was compelled to expend........ dollars in moving, and lost the custom of C. D., E. F., and G. H., and divers other persons, by such removal. [Demand of Judgment.] 65. Covenant Defined.-The breach of the covenant for quiet enjoyment is an actual disturbance of possession by reason of some adverse right existing at the time of the making the covenant: 2 Greenl. on Ev. 239. Not a tortious disturbance, nor a lawful disturbance by an adverse right subsequently acquired: Greenby v. Wilcox, 2 Johns. 1; Grannis v. Clark, 8 Cow. 36. As to an entry by the landlord, see Sedgwick v. Hollenback, 7 Johns. 376. Where a lease contains an express covenant for quiet enjoyment "without molestation or disturbance of or from the lessor, his successor or assigns," no other or further covenant in respect to enjoyment will be implied: Burr v. Stenton, 43 N. Y. 462. Under the Civil Code of California a covenant for quiet enjoyment against all persons lawfully claiming the same, is implied in all letting for hire: Sec. 1927. 66. Eviction.-Without an eviction there is no breach of the covenant for quiet enjoyment; but it is not necessary that the eviction should be by process of law, consequent on a judgment: McGary v. Hastings, 39 Cal. 360. The covenant is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible paramount title: Id. 67. Necessary Averments.—The complaint must state the particulars as to the person or persons who prevented him, and by what right, and show a title at or before the date of the lease declared on: Grannis v. Clark, 8 Cow. 36. 68. Responsibility of Landlord.-Upon a covenant in a lease for quiet enjoyment, the lessor is responsible only for his own acts and those of others claiming by title paramount to the lease: Playter v. Cunningham, 21 Cal. 229. In such a covenant, no set formula is required. Any language which expresses the intent is sufficient: Levitzky v. Canning, 33 Cal. 299. at.... I. That on the... ... day of. . . . . . . . ., 187., 187., at.. the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant], and that the defendant should employ the plaintiff as such, for the term of [one year, or as the case may be], and pay him for his services........ dollars monthly [or as the case may be]. II. That on the.......day of......., 187., the plaintiff entered upon the service of the defendant under said agreement, and has ever since been, and still is, ready and willing to continue in such service. IV. That on the ..... day of 187., the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, though the plaintiff then and there offered to continue in said service, and perform said agreement on his part, to the damage of the plaintiff ... dollars. [Demand of Judgment.] 1. Discharge of Employee.-Where no definite period of employment is agreed upon between master and servant, the master has a right to discharge the servant at any time, and to eject him by force if he refuses to leave after receiving notice to that effect, but no more force than is necessary: De Briar v. Minturn, 1 Cal. 450. But where a contract for services is made for a fixed period, if the employer discharge the servant without good cause, the servant may recover the stipulated wages: Webster v. Wade, 19 Cal. 291. 2. Entire Contract.-A distinction exists between contracts for specific work and contracts for the hire of clerks, agents, laborors, domestic servants, etc., for a specified period. In the latter, if the person employed is improperly dismissed before the term of service has expired, he is entitled to recover for the whole term, unless the defendant can show, by way of defense, that the plaintiff was actually engaged in other profitable service during the term, or that such employment was offered to him and rejected: Costigan v. Mohawk and Hudson River R. R. Co., 2 Den. 609; 2 Greenl. Ev., 273, sec. 261 a. A contract to grade a section of a railroad is an entire contract, and a condition in it for payments from time to time, as the work progresses, does not make it severable: Cox v. Western Pacific R. R. Co., 47 Cal. 87. If the con tractor, in such case, is prevented by his employer from completing his whole contract, he is justified in abandoning it, and may recover a fair compensation for the work performed: Id. 3. Measure of Damages.-The measure of damages is not the entire contract price, but a just recompense for the actual injury which the party has sustained; Clark v. Marsiglia, 1 Den. 317. 4. Offer to Perform. The rejection of the offer to perform services excuses the performance as a condition precedent, but does not release the plaintiff from his obligation to perform so long as he insists upon the agreement: Cooper v. Pena, 21 Cal. 403. When the plaintiff has been wrongfully discharged, this averment, coupled with an allegation of readiness to serve, is all that is necessary. He need not aver an offer to serve: Wallis v. Warren, 4 Exch. 364; 7 Dowl. & L. 60. For if any one is bound to do a thing, he must either do it or offer to do it, and if no objections are made, he must show that he made a tender in a regular manner; but this is not necessary if the other party by his conduct dispenses with a tender, as by a previous refusal to accept: Blight v. Ashley, Pet. C. Ct. 15. 5. Rescission of Contract.-If the servant willfully desert the employer's service, the employer is not bound to receive him again, and he cannot recover for past services: 2 Mass. 147; Lantry v. Parks, 8 Cow. 63. Plaintiff agreed to work seven months for defendant, at ten dollars per month, unless one or the other should become dissatisfied. He worked six months and a half, and left, alleging that he had business to attend to: Held, that he could not recover: Monell v. Burns, 4 Den. 121. No. 273. ii. The Same-where the Employment never took Effect. [TITLE.] The plaintiff complains, and alleges: I. [As in last form.] the II. That on the....day of......., 187., at. plaintiff offered to enter upon the service of the defendant, and has ever since been ready and willing so to do. III. That the defendant refused to permit the plaintiff to enter upon such services, or to pay him for his services, to the damage of the plaintiff ........ dollars. [TITLE.] [Demand of Judgment.] No. 274. iii. For Breach of Contract to Serve. The plaintiff complains, and alleges: ........ 187., at.... I. That on the...... day of.... the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at [a monthly] compensation of ............. dollars, and that the defendant should serve the plaintiff [as bookkeeper] for the term of [one year]. II. That the plaintiff has always been ready and willing to perform his part of the said agreement [and on the.... day of..... .., 187., offered so to do]. III. That the defendant refused to serve the plaintiff as aforesaid, to his damage........ dollars. [Demand of Judgment.] 6. Age of Apprentice.-That the master of an apprentice is concluded by the recital in the indentures of the age of the boy: McCutchin v. Jamieson, 1 Cranch C. Ct. 348. And that a stranger to the indentures cannot take advantage of the omission to insert the age of the apprentice in the indentures: Heinecke v. Rawlings, 4 Cranch C. Ct. 699. 7. Assignment of Indentures.-A master cannot assign the indentures of an apprentice: Handy v. Brown, 1 Cranch C. Ct. 610. And therefore a note given for such an assignment, being based upon a void contract, cannot be recovered: Walker v. Johnson, 2 Cranch C. Ct. 203. 8. Apprentice's Wages.-The master is entitled to his apprentice's wages when hired by another, whether the person hiring knew or not that he was an apprentice: James v. Leroy, 6 J. R. 274; Munsey v. Goodwin, 3 N. H. 272; Conant v. Raymond, 2 Aik. 243. The right of the master to the earnings of the apprentice, in the way of his business, or of any other business which is substituted for it, does not extend to his extraordinary earnings, which do not interfere with the profit which the master may legiti mately derive from his services: Muson v. The "Blaireau," 2 Cranch, 240. No. 275. iv. By the Master, against the Father of Apprentice. [TITLE.] The plaintiff complains, and alleges: ......... 187., at ... I. That on the ...... day of .... one A. B., with the consent of the defendant, made an indenture under his hand and seal, a copy of which is hereto annexed. II. That at the same time and place, the defendant entered into an agreement, under his hand and seal, a copy of which is also hereto annexed [or state the tenor of these covenants]. III. That on the... . . . . . day of........, 187., the said A. B. willfully absented himself from the service of the plaintiff, and continues so to do, to his damage... [Demand of Judgment.] [Annex Copy of Indenture.] .dollars. 9. Breach, how Alleged. The allegation that the defendant had not used any endeavors to have the apprentice serve, and refused to do anything, sufficiently showed a breach: Van Dorn v. Young, 13 Barb. 286. |