Chapter 23

When a person takes a cheque he naturally supposes that the bank on which it is drawn owes the money to him because he can truly demand it. _Suppose a bank refuses to pay, can the holder then sue the bank for money?_ In six States--Illinois, South Carolina, Missouri, Kentucky, Colorado, and Texas--the holder of such a cheque can sue the bank and get his money. The courts in those States say that a cheque is an assignment or transfer of the amount of money stated to the holder of the cheque from the time that the cheque was given him. The law in all of the other States is otherwise, and a bank for a good reason can decline to pay a cheque, and, in any event, the holder cannot sue the bank for the amount. If it will not pay he must look to the maker and not the bank for payment. Of course, _a cheque must always be drawn against a deposit, and it is a fraud on the part of a person to draw a cheque on a bank when he has no money there_. Sometimes mistakes are made by banks in their bookkeeping, and they think they have not the money to pay when in truth they have. In such cases they sometimes decline to pay, but even if they had the money the law says that there is no contract between the holder of a cheque and the bank on which it is drawn, and therefore the holder cannot sue it should it refuse to pay. This rule, however, is rather losing ground and the other is coming into more general favour--that a cheque does operate to transfer the money of the maker to the holder and, consequently, that he has a right to sue the bank for the money.

Cheques are made payable either to bearer or order. If a cheque is made payable to bearer it can be transferred from one person to another simply by handing it to him--by delivery; but if a cheque is made payable to order, then the person who receives it, if wishing to transfer it to some one else, must write his name on the back. If he writes his name on the back it is called a blank indorsement, and this form is often used in transferring cheques. If, however, a person intends to send a cheque through the mail he should never write it payable to bearer, but always payable to the order of a particular person, so as to require his name to be written thereon in order to make a good transfer. This is a much safer way of sending cheques than simply by making them payable to bearer.

XV. THE LAW RELATING TO LEASES

A LEASE IS AN AGREEMENT, and, as every one knows, usually relates to the hiring of lands and houses. _If the agreement is to be for a longer period than one year it should be in writing_, for if it be not either party can avoid it, not morally but in law. The statute of frauds, which has been explained, would shield either party in not carrying out such an agreement if it were not in writing if by its terms it was to last for a longer period than one year.

There is another very important reason for putting such an agreement in writing. Much of the law relating to the two parties, landlord and tenant, is one-sided and in favour of the landlord. Our law on that subject is based on the English law. It was imported in the early colonial days, and, though it has been greatly changed by statute and by decisions of the courts, it is still very one-sided, as we shall see before finishing this paper. For this reason, especially, all leases relating to houses and stores or other buildings, even for a short period, should be in writing, with the rights and duties of both parties fully stated, so that both may clearly know what to do and to expect.

Unless something is said in the lease concerning repairs the landlord is not obliged to make any. This statement shows at once the need of having a written lease. If the house is out of order--the locks, blinds, doors, and windows are not in good order--the tenant cannot claim anything of the landlord or require him to put them in good condition. Even if a house should become unfit for habitation in consequence of fire, or is blown down, or is flooded with water, the landlord is not bound to do anything unless he has stated that he will in his lease.

A fire broke out not long since in a large warehouse and burned it so completely as to render it wholly unfit for use; indeed, all the merchandise in it was wholly consumed. Nevertheless, when the lease expired and the tenants refused to pay as they had agreed to do, the landlord brought a legal proceeding against them to compel them to pay during the entire period, as though they had been staying there and selling goods and making money, and they were compelled to pay. _This is the common law on the subject_, and every tenant is bound to pay in such cases unless he has clearly stated in his lease that he is not to be holden in the event of the destruction of the building by fire, flood, lightning, or other cause.

Furthermore, it may be added that leases nowadays are often furnished with blank spaces to be filled up with names, the amounts to be paid, times of payment, etc., and persons often sign them without even reading them. They should not do this. They should be careful to read them over two or three times or more, until they fully understand them and are sure of their nature before signing or executing them. People are still more negligent in taking out insurance policies without reading them. They are very long and parts of them are printed in fine type and, perhaps, are quite difficult, especially for old eyes, to read. In truth some of the most important parts are put in the finest print--some of the exceptions against loss and other matters, which, we are quite sure, if a person when taking out a policy should read over and understand he would insist on having changed.

If a house becomes unfit for living therein by its own fault--for example, if it is overrun with rats, or becomes so decayed that the weather invades and is thereby rendered unfit--the tenant, so the law says, has indeed the privilege of quitting, if he did not know these things at the time of entering; but if he did, he would be required to live there, however much he might dislike the company of rats or the presence of the snow or rain, and also to pay his rent; or, if quitting for that reason, he would still be responsible for the rent as he would if living in the house. An eminent legal writer has stated the principle in this way: The tenant can leave if the defect was not known or anticipated by him, or known or anticipated if he had made a reasonable investigation or inquiry before he took the lease.

A tenant is not required to make general repairs without an agreement, but he must make those that are necessary to preserve the house from injury by rain and wind. If the shingles are blown off or panes of glass are broken others must be put in their places; and it is said that he would be bound even for ornamental repairs, like paper and painting, if he made an agreement to return the house in good order.

A tenant of a farm must manage and cultivate it by the same rules of husbandry as are practised in his vicinity, and if his lease ends by any event that is uncertain and could neither have been foreseen nor foretold, he is entitled to the annual crop sowed or planted by him while he was in possession.

As we have stated, if the house is wholly destroyed the tenant must still pay the rent, for the reason, which to many may seem absurd, that the law regards the land as the principal thing and the house as secondary. It is true that a man, in the event of his house burning down, might pitch a tent on the ground and live there, but it would be a decidedly chilly way of living, especially in the winter-time, in the northern part of our country. If a tenant should agree to return and deliver the house at the end of the term in good order and condition, reasonable wear and tear only excepted, he would be obliged to rebuild the house if it burned down. Once more, we ask, in view of these things, ought he not to make a written lease and well understand its terms before signing it?

The times for paying rent are usually specified in the lease, if one is made. When they are not the tenant is governed by the usage of the country or place where he lives.

When nothing is said about underletting the whole or a part to some one else the tenant has a right to do this, but remains bound to the landlord for his rent. Generally when written leases are made there is a clause stating that the tenant cannot underlet any portion or all without the landlord's consent.

_A tenant is not responsible for taxes unless it is expressly agreed that he shall pay them._

If a lease be for a fixed time the tenant loses all right or interest in the land as soon as the lease comes to an end, and he must leave then or the landlord may turn him out at once, or, in other language, eject him. If, however, he stays there longer with the consent of the landlord he is then called a tenant at will and cannot be turned out by the landlord without giving a notice to him to quit. The statutes of the several States have fixed the length of time that a notice must be given by the landlord to his tenant before he can turn him out. In many States a notice of thirty days must be given; sometimes sixty days' notice is required, or even longer.

It is an important question _what things a tenant may take away with him at the expiration of his lease_. Of course, there is no question whatever with respect to many things. Besides his wife and children he may take all his furniture and other movable property. But there are many things fixed to the house by the tenant that he desires to remove if he has the right to do so, and many questions have been asked and decided by the courts relating to this subject. The method of fastening them to the house is the test usually applied to determine whether they can be taken away or not. If they are fastened by screws in such a way as to show that the tenant intended to take them away, he can do so, otherwise he cannot.

In modern times the rule has been changed in favour of the tenant, and whatever he can remove without injuring the house, leaving it in as good condition as it would otherwise be, he can take away; for example, ornamental chimney-pieces, coffee-mills, cornices that are furnished with screws, furnaces, stoves, looking-glasses, pumps, gates, fence rails, barns or stables on blocks, etc. On the other hand, a barn placed on the ground cannot be removed, nor benches fastened to the house, nor trees, plants, and hedges not belonging to a gardener by trade, nor locks and keys. Of course, all these things may be changed by the written lease, and it should be clearly stated what things may be removed concerning which any doubt may arise. We have heard of a case in which a tenant put a pier-glass into a house, fastening it by means of cement. He asked and was given the landlord's permission to do this at the time of putting it in, but when the lease ended the landlord would not allow him to take it out, and an appeal was made to a court, which decided in favour of the landlord. Doubtless this decision is correct. If the glass could have been taken away without injuring the wall then it belonged to the tenant. This shows the need of putting such matters in writing; otherwise the tenant will suffer unless the landlord be a man of the highest integrity.

XVI. LIABILITY OF EMPLOYER TO EMPLOYÉS

Persons who are employed in mills, in erecting buildings, by railroad companies, and others, are frequently injured while pursuing their employment, and the question has often arisen whether the employer was liable for the injury thus suffered by them. The more important of these questions we propose to answer in this and the following lecture, as they are matters of every-day importance to many people.

First of all, an employé to recover anything for the loss that may have happened must show that in some way _his employer was negligent_. He cannot get something simply because he has been injured. The law in no country has ever said that he could. In all cases he must show that his employer failed in his duty in some way toward him to lay the foundation of an action against him. This is the first principle to keep clearly in mind.

Again, it is said that an employé cannot recover if the injury has happened to him in consequence of the negligence of a fellow-servant. By this is meant a person engaged in the same common employment. It is not always easy to determine whether two persons employed by the same company are fellow-servants, as we shall soon see, but the principle of law is plain enough that in all cases where they are thus acting as fellow-servants they cannot recover for any injury. The law says this is one of the risks that a person takes when he enters the service of another. Suppose a person is at work mining coal and is injured by another person working by his side through his negligence. However severely injured he may be he cannot get anything, because the person through whose negligence he has been injured is a fellow-workman.

But many employés may have the same common employer and yet not be fellow-servants. For example, a brakeman would be a fellow-servant with the conductor and engineer and other persons running on the same train or on other trains belonging to the same company, but he would not be a fellow-servant working in the same line of employment with those who are engaged in the repair-shop of the company.

This statement is quite sufficient to show the difficulty there is sometimes in deciding whether a person is a fellow-servant or not. If a person is injured through the negligence of another employed by the same company who is not a fellow-servant, then he can recover if there are no other difficulties in the way, otherwise he cannot. It does not follow that fellow-servants are of the same grade or rank; the test is whether they are acting in the same line of employment. The brakeman's position is not so high as that of the engineer or conductor, yet all three are acting in the same line of employment, and if any one of them was injured by another in that part of the service the employer would not be liable.

In a very large number of cases, therefore, employers are not liable for accidents happening to their employés, because they are injured through the negligence of other employés engaged in the same line or subdivision of the common service. Perhaps employers escape more frequently on this ground than on any other from paying anything for losses.

Yet there is another ground on which they often escape paying anything. An employé is supposed when making his contract with his employer to take on himself all the ordinary risks arising from his employment. These in many cases are very numerous. He does not assume extraordinary risks, but he does assume all ordinary risks that are likely to happen to him. Employés are injured every day and yet can recover nothing, because their injury is simply a common one, the risk of which they have assumed.

Would it not be possible to make an employer liable for them all? Undoubtedly an employé could make a contract of this kind if he wished and his employer was willing to do so, but if they did the employer would be unwilling to pay as high wages. The greater the risk assumed by the employé the larger is the compensation paid; the one thing is graded by the other. It was stated when considering the rights and duties of common carriers that they have been lessening their liabilities; on the other hand, they are carrying for smaller prices than they once did. Doubtless a carrier would be willing to assume more risks--every kind of risk, in short--if he were paid enough for it, but shippers ordinarily are willing to assume many risks for the sake of the lower rates and insure their risks in insurance companies. Just so the working-men prefer higher wages and assume many risks of their employment. There is nothing unfair in this. For example, the persons who are engaged in making white lead run an unusual risk in pursuing their employment. It is said nowadays that if they use the utmost care in protecting themselves from inhaling the fumes that arise in some stages of this process, they can live quite as long as other people. But unless they do exercise every precaution their system finally becomes charged with the poison that arises from this process and their lives are shortened. They well understand this before beginning the work; they are told of the risks and are paid high wages. If, therefore, they undertake such employment, well knowing the risks, they have no right to complain if their health after a time suffers. No fraud has been practised on them, and we do not know that they do complain if they suffer any ill effects from their work.

XVII. LIABILITY OF EMPLOYERS TO EMPLOYÉS (_Continued_)

In our last lecture we stated some of the principles relating to the liabilities of employers to their employés; in this lesson the subject will be continued. _An employer is bound to use some care or precaution, and if he does not will be responsible for his neglect._ One of these is he must employ persons who are fit for the work they are set to do. If an employer in mining should put a man to work by the side of another to mine coal who he knew was not a skilful workman, and, in consequence of this unskilful workman's unskilfulness, other miners were injured, he would be responsible for hiring such a man. Every one will see the justice of this rule.

_The employer must also give proper instructions to the person employed whenever he does not understand his duties._ If a person is employed to run a laundry machine who does not understand how to work it, and other employés are injured through his ignorance, the employer would be liable. He must, therefore, tell such a person what to do; he has no right to hazard the lives of others by putting any one who has no knowledge of a machine to work without instructing him properly. Again, if a person pretends to be capable, and the employer, believing him, engages him, and it is soon found out that he is not, then it is the duty of the employer either to dismiss him or to give him proper instructions. The rule, however, on this subject is not the same everywhere. It is sometimes said that if an employé continues to work by the side of another after knowing that this other is incompetent, it is his duty to give notice to the employer, and if the employer continues to employ him, to quit. If he does not he assumes the greater risk arising from his knowledge of the incompetency of the other.

_It is the duty of the employer to furnish proper appliances for his workmen._ He must furnish proper tools and machinery and safe scaffolding, and in every respect must show a reasonable degree of care in all these particulars. But the courts say that he is not obliged to exercise the _utmost_ care, because the employé takes on himself some risk with respect to the tools and machinery he uses. For example, it is said that employers are not obliged to use the latest appliances that are known or appear in the market for the use of their workmen. If an employer has an older one that has been in use for years, and the employés have found out all the dangers attending its use, and a new one appears that is less dangerous to use, the law does not require the employer to throw the older one away and get the other. It is true that in many States within the last few years statutes have been passed by the legislatures requiring employers to be much more careful than they were formerly in protecting their machinery. Many injuries have happened from the use of belting, and the statutes in many cases have stated what must be done in the way of enclosing belts, and of putting screens around machinery, and in various ways of so protecting it that persons will be less liable to suffer. Furthermore, inventors have been very busy in inventing machinery with this end in view. The old-fashioned car-coupler was a very dangerous device, and many a poor fellow has been crushed between cars when trying to couple them. A coupler has been made in which this danger no longer exists; in truth, there has been a great advance in this direction.

_An employer must also select suitable materials on which to work._ This is a well-known principle. If he does not, then he is responsible for the consequences. In one of the cases a person was injured while erecting a scaffolding from the breaking of a knotty timber. The testimony was that the knot was visible on the surface and if the stick had been examined the defect would have been seen. That seemed a slight defect, surely, but the consequence of using the timber was very serious, and the court rightly held that as this defect could have been seen, had the timber been properly examined, the employer was responsible for the injury to a workman who was injured by the breaking of it.

_An employer must also select suitable places for his employés._ In one of the cases a court said a master does not warrant his servant's safety. He does, however, agree to adopt and keep proper means with which to carry on the business in which they are employed. Among these is the providing of a suitable place for doing his work without exposure to dangers that do not come within the reasonable scope of his employment. In one of the cases a company stored a quantity of dynamite so near a place where an employé was working that he was killed by its explosion. The court held that it was negligence on the part of the company in requiring its employé to work so near the place where this explosive material was kept.

It is said that if an employé knows that a machine which he is to operate is defective when accepting employment he can recover nothing for the consequences. He assumes the risk whenever he thus engages to work. If the service be especially perilous and yet he clearly understands the nature of it and is injured when performing it, he can get nothing. Doubtless in many of these cases he is paid a larger sum for working under such conditions. Whatever may be the truth in this regard, the principle of law is well understood that, if he has a full knowledge of the risk of his situation and makes no complaint about the nature of the machinery that he is to operate, he accepts the risks, however great they may be. In one of the cases an employé was injured by the kick of a horse belonging to his employer, but he recovered nothing, because he understood the vicious nature of the animal. The horse had kicked others; in fact, its reputation for kicking was well known, and the employé began work with his eyes wide open.

This rule also applies if tools, machinery, etc., become defective and the employé continues to work after the defects are found out. Of course, every one knows that tools wear out and machinery becomes weaker, and that is one of the natural consequences of using them. And so it is regarded as one of the risks ordinarily taken by an employé, and therefore he can get nothing whenever he is injured through the operation of a defective machine caused by the natural wear and tear of time.

EXAMINATION PAPER

NOTE.--_The following questions are given as an indication of the sort of knowledge a student ought to possess after a careful study of the course. The student is advised to write out the answers. Only such answers need be attempted as can be framed from the lessons._

1. (_a_) What is a contract? (_b_) What is the difference between a simple and a special contract? (_c_) What contracts can be made by a minor? When and how can he ratify them? (_d_) If a person makes a contract to work for one year and breaks it after working six months can he collect six months' wages? (_e_) Give illustrations of six different kinds of contracts.