Mulcahy v O'Sullivan

JurisdictionIreland
CourtHigh Court
Judgment Date08 December 1944
Date08 December 1944
Mulcahy v. O'Sullivan.
ELLEN MULCAHY
Plaintiff
and
MARGARET O'SULLIVAN and PATRICK WALSH
Defendants.

Master and servant - Contract of service - Remuneration consisting of board and lodging in addition to wages at an agreed rate per annum - No written agreement - No fixed date for payment of wages - Small sums paid on account of wages at servant's request - Balance of account due struck at irregular intervals at servant's request - Whether a yearly hiring - Whether a demand for payment a condition precedent to master's liability for wages - Whether Statute of Limitations commenced to run before date of demand - Whether provision of board and lodging constituted part payment so as to present the statute from running - Common law Procedure Amendment Act (Ir.),1853 (16 and 17 Vict. c. 113).

Trial of Issue.

The plaintiff, Ellen Mulcahy, of Fair Lane, Dungarvan, County Waterford, claimed to be a creditor of the estate of Alice Draper, deceased, in respect of, inter alia, the balance of wages due to her as barmaid and assistant manageress for the period from 1st July, 1926 to the 1st January, 1938. During the whole of the said period the plaintiff had been provided by the deceased with board and lodging, but she was only paid a very small part of the wages due, the last payment on account of wages being made in September, 1934, as from which date no further payment was made.

On the 21st November, 1942, she issued a summary summons for the administration of the estate of the deceased. The defendants, Margaret O'Sullivan, of the Commercial Hotel, Dungarvan, County Waterford, and Patrick Walsh of Barnakill, Kilrossanty, County Waterford, were sued as personal representative and heir-at-law, respectively, of the deceased.

On the 19th April, 1943, the Court, having decreed administration of deceased's real and personal estate, directed that an issue be tried (with pleadings) between the plaintiff and the (defendants, namely, whether the plaintiff was a creditor of the said Alice Draper deceased, and if so for what sum.

Daniel Walsh, the next-to-kin of the deceased, was subsequently added as a defendant.

The defendants in their defence contended that the plaintiff had been fully paid; as a further ground of defence they contended that the claim was barred by the Statute of Limitations (16 and 17 Vict., c. 113).

The facts have been summarised in the headnote and are sufficiently stated for the purposes of this report in the judgment of Overend J.

The plaintiff, in the year 1910, was engaged by D. as barmaid in D.'s hotel at a remuneration which consisted of board and lodging and wages at an agreed rate per annum. She was appointed manageress in the year 1926, by which time her wages had been increased to £30 per annum; she continued in D.'s employment until the date of D.'s death in the year 1938.

There was no written agreement containing the terms of the plaintiff's employment. According to the plaintiff's evidence no term of employment had been mentioned, no provision had been made as to the mode of determining the contract, and no times had been fixed for payment of wages, but she "was to get money when I asked for it." The accounts between the parties showed that a balance was struck at irregular intervals, that wages were paid or calculated to a variety of dates, that the plaintiff received from time to time small payments on account of wages, that, in some instances when a balance was struck, she had been overpaid in advance and that in others a sum was shown as being due to her. The plaintiff also testified that it was at her request that a balance was struck from time to time, and that the small sums received by her (often for the specific purposes stated in the accounts) were paid to her when she asked for them.

During the whole period of her employment the plaintiff received full board and lodging, but for the period from the year 1926 to the date of D.'s death she received only a small part of the wages due, the last payment on account being made in September, 1934, as from which date no further payments of wages were made. She made no request to D. for the balance of the wages due, but after D.'s death she made a request for payment to the personal representative of D., and subsequently brought proceedings to enforce her claim.

Held 1, that the hiring was not a yearly hiring;

2, that, on the evidence as to the conduct of the parties, it was a term of the contract that wages would only become payable after a reasonable time from the making of a demand for payment, that the making of such demand was a condition precedent to the liability of D. for payment, and that as the demand had not been made until after the date of the death of D., the cause of action did not accrue until a reasonable time after such date, and, accordingly, the claim was not barred by the Statute of Limitations.

Semble:—Where the remuneration of a servant consists of board and lodging in addition to wages, and the servant is provided with board and lodging, but is not paid the wages due, the Statute of Limitations does not commence to run against a claim by the servant for wages, because the provision of board and lodging is as much a part payment of the remuneration as the monetary payment of wages, so as to prevent the statute from running.

Cur. adv. vult.

Overend J. :—

This is a suit for the administration of the estate of the late Mrs. Alice Draper who was the...

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