Norman Macleod, Kt., C.J.
1. This was a suit tiled in the Small Causes Court by the plaintiff against the proprietor of Wimbridge & Co. claiming wages which were due to him. The admitted facts are that the plaintiff received a daily wage, the amount he had earned during the month being calculated according to the days on which he worked. Sundays, therefore, and the days on which the plaintiff was absent, were not paid for, The plaintiff's evidence as shown by the record is as follows :-' We are not paid for ' Sunday'. Our wages are one rupee per day. Wages are calculated at that rate, though paid in lump. I am also not paid for days absent. We were asking for more pay. Defendant declined and I left. Some others also left.' Then the correspondence was put in which throws no light on the present question, except that in it the plaintiff claimed that he was a daily labourer, and at the end of the defendant's letter of the 3rd of July appear the following words : ' The story of 1 daily workmen' shows more of the legal touch than a statement of the fact.'' There was no suggestion then, when in the correspondence the plaintiff claimed that he was a daily labourer, that he was a monthly servant.
2. Then the defendant was called and said: 'I say plaintiff is a monthly servant. Plaintiff is not paid for Sundays and for absent days. The pay is paid once a month on that calculation.'
3. The record shows that the defendant closed his case, and the finding was ' I find that the plaintiff is not a monthly servant and is entitled to his earned wages for twenty-six days. Decree for plaintiff for Rs. 26 and costs.'
4. An application was made to the Full Court. The judgment of the Full Court was as follows:-' We think this plaintiff was a monthly servant. He admits he stayed away of his own accord. Suit dismissed.'
5. On the evidence recorded in the trial Court, it is perfectly that there was no contract that the plaintiff should only be paid for the work done by him if he completed 8 month's service. The contract was that the plaintiff should earn a rupee for every day on which he worked. The fact that he was not paid at the end of each day, but that at the end of each month a calculation was made of the days on which he had worked and the amount due for those days, does not make the contract one of monthly service. We have no indication on the record why the Full Court came to the conclusion that the plaintiff was a monthly servant. From the arguments addressed to us it would appear as if the Full Court had accepted certain statements made at the Bar as evidence, and had accordingly differed from the decision arrived at in the trial Court.
6. A very similar question was decided in Parkin v. Smtith Hetton Coal Company (1908) 98 L.T. 162. In that case the facts were that the plaintiff was employed as a putter in a colliery, the employment being terminable at any time by fourteen days' notice by either party; his wages depended upon the amount of work done by him upon each day, which was ascertained daily; the wages were payable and were paid fortnightly. The plaintiff, having worked for four days during part of a fortnightly period, refused to continue work without having given notice and was dismissed. The employers refused to pay him any wages for the four days upon which he had worked, upon the ground that they were forfeited. In an action by the plaintiff to recover wages for the four days, the County Court Judge decided that the wages in respect of each day became due as they were earned and that the plaintiff was entitled to recover. It was held by the Court of Appeal that, as the wages were earned daily, though payable only at the end of each fortnight, the plaintiff was entitled to recover wages for the days upon which he had worked. The question, therefore, was whether there was a daily hiring, so that the wages earned became due as they were earned, or whether there was a fortnightly hiring, in which case the wages would not become due until a fortnight's wages had been earned. Sir Gorell Barnes said :-
I think that this case turns simply upon the question, what was the contract between the parties? No assistance is to be derived from other oases in which different contracts have been construed. In the present case the County Court Judge has found that the wages in respect of each shift became due as they were earned, tuties quoties, on the completion of each suecessive shift. In my opinion that was either a finding of fact or an inference of law from the facts. If it was a finding of fact, we are bound by it; and, if it was an inference of law, I think that it was right. Therefore, the workman's wages were earned each day, though not payable until the end of fortnight, and there was no fortnightly hiring.
7. Here in this case on the evidence the finding of the trial Court was that the plaintiff's wages were earned each day though no payable till the end of the month; therefore there was a daily hiring and not a monthly hiring. There is no justification, therefore, on the record as it stands for the Full Court to have reversed the decision of the trial Court. If the defendant bad wished the Court to consider further evidence, that could only have been done according to law. I think, therefore, this rule must be made absolute and the decree of the trial Court restored.
8. As to Application No. 332 of 1920, this was a similar suit by another plaintiff against the same defendant. The record wad ' By consent decree for plaintiff for Rs. 19 and costs. The record ought really to have been ' By consent the decision in the other suit is to be taken as governing the decision in this suit.' But as the record stood it seemed as if the defendant had consented to the decree being passed against him. The Full Court, presumably for the same reasons as in the other case, reversed the decision of the trial Court. For the reasons which I have already given, in Civil Extraordinary Application No. 352 of 1920, we restore the order of the trial Court. Rule will be made absolute in both cases with costs throughout.
9. I agree.