use ordinary care and diligence therein, so long as he is thus employed. NOTE.-The obligations or duties on the part of the workman or undertaker, are thus summed up in the foreign law: 1. "To do the work;" 2. "To do it at the time agreed on;" 3. "To do it well;" 4. "To employ the materials furnished by the employer in a proper manner;" and 5, and lastly, "to exercise the proper degree of care and diligence about the work." See Pothier Contrat de Louage, n. 419 to 423: 2 Pardes Droit Commer., p. 2, Art. 523 to 525 and 528. As to "the degree of care or diligence for which bailees of work for hire are responsible, the general rule is (as has been often observed) that where the contract is of mutual benefit, then ordinary diligence alone is required. And this is the degree of diligence, therefore, which applies to contracts of this sort, as well by the common law as by the Roman and foreign law." Story on Bailm., Secs. 428, 429, and Note 3. A watchmaker, having a watch left with him for repairs, is obliged to use due diligence in keeping it; and if he omits it, and the watch is lost, he is liable for the value of it.-Clark vs. Farnshaw, 1 Gow. R., p. 30. Regarding the obligation to do the work, it may generally be stated that it will be sufficient if the undertaker does the work by the means of other persons, or sub-agents, if the work is such as may be ordinarily done by others in an equally satisfactory manner; but when it is a work of skill, or art, the services of a particular artist may be fairly presumed to be contracted for.—Id., Sec. 428; also, 429, 442, 338, 339. Ordinary care and diligence are all that are required.—Johnson vs. N. Y. Central R. R., 31 Barb., p. 196; Ackley vs. Kellogg, 8 Cow., p. 223; Brown vs. Dennison, 2 Wend., p. 593; Plate vs. Hibbard, 7 Cow., p. 497. 1979. One who is employed at his own request to do that which is more for his own advantage than for that of his employer, must use great care and diligence therein to protect the interest of the latter. NOTE. Where skill as well as care is required in performing the undertaking, there, if the party purports to have skill in the business, and he undertakes for hire, he is bound not only to ordinary care and diligence in securing and preserving the thing, but also to Contracts for service limited to two years. Employé must obey employer. the exercise of due and ordinary skill in the employment of his art or business about it; or in other words, he undertakes to perform it in a workmanlike manner.-Story on Bailm., Sec. 431, Note 4, and authorities there cited. "Every man is presumed to possess the ordinary skill requisite to the due exercise of the art or trade which he assumes."-2 Kent Comm., p. 588, and cases there cited. Ordinary skill in the particular business or employment is that which is meant.-Story on Bailm., Sec. 433. "If the bailee (or employé) is known not to possess it (skill), or he does not exercise the particular art or employment to which it belongs, and he makes no pretension to skill in it, then, if the bailor (employer), with full notice, trusts him with the undertaking, the bailee (employé) is bound only for a reasonable exercise of the skill he possesses, or of the judgment which he can employ."-Story Bailm., Sec. 435. Of course the converse of this rule, as set out in the text, is by implication sustained by this authority. A hirer for work is liable not only for misfeasance but for nonfeasance, for the reason of mutuality of consideration; if it is more for his benefit than the employer's, the rule in the text is just and equitable. 1980. A contract to render personal service, other than a contract of apprenticeship, as provided in the Chapter on Master and Servant, cannot be enforced against the employé beyond the term of two years from the commencement of service under it; but if the employé voluntarily continues his service under it. beyond that time, the contract may be referred to as affording a presumptive measure of the compensation. аш NOTE. This is a new but obviously just provision. 1981. An employé must substantially comply with all the directions of his employer concerning the service on which he is engaged, even though contrary to the provisions of this Title, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employé, or in case of an emergency which, according to the best information which the employé can with reasonable diligence obtain, the employer did not contemplate, in which he cannot, with reasonable diligence, be consulted, and in which non-compliance is judged by the em- Same. NOTE.-Substantial and not literal obedience is re- to conform 1982. An employé must perform his service in Employé NOTE.-Story on Agency, Sec. 199; Johnson vs. N. Y. Degree of skill required. Must use what skill he has. What belongs to employer. Duty to account. 1983. An employé is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill. NOTE.-" Employé to exercise skill."-Harmer vs. Cornelius, 5 C. B. (N. S.), p. 236; Story Bailm., Secs. 431-435; see Cuckson vs. Stones, 1 El. & El., p. 248. "Unless employer has notice of his want of it."Shiells vs. Blackburne, 1 H. Blacks., p. 158; Felt vs. School Dist., 24 Vt., p. 297; see, also, note to Sec. 1979, ante; Story on Bailm., Sec. 435, as to known want of skill. 1984. An employé is always bound to use such skill as he possesses. NOTE.-Wilson vs. Brett, 11 M. & W., p. 113. Ordinary or reasonable skill required.-Story Bailm., Sec. 433. Bound only for a reasonable exercise of the skill which he possesses.-Id., Sec. 435; consult Leet vs. Wilson, 24 Cal., p. 398. 1985. Everything which an employé acquires by virtue of his employment, except the compensation, if any, which is due to him from his employer, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. NOTE.-Code La., 2974; see Tenant vs. Elliott, 1 Bos. & P., p. 3; Farmer vs. Russell, id., p. 296; Bousfield vs. Wilson, 16 M. & W., p. 185; Edmondstone vs. Hartshorne, 19 N. Y., p. 9; see Story on Bailm., Sec. 441c. If extraordinary work is done, or superior materials are used, the employé or undertaker is not entitled to compensation therefor, though the value of the thing is greatly enhanced thereby, but are for the benefit of the employer, unless so done or used by his consent, approval, or acquiescence.-Wilmot vs. Smith, 3 Carr & Payne, p. 453; Lovelock vs. King, 1 Mood. & Rob., p. 60; Burn vs. Miller, 4 Taunt., pp. 745, 749. 1986. An employé must, on demand, render to his employer just accounts of all his transactions in the course of his service, as often as may be reasonable, and must, without demand, give prompt notice to his employer of everything which he receives for his ac count. NOTE.-Story on Agency, Sec. 203; Collyer vs. Dud- not bound without 1987. An employé who receives anything on Employé account of his employer, in any capacity other than to deliver that of a mere servant, is not bound to deliver it to demand. him until demanded, and is not at liberty to send it to him from a distance, without demand, in any mode involving greater risk than its retention by the employé himself. ам NOTE. This seems to be the true principle upon which the cases holding a demand to be necessary as against a factor (Baird vs. Walker, 12 Barb., p. 298; Halden vs. Crafts, 4 E. D. Smith, p. 490; 2 Abb. Pr., p. 301; Cooley vs. Betts, 24 Wend., p. 203; Ferris vs. Paris, 10 Johns., p. 285), an attorney (Stafford vs. Richardson, 15 Wend., p. 302; Rathbun vs. Ingalls, 7 id., p. 320; Taylor vs. Bates, 5 Cow., p. 376; Beardsley vs. Root, 11 Johns., p. 464), and other agents (Reina vs. Cross, 6 Cal., p. 31), are founded. In Lillie vs. Hoyt, 5 Hill, p. 395, the rule was limited to attorneys and factors, but without reason. The defendant, in that case, seems to have been a mere servant. In Stacy vs. Graham, 14 N. Y., p. 492, affirming S. C., 3 Duer, p. 444, the defendant had been instructed to remit. "Nor must he send it a distance without demand."-Heubach vs. Mollmann, 2 Duer, p. 227. "Nor by a mode involving greater risk than if in employé's possession." This qualification seems to be just. See, also, Story on Agency, Secs. 207, 208. to be given employers. 1988. An employé who has any business to trans- Preference act on his own account, similar to that intrusted to him to by his employer, must always give the latter the preference. If intrusted with similar affairs by different employers, he must give them preference according to their relative urgency, or, other things being equal, according to the order in which they were committed to him. NOTE.-There is no direct authority for these provisions, but they are required by sound principle. |