Defendants have dismissed plaintiff before the expiration of the time atipalated by agreement for three years, and refused to pay the salary for the time after his dismissal; it is, therefore, their task to prove that they were entitled to do so. They uphold their justification of - Coca a Plainti®' has' persistently refased to yragraph 73, part 2, contending that' attend to his daties, that is to say, tothe clerk, made to attend to in decode telegrams of great importance within a time Stting to circumstances it is to say, immediately. It was, therefore, first to be proved that plaintiff was obliged to it. This was certainly the case, if the legal relations between the parties are only to be judged by the written agreement of July 4, 1906. But the same proves: correct even if really plaintiff was in his engagement expressly declared that he was engaged as ao shorthand-writer and typewriter. For as he himself has stated, he has. from the beginning taken over the cable work, and this as the most important part of his occupation from his predecessor, in spite of his being aware that by this he did other work than what he had engaged himself to, He has without even hinting at a contrary point of view done the cable work during the round fifteen months daring which be was employed with defendants, and even when it came to dispute with defendants on account of the daily working time, he has not even mentioned that he did not consider himself obliged to partake in the work of the cable department. From all this, the conclusion must with certainty be drawn be-that he at least silently declared his consent to the extension of agree ment as regards the work to be done by him, if indeed his work originally should have been restricted to shorthand-writing and typewrite ing. On the other hand, the hopes which he—entertained for _partaking in the cable service have at least partly been realized, hin salary was within the first six or seven months of his employment raised by a ronnd twenty percent, After all this, the oath which the partner Arnhold was called upon to of no consequence.
plaintiff has several times left unfinished the work in the cable department not absolutely, but only after 5 o'clock in the afternoon, setting forth that this time is the close of business Th aged extend his working time beyond the hoar fixed by local customs, is to be conceded to plaintiff without contention.
principle must allow of an if important work which admits of no delay, ix to be attended to, Such work is to be done by clerks even after 5 o'clock if required, What is important business not admitting of delay, is, of course, © question of each case; in general all business telegrams will here at Shanghai have to be considered a such, hardly a merchant will barden' himself with the high telegram expenses, if not urgently required. The decision as to whether business informations are to be sent by telegram, must naturally be left to the manager of a business house, a clerk, especially such a one who, like the plaintiff, in the main-did service of s more mechanical nature, will often in most cases not be in " position to judge as to whether telegram is urgent or not. If, therefore, it results that the work in the cable service is to be considered, urgent, case of need, obliged to work after the customary closing time; in other words, he has to accommodate his work to the needs of business. Pisithiff has acted against these principles. As is ascertained by the proxy Stampfi's evidence not contradicted by the plaintiff, that he on October 12, left unfinished words from New-ascertained, contained extremely important news, for the reason that he could not finish it before 5 o'clock, and although the telegram was given him with the express order to immediate decoding. On October 14 plaintiff left office again at or about five o'clock without decoding the important business teles to be sent at that time daily or nearly daily to Ne York, and which on that day conored again forty-six words. Even if it is not proved that in this case he war pointed out the dispatch to be expected, he knew or must have known that the telegram would have to be sent off, and it would at least have been his duty to ingnire for it before leaving, if indeed he was uncertain as to whether on that day a telegram would be sent to New York. The same applies to the tele gram from Hankow on October 15; there he must according to his own statements have known that it was still to be attended to, were not if given him before leaving at 5 o'clock to be attended to.
As in all three cases important matters attended to immediately were in question, and as has been shown, it cannot make any difference whether this work would have taken him beyond 5 o'clock; he has wrongly refused to to do the work incumbent upon him.
Such a refusal would, however, only justify an immediate dismissal if it was done persistently. This the Court has likewise considered to be proved. Plaintiff has, in his correspondence with defendants as well as verbally, upheld the principle that according to his agreement of engagement he was under no circumstances obliged to work for defendants after 5 o'clock in the afternoon, not because too much war demanded from his working faculty—he has declared his readiness voluntarily to work beyond that time for a suitable rise of salary—but only for the sake of principle. He has in following up his principle on three consecutive business days—ber 12 was " Saturday—struck work, although he knew or must have known that urgent work was still to be attended to by him, and by his last letter of October 15 he has left no doubt that in fature he would refuse any work after 5 o'clock. The persistency of refusal can, therefore, not be doubted.
After all this, the dismissal of plaintif on the part of defendants was justi-fat ant judgement har to be given The decision as to the costs is based on paragraph 91 of the regelations for civil law suits.
Text read from the printed page and cleaned; old type leaves the occasional error.