In contracts of service when no time of employment is fixed by the express terms of the contract, the apparent intention of the parties may be sought as a question of fact provided any circumstances can be shown which tend to prove that the parties were justified in assuming as against one another a definite intention in regard to the matter.17 But frequently no such evidence is possible, and in its absence the law of England has established the rule that the hiring is to be considered a hiring for a year.18 And the same rule has been adopted in Canada.19 This rule, however, has not been adopted in the United States, where it is held that a hiring indefinite as to time is terminable at the will of either party and therefore creates no executory obligations.20 This has been held true even in regard to offers and agreements of service which specify that the employee shall receive a fixed sum for each day, week, month, or year of service.21 It would seem, however, that in reaching this result courts had failed to observe that such a construction should, if possible, be put upon the language of parties who enter into an agreement as will give rise to a legal obligation.22 It is true that a hiring at so much a day does not specify the length of time that the service may endure, but it may fairly be presumed that the parties intended the employment to last for at least one day. So if the payment is fixed by the week, month, or year. It is, of course, possible that this mode of expression was merely to fix the rate of compensation, but in the absence of evidence to the contrary, it seems a fair presumption that the parties intended the employment to last at least for one such period. The fact that they regarded it as possible that the employment should continue beyond one period would not prevent a definite contract being formed for the first period; and should the parties continue their relation after the expiration of the first period, another contract by implication of fact would arise for another similar period. This view is adopted by many courts of high standing. 23 It is believed these decisions are sound, but however this may be, certainly the period fixed for the payment of wages or salary is proper for consideration in connection with other incidents.24 Such other circumstances may indeed lead the court to construe an agreement as a contract for a definite term exceeding in length the first period for which salary is payable.25 Not in-
Citusens' Brewing Co., 254 111. 215, OS N. E. 283, where the contract in litigation required a brewing company to furnish beer without limitation of time, the court said: "No time being fixed during which the agreement should continue in force, it was terminable at the will of either party. Davis v. Fidelity Fire Ins. Co., 208 111. 375, 70 N. B. 359; Orr v. Ward, 73 111. 318; Irish v. Dean, 39 Wis. 562." See also Ashley etc, Ry. Co. v. Baggott, 125 Ark. 1, 187 S. W. 649; Garlock v. Mots Tire Co., 192 Mich. 665, 159 N. W. 344, and cases of contracts of service in the following section.
13 Baurman v. Binsen, 16 N. Y. Supp. 342, and cases cited.
14 See Watkins v. Davison, 61 Wash. 662, 112 Pac. 743.
15 In Silrerthorn v. Fowle, 49 N. C. 362, a contract to tow a raft of timber provided that the raft was " to be ready when com was done." This was held too vague for enforcement.
16 Carnig v. Carr, 167 Mass. 544, 46 N. E. 117, 35 L. R. A. 512, 67 Am. St. Rep. 488; Oarlock v. Mots, etc., Co, 192 Mich. 665, 159 N. W. 344, 346, Newhall v. Journal Printing Co., 105 Minn. 44, 117 N. W. 228, 20 L. R. A. (N. S.) 899; Outerbridge v. Campbell, 87 N. Y. App. D. 597, 599,84 N. Y. S 537; Bailey v. S. S. Stafford, Inc., 179 N. Y. App. D. 811, 166 N. Y. S. 79; Kenderdine etc. Fuel Co. v. Plumb, 182 Pa. 463, 469, 38 Atl. 480. See further on the general question McKell v. Chesapeake R. Co., 175 Fed. 321, 99 C. C. A. 109; Willcox & Gibbs Co. v. Ewing, 141 U. S. 627,12 Sup. Ct. 94,35 L. Ed. 882; Kaufman v. Farley Mfg. Co., 78 la. 679, 43 N. W. 612,16 Am. St. Rep. 462.
17 In Tattereon v. Suffolk Mfg. Co., 106 Hub. 56, 58, the court said: "There was no express stipulation, either written or oral, which fixed the tune for the continuance of the employment of the plaintiff by the defendant. That element of their contract depended upon the understanding and intent of the parties; which could be ascertained only by inference from their written and oral negotiations, the usages of the business, the situation of the parties, the nature of the employment, and all the circumstances of the ease. It was an inference of fact, to be drawn only by the jury." See also Pfiester v. Western Union Tel. Co., 282 111. 69, 118 N.E. 407,409, stated infra, n. 24.
18 Lilley p. Elwin, 11 Q. B. 742; Williams 0. Byrne, 7 A. & E. 177; Beeston v. Collyer, 4 Bing. 309. Cf. Evans v. Roe, L. R. 7 C. P. 138; Levy 0. Gold-hill , 2 Ch. 297. But in the case of a domestic servant, by custom the contract is terminable by a month's notice or payment of a month's wages. See Moult v. Holliday , 1Q.B. 125.
19 Fortier v. Royal Canadian Ins. Co., 29 U. C, C. P. 363; Watson v. Miller, 23 U. C, Q. B. 217.
20 Warden v. Hinds, 163 Fed. 201, 90C. C. A. 449,25 L. R. A. (N. S.) 529; Carte v. Stevedore, etc., Co., 163 Fed. 2413; Lambie p. Sloes Iron & S. Co., 118
Ala. 427,24 So. 108; Clarke 0. Ryan, 96 Ala. 408,11 So. 22; St. Louis, etc., Ry. Co. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467; Fulkerson 0. Western Union Tel. Co., 110 Ark. 144, 161 S. W. 168; DeBriar v. Minturn, 1 Cal. 450; Davidson v. Laughlin, 13S Cal. 320, 68 Pac. 101; Kansas Pac. R. Co. v. Roberson, 3 Col. 142; Parks v. Atlanta, 76 Ga. 828; Phillips Lumber Co. 0. Smith, 7 Ga. App. 222; Davis v. Fidelity Fire Ins. Co., 208 111. 375, 70 N. E. 359; Speeder Cycle Co. 0. Teeter,
18 Ind. App. 474, 48 N. E. 595; Har-rod 0. Wyneman, 146 Iowa, 718,125 N. W. 812; Louisville, etc., Co. v. Offutt, 99 Ky. 427, 36 S. W. 181; Hudson 0. Cincinnati, etc., R. Co. (Ky.), 154 S. W. 47; McCullough Iron Co. 0. Carpenter, 67 Md. 554, 11 Atl. 176; Watson v. Gugino, 204 N. Y. 535, 98 N. E. 18; Martin 0. New York Life Ins. Co., 148 N. Y. 117, 42 N. E. 416 (Cp. Hotch-kisa 0. Godkin, 63 N. Y. App. Div. 468, 71 N. Y. Supp. 629); Milner 0. Hill,