§ 1289. "We now propose to consider the contract of hiring and service as between master and servant.1 Their rights and duties as principals and agents are not peculiar, and have already been considered under the head of agency.
§ 1290. And in the first place, as to the term of service for which the contract is made. Where there is a general hiring, nothing being said as to its duration, and no stipulation as to payments being made which may govern its interpretation, the contract is understood to be for a year; and the reason for this rule is said to be that both master and servant may have the benefit of all the seasons.2 This rule applies to the hiring of all menial and household servants, trade servants, reporters of newspapers, servants in husbandry, etc.3 But there is no inflexible rule that an indefinite hiring is for a year; it is a question for the jury in each case.4 A hiring for an indefinite time is only at will, and an agent under such a hiring may be discharged without notice.5
1 The reader is referred to a very clever little treatise on the "Law of Contracts for Works and Services," by David Gibbons, Esq., published in London. It forms one of a series of small " rudimentary treatises " on various subjects of art and science, and in an unpretending form contains much valuable and carefully digested matter.
2 Per Best, Ch. J., in Rex v. Macclesfield, 3 T. R. 76; Rex v. Newton Toney, 2 T. R. 453; Rex v. Seaton, Cald. 440; Beeston v. Collyer, 2 C. &P. 609; 4 Bing. 309.
3 Holcroft p. Barber, 1 C. & K. 4; Baxter v. Nurse, 1 C. & K. 10; 6 M. & G. 941.
4 Fairman v. Oakford, 5 H. & N. 635 (1860). See Todd v. Kerrich, 8 Exch. 151.
5 Kirk v. Hartman, 63 Penn. St. 97 (1869).
§ 1291. Where wages are payable at a stipulated period, as per week, or month, or half-year, such circumstance, standing alone, indicates that the hiring is for such period.1 But if there be any thing in the contract showing that the hiring was intended to be for a longer term, as for a year, the mere reservation of wages for a lesser term, as per week or month, will not control the hiring.2 Thus, where a farm servant was hired for a year, at three shillings a week, with liberty to go at a fortnight's notice, it was held to be a hiring for a year, the fortnight's notice plainly showing that it was not a weekly hiring.3 So, also, where the plaintiff was engaged as editor of a review, at three guineas a week, with a progressive increase of salary according to the sale of the review, and a custom was made out by which the engagements • of editors to newspapers were considered as annual engagements unless otherwise expressed, the question was left to the jury, and they having found a verdict that the engagement was not for a year's service, but only for a weekly service, the court refused to disturb the verdict; on the ground that the general rule that contracts of hiring were for a year when no definite arrangement of time was made, only created a presumption which could be rebutted by the circumstances of the case.4
§ 1292. Again, although a power of defeasance by either party at a certain notice be given,5 either by custom or agree-
1 Rex v. Newton Toney, 2 T. R. 453, per Buller, J.; Rex v. Odiham, 2 T. R. 622; Rex v. Hampreston, 5 T. R. 205; Rex v. Lambeth, 4 Maule & S. 315; Rex v. Pucklechurch, 5 East, 384; Bayley v. Rimmell, 1 M. & W. 507; Baxter v. Nurse, 7 Scott, N. R. 801.
2 Fawcett v. Cash, 5 B. & Ad. 908; Rex v. Hampreston, 5 T. R. 205; Rex v. Great Yarmouth, 5 Maule & S. 114; Rex v. Newton Toney, 2 T. R. 453; Rex v. St. Andrew in Pershore, 8 B. & C. 679; Callo v. Brouncker, 4 C. & P. 518; Giraud v. Richmond, 2 C. B. 835; Reab v. Moor, 19 Johns. 337; Davis v. Maxwell, 12 Met. 286.
3 Rex v. Birdbrooke, 4 T. R. 245.
4 Baxter v. Nurse, 1 C. & K. 10; s. c. 6 Man. & G. 935; Holcroft v. Barber, 1 C. & K. 4.
5 Where the employer sells out his business before the term of service has expired, without notice to or knowledge by the servant, he will still be liable for wages until the discharge or expiration of the term of the latter, unless before that time the servant becomes informed of the change, ment, or although the contract be made defeasible on the happening of a certain event, the hiring may, nevertheless, be a yearly hiring, unless that power be exercised, or the contingency happen and be acted on, so as to give a settlement under the poor-laws.1
§ 1293. The following contracts have been held to be hir-ings for the week. The hiring of a gardener, "at 6s. a week for the winter, and 9s. a week for the summer;" 2 of a maidservant, "at Is. Ad. a week, and board and lodging, for as long as they wanted a servant;" 3 and of an assistant plumber and glazier, "at 6s. a week wages, board, lodging, and washing, summer and winter." In respect to such cases it has been said: "The mere arrangement that the wages shall be at one rate in the summer, and at another in the winter, does not show that the parties contemplated a service to endure through the summer and the winter, and, therefore, that they intended a hiring for a year; but shows only that they intended that if the servant, being hired at weekly wages, should remain till the summer, he should then have so much per week, and, if he should remain till the winter, he should then have so much per week. The true meaning of such an arrangement is merely this: that the servant's wages, as a weekly servant, are to be regulated by the season."4 The question in all these cases is purely one of intention.
§ 1294. The presumption of a yearly hiring does not arise where the service of the servant is expressed to be at the will of either party; as where a boy was hired by a farmer "for meat and clothes, so long as he had a mind to stop." 5 And and continues under the vendee. Perry v. SimpsonManuf. Co., 37 Conn. 520 (1871).
1 Rex v. Sandhurst, 7 B. & C. 562; Rex v. Byker, 3 Dowl. & Ry. 336; Rex v. The Inhab. of Birdbrooke, 4 T. R. 246; Rex v;. Great Yarmouth, 5 Maule & S. 114. See Emmens v;. Elderton, 4 H. L. C. 624; 26 Eng. Law & Eq. 1.
2 Rex v. Rolvenden, 1 Man. & R. 691.
3 Rex v. Elstack, 2 Bott, 203, pl. 264.
4 Rex v. Rolvenden, 1 Man. & R. 691. See, also, Rex v. Dodderhill, 3 Maule & S. 243; Rex v. Lambeth, 4 Ib. 315.
4 Rex v. Christ's Parish, 3 B. & C. 459. See, also, Rex v. Great Bowden, 7 B. & C. 249; Rex v. Elstack, 2 Bott, 203, pl. 264. As to what where there is no evidence of a hiring, but occasional payments have been made by the master, not at fixed and definite periods, the hiring will be considered as at will,1 if, indeed, it be considered as any hiring at all.2 words will create a yearly hiring, see Emmens v. Elderton, 4 H. L. C. 624; 26 Eng. Law & Eq. 1.
1 Bayley v. Rimmell, 1M.&W. 506.
2 Rex v. St. Matthew, 3 T. R. 449.