Crawford v. Stewart

OPINION OP THE COURT BY KEMP, J. (Circuit Judge DeBolt, dissenting.) The two above entitled cases were tried together in the circuit court, the evidence offered being applicable to both cases. The plaintiff brought these suits originally in the district court of Honolulu to recover of each of the defendants the sum of ten dollars for services for the month of December, 1917, in hauling the defendants from Honolulu to the Waipahu school and return. Each defendant tendered five dollars into court and plead a prior tender of a like amount. The judgment of the district court was for the amount tendered. The plaintiff appealed to the circuit court and trial was there had jury waived and a like judgment rendered. The plaintiff is here upon writs of error and has assigned the following errors: (1) The court erred in holding and deciding that the contract sued upon by implication contained an understanding between.the parties thereto that although a contract from month to month it was to he a contract for only approximately a half month during the month of December, 1917; (2) the court erred in entering judgment for the defendants as aforesaid, and (3) the court erred in denying the plaintiff’s motion for a new trial duly made and heard in open court on June 17, A. D. 1919. The motions for new trial are not brought up and the assignments complaining of their denial cannot therefore be considered. An examination of the evidence is necessary to a de — 228 — termination of the questions presented by the other assignments of error. It appears from the evidence that the defendants were in 1917 school teachers residing in Honolulu and teaching in the Waipahu school; that shortly prior to the 1st day of November, 1917, the defendant Jennie Stewart and another teacher, Miss Ruth Mossman, by telephone engagement met the plaintiff, Mrs. Crawford, at the Palace of Sweets in Honolulu and entered into an agreement with her to carry them from Honolulu to Waipahu and return five days out of the week at the rate of ten dollars per month, no mention being made of the length of time the service was to be performed. This contract or agreement was made in behalf of five “girls or women” who were teachers of the Waipahu school, and in behalf of one who. was teacher of the Pearl City school and who was to pay but eight dollars per month. Nowhere in the evidence does it appear that Miss Stewart and Miss Mossman, or either of them, were authorized to represent the other defendant, Mrs. Feeley, or that the terms of the contract or arrangement made by them with the plaintiff were approved by her or were ever communicated to her. It affirmatively appears that the plaintiff never spoke with Mrs. Feeley of the matter. It also appears that at the time Miss Stewart and Miss Mossman made the agreement with the plaintiff it was agreed that the plaintiff would have the agreement reduced to writing and presented to them for signatures; that the writing was never produced but that on several occasions some of the girls asked plaintiff about it and were told that it was not yet ready. It appears that the defendants in company with the other teachers were carried to and from school at Waipahu through the month of November 1917, for which they each at the end of said month paid the plaintiff the sum of ten dollars; that all of the said teachers continued to — 229 — be carried by the plaintiff np to and including the 14th day of December, 1917, when the Christmas holidays began; that some time between the 14th day of December, 1917, and January 1, 1918, each of the defendants tendered to the plaintiff the sum of five dollars for her services up to and including December 14, which was refused. It also affirmatively appears that at the time of making the agreement no mention was made of the Christmas holidays. At the conclusion of the evidence the court said: “There is no question but that the contract was made between the two parties for passage' five days out of the week at the rate of ten dollars a month. There is further no question about the fact that no mention was made whatever of any holiday, or the Christmas holidays particularly. So there being no dispute as to the facts it is simply a question of law as to the effect of such a contract and its binding force.” Judgment was thereupon rendered that plaintiff have and recover from each defendant the sum of five dollars which said sum of money is deposited with and in the custody of the clerk of the circuit court and that the defendants and each of them have and recover from the plaintiff her costs herein. The plaintiff contends that the contract entered into, as shown by the foregoing facts, was one for services to be rendered from month to month and that the service having commenced for the month of December the contract could not be terminated prior to the end of the month except by mutual consent of the parties. If plaintiff is correct in her contention that the contract was one for service to be rendered from month to month then she is correct in her further contention that the contract could not be terminated prior to the end of the month without her consent. On the other hand, if it was a — 230 — contract of employment for an indefinite period, it could be terminated at will by either party. In 26 Cyc. at 980, 981, the law on this subject is stated as follows: “A contract of service for a definite period terminates by its own terms at the end of such period, and where the hiring is by the day, or from month to month, either party has a right to terminate it at the end of any particular day or month, but a contract from month to month can be terminated only at the end of a month except by consent. * * * A contract of employment for an indefinite term may, in the United States, be terminated at the will of either party.” The fact upon which plaintiff relies as establishing her contention that the contract involved in these cases is a contract for services to be rendered from month to month is that the services were to be paid for at the rate of ten dollars per month, her contention being in effect that from this fact alone it will be inferred that the contract was for a month and having entered upon a second month the contract could not be terminated except at the end of the month without her consent. This is a very important question in this case — in fact is decisive of the question involved — and we do not find that it has ever been decided in this jurisdiction. However, there are many American decisions on the question which we have examined as carefully as we are able to do and conclude that plaintiff’s contention is not in accord with the weight of American authority. In 26 Cyc. 974, the rule is thus stated: “In the United States a general or indefinite hiring is presumed to be a hiring at will, in the absence of evidence of custom, or of facts and circumstances showing a contrary intention on the part of the parties. While it is generally held that the fact that a hiring at so much per day, week, month, quarter, or year raises no presumption that the — 231 — hiring was for such a period, but only at the rate fixed for whatever time the party may serve, yet the rate and mode of payment are often determinative of the period of service, and in some cases it has been , held that they do raise a presumption as to the period of service.” Wood, in his work on the Law of Master and Servant, Sec. 131, after stating the English rule to the effect that a general hiring or a hiring by the terms of which no time is fixed is a hiring for a year, and concluding that the rule of the English courts to this effect has no application to similar questions in our courts, says: “With us the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will and if the servant seeks to make it out a yearly hiring the burden is upon him to establish it by proof. A hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring and no presumption attaches that it was for a day even but only at the rate fixed for whatever time the party may serve. It is competent for either party to show what the mutual understanding of the parties was in reference to the matter but unless their understanding was mutual that the service was to extend for a certain fixed and definite period it is an indefinite hiring and is determinable at the will of either party, and in this respect there is no distinction between domestic and other servants. But when from the contract itself it is evident that it was the understanding of the parties that- the time was to extend for a certain period, their understanding, fairly inferable from the contract, will control. * * * So where the contract is for work at so much a day for one month or any other period or at so much a month for six months, no time being fixed for payment, full performance is a condition precedent to a right thereto. But if there is any special custom applicable to the business by which payment becomes due — 232 — weekly, monthly or otherwise, the parties will be presumed to have contracted with reference thereto and payment must be made in accordance therewith, but such custom must be certain and well defined. But a contract to pay one eight hundred dollars a year for services is not a contract for a year but a contract to pay at the rate of eight hundred dollars a year for services actually rendered and is determinable at will by either party. Thus it will be seen that the fact that the compensation is measured at so much a day, month or year does not necessarily make such hiring a hiring for a day; month or year but that in all such cases the contract may be put an end to by either party at any time unless the time is fixed and a recovery had at the rate fixed for the services actually rendered.” In the case of Howard v. E. Tenn. V. & G. Ry. Co., 91 Ala. 268 (8 So. 868), it was held that a contract whereby a person hired at a certain amount per month to travel and work for a railroad to induce capitalists to make investments along its line and to induce excursionists to travel over its road, not being for any definite period of time, is terminable at any time by either party. In Kansas Pacific Ry. Co. v. Roberson, 3 Colo., 142, which was a suit by Roberson, against the railway company to recover $3000 alleged to be due him from the company as its agent on the Pacific Coast, the facts were that in the summer of 1870 one Moffat was in San Francisco and received a. telegram from the president of the Kansas Pacific Railway Company asking him to look out for a suitable person for agent of the company. Moffat telegraphed back recommending Roberson. After Moffat returned to Denver he telegraphed Roberson at the instance of the officers of the company asking what salary he would require. Roberson replied $3000' per annum. On the 20th of September, 1870, Roberson received — 233 — a telegram from the general superintendent of the company as follows: “Will engage you to commence October 1st; the general ticket agent, R. G. Grinnell, will send you. instructions by that date.” Roberson subsequently received instructions as to his duties and entered upon his employment October 1. In February, 1871, Roberson received a letter from the general ticket agent of the company stating that the company had concluded to discontinue the San Francisco office after March 1, 1871, and discharging him effective upon that date. It appeared that Roberson had received from the company $1250 for five months’ service and that after March 1, 1871, he had worked for other parties at a compensation of $150 per month until October 1, 1871. It does not appear from the evidence that in Roberson’s correspondence with any of the officers of the company any period of service was fixed. It was contended by Roberson that these facts show a yearly hiring. In discussing this question the court said: “If now we advert to the situation of the parties, which is also a circumstance to be considered where the intention is not clearly expressed, we find nothing to support- the theory that the contract was to continue for a year. Appellant was about to open an office in a distant city for the purpose of selling tickets and securing traffic over its road, and whether it would be profitable to maintain the office could not then be known. An intention to keep the office open for a definite time was not expressed and it is not reasonable to suppose that appellant intended to do so if it should result in loss. * * * In all that took place between the parties and the circumstances under which they acted there is nothing to show a contract for a year unless it can be inferred from the answer of appellee to Moffat’s telegram, and that, we think, cannot be done. * * * As to the English rule that a general hiring shall be taken — 234 — to be a hiring for a year (2 Chitty’s Contracts, 841) we have not found any American case which recognizes it and we think it has not been adopted in this country.” In Greer v. Arlington Mills Mfg. Co., 43 Atl. (Del.) 609, the plaintiff Greer alleged that he entered into a contract or agreement with the defendant company on March 17, 1886, under which he was to receive $5000 a year for his services as manager of said company; that he did act as manager from March 17, 1886, up to about the last of the year 1898, at which time he was discharged by the defendant company without any sufficient cause and without any fault on his part. He contended that the general hiring in 1886 was a hiring for the period of one year, and having continued to render the same service after the first year it became a hiring from year to year. He insisted that having been discharged in December, 1896, when the year would not have expired until March 17, 1897, he was entitled to recover that proportion of the salary for a year which the time from the date of discharge until March 17, 1897, bears to the whole year. The answer of the defendant was that the hiring was for an indefinite period and it therefore had the right to terminate the employment at will. The court, after discussing and disapproving the English rule to the effect that where there is a general hiring and nothing is said as to its duration the contract is understood to be for a year, quoted with approval from Wood, Law of Master and Servant, the paragraph above quoted by us, and concluded that the hiring in that case was a general hiring and terminable at the will of either party. Edwards v. Railroad Co. 121 N. C. 490, was an action for the recovery of an alleged balance of salary due the plaintiff as general storekeeper for the defendant. The contract of employment of the plaintiff by the defendant was contained in a letter dated July 10, 1894, addressed — 235 — to the plaintiff by tbe general manager of tbe railroad company, the material part of wbicb is as follows: “I. beg to advise that yon have been appointed general storekeeper for tbe system to take effect July 15. Yonr salary will be eighteen hundred dollars a year.” Tbe court in construing this contract said: “The contract before us is not specific as to tbe term of service, — certainly not so expressed in tbe Avriting. Tbe plaintiff does not so insist but says a reasonable construction thereof leads to tbe conclusion that the parties intended a one year term of service. We are not able to see that such was their intention. It seems reasonable that if they bad so intended they would have expressed themselves in more definite and explicit terms on so important a feature of their agreement. Why they were not more definite we cannot tell. They may or may not have bad reasons for leaving tbe writing as it is or they may not have called their minds to that feature of tbe contract. It does not seem unreasonable that tbe parties intended that tbe service should be performed for a price that should aggregate the gross sum annually leaving tbe parties to sever their relations at will for their own convenience. All business men' knoAV they can make legal contracts to suit themselves, also tbe importance of saying what they mean in business matters in plain and definite terms.” Evans v. Railroad Co., 24 Mo. App. 114, involved a claim on the part of tbe plaintiff that be bad been employed for a month and that bis employment was from month to month. Tbe court in this case sets out the plaintiff’s own evidence, wbicb is in effect that tbe party representing tbe defendant company who employed him did not state that be was being employed for a day or for any length of time; “be did not say whether it was for a day or month or year or what time.” He also testi — 236 — fied that “when the contract was made he did not say from when it ran, from the first, may be, or from the tenth, or otherwise. I agreed to work my month out for f 115 a month.” He further said: “There was never any distinct agreement between me and Mr. Harris as to the length of time I was to be employed nor as to when my employment began or when it ended.” In response to a question by the court he said: “All the contract as made by ,Mr. Harris was f 115 a month. Didn’t say when it started or when it was to end.” After referring to decisions from other states to the effect that if the payment of a monthly or weekly wage is the only circumstance from which the contract is to be inferred it will he taken to be a hiring for a month or a week the court cited and followed other Missouri cases holding that an indefinite hiring at so much per day, per month or per year is a hiring at will and may be terminated by either 'party at any time. We have quoted at length from the decisions on this question because of the importance of the question involved hut it does not seem necessary to do more than cite other cases to the same effect without quoting therefrom. Booth v. India Robber Co., 36 Atl. 714; Railroad Co. v. Offutt, 36 S. W. 181; DeBriar v. Minturn, 1 Cal. 450; Prentiss v. Ledyard, 28 Wis. 131; Copp v. Coal & Iron Co., 46 N. Y. S. 542; Kirk v. Hartman & Co., 63 Pa. St. 97; Finger v. Brewing Co., 13 Mo. App. 310; Haney v. Caldwell, 35 Ark. 156, 168. There have been several American cases cited by the plaintiff which maintain a different principle from that so strongly affirmed and clearly recognized in the authorities above quoted and cited. They are to the effect that when a contract for services is made at so much per month without any agreement as to the duration of the service the intention of the parties to contract for — 237 — that period of time will be inferred. We have no doubt that the great preponderance of the best considered cases in this country recognize and affirm the rule laid doAvn by Wood in his work on Master and Servant and which he terms the American rule, and we therefore hold that a hiring at a certain sum per month, no time being specified, unaccompanied by any facts or circumstances'or any proof from Avhich a different intention may be inferred, and Avhen the testimony as to the contract is, as in this case, not conflicting, is an employment for an indefinite term and not for a month, and terminable at the will of either party. Such, according to the testimony of the plaintiff, Avas the contract with Avhich we are now dealing. She testified that the contract was for ten dollars a month and made no mention of any period of time Avhich the contract was to run. Other witnesses testified in the case and no attempt was made to prove any fact from which in our opinion the intention of the parties to contract for a definite period of time could be inferred. Plaintiff’s counsel in their able brief have cited two HaAvaiian cases to the effect that contracts are to be interpreted according to the intention of the parties as they have expressed it and that words in a contract are to be construed in their plain and ordinary meaning, and Avhere a meaning can be derived from them without the interpolation of other words this meaning must be received as the one intended by the parties. If the parties Avere desirous of making a contract for a definite period of time there was nothing to prevent them from including such term in their contract. They have failed to do this and Ave see no reason why we should ingraft upon the contract a term Avhich the parties have failed to include in it. We think the more reasonable rule is the one Avhich we have adopted, that is, where no term has been — 238 — specified for the contract to run none will be inferred from the mere fact that payment is to be so much per month hnt will be a contract terminable at the will of either party. The amount tendered by the defendants to the plaintiff prior to the institution of the suit and again tendered in court was sufficient to meet the obligation resting upon them to pay for the services at the rate agreed upon. J. W. Gath cart and B. 8. Ulrich (Thompson & Gathcart on the brief) for plaintiff. G. K. French for defendants. We therefore hold that the court committed no error in rendering the judgments under consideration. The judgments are affirmed.