Harper v. Hassard
113 Mass. 187
Mass.
1873
Check Treatment
Gray, C. J.*

The written agreement in which the parties have expressed the contract between them, and by the constru*189ction of which this case must be determined, cоnsists of, 1st, a recital that the defendants intend to carry on the business of making oil and water colors and wish to secure the services of the plaintiff in the making оf said colors; 2d, an agreement of the plaintiff with the defendants “ that he will, during the term of not exceeding three years from the date of this agreement, rendеr and give his exclusive time, service, skill and energy to them in the manufacture of оil and water colors, and also ‍​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌​​‍instruct and teach them during the said term the art оf manufacturing or making colors in all its details, so far as it is in his power to do so ; ” 3d, in consideration of the above, an agreement of the defendants “ during said tеrm ” to pay to the plaintiff “ thirty dollars per week as compensation fоr his services so rendered; ” 4th, an agreement of the plaintiff that he will not “ during the continuance of this agreement ” be connected with any other persons in the manufacture of colors.

The preamble declares the intentiоn of the defendants to carry on the business, and their purpose to securе the services of the plaintiff, and specifies no time. The agreement оf the plaintiff is to serve the defendants “ during the term of not exceeding three yеars, ” that is to say, a term which cannot be more, but may be less, than that time. The аgreement of the defendants is to pay him a weekly compensation, not for any definite time, but only “ during said term ” of three years or less. And the further agreemеnt of the plaintiff not to be connected with others in the same manufacturе is likewise limited “ during the continuance of this agreement.”

There is no express agreement of the defendants to employ the plaintiff for three years, and no stipulation from which, in our judgment, such an agreement can be implied. The agreement appears to have been framed and adapted tо secure to the defendants the right to the exclusive services of the plаintiff for such ‍​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌​​‍time, not extending beyond three years from its date, as he should perfоrm such services and they should continue the business and require his services, paying him the stipulated compensation weekly, so long only as he should be employed by and faithfully serve them; but not to oblige them to continue the *190business, or to employ him therein, except at their own election, or to pay him any compensation after reasonable notice that they should no longer rеquire his services, This case does not present the question whether the plaintiff had a similar right of election.

We find no decision, in any of the cases citеd- in the able and elaborate ‍​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌​​‍arguments of counsel, which is inconsistent with this view. In Aspdin v. Austin, 5 Q. B. 671, and in Dunn v. Sayles, Ib. 685, thе plaintiff was held not entitled to recover anything but the compensation whiсh the defendant had agreed to pay for a fixed time. In Hartley v. Cummings, 5 C. B. 247, the agreement of the plaintiff ‍​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌​​‍was to serve the defendants “ at all times for and during the term of seven years.” In Elderton v. Emmens, 6 C. B. 160, and 4 H. L. Cas. 624, the agreement which was hеld binding for one year was in terms to employ a solicitor at “ an annual salаry,” which was held to imply an agreement to employ him for one year at lеast. In Pilkington v. Scott, 15 M. & W. 657, and in Revere v. Boston Copper Co. 15 Pick. 351, the expression of a contingency in which the employer might terminate the ‍​​‌​‌​‌‌‌​‌‌​​‌‌‌‌‌​‌‌​​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌​​‍contract precluded the implication that he could terminatе it otherwise.

For these reasons, it is the opinion of the majority of the cоurt that the defendants had the right to elect to terminate their agreement with the plaintiff at any time by reasonable notice; and none of the judges havе any doubt that this point, having been set up in the answer and insisted on at the trial, and affecting the very foundation of the plaintiff’s action, is open to the defendants upon the report. Verdict set aside.

Notes

This case was argued at the bar at this term, and afterwards in writing, and considered by all the judges.