134 Mich. 381 | Mich. | 1903
This is an action for breach of contract. Defendant was the owner of the tug Argyle, and for a portion of the sailing season of 1899 plaintiff was acting as captain of said tug. At the close of his employment that year, he visited the office of the defendant for the purpose of obtaining wages due, and claims he made a contract with the defendant to act as captain of said vessel for the season of 1900. He became master of said vessel on the 7th of April, 1900, and continued in that capacity until the 16th day of May, when he was discharged. Defendant denies any contract for the season was entered into, and claims plaintiff was engaged at a specific rate of wages per month, under contract made at a later date ■with defendant’s superintendent. • The case was tried by a jury, who returned a verdict in favor of the plaintiff for $407.40. A motion was made for a new trial, which motion was overruled. The case is brought here by writ of error.
It is claimed that, because of a variance between the
It is said, as the contract could not be performed within a year, it comes within 3 Comp. Laws, § 9515. In the course of the trial, it was agreed between counsel that the meaning of the words ‘ ‘ season of navigation ’’ — the generally accepted meaning — -is, and also by custom, that the season of navigation begins on the 1st day of April and ends on the 5th of December. The testimony also discloses that the season closed with the Argyle the year before on the 13th of November, and the contract, if one was made, was made the day thereafter. We think, in view of this record, it cannot be said it was an ‘ ‘ agreement that by its terms is not to be performed in one year from the making thereof,” within the meaning of the statute. See cases in note to statute. Smalley v. Mitchell, 110 Mich. 650 (68 N. W. 978).
It is claimed the testimony does not establish a contract for the season. There was a conflict in the testimony. The jury evidently believed the plaintiff’s version of it. If true, it showed a hiring for the season of 1900.
It is said the verdict was contrary to the evidence and the charge of the court; that it should have been either in
Judgment is affirmed.