
    Wilson v. Lile.
    In an action of assumpsit for wages, under a contract of hiring, the terms of the contract were in dispute. The servant testified that the contract washy the day at twenty-five cents an hour. The master testified that the contract-was hy the month, to work ten hours a day at twenty-five cents an hour. The servant denied that the length of the day was agreed upon. The defendant-requested the court to charge that, “if the jury find that the employment was for service for ten hours each day, and that the plaintiff worked only for a portion of the ten hours of each day, he canhot recover for the hours he did work, unless he was prevented from working hy the interference or neglect of the defendant.” The eourtrefused this request to charge and instructed the jury that, “ according to the contract, as stated hy the defendant, ten hours was to constitute a day; yet it provided that he was to he paid twenty-five cents an hour, and this was a qualification of that part of the contract calling for ten hours a day and entitled the plaintiff to recover for the time actually made.” Held, to he error.
    Jan. 23, 1889.
    
      Error, No. 192, July T. 1888, to O. P. No. 1, Pbila. Go., to review a judgment on a verdict for the plaintiff in an action of assumpsit for wages, at March T. 1886, No. 848.
    It appeared from the evidence that the plaintiff below was employed by the defendant as a tile layer. The narr, as originally filed, alleged a contract “ to pay him, the said plaintiff, for such services, certain wages at the rate of two dollars and fifty cents for a day of ten hours, and twenty-five cents an hour for every hour of work done o.ver and above said ten hours.” The bill of particulars set out the work in this way: “ Feb. 1. To ten hours’ work at Chestnut Hill at 25c., $2.50.” “March 1. To ten hours’ work at 25c., $2.50.” And the other entries were similar in form. The pleas were non assumpsit, set-off, and payment with leave.
    At the first trial, before Peirce, J., it appeared that the plaintiff included, in the ten hours, the time it took him to go to and from work. The court charged the jury that the plaintiff would not be required to travel in time outside of his working hours. The verdict and judgment were for the plaintiff. Reversed and new venire ordered. See 121 Pa.
    The plaintiff’s narr was then, by leave of court, amended by striking out, the words “of ten hours” and “of ten hours each” wherever they occurred, and also the words “ over and above said ten hours and inserting, in lieu of the latter, the words “ over time counting the same as time and half time.” The bill of particulars was amended to read as follows: “ Feb. 1. To one day’s wages, $2.50,” and the like to the end; and closing with this averment: “ Said wages being due the plaintiff from defendant upon an agreement made between plaintiff and defendant, wherein defendant agreed to pay plaintiff two dollars and fifty cents a day for tile laying, etc.” The plaintiff claimed also for thirty-five hours of extra night work.
    At the second trial, before Allison, P. J., the plaintiff testified that-he was employed by the day at $2.50 per day, that he left home at 5.45 a. m. to go to his work and left work when he could no longer see, as other mechanics did, making probably eight and a half hours or nine hours’ actual work; he admitted testifying on the former trial that he was to receive $2.50 for a day of ten hours, at the rate of twenty-five cents an hour, but said that that was a mistake, that that was the way the time was to be turned in, the defendant keeping his books in that way. Returns were made once a month, and wages were paid monthly. Plaintiff kept a memorandum book, in which he entered ten hours for each day; but he testified that he made the entries in this way at the defendant’s request. The defendant testified that the plaintiff was employed by the month, to work ten hours a day, at twenty-five cents an hour.
    The defendant submitted, inter alia, the following points, which were refused:
    “ 3. If the jury find that the employment was for service for ten hours during each day, and that the plaintiff only worked for a portion of the ten hours of each day, he cannot recover for the hours he did work, unless he was prevented from working by the interference or neglect of the defendant.” [1]
    “ 4. If the jury find that the employment was for service for ten hours during each day, the plaintiff having testified that he only worked from eight to nine hours a day, he is not entitled to recover wages.” [2]
    
      The court charged, inter alia, as follows :
    [“Now, though, according to the contract as stated by the defendant, ten hours was to constitute a day’s work, yet it provided that he was to be paid tWenty-five cents an hour. That is a qualification of that part of the contract calling for ten hours a day and •entitles the plaintiff to recover for the time actually made.] [3.] .[You will remember that the plaintiff claims to have worked until •dark, as long as he could see. Tf he did that, and the facts are for you, and he could not make ten hours a day, because the days were not long enough, it would be unreasonable to deny him pay for the time he did work, merely because he could not see to work ten full hours each day. If. he worked only eight or nine hours a day he is entitled to recover twenty-five cents an hour for the time he worked.] Í4-] . .
    . Yerdict for the plaintiff for $92.32, and judgment thereon.
    
      The assignments of error specified the action of the court, 1, 2, in refusing the points, quoting them; and 3, 4, the portions of the •charge given above, quoting them.
    
      Samuel S. Hollingsworth (Samuel W. Pennypacker, attorney for defendant, having been appointed Judge of Court of Common Pleas No. 2, of Philadelphia Co.), for plaintiff in error.
    A contract for service is an entire contract, and full performance must be shown before the plaintiff-is entitled to recover. Wood on Master and ■'Servant, 168, § 84; Smith on Master and Servant, 221.
    The court erred in assuming that payment at the rate of twenty-five .cents an hour was a' qualification of that part of the contract •calling for ten hours a day. Libhart v. Wood, 1 W. & S. 265 ; Singer v. McCormick, 4 W. & S. 265.
    The fact that the plaintiff worked until it was dark does not excuse him for not making ten hours a day. Impossibility of performance would probably relieve from a contract, but the question ■of impossibility or impracticability and, in general, the terms of the •contract, should have been left to the jury.
    
      J. Quincy Hunsicker., for defendant in error.
    There was no ■evidence in the case to which these points would apply. The ten-hour feature was introduced into the pleadings, as originally filed, throiigh the misapprehension of counsel, who mistook the monthly returns for plaintiff’s book account. Those returns were made for •the defendant’s accommodation and by his direction, to show the number of hours to be charged to the particular job. As it is •admitted that payment was to be made at the rate of twenty-five •cents an hour, that is really a qualification of any part of the contract requiring ten hours’ work.
    Feb. 18, 1889.
   Williams, J.,

The terms of the contract, under which the work claimed for in this case was done, were in dispute. The plaintiff in the court below alleged the hiring to be by the day ¡and denied that the length of the day was provided for. He testified ■as follows: “ No hours were mentioned. I was to work by the day. We worked as long as we could see.” The defendant, on the other-hand, testified that the hiring1 was by the month and that each day’s work was to consist of ten hours’ labor. The questions for the jury, therefore, were, first, what was the contract between the parties?' and, second, for what amount is the plaintiff entitled to recover-under its provisions ? The court was asked to say to the jury, by defendant’s third point, that if they should find the hiring was-by the day of ten hours each, the plaintiff could not recover for parts of days where his failure to work was not due to any interference or neglect of the defendant. This the court refused and, instead, laid down the following binding instruction : “ Now, though,, according to the contract as stated by the defendant, ten hours was to constitute a day’s work, yet it provided that he was to be paid twenty-five cents an hour. That is a qualification of that part of the-contract calling for ten hours a day and entitles the plaintiff to recover for the time actually made.” The court, by this instruction, disposed of the first question of fact and left nothing for the jury but the computation of the amount due upon the contract thus-found for them. This was error. Nor is it easy to see why the-third point should not have been affirmed. , If the defendant contracted to work ten hours each day, and, without any sufficient reason, disregarded his agreement, working only eight or six, or-whatever other number of hours he pleased, without regard to his contract obligation, he was in no position to sue upon a contract which he had steadily disregarded. An averment of substantial performance, or of readiness and an offer to perform, are necessary on the part of one who sues upon a contract. The terms of the hiring, under the evidence in this case, were for the jury, and, if found to be as assumed in the third point, the defendant was entitled, to the instruction prayed for.

Judgment reversed and venire facias de novo awarded.

H. J. L.  