
    Charles W. Sines v. The Superintendents of the Poor for Wayne County.
    [See 55 Mich. 383.]
    
      Contract of hire — Statute of frauds — Parties.
    .1. Where, under a contract for a year’s service the employee has gone on from year to year and at the end of a year is allowed to go on without objection, a presumption arises which will warrant a jury in finding that the parties to' the contract have assented to its continuing in force for another year. And the Statute of Frauds does not apply to defeat it.
    2. One who has engaged in his own name to furnish his own services and those of his wife can sue on the contract in his own name; as his wife is not a party thereto and her earnings under it belong to her husband, she need not be joined as plaintiff.
    Error to Wayne. (Jennison, J.)
    Nov. 10.
    Nov. 19.
    Assumpsit. Defendants bring error.
    Affirmed.
    
      
      John AtJcinson for appellants.
    
      Ervin Palmar for appellee.
   Champlin, J.

This suit is brought by Mr. Sines against the superintendents of the poor of Wayne county, to recover damages for not having been retained in their employment for the remainder of the year, commencing October 1, 1SS2, after February 1,1SS3. His declaration contains two special counts.

In the first he alleges that the defendants promised and agreed with him that if he would undertake to perform the duties of keeper of the Wayne county almshouse, and would cause his wife to perform the duties of matron of the same, from the first day of October, 1882, to the first day of October, 1883, they would pay him $800 when requested, and would furnish him during the year house-rent and board for himself and wife, and keep and board for his horse, in consideration of which he agreed to perform the duties of keeper, and to have his wife perform the duties of matron ; and they entered upon and performed said duties up to February 1, 1883, and were willing to continue, but the defendants on that day, without just cause or provocation, refused further to allow them to perform such duties, or to pay him for their further services, or to furnish house-rent and board for himself and wife, or to keep and board his horse, whereby he has been deprived of profits, etc., and was compelled to remain wholly out of business for eight months, although he diligently sought to again get into business and employment, and to procure employment for his wife, and was put to great trouble and expense in and about procuring a house suitable to live in, and in keeping and boarding his horse.

The second count avers the promise to be to pay him what his services would be reasonably worth, and to furnish house and board for himself and wife, and keep and board for his horse. No question arises under the second special count, or under the common counts, which were also added to the declaration. The plea was the general issue.

On the trial the plaintiff testified in his own behalf that he had been in the employ of the defendants, commencing February 1, 1875, and was their clerk from that time until August 18, 1877, and understood their manner of doing business during that time ; he entered into negotiations with and made a contract with the board; that lie was employed in August, 1877, to take charge of the almshouse as keeper; that he was to have $800 per year, and the keeper’s house was to be furnished to live in, and he was to have his living. The plaintiff then read in evidence, from the defendants’ record, the following resolutions:

“ Wayne County, November 10th, 1880.
At a session of the superintendents of the poor: — present: Messrs. M. Dunn, J. Guthardt, and J. C. McDonald: — the undersigned, superintendents of the poor, have this day elected C. W. Sines as keeper of the Wayne county almshouse, for the year ending 1881, at a salary of eight hundred dollars per year.
Wayne County Almshouse, January 4th, 1882.
Resolved, by the board of superintendents of the poor in and for Wayne county, at one of their regular sessions, held at .their office at the almshouse in said county on the 4th day of January, 1882, that C. W. Sines and wife, the present keeper and matron, be, and they are hereby, reappointed keeper and matron of said almshouse for and until the first day of October, 18S2, at the rate of eight hundred dollars per annum.”
[Signed, the three superintendents.]

The plaintiff further testified that during the year preceding the resolution of January 4,1882, he did the duties of keeper, and his wife the duties of matron, and received $800 a year, and had the house and living, and had the keeping of a horse, together with his care and grooming ; that the contracts were always made with him, and no contracts were made with his wife; that the fiscal year and his services by contract ended on September 30th; that just prior to the expiration of the year, he made inquiry of the president of the superintendents as to whether they desired him to remain another year; that he wanted to know, as his houses were both occupied, and lie wished to know, on account of letting his farm the next year; and if they did not want him another year, he wanted to leave when his time was out. The president informed him that he would bring the matter before the board, and in the mean time that he should go on and perform his duties the same as before. Payments for his services had been made monthly, and defendant and wife continued to perform the duties of keeper and matrcs until in January, 1883, and the usual monthly payments for services were made, and nothing was done about terminating his employment until January 3,1883, when the following notice was served upon defendant, namely :

“Wayne County Almshouse, January 3rd, 1883.
Charles W. Sines: Take notice, that your-services as keeper and your wife as matron of the Wayne County Almshouse will not be required after the 1st day of 'February, 1883. You will therefore leave the premises, and deliver up the keys and possession of the county property belonging to said almshouse into the hands of the superintendents of the poor. They have this day appointed S. D. Curtis and his wife as keeper and matron of said Wayne County Almshouse in your stead. Daniel Siiannahan,
John J. Yrooman,
Superintendents of the Poor.”

Defendant continued in service until February 1,1883, and then delivered up the keys to the superintendents, under protest, and endeavored to find work elsewhere during the remaining eight months of the year, but only partially succeeded, having earned only $101 during the time. It will bo observed that no reason is stated in the notice for discharging defendant, and none was offered o'r proved upon the trial.

It is urged by defendants that the contract claimed by the plaintiff is void by reason of the Statute of Frauds ; that the talk with the president in September, to continue work until he had laid the matter before the board, was a contract not to be performed within a year. But this is an erroneous view of the testimony. The contract had been previously made for a year’s service, and under that contract defendant had gone on from year to year, and in such cases, if nothing is-said or done by either party at the end of the year to terminate it, but on the contrary, the person performing service is allowed to continue on without objection, the facts raise the presumption from which the jury hare found that both parties have assented to the contract continuing in force for another year. Tatterson v. Suffolk Manuf’g Co. 106 Mass. 56. The case of Tallon v. Grand Portage Copper Min. Co. 55 Mich. 147, as was said by us when the case was here on a former occasion, rules this case upon the point under consideration.

It is also claimed that the wife of plaintiff should have joined as plaintiff in the action. There is no merit in this point. She was not a party to the contract, and her earnings, whatever they were, as matron, belonged to the plaintiff. Harrington v. Gies 45 Mich. 374.

Upon the question of damages we discover no error in the record.

The judgment of the circuit court is affirmed.

The other Justiees concurred  