
    Earl C. White vs. Thomas G. Atkins.
    One who agrees to work for another a year for a certain sum named, payable monthly, if the former wishes, may at any time during the year demand payment of the wages due him for the entire months then elapsed; and his right to monthlj payments is not waived by neglecting to demand the same monthly.
    This was an action of assumpsit for work and labor, in which the plaintiff declared generally, and also on a special contract, signed by both parties, which was as follows: “ Boston, 6th February, 1849. Articles of agreement made between Thomas G. Atkins and Earl C. White. Said White is to carry on my farm at Bedford from 1st April, 1849, to 1st April, 1850; and the said White and wife is to have for his and her services the use of the house and furniture, all fire-wood needed, and also to have $150, one hundred and fifty dollars, per year, payable monthly, if he wishes; also the provisions and board, the help and washing that are needed; also his children.”
    The defendant pleaded the general issue, and specified in defence, that “ the plaintiff entered into a written contract with the defendant to work for him for the term of one year from the first day of April, 1849, to the 1st day of April, 1850; and long before the expiration of said term, the plaintiff left the employ and work of the defendant, without justifiable cause, and against the wishes and without the consent of defendant.”
    At the trial, which was in the court of common pleas, before Hoar, J., the plaintiff produced the contract declared upon; and introduced evidence, that he entered upon the performance of his contract at the time stipulated, and continued his labor on the farm until the 8th of July, 1849, during which period he never expressed any wish to receive his pay monthly, and that on the last named day he demanded his pay, and left the defendant’s service under the following circumstances: The defendant carried on business in Boston, but usually went out to his farm at Bedford on Saturday afternoons, returning to Boston on the Monday morning following. He was making improvements on his farm, employing for that purpose a number of persons, who boarded with the plaintiff in the defendant’s house. On or before the 8th of July, 1849, the plaintiff, while at breakfast, (having taken offence at a letter previously received by him from the defendant,) demanded payment of the amount due him, saying, that if the same was not paid by twelve o’clock of that day, he should leave and make cost. The defendant declined paying then, alleging that he had not the means, but was unwilling that the plaintiff should leave The plaintiff did in fact leave, with his family, on the same day, at noon, and this action was brought to recover the sum alleged to be due to the plaintiff on that day, for his monthly wages under the contract.
    It was in evidence, on the part of the defendant, that on the day after the plaintiff had left his employment, the plaintiff called at the defendant’s counting-room in Boston, and the defendant then offered him a check for the amount due him, but that the plaintiff refused to accept the same, unless the defendant would discharge him from the contract, which the defendant declined doing. The defendant had brought an action, which was then pending, for the plaintiff’s breach of contract, in leaving his service before the expiration of the year.
    The defendant contended, that this was an entire contract, and the plaintiff was not entitled to recover until he had performed his part thereof, unless the defendant had unreasonably neglected or refused to perform all his engagements, and thereby rescinded the contract; that the plaintiff, having failed to request his payments monthly, had thereby waived his right to do so, and the defendant was under no obligation to pay until the end of the year; or, if that ground was not tenable, that the plaintiff could not demand his payment until the expiration of the month of July, nor even then, without giving reasonable notice, that at the end of that month he should require payment; and that therefore he was not justified in abandoning his contract of service; but that if he could demand his pay already accrued, still his demand must be made in such manner as to give reasonable time to the defendant, to obtain from his place of business the amount due, if any thing; and that the judge, upon the facts shown, should instruct the jury, that the facts proved by the plaintiff did not show the allowance of a reasonable time.
    But the presiding judge instructed the jury, that the right to elect to receive payment monthly was a continuing right, and might be exercised by the plaintiff on the day when he demanded his wages that he could then demand his pay for all the entire months which had at that time elapsed; but that he was bound to give the defendant reasonable notice of his election; that the jury would consider whether the defendant had the money at Bedford, and if he had not, whether it was reasonable to make such a demand without further notice; that if the defendant refused absolutely to pay, and not merely objected from want of present preparation, then the plaintiff need not wait before commencing his suit; but that if the demand at Bedford was not such as to give reasonable notice, and the refusal was only on account of the plaintiff’s want of preparation, and not absolute, then the jury would consider whether the application at Boston did not show a waiver by the plaintiff of all objection on that ground. The jury were further instructed, that the contract was divisible at the election of the plaintiff, if properly made.
    The jury found a verdict for the plaintiff, and the defendant thereupon excepted to the rulings.
    
      This case was argued and decided at the last October term.
    
      T. G. Coffin, for the defendant.
    
      N. Morton, for the plaintiff.
   Shaw, C. J.

The only question in this case is, whether the directions were right, and the court are of opinion that they were. The contract of the plaintiff was, no doubt, for an entire gear’s service; but the performance of this entire contract was not a condition precedent to the plaintiff’s right to recover any thing, because the plaintiff was, at his option, entitled to receive his pay monthly. This is one of the tests to determine whether mutual contracts are dependent or independent. If the whole is to be performed on one side, before any thing is to be done on the other, they are dependent, and performance is a condition precedent. But if something is to be done on one side, before the whole can be performed on the other, then they are independent. So here, where payments were to be made monthly, at the option of the plaintiff, that is within the year, the performance of a year’s service could not be a condition precedent to demanding a month’s pay. Couch v. Ingersoll, 2 Pick. 292.

The same contract may embrace some stipulations which are dependent, some independent. Kane v. Hood, 13 Pick. 281. The present contract is of this character. The performance of a year’s service was necessarily independent, and could not be a condition precedent to a monthly payment within the year. But as the monthly payments were to be made for services actually to be done, the performance of a month’s service was a condition precedent to the right to demand a month’s wages, and these, therefore, were dependent stipulations.

Then, applying the well known rule of law, that a dependent stipulation is a condition, and performance must be averred and proved in order to recover; but that mutual and independent stipulations are not conditions, but each party has a remedy by action for non-performance by the other, without showing performance on his own part; the defendant was bound to pay for each month’s service when performed, upon proper notice of the plaintiff’s option; and the defendant’s remedy against the plaintiff, should be fail to perform his contract for a year’s service, was not by refusing payment of monthly wages earned and due by the contract.

The case of Reab v. Moor, 19 Johns. 337, was like this in being an entire contract for a sum to be paid for a year’s service, and the court held that the plaintiff, having left the service within the year, could not recover pro rata. But the decision went on the ground, that the stipulation was for payment of an entire sum, and the court took care to remark, that there was no promise to pay monthly.

In regard to the supposed waiver of monthly payments, relied on by the defendant, we think a month’s wages became due to the plaintiff at the expiration of each month’s service, in conformity with and in performance of the contract, on proper notice and demand; and the mere forbearance of demand was no waiver of the right.

The court are of opinion, that the directions of the judge were in strict conformity with these views of the law, and that he left the evidence to the jury with proper instructions, to find whether the plaintiff gave proper notice of his option, and made a reasonable demand of payment for his wages, for the months actually completed, and if so, to find for the plaintiff, otherwise for the defendant. Receptions overruled.  