roneous. of the jury. Such general prayers have always been condemned as erIn Kent v. Holliday, 17 Md. 395, it is distinctly stated: "A prayer that, under the pleadings and evidence in the cause, the plaintiff is not entitled to recover, is too general." It is added that such ruling had been so frequently made it was not necessary to cite authority. But two witnesses were sworn. Alonzo Myers says that he and defendant were working together, in the summer of 1884, at the barn of Joseph Dudraw, and that on that occasion defendant said to witness "that he [defendant] made his living by labor, and not like a man does by stealing corn." Witness further said that he understood the defendant to be speaking of the plaintiff; but that he afterwards thought he must be mistaken, and the reason why he had supposed the defendant meant the plaintiff was that he was always hallooing "after the plaintiff and corn hound." The other witness, J. Calvin Dudraw, stated that he heard the defendant tell witness Myers at Joseph Dudraw's barn "that he should tell that he, the defendant, made his living by work, and not by stealing, and he did not want to spend it at law." This witness further stated that the plaintiff was called by that indelicate name by many persons in the neighborhood. This is the whole proof, and there was no colloquium to explain the language used; yet the court was asked to say that the verdict upon it must be or ought to be for the plaintiff. The witnesses themselves do not agree as to what was said. The first witness does not say he was told to tell anybody what was said, and says that, when it was spoken, he thought the plaintiff was referred to, not because he was told to tell plaintiff what defendant said, or that, in speaking the words, the defendant called him (plaintiff) by any name by which he was enabled to suppose who was meant, but because the defendant was accustomed to call after the plaintiff "corn hound" and the indelicate name we suppress for decency's sake. The witnesses differ as to the exact language used. If, therefore, it had been the province of the court to say to the jury what they must find on the evidence, the court might well hesitate to find the exact language charged in the narr was spoken of the plaintiff. It was, however, the sole right of the jury to determine which of the witnesses gave the correct version of what was said, and whether that evidence justified them in saying by their verdict that the plaintiff was thereby accused of stealing. The prayer invokes a consideration of the pleadings; but, as we think it was fatally defective without reference to the pleadings, we have not thought it necessary to consider their sufficiency. The case was left to the court as a jury on them, and it found for the defendant. There having been no error in the ruling of the court, the judgment must be affirmed. (Court of Appeals of Maryland. May, 1886.) 1. MASTER AND SERVANT-HIRING-CONTRACT. Payment of wages quarterly, monthly, or weekly, is not inconsistent with a yearly hiring. 2. SAME-HIRING-CONTRACT-CONSTRUCTION. A. addressed a letter to B., offering him $100 per month for his services; and, "if you give me satisfaction at the end of the first year, I will increase your wages accordingly." The offer was accepted. Held, a contract of hiring for one year. Appeal from the Baltimore city court. John Stewart and David Stewart, for appellant. Richard Hamilton, for appellee. ALVEY, C. J. This action was brought to recover wages alleged to be due from the appellant to the appellee on a contract of hiring. The appellant, residing at Rio de Janeiro, in South America, was owner of certain ships trading to and from ports in the United States; and, the appellee having been in the service of the appellant for 18 months or more prior to the twentieth of August, 1883, the latter addressed to the appellee the following letter, which was given in evidence as proof of the contract of hiring sued on: "RIO DE JANEIRO, August 20, 1883. "Capt. John Cowell-DEAR SIR: Your conduct during the last eighteen (18) months that you have been in my employ, has given me great satisfaction; and now, as I put all my ships under my own flag, I appoint you superintendent of all my ships, both here and at any ports in the U. S., America, and you will please help all my captains to get quick dispatch, and also see that no damaged or bad cargo is shipped, as all the lumber cargo are shipped on my ac. You have my permission to take your family, or any of them, in any of my ships, whenever it may suit your convenience, from U. S. to Rio and back, and your wages will be ($100) one hundred dollars per month, with all hotel and other expenses; and, if you give me satisfaction at the end of the first year, I will increase your salary accordingly. "I am, dear sir, yours truly, "A. M. NORTON, Ship-owner." It is admitted that the appellee accepted the proposal contained in the letter, and continued in the service of the appellant for about three months thereafter, under the new terms of employment, when he was discharged from further service without legal cause therefor, as contended by him, but was paid his wages down to the time of his discharge; and having been thus illegally discharged, as contended by the appellee, he brought this action to recover of the appellant the balance of the year's wages, upon the theory that the letter, and the acceptance of the terms thereof, constituted a contract of hiring for one year, at the rate of $100 per month and expenses, and therefore the discharge of the appellee was not justified by the terms of the contract; it being conceded that he had furnished no justifiable cause of discharge. As the case is presented on this appeal, the only question is whether the letter in evidence, by legal construction, constituted a contract of yearly or monthly hiring, or a contract of hiring at will merely. The court below held, and so instructed the jury, that the letter and its acceptance, by legal construction, created a contract of hiring for one year; and in that construction this court concurs. As will be observed, there is no express limitation in the letter as to the term of service, though the wages were to be at the rate of $100 per month. But stipulations for the payment of wages quarterly, monthly, or even weekly, are not inconsistent with a yearly hiring. Fawcett v. Cash, 5 Barn. & Adol. 908. For, as said by Lord KENYON, C. J., in the case of King v. Birdbrooke, 4 Term R. 245: "Whether the wages be to be paid by the week or the year can make no alteration in the duration of the service, if the contract were for a year." Here the written agreement furnishes a clew to the real intention of the parties, when it says: "If you [the appellee] give me satisfaction, at the end of the first year I will increase your salary accordingly." Why at the end of the year, rather than at any other time, if the contract was monthly, or only at will, as contended by the appellant? This passage of the letter, taken in connection with the situation. of the parties, and the nature of the service to be performed, would seem to leave no room for doubt as to what was really contemplated by the contract of employment. It would not be reasonable to suppose that it was intended that the appellee should have the right to terminate the contract at will, and thus to imperil the interests of his absent principal; and, if such right was not designed to be possessed by the appellee, there is no principle that would justify the court in holding that such right could be exercised, by the appellant with impunity, as there is nothing in the contract, or the nature of the employment, to indicate such want of mutuality. Being of opinion that the contract was of a yearly hiring, we shall affirm the judgment of the court below. Judgment affirmed. (65 Md. 356) PARSONS v. PADGETT and others. (Court of Appeals of Maryland. May 28, 1886.) 1. APPEAL FILING TRANSCRIPT COURT OF APPEALS. DISMISSING APPEAL RULE OF MARYLAND By rule 16 of the court of appeals of Maryland, no appeal shall be dismissed because the transcript has not been transmitted within the time prescribed, if it appears that the delay was occasioned by the neglect, omission, or inability of the clerk. 2. SAME-TRANSCRIPT-FEES OF CLERK. It is not the duty of the clerk of circuit court to notify appellant when the transcript (record) is completed, and to demand his fees therefor. Appeals from circuit court, St. Mary's county. In equity. MILLER, J. A motion to dismiss has been made in this case upon the ground that the record was not transmitted to this court within three months after the appeal was taken. The appeal was entered on the seventeenth of July, 1885, and the transcript did not reach this court until the tenth of December following, a period of nearly five months from the date of the appeal. Rule 16, relating to appeals, declares that no appeal shall be dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the court of appeals that the delay was occasioned by the neglect, omission, or inability of the clerk; but such neglect, omission, or inability shall not be presumed, but must be shown by the appellant. The rule thus throws upon the appellant the onus of showing that the fault lies with the clerk, and, according to the practice in such cases, affidavits on this subject have been produced on both sides. The clerk's certificate, appended to the transcript, shows that it was completed on the first of October. If the appellant had then paid the cost of making it out, it would have been the duty of the clerk to have transmitted it to this court at once, but he had the right to retain it until these costs were paid, and was not bound to transmit it before they were paid. It appears from an undated receipt, also appended to the record, as well as from the affidavits, that the costs were actually paid by Mr. Camalier, one of the appellant's attorneys, but the affidavits on the part of the appellant fail to show when this was done. Mr. Camalier, in his affidavit, says he informed Mr. Young, the deputy-clerk who had charge of the office, that he was ready to pay the costs at any time he was informed of the amount, and did pay the same to Mr. Young as soon as he was notified that the record was completed. But he does not say when the payment was actually made, and it must be observed that, under the rule, it is the duty of the appellant to ascertain when the record is made out, and pay for it in time for its transmission to this court before the expiration of the three months. It is not made the duty of the clerk to notify the appellant or his counsel when the record is completed, and demand payment therefor. Mr. Young says that during the September term of the circuit court (which commenced on the twenty-first of that month) Mr. Camalier handed him written instructions made out by Judge Magruder, the other attorney for the appellant, for the making up of the record, and at the same time stated he would pay the costs, which he did, but of the date of payment affiant has no recollection. On the other hand, Mr. Ford, the clerk, in his affidavit says that, according to the best of his recollection, he transmitted the record to this court immediately after the costs had been paid; that he has been the clerk for the past 12 years, and has invariably transmitted records, in case of appeals, immediately upon the payment of costs, or within a very few days thereafter. According to this affidavit the delay in transmission for more than two months after the completion of the record can only be explained on the ground that the costs had not been paid in time. In short, we are clearly of opinion the affidavits fail to show that the clerk was in fault, and the motion to dismiss must therefore prevail. Appeal dismissed. (78 Me. 260) STATE v. SMITH and others. (Supreme Judicial Court of Maine. May 25, 1886.) 1. MASTER AND SERVANT-LIABILITY OF EMPLOYER FOR ACTS OF AGENT OR CONTRACTOR-TRESPASS. The defendants were authorized by the land agent to guard certain lots, reserved for public uses, against trespassers, but had no right or authority to grant permits to parties to take timber therefrom. The defendants, nevertheless, supposing they had such authority, gave permits to certain parties to take off the hemlock bark and timber upon those lots, and these contracts were assigned to other parties, who subsequently peeled the bark, and cut down and carried away a portion of the timber. In an action of trespass against the defendants, held that, having authorized the commission of the trespasses, they were liable for the damages caused thereby. 2. SAME LIABILITY OF EMPLOYER FOR TORT OF EMPLOYE. An employer is responsible for the wrong done by a contractor or his servants in the execution of a wrongful or illegal act, though not of a legal act. 3. SAME-INTENT WITH WHICH ACT DONE. The intent of the defendants was entirely immaterial. Charles Hamlin and Jasper Hutchings, for the State. FOSTER, J. The defendants were authorized by the land agent to guard certain lots reserved for public uses in Silver Ridge Plantation against trespassers. They had no right or authority to permit or sell timber or other property from these public lots. As assessors of that plantation in 1879, supposing they had such right, after exploring the lots, they permitted all the hemlock bark on one of said lots to one St. John for $100. The permittee assigned his contract to Shaw Bros., who, during that and three following years, cut down the hemlock, and carried away the bark, leaving the trees. Two weeks after the first permit the defendants, by another writing signed by them, permitted all the growth on these public lots, subject to the contract assigned to the Shaws, to Jesse S. Smith, one of their own number, for $500, but which was never paid. Smith thereafter assigned his contract to one Johnson, who cut and carried away, during the years named, spruce and cedar timber, and removed the hemlock trees left by the Shaws. In all the lumbering operations upon the lots Smith acted as scaler. For the trespasses committed by the Shaws and Johnson, the plaintiff claims to hold the defendants personally liable; and the real question at issue is whether they are liable or not. We are satisfied that they are Fable. This action is for trespass to the real estate, with a count de bonis for the timber and bark carried away, under Rev. St. c. 5, § 10, which permits suits in favor of the state to be brought in any county. It is undisputed that the title to the lots in question is in the plaintiff, as well as the possession thereof through the land agent, who, by virtue of section 15 of the same chapter, "shall have the care of the reserved Reported by Leslie C. Cornish, Esq., of the Augusta bar. |