of November, there was a run on Rice & Messmore, and during the forenoon they closed their doors and suspended. They turned out to be insolvent. On the 6th, Cody was in Cadillac, and learning of the suspension telegraphed to Chicago to stop payment. The paper was accordingly returned unpaid to defendant. Plaintiffs claimed it as belonging to them, and brought this suit, when defendant refused to recognize their right.

In the court below defendant prevailed, and plaintiffs bring error. There are several errors assigned, but all refer to the question whether defendant had a right to act upon the paper as it appeared. The court below charged at some length, and allowed the jury to consider the facts shown in testimony, showing the true nature of the business dealings of all the parties. But the whole case really hinged upon whether the defendant had notice which should have prevented it from treating the paper as Rice & Messmore's, and advancing them money upon it.

We do not find any testimony in the record which would have justified the jury in finding otherwise than they did, and if the court erred at all, it was in leaving this to them as an open question.

When the paper came into defendant's hands it had an unqualified blank endorsement of plaintiffs which presump. tively transferred title to any one who might become the holder. The fact that Rice & Messmore endorsed it for collection had no tendency to show that they held it themselves merely as agents for plaintiffs, or even received it from them directly. The undisputed facts show that it was not left with them in such a way that they were bound to regard it themselves as left for plaintiff's use, except as a deposit. But the defendant is not claimed to have had any notice outside of the paper itself. The paper came to defendant with express directions to collect and credit, and with an order for an immediate remittance of a large sum, which nearly exhausted it. This was not an exceptional case, but was in the usual course of their mutual business.

Plaintiffs rely on several cases which hold that a mere

endorsement for collection does not of itself change title, and that where the recipient bank has done no act on the credit of the remitting bank in reliance on its title, the real owner may reclaim it. But none of those cases resemble this. Here plaintiffs did not endorse it for collection, and upon the testimony it cannot be said they even deposited it for collection. Rice & Messmore, when they endorsed it for collection, not only appeared to be the owners, but gave orders for credit to them and drew upon the faith of it, and defendant actually advanced money upon it. No case is cited which would under such circumstances postpone defendant to plaintiffs. The whole doctrine of negotiable paper is in defendant's favor.

We see no error in the record and the judgment should be affirmed.

The other Justices concurred.

55 383

98 525

55 3831

CHARLES W. SINES V. SUPERINTENDENTS OF THE POOR FOR

WAYNE COUNTY.

Contract-Question for jury.

The existence and terms of a contract which rests, if it exists at all, upon actions and oral communications, are for a jury to determine.

Error to Wayne. (Full Court.) Oct. 24.-Nov. 19.

ASSUMPSIT. Plaintiff brings error.

Reversed.

Ervin Palmer for appellant. A continuance in employment after the expiration of the "current year" was equivalent to a new hiring upon the same terms: 1 Bl. Comm. (15th Eng. ed.) 425; Tyng v. Theological Seminary 46 N. Y. Sup'r Ct. 256, 268; Vail v. Jersey Little Falls &c. 32 Barb. 567; Evertsen v. Sawyer 2 Wend. 507; Bradley v. Covel 4 Cow. 349; the continuance of occupation under a lease for one year has always been recognized as a renting for another

103 130 55 383 S21NW 428 132 120

year: Doe v. Bell 5 Term 472; Abeel v. Radcliff 15 Johns. 505.

John Atkinson for appellee. There is no general presumption that a hiring with no particular time mentioned is a hiring for a year; in England the presumption is not one of law, but of fact: Baxter v. Nurse 6 M. & G. 941; and is therefore subject to be overcome by anything in the terms of the contract indicating a different intent in the parties; see Bayley v. Rimmell 1 M. & W. 506; Rex v. Christ Parish 3 B. & C. 459; it does not apply to governesses: Todd v. Kerrick 8 Exch. 151; nor to laborers in husbandry: see Nichols v. Graves 17 C. B. (N. S.) 27.

COOLEY, C. J. The plaintiff sues to recover for the services of himself as keeper, and his wife as matron, of the Wayne County almshouse, for the year succeeding October 1, 1882. The case was sent to a referee, who found that the plaintiff and his wife were first employed in the capacities mentioned for one year, commencing August, 17, 1877, "at a salary of eight hundred dollars per annum;" that the employment was continued after the expiration of the year, to September 30, 1878, and was then renewed by formal resolution of the board, for another year; that on September 30, 1879, it was again renewed for another year in the same way, and at the end of that year for still another year. for still another year. At the end of the year 1881 plaintiff and his wife continued in service on an oral understanding with the board that they should do so, and on January 4, 1882, a formal resolution of the board was adopted, continuing their employment for the year ending September 30, 1882.

About the middle of September, 1882, plaintiff met two of the three superintendents, and stated to them that there were rumors of changes to be made, and as the year was nearly over he desired to know whether he would be wanted another year; that if he was not wanted another year he desired to leave when the year was up; that both his houses and his farm were occupied, and he would want to make his arrangements so as not to move his family in the winter. Mr. McDonald, one of the superintendents, said in the pres

ence of Shanahan, the other, that he had heard nothing about any change being made, but as the board was not full that day it was best to let the matter lie over until they were all present, and he would then bring the matter up; that he did not suppose there would be any change, and plaintiff was to go on as he had done; that if there was any change they would let him know by the first of October. All this was said by McDonald in good faith, and in the belief that no change was intended. He supposed he was speaking the wishes of all the members of the board, but did not understand he was making a contract. The other member of the board heard this conversation, but said nothing. Plaintiff and his wife thereupon continued in the service, and were not in any manner notified their services were not desired for another year until January 3, 1883, when the board by formal resolution appointed other persons to the positions respectively, and notified plaintiff that the employment of himself and his wife would terminate on February 1, 1883. In the mean time no dissatisfaction had been expressed with either of them. They left the almshouse at the time notified, but under protest that the salary would be claimed for the year. The referee found facts showing special damage to the plaintiff by reason of the employment being thus terminated. As conclusions of law he found the following:

"It was competent for two of the said superintendents, without an authorization of the board at a formal meeting, to enter into a valid contract which would be binding upon the corporate body, for the employment of a keeper, or a keeper and matron, of the said almshouse.

The facts fail to establish an express contract on the part of the said superintendents for the hiring of the plaintiff as keeper for the year next ensuing October 1, 1882. The said conversation between plaintiff and said McDonald and Shanahan did not make any express contract between the parties.

No contract or undertaking on the part of the said superintendents arises, by implication of law, from all the circumstances and facts above found and set forth, to continue the employment of plaintiff for another term from and after October 1, 1882."

55 MICH.-25

Upon these findings judgment was rendered for the defendants, and plaintiff assigns error.

The referee's conclusions of law are correct so far as they go, but they do not cover the case. It is very evident that no express contract of hiring for another year was entered into. It is also true that the law will not imply a contract from the facts stated. But when the question is whether parties, by oral communication and by their acts, have entered into a contract the conclusion to be deduced is not one of law but of fact, and must be determined as such. The contract itself, if there is one, is a fact, to be arrived at on a consideration of other facts; and if there is any evidence tending to prove it, must be found like any other fact, by a jury, or by the court acting in the place of a jury.

There were in this case some very strong facts tending to the proof of a contract, though they were not conclusive. Plaintiff appears to have understood that his employment was to continue for another year, and he perhaps had a right under the circumstances to suppose the members of the board understood it in the same way. But the significance of their acts we cannot pass upon here. It would seem they did not understand they had done what would amount to a renewal of the employment; but if their acts were such as fairly to lead the plaintiff to understand he was again employed, jury may perhaps imply a contract to that effect.

The case closely resembles Tallon v. Mining Co. ante, p. 147, decided at the present term, and we think that case rules it. A new trial must be ordered.

The other Justices concurred.