I do not agree with the conclusion reached by Mr. Justice BUTZEL. Decision *Page 484 in this case should be based on the stipulated facts without adding inferences and conclusions of fact by the court. Mr. Justice BUTZEL reaches his result by drawing the inference that plaintiff's employment "as an instructor in defendant's technical training school at the rate of $263 per month, payable semimonthly" is of such a nature that this establishes that the hiring was by the month. But this theory does not find much support in the case cited and relied upon to support it,Chamberlain v. Detroit Stove Works, 103 Mich. 124, where the "nature of the services performed" by the plaintiff was as the secretary of a corporation, employed by the directors at an annual salary of $5,000. In the case at bar, we can only speculate as to the nature of the services performed by plaintiff as an instructor. Furthermore, this loses force as an added fact because plaintiff's services as an "instructor" were terminated at the end of the first month of his employment, at which time he voluntarily accepted other work during the ensuing two months. Nor do we know the nature of his services in the "service department" to which he transferred after the first month as an "instructor," and where he then worked for the ensuing two months. The fact that plaintiff was originally employed as an "instructor" for approximately one month should not, in my opinion, tip the scales in favor of deciding that his hiring was from month to month.
In this case, the bare facts on which we must base decision are stipulated* as follows:
"1. That the plaintiff and appellant* was employed on July 28, 1943, by defendant and appellee, *Page 485 as an instructor in defendant's technical training school at the rate of $263 per month, payable semimonthly;
"2. That such employment was not stated to be for any definite period of time;
"3. That the plaintiff and appellant performed his duties as an instructor until September 1, 1943, when he was transferred with no change in salary to the service department where he remained until October 30, 1943;
"4. That on October 30, 1943, defendant and appellee informed plaintiff and appellant that his services would no longer be needed, and he was discharged at the end of his work on that date;
"5. That defendant and appellee paid the plaintiff and appellant up to and including October 30, 1943."
The precise question we are called upon to decide, based on the above agreed facts, is whether these facts, standing alone, establish a hiring from month to month, as a matter of law.
I agree that circumstances alter cases, and the scores of authorities cited by counsel for both parties in their several briefs, including those referred to by Mr. Justice BUTZEL, are based on differences in circumstances. A volume might be written in an attempt to distinguish or reconcile them.
In this case, plaintiff worked three months, viz: August, September and October, and was paid for each of the three months. He sues to recover pay for another month — November. This case is controlled by the first part of the statement of law quoted by Mr. Justice BUTZEL from 2 Restatement of the Law of Agency, § 442, comment "b," as follows:
"The fact that a servant or other agent is employed under a contract which merely specifies a salary proportionate to units of time which are commonly used for the purposes of accounting or payment, *Page 486 such as a month or a year, does not, of itself, indicate that the parties have agreed that the employment is to continue for the stated unit of time. Such a specification merely indicates therate at which the salary is earned or is to be paid, and either party is privileged to terminate the relationship at any time unless further facts exist."
In the instant case, the defendant did not agree to pay plaintiff "$263 per month." According to the stipulated facts,the rate at which plaintiff was to be paid was "at the rate of $263 per month, payable semimonthly." The rate of payment was fixed as $263 per month, but if we consider the unit of time for payment as fixed by the agreement it is equally conceivable that the unit of employment was semimonthly.
As stated by Mr. Justice BUTZEL, it seems to be conceded that the weight of authority upholds the defendant's contention that the law as above quoted applies to this case. I see no circumstances in this case which should impel us to adopt a contrary viewpoint, and thus to hold that plaintiff must be given a month's notice before his employment could be legally terminated.
Judgment should be set aside without a new trial. Appellant having stipulated to waive costs, none should be taxed.
NORTH and SHARPE, JJ., concurred with BOYLES, J.
The late Justice WIEST took no part in the decision of this case.
* This stipulation was filed in the circuit court on an appeal by plaintiff from the court of common pleas of the city of Detroit. It will be observed that the plaintiff, referred to as appellant in the stipulation, is the appellee in this Court. *Page 487