The contract, as testified to by the prosecutor, was as follows: "Jackson was to cultivate certain of the prosecutor's land, amounting to about 8 or 9 acres, for the year 1890, and pay him as rental the sum of $33 or one 400-pound bale of cotton, with the understanding that Jackson was to work for the prosecutor whenever he needed Jackson, and he (Jackson) could leave his own crop, at 50 cents a day."
We think the relation of master and servant did not exist, for (796) the reason that Jackson was not in the employment of the prosecutor. The relation between them was that of landlord and tenant. One of the terms or stipulations of the renting was, that in addition to the rent paid, Jackson, whenever at leisure, if called upon by the landlord, should work for him at 50 cents a day.
It has been held that where A employs B to labor for him for one year, at $20 per month, and gives him the use of a dwelling during the term, B's occupancy of the dwelling is that of a servant and not as a tenant, and if he quits A's service or is discharged, A may enter and forcibly eject him. Wood's Master and Servant, sec. 153, and cases there cited. The reason is, that the contract is that of hiring, and the use of the house is a part of the hire or an incident of the contract. E converse, here the contract is that of renting, and the promise by the tenant to do labor when at leisure, if it is wanted by the landlord, is a mere incident of the contract of renting. The court below erred, therefore, in instructing the jury that "the contract, as sworn to by the prosecutor, gave him the right to demand the services of Jackson every day if he chose to, and the man who took him away was guilty of violating the statute."
Per Curiam. Error.
Cited: S. v. Etheridge, 169 N.C. 263.