Assumpsit for labor and services rendered.
The question is whether judgment was rightly ordered for the plaintiff upon an alternative report of a referee, who found that while the plaintiff was at work for the defendant at $8 a week he made a verbal agreement during the progress of a week’s service to work for him a year at $9 a week, that the parties settled for that week’s work at the old rate of $8 per week, and for succeeding weeks so far as any settlement was had at $9 a week, the defendant commencing to credit the plaintiff for his work at the latter rate on and after March 10th, the contract for the year’s service having been made on the 7th.
This contract the referee finds the plaintiff broke, and if it is legally binding, nothing is due him; “but if the true interpretation of the language and acts of the parties is that the year was not to commence till Monday, March 10, 1873, and the contract was therefore invalid under the statute of frauds,” he finds a certain amount due the plaintiff.
We think that “the true interpretation of the language and acts of the parties” as reported by the referee is that it was understood by them both that the contract for the year’s service at $9 a week was not to go into effect until the following week, and so was “not to be performed within one year from the making thereof.”
It is true that in the absence of any words or acts of the parties indicating the contrary, an agreement to work for a year means, to work for that length of time commencing forthwith.
The referee reports no express stipulation in the contract to overcome this presumption; but he sets out the acts of the parties showing the contemporary interpretation which both put upon it, and this places the case directly within the doctrine laid down in Herrin v. Butters, 20 Maine, 119; Peters v. Westborough, 19 Pick., 364; and Boydell v. Drummond, 11 East., 142; where the old idea that it must-be expressly and specifically agreed that the contract is not to be performed within the year, as expressed in *307Moore v. Fox, 10 Johns., 244, and Fenton v. Embler, 3 Burr., 1278, is so far modified as to include cases where such appears to have been the understanding of the parties.
The defendant’s counsel earnestly contends that it should appear in the statement of the contract itself that it was not to be performed within the year or it would not be invalidated, and cites Williams v. Jones, 5 Barn. & Cress., 108, to show that parol evidence is not admissible to prove that the understanding was that the term of service was not to commence immediately. But that was a case of a written contract, and it was held in accordance with familiar principles, that it was not competent to vary its effect by parol and to show that while apparently absolute it was really conditional, nor to add by parol to an agreement which could not be valid unless in writing. When a verbal contract for service to be rendered for a certain number of weeks or months is silent as to the time when that service is to commence, while the presumption is that it is to commence forthwith, it is no such conclusive presumption of law as to exclude evidence from the acts of the parties to show that in fact the understanding between them was that such service should commence, not immediately, but at a future day.
The ease presented by the report of the referee is this. Hearne has done work for the defendant for which he is entitled to recover pay unless the defendant has shown that he has forfeited his right to it by breaking a contract which was legally binding.
The facts reported by the referee show a verbal contract, made on the 7th, for a year’s service to commence on the 10th and so not legally binding. Snelling v. Lord Huntingfield, 1 Cromp., M. & K., 20. Bracegirdle v. Heald, 1 B. & A., 722.
Exceptions overruled.
Appleton, C. J., Walton, Daneortji, Virgin, Peters and Libbet, JJ., concurred.