Opinion by
Mr. Justice Sterrett:There was no error in refusing to charge as requested in defendants’ first point. It appears from the written contract between the parties that plaintiff was employed by the firm, defendants, “to sell goods for them” for one year from January 1, 1884, at a salary of $1,800, payable $150 per month. There is nothing in the contract itself, nor in the testimony dehors the instrument, to indicate an implied understanding that the employment for one year was contingent on the continued existence of the firm for that length of time.
The fact that defendants became insolvent and were obliged *536to cease business about the middle of the year did not absolve them from their obligation to pay plaintiff’s salary according to the terms of the agreement; nor did the notice that his services would not be required after July 1, have the effect of rescinding the contract, unless plaintiff assented thereto. As was said in Fereira v. Sayres, 5 Watts & S. 210, 40 Am. Dec. 496:
“It is enough that there was an express and positive agreement which cannot be annulled, except with the assent of both.” The first specification of error is not sustained.
The only other ground of defense was that plaintiff, after receiving notice of his discharge, assented thereto and thus terminated the contract relation. In support of that position defendants gave in evidence a probated statement rendered by plaintiff to their assignee, October 4, 1884, wherein his account against them is stated as follows:
To labor and services for June and July at $150 per m......................,............$300
By cash paid on account of June wages........ 100-
Balance unpaid.....................$200
To this was appended his affidavit in which he declares “that the annexed statement of account of himself with the late firm of Vanuxem, Wharton, & Company, heretofore doing business in the city of New York, is just, true, and correct, and that there is now due deponent the- sum of $200 thereon; that no part thereof has been paid or satisfied, and that there are no sefioffs or counterclaims thereto, to the knowledge or belief of deponent.”
In view of this evidence, and other testimony tending to prove insolvency and dissolution of the firm, and that plaintiff made no objection to the notification of his discharge, etc., the court was requested to instruct the jury, in substance, that if they found the facts as recited in defendants’ -second point, and that, plaintiff transmitted to their, assignee the letter of October 4, 1884, inclosing the probated statement of his claim against defendants, they might find that he had assented to his discharge, and if so, he is barred from recovering “more than the sum claimed by him in said letter.” The refusal of the court to so charge is the subject of complaint in the second specification.
*537The testimony referred to tended to prove the conclusion of fact sought to be drawn therefrom, and was therefore proper for the consideration of the jury. They might well conclude that the contract relation had terminated prior to the month of September, because if it had not, plaintiff would have included, in his probated claim, salary for the months of August and September, both of which were then due-if the contract was still in force.
There is nothing in the statement and probate to indicate that plaintiff had any other or further claim against the firm. On the contrary, the inference that he had none is neither strained nor unreasonable. If the contract was not annulled by mutual agreement and plaintiff had a claim for the further sum of $300-, for salary for months of August and September, why was it not included in the probated account of October 3, 1884 ? It does not appear that- plaintiff ever attempted to explain why he thus omitted more than half of his alleged claim then due and payable.
The testimony fairly presented a question of fact upon which it was tlie province of the jury to pass, and hence, there was error in refusing to affirm defendants’ point recited in the second specification.
Judgment reversed and a venire facías de novo awarded.