DISSENTING OPINION by
CIRCUIT JUDGE DeBOLT.I respectfully dissent from the majority opinion in this case.
The records before us show that the plaintiff and defendants, in the latter part of 1917, entered into an oral contract whereby they mutually agreed that the plaintiff should carry the defendants by automobile from Honolulu to Waipahu and back, five days in a week, Saturdays and Sundays excepted, for which services each defendant agreed to pay the plaintiff $10 a month.
The services were rendered according to the contract for the- month of November, 1917, and were paid for at the end of that month. From December 1, 1917, up to and including December 14, the plaintiff continued to carry the defendants as in November. But from and after December 14, without any notice whatsoever, the defendants failed to appear at the appointed time and place, although the plaintiff was on hand and ready each morning during the remainder of the month of December to carry them pursuant to the contract. There was *239no dismissal or discharge of the plaintiff, nor any notice that her services were no longer required.
Upon the facts thus disclosed by the records, the cases, as I view them, do not even come within the rule as laid down by the court in the majority opinion. While it is there held that the contract could be terminated at any time, the court does not hold, as I read the opinion, that the contract could be terminated without notice. Neither does the court cite in that opinion a single authority holding that a contract, such as the one under consideration, can be terminated without notice. And I venture to say that not a single authority to the contrary can be found. It is a fundamental and indispensable principle of Anglo-Saxon jurisprudence that no person can be legally affected in or deprived of his lawful rights without notice. Nichols v. Coolahan, 10 Met. (Mass.) 449, 450; 1 Labatt’s Master & Servant (2d ed.) Sec. 213, p. 667; Id. Sec. 187, p. 583; Id. Sec. 233, p. 722 and n. 1; 13 C. J. 618; 26 Cyc. 980-987; Harper v. Hassard, 113 Mass. 187, 190.
In my opinion the mere silence of the defendants or their failure to appear at the appointed time and place to accept the services agreed to be rendered could not and did not operate ipso facto to terminate the contract in question. Is it possible that a party may, under the sanction and solemnity of the law, enter into a valid contract (though it be one for services to be rendered from month to month) and without even so much as the raising of a hand or the uttering of a single word cast off his contractual relations and step aside absolutely free from his solemn and theretofore legal obligations?
Upon the facts and circumstances disclosed by the records it is obvious, as I view the situation, that the parties, in the first instance, contracted for services to *240be rendered for the entire month of November. Having thus agreed upon the character of the services to be rendered and the time for which they were to be so rendered, as well as the amount of the payment therefor, the plaintiff entered upon the performance of the services thus contracted for and at the end of the month each defendant paid the plaintiff the agreed sum of $10.
The circumstance of agreeing on weekly, monthly, quarterly, or half-yearly payments of wages is held in many jurisdictions to be sufficient of itself to create a presumption of a hiring for the period covered by each payment. This, in my opinion, is the better rule, and accords with reason and justice. Upon this question see Labatt, supra, Sec. 168; Id. Sec. 169, p. 539; Kellogg v. Citizens’ Ins. Co., 94 Wis. 554; Smith v. Theobald, 5 S. W. 394; Magarahan v. Wright, 10 S. E. 584; Tatterson v. Suffolk Mfg. Co., 106 Mass. 56; Cronemillar v. Duluth-Superior Milling Co., 134 Wis. 248; Maynard v. Royal Worcester Corset Co., 200 Mass. 1.
And in all those- jurisdictions Avhere it is held that a hiring at so much per month or year, without more, is an indefinite hiring, this rule gives way Avhere the surrounding facts and circumstances show a different intention of the parties. Foltz v. Fuller, 38 App. Cas. (D. C.) 139; Weidman v. United Cigar Stores Co., 132 Am. St. Rep. 727.
As further and more clearly shoAving that the parties intended a hiring for an entire month, to be paid for by a gross sum, it will be observed that nothing was said as to payment from day to day, or from week to week, at the beginning of or during the month, but that upon the rendering of the full month’s services they were then paid for. It seems perfectly clear that the parties considered the hiring for an entire month. The parties having, apparently, so intended and understood their contract to *241be a hiring for an entire month the court is bound by that intention. 13 C. J. 521.
It being apparent from all the surrounding facts and circumstances that the parties intended and contemplated the hiring in the first instance to be for the entire month' of November, it, therefore, MIoavs, that inasmuch as the parties continued their contractual relationship into the month of December precisely as it had theretofore existed, free from modification or break in its continuity, they must, necessarily, be understood as having contracted for such services for the entire month of December. Labatt, supra, Secs. 230, 231. The author (Sec. 231) says: “The presumption that, where the relationship of master and servant is continued after the expiration of the agreed term, the parties intend that the renewed engagement shall subsist for the same period as that covered by the original contract, is entertained not only in cases in which the duration of the first employment was fixed by an express stipulation, but also in cases in which that duration is itself a matter determinable with reference to a presumption of fact.” In this connection see also Zender v. Seliger-Toothill Co., 39 N. Y. S. 346; 26 Cyc. 976; 13 C. J. 626.
In 26 Cyc. 980, 981, it is said: “A contract of service for a definite period terminates by its own terms at the end of such period, and Avhere the hiring is by the day, or from month to month, either party has a right to terminate it at the end of any particular day or month, but a contract from month to month can be terminated only at the end of á month except by consent.”
In Young v. Lewis, 9 Tex. 73, the court said: “A hiring by the month at so much per month is a hiring from month to month, each party having a right to terminate it at the expiration of a month, but not after another month has commenced to run.”
In Jones v. Vestry of Trinity Parish, 19 Fed. 59, 61, *242the court said: “There is a presumption of law that a person employed at a monthly salary is engaged by the month, so that either party may terminate the contract at the end of any month, unless it affirmatively 'appears that a definite period of employment was contemplated by the parties to the contract.”
In Tennessee Coal, Iron & Railroad Co. v. Pierce, 81 Fed. 814, the court said: “A contract between a corporation and a workman who has receivfed injuries while in its service, that he shall be paid a given rate of wages per month, and shall render such services as he can, without any stipulation as to the duration, is not an undertaking to pay such workman an annuity during the remainder of his life, but a contract of employment by the month, which may be terminated by either party at the end of any month.”
The court in Re Hudson, 12 Fed. Cas. No. 6881, said: “A hiring at monthly wages imports that the engagement is by the month, terminable with each month, at the option of either party.”
In Dunbar v. Cuban Land & Steamship Co., 75 N. Y. S. 498, the court said: “Where a plaintiff is employed for an indefinite time at a fixed weekly sum, the contract may be determined by either party at the expiration of any week.”
In Beach v. Mullin, 34 N. J. L. 343, 344, the court said: “The entirety of a contract does not depend upon its subject matter. An entire contract is a contract the consideration of which is entire on 'both sides. Whenever there is a contract to pay a gross sum for a certain definite consideration the contract is entire, and not apportionable either in law or in equity. Story on Contracts, §22. A contract to pay $16 for a month’s service is as entire in its consideration as is a contract to pay a certain sum for a single chattel, or for a specified *243number of chattels. The contract of hiring in this case was, that the plaintiff should work for the defendant for $16 a month. Nothing further was said as to the term of service. The reservation of wages, payable monthly or weekly, will not control the contract so as to destroy its entirety, when the parties have expressly agreed for a specified term, as a year. But if the payment of monthly or weekly wages is the only circumstance from which the duration of the contract is to be inferred, it will be taken to be a hiring for a month or a week.”
In the case at bar the parties did not only agree that the gross sum of $10‘ was to be paid for an entire month’s sendees, but in pursuance thereof each party proceeded to carry out the contract, in its entirety and as a single and entire contract in all respects — both as to time and as to payment. The entire month’s services were rendered and the gross sum of $10 in full payment therefor was made at the end of the month, the parties thereby showing that they understood that the hiring was for a month. Thus, not only from the express terms of the contract itself, but also from the conduct of the parties in its performance, the hiring, obviously, was for an entire month for an entire sum. And it appears from the authorities that the courts are in substantial agreement in holding a hiring at a specified sum per month to import an engagement by the month. This accords with reason and common sense. When any person, layman or lawyer, speaks of a certain sum per day, or week, or month, he means just what he says, namely, a gross sum for an entire period of time.
Thus in Moss v. Decatur Land Improvement and Furnace Company, 30 Am. St. Rep. 55, a case almost identical in its facts with the case at bar, except that the plaintiff there was discharged, which is not the fact in the case at bar, the court said: “If one is employed to *244be paid by the month a designated price, this constitutes an entire contract by the month, which the employer cannot terminate at will, and under which he is liable for a month’s wages if he discharges his employee without cause before the expiration of the month.”
In Dodson-Braun Mfg. Co. v. Dix, 76 S. W. 451, is an instance of an oral contract for services to be rendered from month to month, in which the services had been commenced for a particular month, just as in the present case, the holding of the court being, in effect, that the contract could not be terminated until the end of the month in question. The court said in this connection : “The only contention • of appellant is that the employment of. appellee was for no particular length of time, and that therefore, it had the right to discharge him at any time without cause. The evidence relied upon to support this contention is the following testimony of. appellee: 'At the time I was employed by Dodson-Braun Mfg. Co. I was not employed for any particular length of time, except from month to month, nor did I agree to work for any specific time, except from month to month. I did not designate to Mr. G. K. Lyon the period of time that I would work for the Dodson-Braun Mfg. Co., but Mr. Lyon and myself both agreed that the employment should be from month to month, at a salary of $100.00 per month and expenses.’ This undoubtedly shows an employment from month to month. When the hiring is from month to month each party has the right to terminate it at the end of the month; but after another month has begun to run, as is shown by the evidence in this case, neither can terminate it without consent of the other until the month then running has elapsed. Young v. Lewis, 9 Tex. 73; Jones v. Vestry of Trinity Parish (C. C.) 19 Fed. 59; Addison on Contracts, See 886.”
Labatt, supra, at the end of Sec. 164, after an ex*245tended discussion of tlie subject now under consideration, both in England and in the United States, and distinguishing between servants of a superior and those of an inferior grade, says: “ For practical purposes indeed it may be said that a contract under ^Mcli a servant is to be paid a certain rate of wages measured by the-week, fortnight, or month, would almost invariably be understood as binding the master by implication to pay the wages at the end of each week, fortnight, or month.”
The authority last cited, at Sec. 168, upon the question under consideration, also says: “The American decisions, so far as they go, betoken the adoption of a general rule to the effect that a stipulation for the payment of wages at certain regular intervals shorter than a year should, in the absence of countervailing evidence, be construed as importing that the duration of the contract is the length of the period between two of the payments.”
In my opinion the facts disclosed by the records constitute a contract of hiring for the entire month of November for the gross sum of fid, and, inasmuch as the services, identical in kind, were continued, without any break in continuity — -without any change or modification — into the month of December, the presumption of fact, as well as of law, is, to my.mind, conclusive that the parties intended the hiring to cover and include the entire month of December upon the same terms, and that the plaintiff was, accordingly, entitled to judgment for the sum of fid against each of the defendants.