The contract of the parties, obliged the defendant to permit his sons to work four months for the plaintiff, at sixteen dollars for each month, to be applied in payment of the mare, which the latter had sold to him. Like all other agree*311ments, it should be executed according to its legal construction,, and it is incumbent upon the defendant to show a performance on. his part, or a sufficient excuse for his failure.
It appeared that the defendant sent his sons to the plaintiff’s house, to labor according to his undertaking; that one of them having a .slight attack of sickness, at night, the plaintiff told them to go home, and that they need not return again at the price he agreed to allow for them; but that one of them could return and work eight months. This conduct was a direct refusal to receive the services of the defendant’s sons on the terms stipulated and a dismissal of them from the plaintiff’s employment. To do this, it was not necessary that actual force should have been employed; a command to cease laboring for the plaintiff, and that they need not return again, at the price fixed by the terms of the contract, furnished an ample apology for the defendant’s failure to perform his undertaking. The latter need not have made another offer of his sons’ services ; but the plaintiff if willing to recive them, should have given notice to the defendant. Whether, in the first instance, in order to put the defendant in default, a demand of performance should have been made of him, we need not inquire, as the sending of his sons to the plaintiff, presupposes such demand, or dispensed with it.
The offer of the plaintiff to permit one of the boys to work for him, double the length of time both were to labor, at the price stipulated for each, was not within the contract of the parties, and without the defendant’s assent, was not obligatory upon him.
It results from what has been said, that the Circuit Court should have charged the jury as prayed; its judgment is consequently reversed and the cause remanded.