dissenting.
The jury found, under instructions not excepted to by defendant appellant, that the plaintiff was employed by defendant to sell machinery for the* term of a year, beginning on the first day of February, 1901, at a salary of $7 5 per month. On the 20th April, the defendant discharged the plaintiff, but offered to pay him his salary for that month. This action was brought to recover the balance of the salary up to the 15th October, when the plaintiff received other employment. It is not denied that on the 13th of February the defendant sent out to the plaintiff, by mail, a lot of self-addressed postal cards, with instructions to the plaintiff to write daily reports as to where he might be, and also to send in a weekly expense account in the books which had been sent to the plaintiff for that purpose. They were reasonable instructions and requirements, and the plaintiff ad*445mits that if another agreement, and a different one, had not been made, or at least if those instructions had not been subsequently waived by the defendant, his discharge would have-been lawful. But he contends that such waiver was made, impliedly at least, by a subsequent and different arrangement made between the defendant and himself. He * introduced a letter of date the 20th February, written by himself in answer to that of defendant of date the 13th of the same month, in which he said: “Yours of the 13th to hand and' contents carefully noted. Referring tovexpense account, would-say that I have always kept my expense account in a plain blank book, and at the end of each month transfer it to a sheet, take a copy in letter book and send it in. I have done this-with all the concerns I have ever travelled for, and I find it inore satisfactory for them and far more so for myself, as I have an exact copy of every item. Whereas, if I send it every week in the book, T will either have to keep two books-01 be without any record for myself. I think when I send in my report for this month you will agree with me. The same way about letter-writing. I like to keep a copy of everything of importance, but in future will try to keep you better posted as to my whereabouts. Rest assured I will always look after your interest. I will be glad if you will give me some information. as to prices per ton on oil-mills. While I have no orders for you thus far, I am satisfied we will have a good trade. I will be around Charlotte for several days. Hoping this will be satisfactory, I am,” etc. And the plaintiff further testified that he made monthly statements according to the tenor of his.letter, on the first days of March, April and May, and that the defendant received the same without objection or exception. On the 15th of March, however, the-defendant wrote to the plaintiff as follows: “We have written you at different times in regard to hearing from you daily, and sent you self-addressed postal cards, and respectfully in*446sist on tlie same having your attention. We bear very seldom from you, and know very little of what you are doing, all of which is very unsatisfactory.” Up to the 15th of March, then, there was no change in the instructions which had been given to the plaintiff when he was first employed, to the effect that he would write daily as to where he might be, and the plaintiff was on notice that he would be required to comply with that request. Afterwards, the plaintiff failed to make such daily reports as were required, and on the first of April a monthly one was made, according to the plaintiff’s letter of the 22d of February, which the defendant received, and to' which it made no objection. That the plaintiff was not dismissed immediately upon the making of the report of April 1, but was retained in the defendant’s service after-wards, was not a waiver of the right to' discharge, but his retention under such circumstances was evidence amounting to a presumption of waiver, and unless it was rebutted by facts sufficient to show a reasonable cause for the delay in dismissing. the plaintiff at an earlier day, it was the duty of the Court to instruct the jury that there was a waiver. -Wood on Master and Servant, Secs. 121 and 123 ; Rogers on Domestic Relations, Y60.
The defendant offered no evidence on that point, and his Honor gave a proper instruction when he told the jury that ’if the plaintiff failed to' comply with the defendant’s instructions to him as to the daily reports and monthly report, or either of them, the defendant had the right to discharge him, and they should answer the third issue (Did the defendant wrongfully discharge the plaintiff?), “No,” unless they found that the conduct of the defendant was such as to make the plaintiff reasonably believe that the instructions were not relied on; in which case there was a waiver by the defendant of compliance with the instructions.
The other exceptions are embraced in the one to that part of *447the charge I have thus discussed, and I see no error in the instructions upon which they were made.