DissentiNg- Opinion.
Bermudez, C. J.The plaintiff claims that he was employed by the year, as drummer, by Moriarty & Craft, from the 15th November, 1880, at a salary of $1800, payable monthly.
There are several good reasons why he should not recover.
I.
His alleged contract is not proved. The letter written to him in which the words per year are found was an offer, which was accompanied with a request to come to see the writers to make arrangements. He, himself, says that the terms were to be reduced to writing. The record fails to show that if any were ever entered into, they were thus drawn up. The contract was not consummated.
The argument, based on the fact that he was paid his services at that rate, proves employment, but not the term for which it was to last.
II.
Tacit reconduction, which is the only ground upon which the claim can be made to rest, is expressly provided for by special legislation *683concerning leases of real estate, but it'is nowhere announced by law as applicable to the letting of labor or the hire of services. Commentators, themselves, say that it should not be inferred, unless from the strongest circumstances, justified by usage and custom.
If it be invoked by analogy, then the rules and restrictions prescribed as to the one should be observed as to the other.
In the case of property, the law is that if the tenant continues a week after the expiration of the lease, without opposition by the lessor, the lease will be presumed to be continued, but by the month only.
Why, then, claim that tacit reconduction exists in a case of hire ol labor or industry, and say that if the parties, or either, do not put an end to it formally at the expiration of the term, the contract must be deemed renewed for another year.
The law is positive, that a man may hire out his services only for a certain limited time, or the performance of a specific undertaking — not indefinitely.
Had the law intended that tacit reconduction should exist in cases of hire of labor, as it does it shall in cases of real estate, it would have said so. Silence on that subject induces the inference that it did not enter in the economy of the law that it should.
III.
Be that as it may, the difficulty is aggravated by the very circum stances of the case.
Concede that the contract of hire was entered into as claimed, who were the parties thereto ? 1st. The plaintiff; 2d. Moriarty & Craft, as a firm, not as individuals.
That firm was dissolved before the termination of the year of employment, Moriarty continuing the business.
No doubt the dissolution of the firm could not impair plaintiff’s rights under his contract with it; but it clearly was notice to him that it was to end with the year. After the dissolution, the partners continued bound as though it had not taken place, but for no longer term than the year.
The plaintiff sues to hold responsible, not the firm, not the partners thereof, eo nomine, but a former partner in his individual name.
If the contract which he relies upon be a continued contract, it can only be such between the original parties thereto in the capacities in which they acted at the time.
His claim could not stand against the firm for the second year, as it dissolved before the first year was out. How can the contract be en*684forced against one who was not a party to it, in Ms individual name, unless it has been alleged and shown that it was made the basis of one by the late partner, individually? There is no proof of such new contract for another year, to begin when the first would have expired, on the part of Moriarty. The plaintiff himself alleges that the dissolution occurred on October 1,1881, and that then the contract was renewed by Moriarty. If that be so, thc-n the second year would begin at that date and the defendant should be made to pay only the difference between the $1800 and the salary paid for October and November —added to the one hundred and forty-three dollars with which the plaintiff strangely credits his claim as so much received in advance. The judgment of the lower court, instead of being for $1657, should, at at best, be for $1337 only.
The pretension of plaintiff, under the circumstances of the case, is startling, and if sanctioned inflicts unwarranted loss and injury to an innocent party.
The case is simply that of a clerk employed for a year by a firm, subsequently dissolved before the end of his engagement, who sues individually a former member for a second year’s salary, without any contract on his part, merely because he was retained after the expiration of the first year by such party some fifteen oi’ twenty days.
Diligent search has been instituted here and elsewhere for a kindred precedent and none was found, no doubt because it never entered the mind of even the most rapacious subordinate that such a flimsy or bald pretension couLd be ventured to be built upon such nebulous foundation.
I, therefore, dissent from the opinion and decree.
Behearing refused.