It has been held, that a master who uses due care in the selection and employment of his servants, is not responsible to one of them for an injury received from the carelessness of another while employed in the master's service. (y) And the rule has been applied to the case where the party injured was not the servant of the defendants, but was, at the time of the injury, voluntarily assisting their servants. (z) But where the servants, though employed upon common work, are in the employment of different masters, and for separate ends, as in the case of a servant of a carrier injured by the negligence of a merchant's porter, in the process of delivering goods from a warehouse on board a dray, to be transported by the carrier for the merchant, the master of the negligent servant will be responsible to the other servant for the injury. (a) The employer will be held responsible to a servant injured by the act of a fellow-servant, if the injury was caused by the fellow-servant's using insufficient or unsafe materials which were supplied to him by the employer. (b) If the master has a general manager who employs the servants, standing in the place of the master, he is to be treated as the agent of the master, and not as a co-servant, and if he does not hire careful servants the master is liable as if he hired improper servants himself. (c) The master is under no legal obligation to give a testimonia passageways, or ladders, necessary to be used by the employee in going to or returning from his labor. See also, Ormond v. Holland, 96 Eng. C. L. 102. (y) Farwell v. Boston & Worcester R. R. Co. 4 Met. 49; Priestley v. Fowler, 3 M. & W. 1; Brown v. Maxwell, 6 Hill (N. Y.), 594; Hutchinson v. York, Newcastle and Berwick Railway Co. 5 Exch. 343; Wigmore v. Jay, id. 354; Tarrant v. Webb, 18 C. B. 797. See also, Skipp v. Eastern Counties R. Co. 9 Exch. 223; Hubgh v. New Orleans Railroad, 6 La. An. 495; Ryan v. The Cumb. Valley Railroad Co. 23 Penn. St. 384; Coon v. Syracuse & Utica Railroad, 1 Seld. 493; Sherman v. Rochester & Syracuse Rail road, 15 Barb. 574; Albro v. Agawam Canal Co. 6 Cush. 75; Shields v. Yonge, 15 Geo. 349; Mitchell v. Penn. R. R. Co., Amer. Lw Register, Oct. 1853, p. 717; Honner v. Illinois Central Railroad Co. 15 Ill. 550; The Ohio and Miss. R. R. Co. v. Tindall, 13 Ind. 366; C. & X. & L. M. R. R. Co. v. Webb, 12 Ohio St. 475; Illinois Central R. R. Co. v. Cox, 21 Ill. 20; Hard, Adm'r. v. Vt. & Canada R. R. Co. 32 Vt. 473; Contra, Little Miami Railroad Co. v. Stevens, 20 Ohio, 415; Cleveland, Colum. & Cincin. R. R. Co. v. Kearney, 3 Ohio St. 201; Manville v. Cleveland & Toledo R. R. Co. 11 Ohio St. 417; Chamberlain v. Mil. & Miss. R. R. Co. 11 Wis. 238, and the Scotch case of Dixon v. Ranken, 20 Law Times, 44. (z) Degg v. Midland R. Co. 1 H. & N. 773. See also, Vose v. Lancashire & Y. R. Co. 2 H. & N. 728. (a) Abraham v. Reynolds, 5 H. & N. 143. (b) Roberts v. Smith, 2 H. & N. 213. (c) Walker v. Bolling, 22 Ala. 294. of character to his servant. If he does, it will be presumed that he speaks the truth, or what he believes to be true; and therefore if he says what injures the standing and prospects of the servant, and this turns out not to be true, the master is nevertheless not liable, unless the servant can prove that the falsity was uttered in malice. (d) Such is the English rule; but it may be supposed that in this country, if the master is proved to have said what is untrue, he would be responsible for any injury arising therefrom to the servant; at least unless he could satisfy the jury that he spoke from sufficient cause, and not from malice. In order to constitute a contract of hiring and service, there must be a mutual engagement, on the one part to serve, and on the other to employ and pay. (e) But these engagements cannot always be implied one from the other, or measured one by the other. If a servant agrees to serve for a term of two years, and the master only agrees to pay so much weekly, the master is under no obligation to keep or employ him during the two years, but only to pay so much while he does employ him. (f) But where the contracts are mutual, and cover (d) Rogers v. Clifton, 3 B. & P. 591; Edmonson v. Stephenson, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110. (e) See Sykes v. Dixon, 9 A. & E. 693, where B. contracted in writing to work for the plaintiff in his trade, and for no other person, during twelve months, and so on from twelve months to twelve months, until B. should give notice of quitting. Held, that such agreement was invalid under the statute of frauds for want of mutuality. (f) In Williamson v. Taylor, 5 Q. B. 175, by an agreement between the defendant and plaintiff, the defendant, being the owner of a colliery, retained and hired the plaintiff to hew, work, &c., at the colliery, for wages at certain rates in proportion to the work done, payable once a fortnight; and the plaintiff agreed to continue the defendant's servant during all times the pit should be laid off work, and, when required (except when prevented by unavoidable cause), to do a full day's work on every working day. Held, that the defendant was not obliged by this contract to employ the plaintiff at reasonable times for a reasonable number of working days dur Each ing the term. In Aspdin v. Austin, 5 Q. B. the same ground, for both parties, then the master has at once a right to require the servant to enter upon the discharge of his duty during the term, and the servant has a right to require the master to employ him during the whole of the term. Like other agreements, a contract for labor and service, if not to be performed within a year, is within the statute of frauds, and if by parol, is wholly void. (g) And if the contract of service is begun within a year from the making of it, but is not by the terms of the agreement to be completed within that time, it is within the statute and void. (h) It must be certain, however, from the terms of the contract, or be necessarily implied therefrom, that the contract cannot be performed within a year, or it will not be void. (i) This subject will be, however, ton v. Scott, 15 M. & W. 657; Elderton v. Emmens, 6 C. B. 160; Rust v. Nottidge, 16 E. L. & E. 170, s. c. 1 E. & B. 99; Regina v. Welch, 20 E. L. & E. 82; s. c. 2 E. & B. 357. (9) Bracegirdle v. Heald, 1 B. & Ald. 722. In this case the contract was by parol on the 27th of May, for a year's service from the 30th of June following, and was held void. See also, Snelling v. Lord Huntingfield, 1 C. M. & R. 20; Hinckley v. Southgate, 11 Vt. 458; Tuttle v. Swett, 31 Me. 555. (h) Id.; and see Pitcher v. Wilson, 5 Mo. 46; Drummond v. Burrell, 13 Wend. 307; Squire v. Whipple, Vt. 69; Birch v. Earl of Liverpool, 9 B. & C. 392. (1) A parol agreement to labor for a company "for the term of five years, or so long as A shall continue to be agent of the company," is not void under the statute, as it might have been completed within a year, although in some contingencies it might extend beyond a year. Roberts v. Rockbottom Company, 7 Met. 47. This construction of the statute is supported also by the cases of Kent v. Kent, 18 Pick. 569; Peters v. Westborough, 19 Pick. 364; Wells v. Horton, 4 Bing. 40. -In Broadwell v. Getman, 2 Denio, 87, it was held, that a parol agreement which is not wholly to be performed within one year, is void, though some of the stipularions are to be executed within the year. And, semble per Beardsley, J., it is void although one of the parties is to perform every thing on his part within the year, if a longer time than a year is stipulated for the performance by the other. But in Cherry v. Heming, 4 Exch. 631, it was held (affirming Donnellan v. Read, 3 B. & Ad. 899), that in the 4th section of the Statute of Frauds the words "not to be performed within the space of one year," mean, not to be performed on either side," and that the contract in question having been performed on one side within a year from the making thereof, the case was not within the statute. - So in Herrin v. Butters, 20 Me. 119, the law on this subject is thus laid down; where by the terms of a contract the time of its performance was to be extended beyond a year, it is within the statute of frauds, though a part of it was by the agreement to be performed within a year. To bring a case within the statute of frauds, it must have been expressly stipulated by the parties, or it must, upon a reasonable construction of their contract, appear to have been understood by them, that the contract was not to be performed within a year. A. G. B. contracted in writing with S. to clear eleven acres of land in three years from the date of the contract, one acre to be seeded down the (then) present spring, one acre the next spring, and one acre the spring following; as a compensation for which, he, A. G. B., was to have all the proceeds of said land three years, except the two acres first seeded down. A. G. B. assigned verbally his interest to the extent of half the contract, to H., who verbally considered more fully in the second part of this work, in the chapter upon the statute of frauds. A nice distinction is taken in some cases between the presumptions which arise where service is rendered to a stranger, and where it is rendered to near relations. In general, whereever service is rendered and received, a contract of hiring, or an obligation to pay will be presumed. (j) But it is said not to be so where the service is rendered to the parent or uncle, or other near relative of the party, on the ground, that the law regards such services as acts of gratuitous kindness and affection. We find American authorities which recognize this distinction, and particularly where it grows out of the relation of parent assigned said half to C. B.; said H. and C. B. respectively agreeing verbally to perform one half of the contract. A. G. B. and C. B. commence the performance of the contract but do not complete it. S. sues A. G. B., and recovers damages for non-performance, which are paid by A. G. B., H. being called upon by A. G. B. for half of the damages so recovered and paid, pays the same to him; and then commences a suit for the same against C. B.it was held, that the contract between them (H. and C. B.) was void by the statute of frauds, and that he was not entitled to recover.- See also, Roberts v. Tucker, 3 Exch. 632. (j) Phillips v. Jones, 1 A. & E. 333, Lord Denman. See Peacock v. Peacock, 2 Camp. 45; Waterman v. Gilson, 5 La. An. 672. In Newel v. Keith, 11 Vt. 214, it is said, that if personal services are rendered by A to B at the request of the latter, an action will lie for them, unless it appears from the whole evidence that they were designed to be gratuitous; and this is a question of fact. So where one person has by fraud induced another to labor for a third person, the latter may still be liable for the work. Lucas v. Godwin, 3 Bing. N. C. 737. In Peter v. Steel, 3 Yeates, 250, it was held, that assumpsit would lie in favor of a free negro, for work, labor, and service, against a person who held him in his service, claiming him as a slave. The court laid down the general principle that, where one by compulsion does work for another, whom he is ander no legal or moral obligation to serve, the law will imply and raise a promise on the part of the person benetited thereby to make him a reasonable recompense. So in Higgins v. Breen, 9 Mo. 497, it was held, that where a married man represents himself to be a widower and thus induces a woman to marry him, his wife being still alive, such woman may recover of him for her services during such time as she may live with him.-And generally where labor is performed for the benefit of another without his express request, yet if he knows of the work, and tacitly assents to it, an implied promise will arise to pay a reasonable compensation. James v. Bixby, 11 Mass. 34; Farmington Academy v. Allen, 14 Mass. 172. So where one employs the slave of another, the law implies a promise to pay the master for the services of the slave. Cook v. Husted, 12 Johns. 188. So of an apprentice. Bowes v. Tibbetts, 7 Greenl. 457. But labor and service voluntarily done by one for another, without his privity or consent, however meritorious or beneficial it may be to him, as in saving his property from destruction by fire, affords no grounds for an action. Bartholomew v. Jackson, 20 Johns. 28. So if a workman be employed to do a particular job, and he choose to perform some additional work without consulting his employer, he cannot recover for such additional work. Hort v. Norton, 1 McCord 22. See also, ante, Vol. I. p. 468, et seq. Even if it is agreed between the parties that certain work shall be done gratuitously, such contract is nudum pactum, and the party is not bound to perform it; although it is said that if he once enter upon the performance of such contract, he is bound to complete it. See Rutgers v. Lucet, 2 Johns. Cas. 92, n. (2d ed.). and child. (k) But if a destitute person is received from charity, provided with necessaries and set to work, he is under no obli (k) In Andrus v. Foster, 17 Vt. 556, it was held, that where a daughter continues to reside in the family of her father after the age of majority, the same as before, the law implies no obligation on the part of her father to pay for her services. And the same rule applies to cases where the person from whom the compensation for services is claimed took the plaintiff into his family when she was a child, to live with him till she should become of age, and she continues, after that time, to reside in his family, he standing in loco parentis to her. If she claim pay, it is incumbent on her to show that the services were performed under such circumstances as to justify an expectation on the part of both that pecuniary compensation would be required. The right to compensation for services in such cases must depend upon the circumstances of each particular case. See also, Fitch v. Peckham, 16 Vt. 150; Weir v. Weir, 3 B. Mon. 647; Alfred v. Fitzjames, 3 Esp. 3. In Guild v. Guild, 15 Pick. 130, the law on this point is thus summed up by Shaw, C. J.: "The point is, whether, where a daughter, after arriving at twenty-one years of age, being unmarried, continues to reside in her father's family, performing such useful services as it is customary for a daughter to perform, and receiving such protection, subsistence, and supplies of necessaries and comforts, as is usual for a daughter to receive in a father's family, the law raises any presumption that she is entitled to a pecuniary compensation for such services, and whether, after proving these facts, the burden of proof is on the defendant to show that the services were performed without any view to pecuniary compensation. Some of the court are of opinion that, as it is the ordinary presumption, between strangers, that upon the perform ance of useful and valuable services in the family of another, it is upon an implied promise to pay as much as such services are reasonably worth, so, after the legal period of emancipation, the law raises a similar implied promise from a father to a daughter. Other members of the court are of opinion (confining the opinion to the case of daughters, and expressing no opinion as to the case of sons, laboring on the farm or otherwise in the service of a father) that the prolonged residence of a daughter in her father's family after twenty-one, performing her share in the ordinary labors of the family, and receiving the protection and supplies contemplated in the supposed case, may well be accounted for, upon considerations of mutual kindness and good-will, and mutual comfort and convenience, without presuming that there was any understanding, or any expectation that pecuniary compensation was to be made; that proof of these facts alone, therefore, does not raise an implied promise to make any pecuniary compensation for such services, or throw on the defendant the burden of proof to show, affirmatively, that the daughter performed the services gratuitously, and without any expectation of receiving wages or pecuniary compensation, but with a view to the share she might hope to receive in her father's estate or otherwise." The court were equally divid ed on this question, and did not decide it; but they were unanimous in the opinion, that in all such cases the question must be determined by the jury, on all the circum stances, whether there was an implied re quest for labor, and an implied promise of repayment or not. In King v. Sow, 1 B. & Ald. 179, a female natural child was hired for a year by the wife of its reputed father, and continued doing the household work for three years, but after the first year no wages were paid, nor was there any new contract of hiring. Held, that the sessions were warranted in finding that after that time she did not continuc on the terms of the original contract. And Bailey, J., said: "Where the parties are not related, it may fairly be presumed, from a continuance in the service, that the terms on which they continue are the same as during the preceding year. But where the relation of father and child subsists, the ground for that presumption fails." See to the same effect Dye v. Kerr, 15 Barb. 444; Ridgway v. English, 2 N. J. 409; Swires v. Parsons, 5 W. & S. 357; Defrance . Austin, 9 Penn. St. 309; Steel v. Steel, 12 id. 64; Lantz v. Frey, 14 id. 201; Zerbe v. Miller, 16 id. 488; Resor v. Johnson, 1 Cart. (Ind.), 100; Hussey". Roundtree, 1 Busb. L. 110; Partlow v. Cooke, 2 R. I. 451; Davis v. Goodenow, 1 Williams, 715; Candors' Appeal, 5 W. & S. 513. So an action cannot be maintained for services performed with a view to a legacy, and not in |