#### H. F. Laubach, Appellee v. The Cedar Rapids Supply Company, Appellant.

Master and Servant: TERMINATION OP contract: notice: waiver. 1 Where a contract between master and servant provides for termination by either upon thirty days’ notice, and snch notice in writing is given by the master, who at the same time informs the servant that his services may be needed in the future and the servant continues, with assent of the master, in his employ after the expiration of the thirty days, a question for the jury arises whether it was intended to waive the notice and continue the original contract or that the service should continue at the will of the master; and an instruction as a matter of law that a termination of the contract under such notice was waived is error.

Measure of Compensation. Where a servant continues in the em-2 ploy of his master, with his assent, after termination of the contract of hire, the measure of recovery in the absence of a new agreement is controlled by the original contract.

*Appeal from Linn District Court.*— HoN. H. M. KeMley, Judge.

Monday, February 8, 1904.

ActioN to recover compensation for personal services under a contract of employment. Trial to a jury, verdict and judgment for plaintiff, and defendant *appeals.*

Reversed.

*Crissman & Trewin*for appellant.

*Toxis & Haas*for appellee.-'

Deemer, C. J.

Plaintiff and defendant entered into a contract whereby plaintiff agreed to work for tbe defendant for an indefinite period of time at the agreed compensation of $73 per month. It was further agreed that, if either party desired to terminate the contract he should give the other thirty days’ notice thereof, and at the expiration of said thirty days the employment should cease. The contract was *644entered into on tbe 1st day of Hay, 1901, and plaintiff immediately commenced to w.ork for defendant, and continued in its employ until tbe 31st day of August, when be left under tbe following circumstances: On July 15, 1901, tbe defendant wrote plaintiff as follows:

> “Dear Sir: Tours asking for route cards received. I will endeavor to put a few route cards in each letter hereafter, so you will not run out of these cards.

> “I am in receipt of a letter from Mr. Pickering suggesting that I call your attention to tbe fact that according to tbe terms of your contract, that was, that you were entitled to thirty days prior to such time as we may see fit to dispense with your services, and owing to tbe condition of small grain and short trade, probabilities are that we will not need you longer than tbs time necessary for you to complete your contract after this notice; therefore, please consider this a thirty-days notice. Probabilities are, that we may need your services longer than tbe fifteenth of August, but this cannot be determined until later, as it will depend entirely upon tbe condition of trade. I consider that you have done well for tbe time you have been with us, and if tbe season bad been more favorable undoubtedly we would have continued to use you much longer.

Plaintiff, as we have said, continued to work until August 31st, but on August 16th be wrote defendant as follows:

> “If I have to work any length of time after tbe 15th I wish to know it”

Defendant did not immediately respond to this, but on August 29th wrote as follows:

> “Dear Sir: We are compelled to dispense with your services for the present, and inasmuch as you have received notice to this effect some time ago I presume that you are not disappointed. Please send in your final expense account and we will settle with you up to this date. Yours very truly, Tbe Cedar Rapids Supply Company.”

Plaintiff seeks to recover compensation for tbe month of September! Tbe trial court instructed,- in effect, that de*645fendant waived tbe termination of tbe contract under tbe letter of July 15th, by continuing tbe plaintiff in its employ after tbe thirty-days notice bad expired, and tbat plaintiff was entitled to compensation for bis services for thirty days after bis discharge on August 29th.

One other ruling is complained of; and tbat, tbe denial of defendant of a right to prove tbat plaintiff was intoxicated in .the month of June. As this was not given as reason for discharging tbe plaintiff, and as there was no such defense pleaded, this ruling was clearly correct.

Tbe only other question in tbe case is tbe correctness of tbe court’s instruction regarding tbe waiver of tbe alleged termination of tbe contract. For tbe purposes of tbe case, it must be assumed tbat the notice was sufficient to terminate tbe contract, and tbat defendant, if bound at all, is to be held liable by reason of its waiver thereof. It is said tbat defendant bad tbe right either to terminate tbe contract and insist upon tbe forfeiture, or to waive the forfeiture and continue tbe plaintiff in its employ, but tbat be could not do both, and tbat, as there was no new arrangement made, it will be assumed that plaintiff continued to work under bis contract, and could not be discharged in violation of the terms thereof. Further, it is argued tbat, as defendant permitted plaintiff to remain in its employment after knowledge'of the forfeiture without insisting upon it, it waived its right to rely upon tbe termination of tbe contract. The case is not really one of forfeiture, and tbe ordinary rules with reference thereto do not apply; tbat is to say, it is not a case for application of tbe doctrine tbat forfeitures are not favored, and must be clearly established before they will be enforced. Tbe question is purely one of waiver, or, rather, of right to recover on a contract for services not in fact performed. Liability is predicated upon the idea tbat plaintiff was wrongfully discharged before tbe expiration of bis term of service. His contract was terminated, and bis right to insist upon the thirty-days’ notice was fulfilled. Tbe claim now is tbat, by accepting further service from him, the contract was renew*646ed and the forfeiture waived. There is no question that the measure of recovery is limited by the contract price, for no other compensation was named for his services. *Vail v. Mfg. Co.,*32 *Barb.*564; Wood’s Master & Servant (2d Ed.) section 96. But it does not follow that the entire contract is revived, and that all its provisions became operative. It was perfectly competent for the parties to make a new contract with reference to additional services, or for the employer to so word his notice as to indicate that whatever services should be performed after that date should not be considered as a waiver. Waiver has been shortly defined as “the intentional relinquishment of a known right.” Bid defendant, by continuing plaintiff in its employment ior more than thirty days after July 15th, intentionally relinquish its right to claim that it had given the requisite notice to terminate the contract ? We think not. At least, the evidence as to this matter was not of that character to justify the trial court in concluding, as a matter of law, that there was a waiver. Where but one conclusion can fairly be drawn from the evidence on such a proposition as this, doubtless a court is right in deciding the question as one of law. But where reasonable minds may fairly arrive at different conclusions, the question is one for a jury.

Looking now'to the correspondence between the parties, it will be observed that defendant gave plaintiff notice in which it stated, in rather polite terms, it is true, that this was the thirty-days’ notice required under the contract. But it also stated that they might, and probably should, need his services for some time in the future, but that could not be determined until later on. On the 16th day of August the plaintiff inquired as to future services. No answer, other than to continue the plaintiff in the employment, was made until the letter of August 29th, which referred again to the letter of July 15th. Surely a jury might be justified in finding that the original contract was terminated by the notice; and that plaintiff continued in defendant’s employment after that time as a mere favor, and that such employment should *647continué only so long as deféndant bad work for him. Surely it was competent for the parties to malee such an arrangement, and, as the question of waiver is generally one of intention, the ease should at least have gone to the jury on this proposition. The doctrine of election of rights has no application to the case. Here defendant had the right to continue plaintiff in its employment after the termination of the original contract. And if it did so, the contract price, in the absence of other evidence, would fix the measure of recovery. Whether or not the other elements of the contract were revived would, of course, depend upon the intention of the parties, to be gathered from what was said and done throwing light thereon. If there was nothing to indicate that defendant, by allowing plaintiff to continue in its employ, aid not intend to waive the termination of the contract, perhaps a court would be justified in saying that this alone would constitute a waiver. But where, as in this case, waiver is claimed from the fact that the employe continues at the work, and it appears that this is by favor, and to accomplish some particular purpose or object, it then becomes a question, under such facts as are here disclosed, for a jury to determine the intention of the parties.

The court was in error in its instructions, and the case is therefore keveksed.