#### James, Respondent, vs. James, Appellant.

*October 9*

October *29, 1912.*

*Contracts: Master and servant: Farming on shares: Joint adventure: Breach: Measure of damages.*

Under a contract whereby plaintiff was to work defendant’s farm for one year and was to be paid for his services by a share of the crops and of the increase of the stock, which provided that the parties should jointly occupy the dwelling house and share certain household expenses, that plaintiff should work out the road tax, should leave certain amounts of cut stove wood on the premises for defendant’s use, and should pay the expense of *79stallion service, and which gave plaintiff the right to control certain matters as to raising crops and stock, materially affecting the probable results of the year’s farming, the relationship of the parties was not strictly confined to that of master and servant, but they were to a certain extent engaged in a joint adventure; and upon a breach by the defendant, preventing plaintiff from completing the cultivation and harvesting of the crop, plaintiff’s damages were properly measured by the value of his share of the crops and of the increase of the stock at the time of such breach.

Appeal from a judgment of tbe circuit court for Fond du Lac county: Chester A. Eowlbb, Circuit Judge.

*Affirmed.*

In 1899, wben tbe plaintiff was about thirteen years of age, be became a member of tbe defendant’s family. There was, so far as appears, no blood relationship between them. Tbe plaintiff was treated as a son and took tbe defendant’s name, but be was not legally adopted by tbe defendant. About December 1, 1908, tbe plaintiff married and brought bis wife to live in tbe defendant’s home. At this time tbe plaintiff entered into an oral agreement with tbe defendant to work tbe defendant’s farm for one year. In March, 1909, tbe contract was reduced to wilting. Tbe plaintiff was to be paid for bis services by a share of tbe crops, a share of tbe products of tbe milk sold, and by a share of tbe increase of tbe stock of the farm.

From time to time there was trouble between tbe parties as to tbe management of tbe farm, and on July 9, 1909, in an altercation of this character, tbe defendant ordered tbe plaintiff from tbe premises. Tbe plaintiff left tbe farm with bis wife and went to tbe home of bis wife’s parents. On July 12, 1909, tbe defendant requested the plaintiff to return to tbe farm to complete tbe contract. This tbe plaintiff declined to do.

In December, 1909, tbe plaintiff began this action to recover bis damages because of defendant’s breach of tbe contract. He reduced bis demand by $100, tbe amount be bad *80been able to earn between July 9, 1909, and December 1, 1909. For a second cause of action be asked judgment for the value of services rendered the defendant after he became of age and before the contract in suit was made.

The referee found that the plaintiff was not entitled to compensation for services rendered by him after he became of ■age and before the making of the contract in suit, because the services were rendered by the plaintiff in the position of son to the defendant, that the plaintiff had lived at defendant’s home as a member of the family and had received all his necessaries, and that the services rendered were gratuitous. He also found that on July 9, 1909, when the contract was 'breached, the plaintiff was entitled to damages in the amount which was the value of his share of the proceeds of the farm on that day and which he had not theretofore received as his share from milk sold.

Judgment was awarded by the court in accord with the Fndings of the referee for the value of plaintiff’s share in the •crops 'and the increase of stock on July 9, 1909. This is an appeal from the judgment so rendered.

For the appellant there was a brief by *Earl P. Pinch,*attorney, and *II. E. Swell,*of counsel, and oral argument by *Mr. Swell.*

For the respondent the cause was submitted on the brief of W. *J. Eorillees,*attorney, and W. *J■ Neville,*of counsel.

SiebecKeb, J.

The referee and trial court treated the complaint as alleging a demand for damages for breach of the agreement by the defendant and held that the measure of plaintiff’s damages was the value of his share of the crops and increase of the stock at the time of such breach of agreement. The appellant assails this determination of the rights of the parties upon the ground that the plaintiff’s demand in the action and the judgment awarded him is upon a *quantum meruit.*We are persuaded that this contention is not the cor*81rect interpretation of tbe nature and tbe result of tbe action. Tbe relationship of tbe parties springing from some of tbe features of tbe contract bas been likened to that of master and servant, but there are other features not strictly within tbe relation of master and servant, such as plaintiffs duty to pay, by working on tbe highways, tbe road tax on tbe premises, and bis obligation to leave certain amounts of cut stove wood on tbe premises for tbe defendant’s use, and to pay tbe expense of stallion service; and also the provision that both parties should jointly occupy tbe dwelling bouse on tbe premises and share tbe cost of certain household expenses during tbe contract term. We are of opinion that tbe trial court very properly held that tbe relationship of tbe plaintiff and the defendant under this contract was not strictly confined to that of master and servant, and that by reason of some special features of tbe agreement tbe contract “partakes somewhat of tbe nature of an adventure, entitling tbe party to a chance in tbe profits or benefits derivable therefrom.” *Bowers v. Graves & V. Co.*8 S. Dak. 385, 66 N. W. 931; *Taylor v. Bradley,*39 N. Y. 129. See, also, *Cull v. Sam, Francisco & F. L. Co.*124 Cal. 591, 57 Pac. 456; *Lanyon v. Woodward,*55 Wis. 652, 13 N. W. 863.

It is to be observed • that tbe features to which we have called attention create contractual obligations in addition to those providing a compensation for plaintiff’s time, as is usual in tbe ordinary contract for services. Erom these it appears that tbe plaintiff bad tbe right of electing to raise colts on tbe farm and of otherwise controlling affairs on tbe farm, as to raising crops and stock, which materially affected tbe extent and probable result of tbe year’s farming enterprise and measurably controlled tbe value of tbe proceeds of bis contract. We are persuaded that tbe referee correctly found that tbe defendant breached the contract on July 9, 1909, before it expired on December 1st, following, and that such breach caused plaintiff damages, since be was thereby pre*82vented from completing tlie cultivation and harvest of the growings crops and from receiving the benefit of his interest in the increase of the stock, of which the defendant had deprived him by compelling plaintiff and his wife to leave the farm. Under these circumstances the plaintiff’s damages would be the value of his share of such crops and increase in stock at the time of the breach. The referee ascertained this damage so far as the evidence adduced established it. This, in our view of the case, was a proper mode of fixing the amount of damages suffered by plaintiff on account of defendant’s breach of contract, and determined the value of the contract to plaintiff at that time.

Since the damages awarded were not based on the ground of discharge before expiration of an employment contract for a definite time, there could be no claim for" damages for constructive services, and the question of plaintiff’s obligation to hold himself in readiness to perform cannot arise and need not be considered.

The court properly awarded judgment in plaintiff’s favor on the report of the referee.

*By the Court.*— Judgment affirmed.