#### FREDERICK STEED v. DANIEL M‘RAE.

Tlie forfeiture imposed upon an overseer by the act of 1741 *(Rev. ch.*35, sec. 22,) for leaving Ms employer’s service during the time for -which he was employed, does not attach to a case where by the stipulations of the parties, the overseer may leave, or the defendant may discharge him, at pleasure.

A contract for service as an overseer, in which it is stipulated that the overseer may leave his employer’s service, or the employer may discharge the overseer, at pleasure, will be construed, so as to give the overseer a *pro rata*compensation during the time he may serve.

This was an action of assumpsit brought by the plaintiff to recover the value of a share of the crop raised, in the year 1832, upon the defendant’s farra, where the plaintiff was employed as overseer. Upon the trial at Montgomery, on the last circuit, before his Honor J udge Norwood, it appeared that the plaintiff had contracted with the defendant to serve him as overseer, during the year 1832, for which defendant was to pay him one hundred and twenty-five dollars, or a certain share of the ¡crop, at the election of the plaintiff; and it was stipulated [between the parties, that either of them might put an end [to the contract at any time he might think proper, viz., *436that the plaintiff might leave the defendant’s employ, or the defendant might discharge the plaintiff, at pleasure. It appeared further, that the plaintiff commenced his services as overseer on the first day of January of that year, and that he remained upon the farm until the crop had been made, housed, and ready for market; but on the I5lh of December, he apprised the defendant of his intention to leave his service, and accordingly did leave before the end of the year. There was also some evidence showing that the defendant had another farm at which he had one Duncan M‘Rae as overseer, and that the hands on the two farms were sometimes seen exchanging work. Upon this testimony, the defendant’s counsel contended 1st, That the plaintiff was barred from recovery by the act of 1741 *(Rev. ch.*35, sec. 22,); and 2dly, That there was no contract between the defendant and plaintiff only, but that the contract was with the two overseers jointly as partners. His Honor overruled the first objection, and charged the jury that there was no evidence to support the second; whereupon a verdict was rendered for the plaintiff; and the defendant appealed.

*435June, 1836.

*436No counsel appeared for the defendant.

*Mendenhall,*for the plaintiff

Daniel, Judge.

— The *act*of 1741 *(Rev. ch.*35, sec. 22), declares, that if an overseer shall depart from the service of his employer before the time mentioned in his agreement or contract shall be expired, he shall for such offence forfeit his right and title to his wages or share of the produce. The plaintiff in this case did leave the service of the defendant about fifteen days before the end of the year, during which he had contracted to act as overseer. But it was stipulated by the parties to the agreement, that the plaintiff might leave the defendant’s employ, or the defendant might discharge the plaintiff, when either of them saw proper to do so; therefore the forfeiture under the act of 1741, was not incurred by the plaintiff’s leaving] the defendant’s farm before the expiration of the year, j The forfeiture seems to have been guarded against by the very terms of the contract. The case does not state what] *437was to be the effect, provided the overseer left the farm before the expiration of the year: it is obscure on this point. We do not, however, discover any understanding between the parties that the overseer should abandon or relinquish his claim for services in that event. We are induced to construe the contract (as we gather it from the case) to be, that the overseer might leave the farm, or his employer might discharge him, at any time during the year, upon a *pro rata*satisfaction for the time he should continue. A different construction would have enabled the defendant to discharge the plaintiff when the principal part of the labour was over, and so rescind the express contract, and avoid any liability under it, which would be manifestly unjust.

The second objection taken to the plaintiff’s recovery, viz., that the contract was made by the defendant with the plaintiff jointly with Duncan M'Rae, the other overseer, or with them as partners, has not a particle of evidence to' support it; and the Judge was authorised to inform the jury in his charge, that there was no evidence in the case upon that point. The judgment must be affirmed.

Per Curiam. Judgment affirmed.