Otten v. San Francisco Hotel Owners Ass'n

DOOLING, J.

Plaintiff’s assignor is an attorney at law. In 1939 he was retained as the attorney for the defendants pursuant to a resolution adopted by defendants’ labor conciliation committee which read in part: 11 That Mr. Lynch be retained under contract from January 1, 1939 until January 1, 1940, at $250.00 per month and these services include any arbitration that might arise during this period.”

After 1939 plaintiff’s assignor, without any express agreement, continued to act as defendants ’ attorney and was paid for his services regularly at the rate of $250 per month until February, 1942, when he was notified that the February payment of $250 was the final payment. Plaintiff’s assignor thereupon gave notice in writing to defendants that his contract was on a yearly basis and extended through the year

1942 and that he was holding himself in readiness to render the services called for by his contract for the balance of the year. This tender having been refused the attorney’s claim was assigned to plaintiff and this action was commenced in

1943 to recover $2,500 at the rate of $250 per month for the remaining ten months of 1942. Judgment went for defendants and plaintiff appeals.

The sole question presented on appeal is whether by continuing the attorney’s employment after 1939, his employment thereafter is presumed to be for the same term specified in the original contract, i. e., by the year.

Appellant relies upon the well settled rule that where a servant after the expiration of the period for which he was first hired has continued to render similar services without explicitly entering into, a new agreement, a presumption arises that he was reengaged for the same term and subject to all the conditions of the original contract. (1 Labatt’s Master and Servant (2d ed.), ch. VII, p. 707 et seq.; 39 C.J. 49-50; 35 Am.Jur. 460; and cases' collected in the notes in L.R.A. 1918C 708 and Ann.Cas: 1918B 1176.)

This rule • is one which, so far as an examination of the cases shows, has been limited to the master and servant rela

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tion. It was crystallized into statute law in this state upon the adoption of the codes in 1872 as section 2012 of the Civil Code, reading: