performance of his work, and if he confines himself to a skillful performance of the work he has contracted to do, he is not responsible for damages which necessarily result from the construction of the work. He can not, however, escape liability merely on the ground that the method of construction was necessary for his own convenience in performing the contract. Now, the contract in this case shows that there was a time limit for its performance, but appellant could not justify itself for damages inflicted solely on account of that feature of the contract. In other words, it could not assume an obligation which of itself would justify the doing of an injury to someone else. If the instruction had been confined solely to the issue as to whether or not the damming of the ditch was an essential part of constructing the work contemplated by the organization of the district, it would have been correct and should have been given. The jury might have understood from it that the mere fact that it was necessary to construct a dam across the Wilson ditch in order to comply with the contract within the time specified constituted a defense." The jury might have found in that case that the damming up of the Wilson ditch was an essential part of the construction of the improvement which the defendant had contracted to perform, and we held, therefore, that it would have been proper to submit that question to the jury. In the present case there is no ground upon which a finding could be sustained that the damming of Tyronza River was a part of the construction of Ditch No. 1 or Ditch No. 40. It was a mere means of transporting the dredge boat from one ditch to another, the two ditches not being continuous or in any way connected together. Even though the engineer of the district obtained the right of way for the dredge boat to pass through the bayou and into Spear Lake, this was done merely for the convenience of the contractor, and the damming of Tyronza River was also for his convenience in supplying water to use in dredging through the bayou. The trial court was, therefore, correct in eliminating that issue from the jury. Nor was there any question of negligence involved in the act, for if the breaking of the dam was the cause of the injury to appellee, who was rightfully using the bank of the stream, the person who constructed and maintained the dam was liable for the damages inflicted, and this is true whether the stream was navigable or nonnavigable. L. R., M. R. & T. Rd. Co. v. Brooks, 39 Ark. 403; St. L., I. M. & S. Ry. Co. v. Magness, 93 Ark. 46; St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297; Taylor v. Rudy, 99 Ark. 128. The only question in the case, therefore, was whether or not the breaking of the dam caused the injury, and that question was settled by the jury upon legally sufficient evidence. It is insisted that the evidence is not sufficient to show that the injury resulted from the breaking of the dam, but after careful consideration we are of the opinion that the jury was warranted in reaching that conclusion from the evidence adduced. There was an unusually heavy rainfall, and the evidence warranted the finding that but for the damming up of the waters the flood would have passed away without reaching sufficient height to wash away the logs piled by appellee on the bank, and that the damming up of the river and the sudden rainfall together caused such a great rush of water when the dam broke that the logs on the bank were washed away. Judgment affirmed. MOLINE LUMBER COMPANY v. HARRISON. Opinion delivered March 26, 1917. CONTRACT OF EMPLOYMENT-DURATION. - Where the matter of duration in a contract of employment is not specified in words, the hiring being at a specified rate or a specific sum per year, the contract will be construed as a hiring for the full year's period. Appeal from Ouachita Circuit Court; C. W. Smith, Judge; affirmed. Gaughan & Sifford, for appellant. 1. The language of the contract constituted a hiring at will and not of employment for a year. It was an indefinite term or period of time and at a certain rate per year and constituted a hiring at will. 64 Ark. 398; 25 L. R. A. (N. S.) 529; 173 U. S. 1; 156 Fed. 241; 18 Id. 703; 69 N. W. 492; 173 S. W. 4; 172 Id. 67; 171 Id. 703; 35 Ark. 156; 43 Id. 184; 15 Id. 444, 477. 2. Incompetency or insubordination on the part of a servant is sufficient cause for dismissal. 26 Сус. 897, 992. 3. The court erred in its instructions. Cases supra. MCCULLOCH, C. J. This is an action instituted by the plaintiff Harrison against his employer to recover wages alleged to be due under a contract which the defendant had broken. The plaintiff alleges that he was employed by defendant Moline Lumber Company to work for the latter as woods foreman for a period of one year at a salary of $1,800.00 a year, payable monthly, and that after working for the defendant for something over three months he was discharged without cause. Plaintiff further alleges that for the greater portion of the unexpired period of the contract he was unable to secure employment elsewhere, and that by reason of the discharge he sustained damages to the extent of the unpaid wages or salary for the remainder of the period. Plaintiff sued to recover the sum of $1,240.00, and on the trial of the case the jury rendered a verdict in favor of the plaintiff for the sum of $749.00. The evidence shows that plaintiff was unable to secure employment for the whole of the remaining period of the alleged contract, but that he did secure employment for a portion of the time, and it is manifest that the jury only allowed for the time during which the plaintiff was actually out of employment. The only question involved in this appeal is whether or not the evidence is sufficient to sustain the finding that there was a contract of employment entered into between plaintiff and defendant to cover a period of one year. There is very little conflict in the testimony on the material points so far as the case is presented here. Defendant, in dealing with plaintiff, was represented by its manager, Mr. W. R. Day, and on a certain day in June, 1914, plaintiff talked with Mr. Day over the telephone from a lumber camp, with regard to employment as woods foreman. Plaintiff's version of the contract was that after a few preliminary remarks passing between them concerning the matter of the work to be done he asked Day "how much the job paid" and that Day replied "the job pays $1,800.00 a year." Day testified that during the telephone conversation described, plaintiff asked him what the job paid, and he replied as follows: "Well, we paid Mr. Goss $1,900.00 a year and I will pay you $1,800.00, at the rate of $150.00 per month, and Mr. Harrison said that is satisfactory." They agree that nothing else was ever said between them concerning the terms of the employment. It was agreed in the conversation referred to that plaintiff was to go to Malvern to see Mr. Day and look over the timber land to ascertain the character of the work and that he went up there to see Mr. Day about a week later and that they went out together to look over the ground, that nothing was said about the terms of the employment. Plaintiff went to work on the 8th of June, 1914, and after working until June 17, he received a note from Mr. Day in the following words: Mr. Harrison: "6-17-14. You should have Mr. Lee to arrange div. of supt. and clerks salaries so as to include your salary at $150.00 per month. W. R. D." There is no proof of custom or usage with reference to the period of employment for this character of service, and we are left entirely to the somewhat indefinite words of the contract to determine whether or not it constituted a contract for a period of service for a year or whether it was merely an employment at will. The question is by no means free of doubt, and the authorities, though very numerous, are sharply conflicting. In a note to the case of Warden v. Hinds, 25 L. R. A. (N. S.) 529, the authorities on the subject are collated, and it is said that the conflict is such as to leave doubt as to which view is better supported. One line of cases holds that "a hiring at so much per year, month, or week is, in the absence of other circumstances controlling its duration, an indefinite hiring only, terminable at the will of either party"; whereas the other line of authorities holds to the view that where the matter of duration of a contract of employment is not specified in so many words, a hiring being at a specified rate per year, month or week imports a hiring for the full period named. The cases are carefully reviewed by the Supreme Court of Massachusetts in Maynard v. Royal Worcester Corset Co., 200 Mass. 1, and the weight of authority is declared to be in favor of the rule that a hiring at so much a year, month or week is, in the absence of any other consideration impairing the force of the circumstances, sufficient to sustain a finding that the hiring was for that period. There are many English as well as American cases sustaining that view, among which the following are cited: Emmens v. Elderton, 4 H. L. Cas. 624; Foxall v. International Land Credit Co., 16 L. T. (N. S.) 637; Buckingham v. Surrey & Hants Canal Co., 46 L. T. (N. S.) 885; Horn v. Western Land Association, 22 Minn. 233; Smith v. Theobald, 86 Ky. 141; Moss v. Decatur Land Improvement & Furnace Co., 93 Ala. 269; Chamberlain v. Detroit Stove Works, 103 Mich. 124; Kellogg v. Citizens Ins. Co., 94 Wis. 554; Norton v. Cowell, 65 Md. 359; Beach v. Mullin, 34 N. J. L. 344; Magarahan v. Wright, 83 Ga. 773. |