Morton, J.
There was evidence tending to show that the defendant agreed that, if the plaintiff would give up his business, which was that of an enameller, and enter his service in the same occupation, he would furnish him with permanent employment at stipulated wages; that the plaintiff gave up his business, and entered the defendant’s employment and continued therein several months, receiving wages at the rate agreed, when the defendant suspended his employment, and finally ceased altogether to employ him, though he had work of the kind which the plaintiff was to do.
The defendant contends that the contract is too indefinite to be capable of enforcement; that it is within the statute of frauds; that the plaintiff’s agreement to give up his business was unlawful, and therefore the contract is void for want of consideration; and that the action cannot be maintained on the declaration.
To ascertain what the parties intended by “ permanent employment,” it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood. For it fairly may be assumed that the parties used and understood them in that sense. Schuylkill Navigation Co. v. Moore, 2 Whart. 477, 491. Looking at the matter in that way, we think that the words would be commonly understood as meaning that, so long as the defendant was engaged in enamelling and had work which the plaintiff could do and desired to do, and so long as the plaintiff was able to do his work satisfactorily, the defendant would emplo’y him, and that in that sense the employment would be permanent; that is, the plaintiff would be under no necessity of looking for work elsewhere, but could rely on the arrangement thus made. So construed, the contract would be capable of enforcement, and there would be no want of mutuality because the plaintiff might not have bound himself to continue in the defendant’s employment. The construction contended for by the defendant, namely, that it was for him to say whether he needed the plaintiff’s services or not, would put the plaintiff entirely at the defendant’s mercy, and, in view of the fact that the plaintiff was to give up his business to enter the defendant’s employment, would be such an agreement as he could not reasonably have been expected to make. See Russell v. Allerton, 108 N. Y. 288. On the other hand, it would be equally unreasonable to hold that the defendant could have intended to bind himself to employ the plaintiff so long as-they both lived, regardless of his continuing in the enamelling business, or of the plaintiff rendering satisfactory service. The plaintiff does not indeed contend for such a construction. If it is difficult, as the defendant insists that it is, to lay down a rule for estimating the damages arising from the breach of such a contract as we have construed this to be, the difficulty is no greater than exists in many other cases, and does not present an insuperable objection to recovery.
The construction which we have given to the contract disposes of the defence of the statute of frauds. It has been repeatedly held that, if an agreement whose performance would otherwise extend beyond a year may be completely performed within a year on the happening of some contingency, it is not within the statute of frauds. Peters v. Westborough, 19 Pick. 364. Lyon v. King, 11 Met. 411. Worthy v. Jones, 11 Gray, 168. Doyle v. Dixon, 97 Mass. 208. Somerby v. Buntin, 118 Mass. 279. Bartlett v. Mystic River Co. 151 Mass. 433. McGregor v. McGregor, 21 Q. B. D. 424. In this case, to say nothing of other contingencies, the contract would have been completely performed if the defendant had ceased to carry on business within a year.
The contract did not impose an unlimited restraint upon the plaintiff, but at most only restrained him from engaging in business so long as he continued in the employment of the defendant. There was nothing unlawful or against public policy in such a contract. Morse Twist Drill & Machine Co. v. Morse, 103 Mass. 73.
The defendant did not demur to the declaration, and, although his answer raised certain objections to it, he seems to have been content to go to trial on it as it stood. He does not claim that he was misled by it as to the real nature of the plaintiff’s demand, and we do not think that the declaration was so fatally defective as to require the court to instruct the jury that at the stage of the ease at which the request was presented the action could not be maintained. Moor v. Boswell, 5 Mass. 306. Haverhill Loan Fund Association v. Cronin, 4 Allen, 141.
Whether the contract was waived or annulled was properly submitted by the court to the jury, and decided by them adversely to the defendant. It was a question of fact for them to decide.
Kxceptions overruled.