The opinion
SUTTON, Justice
(dissenting).
It was my purpose on the original disposition of this case merely to have noted the fact that I did not concur in the conclusion the contract creates the relationship of landlord and tenant. This conclusion is reached on the grounds, among others, that the contract contains no terms or phraseology that would indicate it was intended by the parties to be a lease contract. On the other hand, it is styled one of employment. The hospital is a corporation, and what the Sizers undertook to do and agreed to do was nothing more than what some official of the corporation might have done and what had to be done if the institution functioned at all. The contract places upon the Sizers certain duties and responsibilities that had to be assumed by some one. The provision for the payment of $300 monthly is of no special significance or importance. It is stipulated that the money went into a maintenance fund and was used in the maintenance and upkeep of the hospital plant and equipment. This is permissible and in no wise impairs its exemption. Nor is there anything extraordinary about the provision which makes the excess revenues the property of the Si-zers. This arrangement was calculated to secure to the institution a more efficient administration of its affairs and functions and hold out to the Sizers the prospect of an increase of their earnings in excess of what might have
been
stipulated as a fixed salary.
As is stated in the original opinion the case must be determined upon the terms of the contract. It is thought there is no provision in it that would distinguish it as a rental contract rather than one of employment. The interpretation of it by the parties is reasonable and practical, and it beyond question fixes the duties and responsibilities of the parties and from its terms
*433
they may not escape in dealings had between themselves and the public. Had the Sizers incurred obligations in the name of the hospital in the due course of its administration it seems no court could or would have difficulty in fixing liability on the hospital and subjecting its assets to the satisfaction thereof.
Of course, if the Sizers were employees of the hospital then the administration of its affairs was by the corporation. If the excess revenues the Sizers received for their services were in lieu of salary or wag-' es, then there were no profits. Under the terms of the contract it seems to me that is exactly the situation, which is not unusual to permit employees in these modern times to share in the earnings of a concern which is calculated, at least, to make their interest more real and personal.