Doane v. Marquisee
| Citation | 206 P. 426,63 Mont. 166 |
| Decision Date | 17 April 1922 |
| Docket Number | 4714. |
| Parties | DOANE v. MARQUISEE. |
| Court | Montana Supreme Court |
Appeal from District Court, Big Horn County; Charles A. Taylor Judge.
Action by Edward H. Frevert against S. J. Marquisee. From a judgment for plaintiff, for whom C. W. Doane, as administrator of his estate, was substituted on his death, defendant appeals. Affirmed.
Guinn & Maddox, of Hardin, for appellant.
Louis E. Haven, of Hardin, for respondent.
Edward H. Frevert was employed by the defendant to perform work and labor as a tailor, cleaner, dyer, and presser at the stipulated wage of $40 per week and other considerations not here involved. He received the $40 per week each week during the period of his employment, and at its conclusion brought this action to recover for overtime work. It was the contention of plaintiff at the trial--supported by his own testimony--that his compensation under the original contract of employment was based upon a week of six days of eight hours each; that at the special instance and request of the defendant he worked overtime upon the express agreement that he should receive extra compensation therefor. The defendant denied that there was any contract for overtime work, and denied specifically that plaintiff performed any service other than that contemplated by the original agreement. The trial of the cause resulted in a verdict for plaintiff, and from the judgment entered thereon and form an order denying a new trial defendant appealed. After judgment was entered plaintiff died, and the administrator of his estate was substituted as a party.
The complaint was not attacked in the lower court, and the objection now made that it does not state facts sufficient to constitute a cause of action is without merit.
Plaintiff did not set forth directly the terms of the original contract, but he did allege that--
"At the special instance and request of the defendant [he] performed extra work and worked overtime for said defendant over and above the regular hours of work which were eight hours per day," etc.
The allegations of the complaint are to be construed liberally with a view to substantial justice between the parties (section 9164, R. C. M. 1921; Gauss v. Trump, 48 Mont. 92, 135 P. 910), and whatever is necessarily implied in or is reasonably to be inferred from them is to be taken as averred directly. Buhler v. Loftus, 53 Mont. 546 165 P. 601. Although the pleading may be open to the criticism that it is ambiguous or uncertain, the objection to it upon that score was waived by failure to demur specially. Section 9136, R. C. M. 1921.
It is argued that the evidence is insufficient to establish the reasonable value of the extra services for which compensation is sought, but the argument should have been addressed to the jury. Plaintiff testified to the reasonable value of such services, and it cannot be questioned that the evidence was competent. The weight to be given to it was for the jury to determine. In Matoole v. Sullivan, 55 Mont. 363, 177 P. 254, this court quoted with approval from Wigmore on Evidence, as follows:
"It would be a hard rule which would prevent a plaintiff from informing the jury of his own estimate of the value of his services; and the courts seem inclined to impose no terms as to his general familiarity with the class of services; that he had rendered them justifies listening to his opinion." 1 Wigmore on Evidence, § 715.
The rules of law which govern a case of this character are well settled. Whenever the extra work performed is of a character different from that contemplated by the original contract of employment, its performance by the employee and acceptance by the employer will raise an implication that extra compensation was intended therefor. Sowash v....
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